Himachal Pradesh High Court
State Of H.P vs Balbir Singh And Others on 4 May, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 94 of 2008 Reserved on: 26.04.2018 Decided on: 04.05.2018 .
__________________________________________________________ State of H.P. .....Appellant.
Versus Balbir Singh and others. ......Respondents.
__________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting?
__________________________________________________________ For the appellant: Mr. Sudhir Bhatnagar and Mr. Vinod Thakur, Additional Advocates General with Mr. J.S. Guleria and Mr. Bhupinder Thakur, Deputy Advocates General.
For respondents No. 1 to 3: Mr. Peeyush Verma, Advocate.
For respondent No. 4: Mr. G.S. Rathour, Advocate.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/State, laying challenge to judgment dated 21.09.2007, passed by learned Sessions Judge, Shimla, District Shimla, H.P., in Sessions Trial No. 18-S/7 of 2007, whereby the accused/respondents (hereinafter 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 2referred to as "the accused persons") were acquitted for the commission of offences punishable under Sections 363, 366 and 368 of Indian Penal Code, 1860 (hereinafter referred to as "IPC").
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2. The prosecution case proceeds on the basis that on 15.07.2006, Shri Bihari Lal (complainant) reported at Police Station, Chirgaon, that his wife and children used to reside at Rohru. He has two sisters, namely, Smt. Partap Devi and Smt. Ratan Devi. He has further averred that his sister, Smt. Ratan Devi, is married to Shri Mehar Chand and their daughter, prosecutrix (name withheld) is 16 years of age. Smt. Ratan Devi had been divorced by her husband and subsequently she remarried with Shri Partap Singh. The prosecutrix used to reside with him and she studies in 10th class.
Accused Praja Patti also resides in the same village and is married to one Rohit. He has further contended that in the morning of 02.07.2006 the prosecutrix went missing from the house. The complainant inquired about the whereabouts of the prosecutrix from his mother, whereupon he was informed that in the morning she went to bring grass, but she did not return. Despite best efforts, the prosecutrix could not be found and on 13.07.2006 Shri Manoj Kumar, Physical Education Teacher, High School Khabal, informed the complainant that he received a telephonic call from the prosecutrix and she divulged that accused Praja Patti has kept her ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 3 in village Naloti, Anandpur Sahib, with a person and accused Praja Pati has left the place. The police, on the basis of the complaint, so made by the complainant, registered a case and investigation .
ensued. On 16.07.2007, police visited the house of accused Swarn Kuar and the prosecutrix was recovered. The prosecutrix was entrusted in the custody of her maternal uncle (complainant). After conclusion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as eight witnesses. Statements of the accused persons were recorded under Section 313 Cr.P.C., wherein they pleaded not guilty.
Accused Balbir Singh admitted that he has paid Rs. 15,000/- to accused Praja Patti, as marriage expenses he also admitted the recovery of the prosecutrix from his house. Accused Mehanga Singh and Swaran Kaur have also admitted the recovery of the prosecutrix from their house. However, the accused persons did not lead any defence evidence.
4. The learned Trial Court, vide impugned judgment dated 21.09.2007, acquitted the accused persons for the offence punishable under Section 363, 366 and 368 IPC, hence the present appeal preferred by the appellant/State.
5. The learned Additional Advocate General has argued that the learned Trial Court without taking into consideration the ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 4 evidence, which has come on record, and by ignoring the statements of the prosecution witnesses as well as the documents, which clearly establish the guilt of the accused persons, acquitted the accused .
persons. He has argued that the learned Trial Court has ignored the testimonies of PW-1 (prosecutrix), PW-2, Shri Bihari Lal and PW-7, Shri Des Raj. He has further argued that the prosecutrix was minor and her date of birth has been proved on record by PW-7, Shri Des Raj. Conversely, the learned counsel for respondents No. 1 to 3 has argued that even after re-appreciating the evidence, the prosecution has failed to establish the guilt of accused No. 1 to 3 beyond the shadow of reasonable doubt. He has further argued that the learned Trial Court has rightly and correctly appreciated the evidence, so the appeal be dismissed. The learned counsel for respondent No. 4 has vehemently argued that the prosecution has failed to establish the role of respondent No. 4. He has further argued that respondent No. 4 is innocent and has been falsely implicated in the case in hand.
