Himachal Pradesh High Court
State Of Himachal Pradesh vs Kamal Singh & Another on 14 June, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Criminal Revision No.163 of 2008
Date of Decision : 14th June, 2016
.
State of Himachal Pradesh ......Petitioner.
Versus
Kamal Singh & another ...... Respondent.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Rupinder Singh Thakur, Additional
Advocate General.
rt
For the Respondents : Ms. Leena Guleria, Advocate.
Sandeep Sharma, Judge (Oral)
Present Criminal Revision Petition under Section 397, 401 read with Section 482 of the Code of Criminal Procedure, is directed against the judgment dated 1.7.2008, passed by learned Sessions Judge, Hamirpur, HP in Criminal Appeal No.31 of 2007, whereby appeal preferred by the present petitioner has been dismissed being not maintainable.
2. Briefly stated facts necessary for the adjudication of the present case are that the complainant Smt. Bimla Devi, filed a complaint Ex.PW1/A before the Deputy Commissioner, Hamirpur on 15th November, 1999 specifically alleging therein that despite there being specific complaint to the police, police did not take Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:35:01 :::HCHP...2...
any action on the telephonic report of the complainant. The Deputy Commissioner, Hamirpur forwarded the complaint .
Ex.PW1/A to Sub-Divisional Magistrate, Nadaun, who further forwarded the same to SHO Police Station, Nadaun for taking action in accordance with law. Pursuant to direction issued by the Sub-Divisional Magistrate, SHO Police Station, Nadaun registered of FIR Ex.PW6/A. As per story of the prosecution, on 14th November, 1999, at about 7.30 PM, when the complainant had gone to toilet on the back side of the kitchen of her house, accused namely rt Kamal Singh put torch light on the complainant and attacked her and torn her clothes. It is also alleged that when complainant raised hue and cry, Anjana, Sanjay Kumar as well as Bittu and the wife of accused Smt. Kaushalya Devi reached the spot. Smt. Kaushalya Devi, wife of the accused, who was holding danda in her hand started giving beatings to the complainant and hurled abuses to her.
3. As per the case set up by the prosecution when the daughter of the complainant raised hue and cry, the accused fled away from the spot, however, while leaving the spot they threatened the complainant to do away with her life.
Complainant also reported to the police that after incident her daughter telephonically informed the police but police did not take any action and, as such, complainant was forced to file ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...3...
complaint Ex.PW1/A in the office of the Deputy Commissioner, Hamirpur. It also finds mention in the report that accused had a .
quarrel with them on 12.10.1999 about which separate complaint was registered with the police. Subsequently, on the direction having been issued by the Sub Divisional Magistrate, police registered FIR Ex.PW6/A, dated 16.11.1999. After registration of the of FIR, police visited the spot and prepared spot map Ex.PW3/A. Police also took into possession shirt Ex.P1 and broken pieces of bangles Ex.P2, which were produced before the police by the rt complainant Smt. Bimla Devi. Aforesaid articles were taken into possession vide memo Ex.PW1/B in the presence of witnesses namely Smt. Sunita Kumari(PW-5) and Saroj Kumari(PW-2). Police recorded the statements of the witnesses under Section 161 Cr.P.C as per their version. Police after completion of the investigation, prepared the challan and submitted the same before the competent Court of law.
4. Learned trial Court after satisfying itself that a prima facie case exist against the accused persons, framed charges under Sections 447, 354, 504, 506 read with Section 34 of Indian Penal Code against them, to which they pleaded not guilty and claimed trial.
5. In the present case, prosecution with a view to prove its case beyond reasonable doubt examined as many as six ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...4...
witnesses. Statement of accused under Section 313 Cr.P.C was also recorded, wherein they denied whole story of the .
prosecution and stated that they have been falsely implicated in the case. However, they led no evidence in their defence.
6. Learned trial Court after appreciating the material evidence available on record held that the prosecution has of miserably failed to prove its case beyond reasonable doubt against the accused persons under Sections 354, 447, 504, 506 read with Section 34 of Indian Penal Code and accordingly both rt the accused were acquitted of the charges.
7. Feeling aggrieved and dissatisfied with the impugned judgment of acquittal of learned trial Court, present petitioner filed an appeal under Section 374 Cr.P.C in the Court of learned Sessions Judge, Hamirpur, H.P, however, same was dismissed by learned Sessions Judge, as being not maintainable. Learned Sessions Judge, while dismissing the appeal preferred by the present petitioner has held as under:-
"It will noted from the impugned judgment that the accused persons-appellants were facing trial in the court below for having committed offences punishable under Sections 447, 504 & 506 read with Section 34 IPC and Section 354 I.P.C. All such offences are either "non- cognizable" or " bailable". It is provided in ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...5...
