Himachal Pradesh High Court
Kamal Kishore vs State Of Himachal Pradesh on 22 March, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 223 of 2010
alongwith
.
Cr. Revision No. 254 of 2010
Reserved on: 16.03.2017
Date of decision: 22.03.2017
1. Cr. Revision No. 223 of 2010
Kamal Kishore ... Petitioner
Versus
State of Himachal Pradesh ... Respondent
of
2. Cr. Revision No. 254 of 2010
Suresh Kumar ... Petitioner
Versus
State of Himachal Pradesh ... Respondent
Coram :
rt
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
1. Cr. Revision No. 223 of 2010
For the petitioner: Mr. M.L. Sharma, Advocate.
For the respondent: Mr. Vikram Thakur, Deputy Advocate
General.
2. Cr. Revision No. 254 of 2010
For the petitioner: Mr. Lovneesh Kanwar, Advocate.
For the respondent: Mr. Vikram Thakur, Deputy Advocate
General.
Ajay Mohan Goel, J.:
These revision petitions are being disposed of by a common judgment as they arise out of the judgment passed in Criminal Appeal No. 23 of 2010 dated 20.10.2010, 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 2vide which, learned Appellate Court while dismissing the appeal filed by the present petitioners affirmed the judgment .
of conviction passed against them by the Court of learned Judicial Magistrate First Class, Barsar, District Una, in Criminal Case No. 32-II-2008/07, dated 29.03.2010, whereby learned trial Court while convicting the accused for commission of of offences punishable under Sections 341 and 354 read with Section 34 of Indian Penal Code, sentenced them to undergo rigorous imprisonment for a period of one year each and to rt pay a fine of Rs.1000/- each for commission of offence under Section 354 read with Section 34 of Indian Penal Code and also sentenced the accused to undergo simple imprisonment for a period of one month for commission of offence under Section 341 read with Section 34 of Indian Penal Code.
2. The case of the prosecution was that on 30.09.2007 at around 11.30 A.M. Smt. Kashmiri Devi, Pradhan Gram Panchayat Ghori Dhabiri telephonically informed police of Police Post Deotsidh that one Asha Devi had been molested and the police was accordingly asked to take appropriate action. On receipt of the said information Rapat Ext. PW7/A was entered by the police, who proceeded to the spot and thereafter recorded the statement of prosecutrix i.e. Kumari ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 3 Asha Devi Ext. PW2/A wherein the prosecutrix reported that she was a student of 9th class in Dhabiri school and on .
29.09.2007 when after she came back from school to her house and after having her meals, she was going to jungle to bring grass where her mother already had gone for bringing grass, at around 04.30 P.M. when she reached Daku of Lahra one motorcycle came from Dhabiri side on which two persons were sitting. Motorcycle was halted when it reached near the prosecutrix and the persons riding the same asked rt the prosecutrix to come ahead and thereafter, they parked the motorcycle at some distance ahead of the prosecutrix. Further as per the prosecutrix, both the persons alighted from the motorcycle and moved towards her. The prosecutrix identified the pillion rider, whose name was Suresh Kumar alias Chuha, resident of Ghori, whereas she was not aware of the name of the other accused who was driving the motorcycle but she identified him by face as he was also resident of at village Ghori. Thereafter, accused Chuha asked her where she was going alone and when she told him that she was going to fetch grass, on this, accused Suresh Kumar wrongfully restrained her and the other accused Kamal Kishore embraced her. Suresh Kumar caught hold of her from ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 4 her arm and started kissing her. On this, prosecutrix cried loudly and one Kashmir Singh Baba, who was grazing the .
cattle in the jungle, reached the spot on hearing her cries. As soon as the accused heard the voice of Kashmir Singh Baba, they fled away from the spot on their motorcycle towards Kalwal side. Further, as per the prosecutrix, she narrated the of entire incident to Kashmir Singh. While Kashmir Singh was taking the prosecutrix to her mother, prosecutrix met her sister-in-law namely Neelama Devi, who was also in the rt jungle. The prosecutrix also narrated the entire incident to her sister-in-law and thereafter her sister-in-law took her to her mother, whereas Kashmir Singh returned back. Further, as per the prosecution, prosecutrix narrated the incident to her mother and after they reached their house, her mother telephonically informed the Pradhan about the occurrence of the said incident who advised them to come next morning as it was already dark. Accordingly, complaint was lodged the next day.