There is no evidence against respondent No. 4, thus the findings recorded by the learned Trial Court are the result of proper appreciation of the material, which has come on record. He has prayed that the appeal, which sans merits, be dismissed.
6. In rebuttal, the learned Additional Advocate General has argued that as the statements of PW-1, PW-2 and PW-7 inspire ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 5 confidence, so the accused persons can be convicted on the basis of their testimonies.
7. In order to appreciate the rival contentions of the parties .
we have gone through the record carefully.
8. In the facts and circumstances of the case in hand, the statement of the prosecutrix is very vital. The prosecutrix was examined as PW-1. She has deposed that her parents have taken divorce and her mother has remarried and used to live in village Diudi. She used to reside in the house of her maternal uncle, Shri Bihari Lal. She has further deposed that her mossi and maternal grand mother also reside with her maternal uncle. As per the testimony of the prosecutrix, on 02.07.2006, at 07:00 a.m., she had gone to orchard for collecting grass and on that day her uncle and mossi had gone to dogri, at village Gumati, for collecting grass. She has further deposed that accused Praja Patti met her at village Sheel and she after asking her took her to Rohru. Accused Praja Patti told the prosecutrix that she had seen a boy for marrying her, who belongs to a reputed family and owns a vehicle. Accused Praja Patti also told her that the boy belongs from Kandaghat, so they came to Kandaghat. As per the prosecutrix, they stayed for a night in a room, but that boy was not there. On subsequent morning, accused Praja Patti took the prosecutrix in a bus to Ropar, Punjab, and they ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 6 went to village Naloti in District Ropar. They went to the house of accused Balbir Singh, where accused Praja Patti had a conversation qua the marriage of the prosecutrix. As per the prosecutrix, accused .
Mehanga Ram and his wife Swarn Kaur were also present there. The prosecutrix did not agree to marry accused Balbir Singh, so accused Praja Patti threatened her. Thereafter, accused Praja Patti took `15,000/- from accused Balbir Singh and left the place. After two-
three days, i.e., on 13.07.2006, on the pretext of making a telephonic call to her friend, the prosecutrix telephoned PTI, Shri Manoj Kumar (PW-3) and divulged the entire incident to him. On 15.07.2006 her maternal uncle came to village Naloti alongwith the police and took her back. As per the prosecutrix, her date of birth is 23.11.1990.
The prosecutrix, in her cross-examination, has deposed that when she alongwith accused Praja Patti was walking towards the house of accused Balbir Singh, they came across many people, but she did not raise any alarm, as the accused had threatened her. She has further deposed that she stayed in the house of accused Balbir Singh for a month and STD booth is at a distance of 4-5 kilometers from there. As per this witness, mobile phone of her maternal uncle was not reachable. She denied that her maternal uncle has falsely roped in accused Praja Patti. During the period of one month, when she stayed in the house of accused Balbir Singh, many persons came to ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 7 his house. As per her testimony, accused Balbir Singh used to leave the house at 09:00 a.m. and he used to return at about 05:00 p.m. and in the night she used to sleep with the mother of accused Balbir .
Singh, who was about 70-75 years. She has also deposed that upon her willingness, accused Balbir Singh took her to STD booth to make a phone call. Accused Balbir Singh gave another telephone number to her for calling. As per the prosecution, she was not subjected to sexual intercourse during the period she remained in the house of accused Balbir Singh. The prosecutrix has deposed that accused Praja Patti told to accused Balbir Singh that she would go to Rohru and bring the date of birth certificate of the prosecutrix and thereafter get the prosecutrix married to him and when accused Praja Patti did not turn up, accused Balbir Singh himself told the prosecutrix to call some of her relatives, so he took the prosecutrix to the STD booth. She has further deposed that when his maternal uncle alongwith the police came there, the mother of the accused voluntarily handed over her custody to her uncle.