Section 378, Cr.P.C that an appeal against the order of acquittal may be presented to the court of Sessions against the order passed by a .
Magistrate in respect of a "Cognizable" and "Non-bailable" offence, and in other cases, the appeal lies in Hon'ble High Court. But, in the case in hand, none of the offences, for which the accused persons-appellants were facing of trial was " Non-bailable" and "Cognizable" All such offences are either " bailable" or Non- Cognizable" or " Non-bailable and " non- rt cognizable". Therefore, the present appeal is not maintainable in the court of Sessions".
8. Hence, the present criminal revision petition.
9. Mr. Rupinder Singh Thakur, learned Additional Advocate General appearing on behalf of the petitioner-State vehemently argued that the judgment passed by learned first Appellate Court is against facts as well as law and hence same deserves to be quashed and set-aside. He contended that learned First Appellate Court while dismissing the appeal on the ground of maintainability has fallen in grave error because learned first appellate Court has failed to take into consideration that in exercise of powers vested under Sub-Section 2 of Section 10 of Criminal Amendment Act, 1932, the Governor of H.P. vide notification No. Home-11(E)S-510/80, dated 6.9.1980, declared ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...6...
the Section 506 IPC committed within the territory of State of HP shall be " non-bailable" and " cognizable". In view of the .
amendment, Section 506 IPC is "non-bailable" and 'cognizable' offence. He further submitted that learned first appellate Court failed to take note of Section 155(4) Cr.P.C, which provides that if one of the offence is cognizable; the case shall be deemed to be of a cognizance case, notwithstanding that the other offences are non-cognizable. He forcibly contended that once offence under Section 506 IPC has been held to be non-bailable and cognizable rt offence, dismissal of the appeal preferred by the present petitioner-State on the ground of maintainability is not tenable and, as such, same deserves to be quashed and set-aside . He further contended that learned Courts below have miserably failed to appreciate ample evidence on record which was sufficient to connect the accused with the commission of the offences and the accused have been discharged on flimsy ground and, as such, grave injustice has been caused to the petitioner and he prayed that the judgments passed by both the Courts below deserve to be quashed and set-aside.
10. Per contra, Ms. Leena Guleria, learned counsel representing the accused-respondents, supported the judgments passed by both the Courts below. She vehemently argued that no ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...7...
Interference, whatsoever, of this Court is required in the present facts and circumstances of the case because judgments passed .
by both the Courts below are based on the correct appreciation of the evidence available on record. During arguments having been made by her, she invited the attention of the Court to the statements of various material prosecution witnesses to of demonstrate the material contradictions and inconsistencies in the depositions made before the Court. She forcibly contended that learned first appellate Court has rightly dismissed the appeal rt of the petitioner-State being not maintainable because bare perusal of Sections 447, 354, 504 and 506 read with section 34 IPC suggest that some of them are cognizable and whereas some are non-cognizable offences. She further submitted that though petitioner- State had not taken specific plea of notification issued by the Government of H.P, declaring the Section 506 IPC non-
cognizable and cognizable offences but even then section 155(4) Cr.P.C is not attracted in the present case solely for the reason that the appeal under Section 378 Cr.P.C can only be filed in the Court of sessions from an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence.
11. I have heard the learned counsel representing the parties and have carefully gone through the record made available.
::: Downloaded on - 15/04/2017 20:35:01 :::HCHP...8...
12. Since Mr. Rupinder Singh Thakur, learned Additional Advocate General has specifically invited the attention of this .
Court to the notification No. Home-11(E)5-510/80,dated 6.9.1980, whereby Governor of Himachal Pradesh in exercise of powers vested under him under Sub-section 2 of Section 10 of Criminal Amendment Act, 1932 has declared that Section 506 IPC of committed within territory of State of Himachal Pradesh shall be non-bailable and cognizable offence, it would be appropriate for this Court to deal with the issue of maintainability at first instance rt before adverting to the merits of the case.
13. It is apt to reproduce section 378 of Cr.P.C :-
"378. Appeal in case of acquittal (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-section (3) and (5),-
(a) The District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and on-bailable offence;
(b) The State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court { not being an order ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...9...
under clause (a)} or an order of acquittal passed by the Court of Session in revision.} .