3. On the basis of the said statement of the prosecutrix, FIR Ext. PW9/A was registered against the accused. Pursuant to this, investigation was carried out by the police and in the course of investigation, police took into ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 5 possession the motorcycle being driven by the accused. Police also recorded the statements of the witnesses as per their .
versions including the statements of Kashmir Singh and Neelam Devi.
4. After the completion of investigation, challan was presented in the Court and as a prima facie case was found of against the accused, they were charged for commission of offences punishable under Sections 341 and 354 read with Section 34 of Indian Penal Code, to which, they pleaded not rt guilty and claimed trial.
5. On the basis of evidence led by the prosecution both ocular as well as documentary, learned trial Court held that the prosecution had successfully proved its case against the accused for commission of offence with which they were charged beyond shadow of reasonable doubt by leading cogent, convincing and trustworthy evidence. On these basis, learned trial Court convicted the accused for commission of offences under Sections 341 and 354 read with Section 34 of Indian Penal Code and imposed them the sentence already referred to above.
6. In appeal, judgment of conviction passed by learned trial Court was upheld by learned Appellate Court and ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 6 hence feeling aggrieved, both the accused have filed separate petitions against the judgments of conviction passed .
against them.
7. Learned counsel for the petitioners have argued that there is perversity with the findings recorded by both the Courts below resulting in wrong conviction of the accused.
of As per learned counsel, both the learned Courts below have erred in not appreciating that the prosecution was not able to prove rtits case against the accused beyond reasonable doubt. It was argued by learned counsel for the petitioners that both learned Courts below erred in not appreciating that neither the prosecutrix had proved the case of the prosecution nor the other prosecution witnesses had corroborated the case of the prosecution. As per learned counsel for the petitioners, in the absence of the case of the prosecution having been proved and corroborated on the strength of the testimony of the prosecution witnesses, learned trial Court erred in convicting the accused for commission of offences under Sections 341 and 354 read with Section 34 of Indian Penal Code and learned Appellate Court erred in upholding the said conviction. On these basis, it was urged by learned counsel for the petitioners that the present revision petitions ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 7 be accepted and the judgment of conviction passed against the petitioners by learned trial Court and upheld by learned .
Appellate Court be set aside.
8. Mr. Vikram Thakur, learned Deputy Advocate General, on the other hand has argued that there was neither any perversity nor any infirmity with the findings of conviction of returned against both the accused by learned Courts below.
Mr. Thakur argued that a perusal of the judgment passed by learned trial Court demonstrates that while convicting the rt accused, learned trial Court was not oblivious to the fact that neither the prosecutrix nor few other witnesses had corroborated the case of the prosecution and in fact, they had turned hostile. Mr. Thakur argued that learned trial Court after taking into consideration the testimonies of all the witnesses in its entirety had concluded and rightly so that though few witnesses had turned hostile, however, the statements made in the Court by them during the course of their cross-
examination by learned Public Prosecutor, fully proved and corroborated the case of the prosecution. Mr. Thakur further argued that the contention of learned counsel for the petitioners that simply because the prosecutrix and few witnesses had turned hostile, therefore, the petitioners could ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 8 not have been convicted is meritless because it is settled law that even if the prosecution witnesses turn hostile then that .
part of the evidence of such witness which proved the case of the prosecution can be looked into by the Courts. Mr. Thakur further argued that findings returned in the judgment of conviction passed by learned trial Court and upheld by learned of Appellate Court were duly borne out from the records of the case, hence, there was neither any perversity nor any infirmity with the findings recorded by both learned Courts below and rt accordingly, there was no merit in these revision petitions and the same be dismissed.
9. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgments passed by both learned Courts below.