9. Now, the statements of other prosecution witnesses are to be examined. PW-2, Shri Bihari Lal (complainant), deposed that parents of the prosecutrix have taken divorce and her mother has remarried. He has further deposed that the prosecutrix used to reside in his house. On 02.07.2006 the prosecutrix went to dogri ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 8 and after that she went missing. Despite best efforts, the prosecutrix could not be found and on 13.07.2006 he was informed by Physical Education Teacher, High School Khabal, that he had .
received a telephonic call from the prosecutrix and she informed him that she has been sold by accused Praja Patti in some village in Ropar. On 15.07.2006, he lodged a complaint in the police station and went to Ropar alongwith the police. On 16.07.2006 the prosecutrix was found in the house of accused Balbir Singh. This witness, in his cross-examination, has deposed that accused Praja Patti's father had land in village Khabal, which was sold by accused Praja Patti. He denied that that land was suitable for him. AS per this witness, the prosecutrix met him after 15-20 days. However, he again stated that after 14 days. He has deposed that he knew that if a person goes missing, a report has to be lodged. He did not know the date of birth of the prosecutrix. The prosecutrix was medically examined and she was not subjected to sexual intercourse.
10. PW-3, Shri Manoj Kumar, Physical Education Teacher, deposed that the prosecutrix was studying in 10th standard in the year 2006 and on 02.07.2006 the school was closed, being Sunday.
From 03.07.2006 the prosecutrix was absent from the school and on 13.07.2006, at about 05:00 p.m., he received a telephonic call from the prosecutrix on his mobile, having No. 9816275999. The ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 9 prosecutrix divulged to him that she has been taken to village Naloti, Anandpur Sahib, by accused Praja Patti and she has been kept with a person. He disclosed these facts to Shri Bihari Lal (PW-2). On .
15.07.2006, at about 09:00 a.m., he received a telephonic call from the prosecutrix and when he tried to contact back, there had been no response from the other side. The mobile number of that mobile was 98164-53047. This witness, in his cross-examination, has deposed that he received a phone call from the prosecutrix, which was made from STD/PCO, as the prosecutrix has herself told this fact to him. He informed Shri Bihari Lal (PW-2) through the phone of Shri Joginder, Shanstri.
11. PW-4, Shri Bhupinder Singh, deposed that accused Praja Patti was in village Khabal prior to 02.07.2006 for 5-6 months and thereafter she was not seen. This witness, in his cross-examination, has admitted that there are about 80 houses in village Khabal and he used to cultivate the land of accused Praja Patti. He admitted that accused Praja Patti took her land back from him. PW-5, Smt. Usha, has deposed that she has accommodation at Kandaghat, near the accommodation of one Gian Chand, and she knows accused Praja Patti. She has further deposed that in the month of July, 2006, accused Praja Patti was accompanied by a girl and from her she took the keys of the accommodation of Gian Chand. As per the ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 10 version of this witness, accused Praja Patti and that girl stayed in the said accommodation and on the next morning they left and handed over the keys to her. Accused Praja Patti also told her that .
she is going to Punjab. This witness, in her cross-examination, has deposed that where she was staying is three storeyed building situated on national highway. PW-6, Shri Bittu Ram, Panchayat Sahayak, Gram Panchayat, Khabal, deposed that upon application, Ex. PW-6/A, which was moved by the police, he prepared Ex. PW-
6/B, copy of pariwar register. He has also issued date of birth certificate of the prosecutrix, which is Ex. PW-6/D. As per this witness, the date of birth of the prosecutrix is 23.11.1990.
12. PW-7, Shri Des Raj, TGT Arts, Government Middle School, Chodoli, has deposed that on application, Ex. PW-7/A, he issued letter, Ex. PW-7/B, qua the date of birth of the prosecutrix.