(2). If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under Delhi Special Police Establishment Act, 1946(25 of 1946) or by any other agency empowered to make investigation into an offence under any Central of Act other than this Code, { the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present in appeal- rt
(a) to the Court of session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b)to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court{not being an order under clause (a)}or an order of acquittal passed by the Court of Session in revision}.
(3). No appeal to the High Court under sub- section (1) or sub- section (2) shall be entertained except with the leave of the High Court.
(4). If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
::: Downloaded on - 15/04/2017 20:35:01 :::HCHP...10...
(5). No application under sub- section (4) for the grant of special leave to appeal from an order of .
acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6). If in any case, the application under sub- section (4) for the grant of special leave to appeal of from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) rtor under sub- section (2).
[
14. Bare perusal of Section 378(a) suggest that an appeal to the Court of Session would lie from an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence.
15. In the present case, accused persons were/are charged under Sections 447, 504, 506 read with Section 34 of IPC and Section 354 IPC. It is apt to reproduce aforesaid sections:-
447. Punishment for criminal trespass.--whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both.(Cognizable & bailable).
506. Punishment for criminal intimidation.--Whoever commits, the offence of criminal intimidation shall be ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...11...
punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; ( Non-cognizable and Bailable).
.
If threat be to cause death or grievous hurt, etc.--And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term of which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which rt may extend to seven years, or with fine, or with both.
504. Intentional insult with intent to provoke breach of the peace.--Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
( Non-cognizable and Bailable).
354. Assault or criminal force to woman with intent to outrage her modesty.--Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. (Cognizable & Non- bailable).
[ ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...12...
16. Admittedly, some of the Sections as referred hereinabove are either non-cognizable or non-bailable offences .
and, as such, no appeal would lie under Section 378 Cr.P.C before the Court of Session. However, at this stage, it would be apt to refer section 155(4) Cr.P.C:-
"Where a case relates to two or more offences of which at least one is of cognizable, the case shall be deemed to be a cognizable case, notwithstanding rt that the other offences are non-
cognizable."
17. Plain reading of Section 155(4) Cr.P.C, clearly suggests that if a case relates to two or more offences, out of which if one is cognizable, the case would be deemed to be cognizable case, notwithstanding the other offences are non-
cognizable, meaning thereby that" if accused is charged with two or more offences and out of which one is cognizable, the entire case could be deemed to be cognizable case despite their being other offences non-cognizable.
18. Now, if the present case is analyzed in the light of Section 378 and 155 Cr.P.C, it clearly emerges that once section 506 IPC, which is admittedly has been declared to be cognizable and non-bailable offence, learned first appellate Court or any other Court was bound to consider the case at hand to be ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...13...
cognizable case, notwithstanding that other offences are non-
cognizable. However, at this stage, if provision of Section 378 .
Cr.P.C is perused, which provides for two stipulation/condition for presenting the appeal before the Court of Session from an order passed by a Magistrate i.e. (i) offence should be cognizable and
(ii) another is non-bailable offence, meaning thereby appeal of would only lie to the Court of Session from an order of acquittal passed by a Magistrate, if the offence is cognizable and non-
bailable. In the present case, accused persons are charged rt under Sections 447, 504, 506 read with section 34 IPC and Section 354 IPC but admittedly few of offences as mentioned above are either non-cognizable or bailable. Now at this stage, if provision of section 155(4) Cr.P.C are attracted/made applicable in the present case, admittedly, all the offences are required to be considered as cognizable offence because admittedly as has been discussed above, Section 506 IPC has been declared cognizable and non-bailable offence. But even then second stipulation, as laid down for filing appeal under Section 378 Cr.P.C remains unfulfilled. Condition precedent for filing appeal under Section 378 Cr.P.C is that offence should be cognizable and non-
bailable. By invoking Section 155(4) Cr.P.C, certainly first condition of 378 Cr.P.C. gets satisfied but second condition remain unfulfilled hence appeal, if any, cannot be held maintainable in ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...14...
the given facts and circumstances of the case. If giving benefit of notification referred hereinabove, wherein Section 506 IPC has .
been declared to be cognizable and non-bailable offence, other offences with which the accused persons have been charged can only be treated as cognizable offence in terms of Section 155(4) Cr.P.C but in that event also two conditions as laid down of under section 378 Cr.P.C, would remain unsatisfied because admittedly few of the offences, as have been referred hereinabove, are bailable and appeal under section 378 Cr.P.C rt can only lie in the court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-
bailable offence. In the present case, taking benefit of Section 155(4), all offences can be deemed to be cognizable offences in view of the notification referred hereinabove, wherein Section 506 IPC has been declared to be cognizable and non-bailable offence. But fact remains that second requirement of filing an appeal under section 378 i.e. non-bailable offence is not fulfilled in the present case, where admittedly few of the offences are bailable offences.