10. Though this Court is not oblivious to the fact that in the exercise of its revisional jurisdiction this Court is not to reappreciate the evidence, however taking into consideration the contention raised by learned counsel for the petitioners that the judgment of conviction was perverse as the prosecutrix as well as other prosecution witnesses had turned hostile, this Court with the assistance of learned counsel for the parties perused the statements of these witnesses in order ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 9 to conclude as to whether there was any perversity in the findings returned by both learned Courts below against the .
petitioners.
11. Prosecutrix Asha Devi entered the witness box as PW-2. In her examination-in-chief this witness deposed in the Court that on the fateful day after returning back from the of school to her house at around 04.00 P.M. and after having her meals, she started for jungle to bring grass where her mother was already there. She further deposed that when she rt reached near Talai Laida one motorcycle on which two persons were sitting came from the front and when the said motorcycle reached near her the same was stopped and the persons who were riding the motorcycle misbehaved with her. They caught hold of her from her arm and also kissed her. She deposed that she was not aware of the names of the persons who were riding the motorcycle. She further deposed that when she was being molested by the persons who were riding on the motorcycle, she raised hue and cry and her Dada Ji reached the spot whose name she was not recollecting. She further deposed that thereafter, she narrated the entire incident to her Dada Ji and her Bhabi Neelam Devi met her in the meanwhile and she also narrated the incident ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 10 to her. Thereafter, she met her mother in the jungle and she again narrated the entire incident to her mother. As this .
witness was declared hostile witness, she was subjected to cross-examination by learned Public Prosecutor. In her cross-
examination, this witness denied that she had given any statement to the police which was on record as Ext. PW2/A. of She admitted the suggestion that name of her Dada was Kashmir Singh. She also admitted the suggestion that her Dada Kashmir Singh had seen the persons who molested her rt running away from the spot. She also admitted the suggestion that qua the said incident a compromise had been arrived at between the accused and her father. She also admitted the suggestion that she was not deposing against the accused in lieu of the compromise so entered into with the accused by her father.
12. Kashmir Singh entered the witness box as PW-3 and he deposed that on the fateful day between 04.30 P.M. and 04.45 P.M. when he was grazing his cattle, prosecutrix, whose name he did not know, came and when he saw the prosecutrix, he asked her whether she had been molested by two boys who had just run away, on which the prosecutrix came to him crying but told nothing. This witness was also ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 11 declared as hostile and was subjected to cross-examination by learned Public Prosecutor. In his cross-examination, this .
witness admitted that two boys whom he had seen running away on the motorcycle on the fateful day were the accused.
He also admitted the suggestion that accused Suresh Kumar was the pillion rider, whereas accused Kamal was driving the of same. He also admitted the suggestion that the girl had approached him on the fateful day and when she came to him, she was crying. He further admitted in his cross-
rt examination that Suresh was son of Brahma and was known to him.
13. Neelam Devi i.e. sister-in-law of Asha Devi, who entered the witness box as PW-4, deposed in the Court that on the fateful day when she was returning from the jungle after cutting the grass, she met the prosecutrix on the road who was alone and the prosecutrix told her that two boys had molested her but the prosecutrix did not reveal her the conduct of the boys and thereafter, she took the prosecutrix to her mother. This witness was also declared as hostile witness.
14. Mother of the prosecutrix Smt. Savitri Devi entered the witness box as PW-1 and in her cross-
::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 12examination, she deposed that on 29.09.2007, prosecutrix came to her in the jungle where she was cutting the grass at .
around 04.45 P.M. alongiwth her daughter-in-law Neelam and she was crying and the prosecutrix told her that two boys had molested her. This witness also stated that the prosecutrix had informed her that one of the molester was Suresh and of she was not aware of the name of other person. She further deposed that the prosecutrix had told her that Kashmir Singh had met her rt in the jungle and when Kashmir Singh came those two boys ran away. It has further come in her examination-in-chief that the prosecutrix had told her that Suresh Kumar had caught hold of her and the other boy had embraced her and Suresh Kumar had also kissed her. This witness further deposed that after her daughter narrated the entire incident to her she contacted the Pradhan, who asked her to go to the police in the morning and thereafter in the morning they went to the police and reported the matter. She further deposed that the name of the accused was Suresh alias Chuha and whereas the name of the other accused was Kamal Kishore. This witness was subjected to cross-
examination by the defence but nothing could be elucidated by the defence from her testimony to impeach the credibility ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 13 of this witness. It is also relevant to take note of the fact that statement of PW-1 Savitri Devi was recorded on 13.08.2008 .
and on the request of learned Additional Public Prosecutor, proceedings were conducted in camera, whereas the statements of the prosecutrix Asha Devi, PW-3 Kashmir Singh, PW-4 Neelam Devi, was recorded on 02.01.2009 and of that of PW-5 Kashmiri Devi was recorded on 16.02.2009.