He has further deposed that he had issued Ex. PW-7/B from Admission and Withdrawal register. As per the record, the date of birth of the prosecutrix is 23.11.1990. This witness, in his cross-
examination, has deposed that he did not verify the correctness of the record and he has issued Ex. PW-7/B only on the basis of entry made in School Admission and Withdrawal register.
13. PW-8, SI Pritam Singh, deposed that on 15.07.2006 Shri Bihari Lal (complainant) reported the matter at Police Station ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 11 Chirgaon, whereupon FIR, Ex. PW-2/A, was registered, which bears his signatures. Subsequently, investigation ensued and on 14.12.2006, through application, Ex. PW-6/C, he obtained date of .
birth certificate of the prosecutrix, which is Ex. PW-6/D, from Panchayat Sahayak, Khabal. He has further deposed that he arrested accused Praja Patti and also recorded the statements of some of the witnesses. As per the testimony of this witness, the investigation in this case was partly carried out by ASI Roop Lal, I.O.
Police Station, Chirgaon. He has identified his signatures. He prepared the spot map, Ex. PW-7/A and has also written application, Ex. PW-6/A, to Headmaster, High School, Khabal, whereby letter, Ex. PW-6/B, was obtained. As per the version of this witness, ASI Roop Lal took the prosecutrix for medical examination, but she refused. He has identified the applications written in his behalf by ASI Roop Ral, which are Ex. PW-7/B and Ex. PW-7/C. He has deposed that ASI Roop Lal got recovered the prosecutrix from village Naloti and memo in this regard is Ex. PW-1/A and the prosecutrix was entrusted in the custody of her uncle Bihari Lal, vide memo, Ex.
PW-1/B. This witness, in his cross-examination, has deposed that he did not inquire from Shri Manoj Kumar (PW-3) that why he did not report the matter on 13.07.2006. He admitted that he did not obtain call record of Shri Manoj Kumar. He feigned his ignorance ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 12 whether in whose presence the prosecutrix was recovered. He did not know whether the statements of the persons living in the neighbourhood of accused Mehanga Ram were recorded or not. As .
per this witness, the prosecutrix was stated to have born in Kullu, but he did not obtain any record qua her date of birth from Kullu, as she was major according to that record. He also did not try to ascertain the date of birth of the prosecutrix from her mother.
14. After thoroughly discussing the testimonies of the prosecution witnesses now the same is to be examined on the touch stone of veracity and it is to be seen that the same inspire confidence or not. As per the prosecution case, the prosecutrix, who was a minor, was enticed away by accused Praja Patti. The prosecutrix was taken away by accused Praja Patti out of the lawful custody of her guardian in order to compel her to marry against her will. It has come on record that the date of birth of the prosecutrix is 23.11.1990, so on the date of incident she was little under 16 years of age. The date of birth certificate, Ex. PW-6/B, which is copy of pariwar register, clearly established the date of birth of the prosecutrix. It has also come on record that the prosecutrix was under-matric, thus in all circumstances she was reasonably educated and well aware of her good and bad. There is not even an iota of evidence which shows that the prosecutrix was forcibly taken ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 13 to Rohru, Kandaghat and then to Ropar. In fact, the presumption that accused Praja Patti might have simply told the prosecutrix that she had seen a bridegroom for her at Kandaghat, so the prosecutrix .
accompanied her, has considerable force and the same cannot be given a go-by. Thus, there is every possibility that the prosecutrix herself accompanied accused Praja Patti and as the prosecutrix was of the age of perception and educated also, she knew that aftermath of going with accused Praja Patti and in fact she voluntarily went with her. Therefore, the allegation that accused Praja Patti enticed away the prosecutrix, out of the lawful custody of her guardian in order to compel her to marry against her will, has no force. So, accused Praja Patti cannot be convicted for the offences, as alleged by the prosecution. The prosecution has failed to establish on record that accused Praja Patti enticed or kidnapped the prosecutrix.