15. Pradhan Kashmiri Devi who entered the witness box as PW-5, stated that on the fateful day between 08.00- rt 09.00 P.M., she had received a telephone call from Savitri Devi that her daughter had been molested by two boys of the village i.e. Suresh and his friend and she advised them that application in this regard should be moved in the morning and on the next day i.e. on 30th prosecutrix came alongwith her mother and two other persons, who gave her an application and she handed over the same to the police.
16. Now a perusal of the statements of the above witnesses demonstrates that PW-1 i.e. mother of the prosecutrix and PW-5 Kashmiri Devi, i.e. Pradhan have fully corroborated the case of the prosecution. In this background, when one peruses the statements of the prosecutrix i.e. PW-2 and that of Kashmir Singh PW-3, it is apparent and ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 14 evident that these witnesses have falsely deposed in the Court to protect the accused. Whereas, prosecutrix in her .
examination-in-chief had stated that she was not aware of the name of the persons who molested her or name of her Dada Ji, who reached the spot. However, in her cross-
examination, she admitted the suggestion that name of her of Dada Ji was Kashmir Singh and that PW-3 had seen the boys, who had molested her running away on the motorcycle.
She also admitted in her cross-examination that she was not rt deposing against the accused in the Court in view of the compromise which had been arrived in between the accused and her father. Similarly, PW-3 in his cross-examination admitted that the persons whom he saw running away on the motorcycle were the accused and he had also admitted in his cross-examination that the prosecutrix had approached him on the fateful day and informed him that she had been molested by two boys who were riding a motorcycle.
17. All these factors when taken up together lead to only conclusion that on the basis of material on record it stood established beyond reasonable doubt that on the fateful day, the prosecutrix was in deed molested by the accused.
Therefore, the findings returned to this effect by the Courts ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 15 below while convicting the accused for commission of offences punishable under Sections 341 and 354 read with Section 34 .
of Indian Penal Code are duly borne out from the record of the case and it cannot be said that these findings are either perverse or not substantiated from the material on record placed by the prosecution.
of
18. As far as the contention of learned counsel for the petitioners to the effect that the conviction of the accused was not sustainable as prosecution witnesses had turned rt hostile, it is settled law that simply because a witness has turned hostile, this does not mean that entire testimony of this witness has to be over looked and that part of the statement of such witness which supports the case of the prosecution can always be looked into by the Court. Another contention raised by learned counsel for the petitioner that the entire incriminating material was not put to the accused persons under Section 313 Cr.P.C. i.e. so called compromise entered into between the father of the prosecutrix and them, is also without any merit. This is for the reason that the compromise entered into between the father of the prosecutrix and the accused was not an incriminating material used against the petitioners by the prosecution to ::: Downloaded on - 15/04/2017 22:03:06 :::HCHP 16 convict them but this is a suggestion which was put by the prosecution to the prosecutrix in the course of her cross-
.
examination when the prosecutrix resiled from her previous statement. Furthermore, this suggestion was specifically put to the prosecutrix who in answer to the same deposed in the Court of law that she was not willing to depose against of the accused in lieu of a compromise entered into between her father and the accused.
19. rtTherefore, in view of the above discussion, in my considered view, neither learned trial Court has erred in convicting the accused for commission of offences with which they were charged nor learned Appellate Court has erred in upholding the said judgment of conviction. Therefore, as there is no merit in the present revision petitions, the same are accordingly dismissed. Miscellaneous applications pending, if any, stand disposed of.
(Ajay Mohan Goel),
March 22, 2017 Judge
(BSS)
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