15. In the wake of the fact that the prosecutrix was not enticed or kidnapped by accused Praja Patti and she voluntarily accompanied her to Rohru, Kandaghat and then to Ropar, therefore, the offence under Section 366 IPC is also not established against other accused persons. Now, the only offence, which survives against accused No. 1 to 3, is under Section 368 IPC. The prosecutrix has herself admitted, in her cross-examination, that she used to stay in the house of accused Balbir Singh and his parents ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 14 also used to stay there. As per the prosecutrix, accused Balbir Singh used to leave the house at 09:00 a.m. and he used to return at 05:00 p.m. The prosecutrix has categorically deposed that during her stay .
in the house of accused Balbir Singh, she used to sleep with accused Swarn Kaur, mother of accused Balbir Singh. She has further deposed that accused Balbir Singh himself took her to STD booth to make a phone call, when she expressed willingness to do so. As per the version of the prosecutrix, accused Balbir Singh gave her another phone and told her that she can receive calls on this number, in case she wanted to talk with someone. She has categorically deposed that she was not subjected to any physical assault during her stay in the house of accused Balbir Singh and she was also allowed free movement. It has also come in the version of the prosecutrix that accused Praja Patti returned to Rohru to bring her date of birth certificate and thereafter the prosecutrix was to be married with accused Balbir, but when, for considerable time acused Praja Patti did not return, accused Balbir himself asked the prosecutrix to call her relatives and for that purpose he took her to STD booth. The prosecutrix has admitted that when her maternal uncle alongwith the police came to the house of accused Balbir, accused Swarn Kaur herself voluntarily handed her over to them.
16. In the above backdrop, the most probable presumption is ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 15 that the prosecutrix was not enticed away or kidnapped and she was also not confined in the house of accused Balbir. In fact, the prosecutrix voluntarily stayed in the house of accused Balbir, so as .
to make accused No. 1 to 3 believe that she is major, as only after satisfaction accused Balbir was to marry her. The prosecutrix was free in the house of accused Balbir and accused Balbir himself took her to STD booth to make a phone call to her relatives. So, in view of the above, it cannot be said that the prosecution has established the guilt of the accused persons beyond the shadow of reasonable doubt.
In fact, the prosecution has miserably failed to establish that the prosecutrix was enticed away by accused Praja Patti and she was confined in the house of accused No. 1 to 3.
17. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified.
18. The Hon'ble Supreme Court in T.Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 16 prosecution cannot be said to have proved its case beyond reasonable doubt.
19. In Chandrappa vs. State of Karnataka, (2007) 4 SCC .
415, the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
1. An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of r acquittal is founded.
2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 17 that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the .
trial Court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court."
20. Having tested the entire evidence, including the testimony of the prosecutrix (victim), we are not satisfied with the truthfulness of the story, as portrayed by the prosecution and we find it difficult to come to a conclusion that the case falls under the category of cases in which the accused persons can be convicted. In the case in hand, even the testimony of the prosecutrix does not inspire confidence and what to speak of other prosecution witnesses.
Therefore, the testimony of the prosecutrix raises inexplicable questions, which go unanswered even with the aid of the testimonies of other prosecution witnesses. In all it can be said that the statements of prosecution witnesses are not of sterling quality, capable of inspiring the confidence. Taking into consideration entire facts and circumstances of the case, evidence, including the medical evidence, we are not convinced that the prosecution has been able to prove its case beyond the shadow of reasonable doubt, as such, it is more than safe to hold that the prosecution has failed to prove the ::: Downloaded on - 05/05/2018 22:54:30 :::HCHP 18 guilt of the accused persons beyond all reasonable doubts and the findings of acquittal, as recorded by the learned Trial Court, needs no interference, as the same are the result of appreciating the facts .
and law correctly and to their true perspective. Accordingly, the appeal, which sans merits, deserves dismissal and is dismissed.
21. In view of the above, the appeal, so also pending application(s), if any, stand(s) disposed of. Bail bonds are cancelled.
r to (Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
4th May, 2018
(virender)
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