19. Accordingly, in view of the discussion made hereinabove, this Court does not see much force in the arguments having been made by learned Additional Advocate ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...15...
General with regard to the maintainability of the appeal accordingly same is rejected.
.
20. True, it is that this Court has very limited powers under Section 397 of Criminal Procedure Code while exercising its revisionary jurisdiction. It would be apt and in the interest of justice to critically examine the evidence available on record that too of solely with a view to ascertain that judgments passed by learned Courts below are not perverse and same are based on correct appreciation of evidence on record.
rt
21. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon' ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:-
"8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...16...
Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to .
mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide.
However, the High Court must exercise such power sparingly and cautiously when the Sessions of Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of rt justice or misuse of judicial mechanism procedure, sentence or order is not correct, it is or but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order."
22. In the present case, complainant(PW-1) stated that on 14.11.1999, at about 7:30 PM when she was answering the call of nature, accused Kamal Singh appeared and put a torch on her and started scuffling with her, as a result whereof, he broke her bangles and tore her clothes. It has come in her statement that when she raised hue and cry, daughters of accused Anjana Kumari and Sanjana, his son Bittu and his wife Smt. Kaushalya Devi came on the spot. She also stated that accused Kaushalya Devi was holding danda in her hand with which she started giving ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...17...
beatings to her. She also stated in her statement that accused threatened her to do away with her life while leaving the spot of .
occurrence. She also stated that after the occurrence she telephonically informed the police but police did not take any action and, as such, she was compelled to file an application before the Deputy Commissioner. She also stated in her statement of before the police that police visited the spot and took into possession the torn clothes as well as bangle pieces vide memo Ex.PW1/B, on which she appended her signatures. However, in her rt cross-examination, she admitted that there have been litigation with regard to the path with the accused persons for the last 12/13 years. She also admitted that the path is situated on the back side of the kitchen. She also admitted in her cross-
examination that application Ex.PW1/A was written by the SHO and she had disclosed to the police that the accused had dragged her and that fact was mentioned in the application. But during her cross-examination when she was confronted with Ex.PW1/A statement recorded by the police under Section 161Cr.P.C, this fact was not recorded so in her statement recorded by the police. In her examination-in-chief, she stated that during scuffle her bangles were broken, however this fact also does not find mention in Ex.PW1/A. She stated in her cross-
examination that danda blow was given by accused Kamal Singh ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...18...
but she does not remember that how many blows of danda were given to her. She also admitted in her cross-examination that she .
disclosed to the police that she had received injuries but fact remains that this fact does not find mention in her statement Ex.PW1/A recorded by the police. she also stated that there are 5- 6 houses adjacent to her house and at the time of incident it was of dark and accused ran towards the house of Kamal Singh. She stated that since accused ran towards the house of Kamal Singh, she could identify the accused to be Kamal Singh. However, in rt cross-examination, she denied the suggestion that on the basis of doubt she disclosed the name of accused to be Kamal Singh. She also admitted in the cross-examination that she telephonically informed the police herself. In her cross-examination, she also admitted that they want to close the path but lateron denied that she fenced the path on the day of occurrence and when accused removed the same, she hurled abuses to them.
23. PW-2, Saroj Kumari stated that on 14.11.1999 she had come to her parental house. She further stated that when she, her maternal aunt as well as Sunita were sitting in the room, her maternal aunt i.e. complainant had gone to answer the call of nature at 7:30 PM and thereafter they heard cries of the complainant and when they reached on the spot, accused Kamal Singh was giving beatings to the complainant and she was ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...19...
lying on the ground. She also stated that all the bangles of the complainant were broken and her clothes were torn. She .
categorically stated that on seeing them, the accused disappeared from the spot. She also stated in her examination-in-
chief that thereafter the wife of the accused as well as daughters of the accused came on the spot and threatened that they will of do away with their lives. She also stated that Smt. Kaushalya Devi was holding danda in her hand. However, during her cross-
examination, she stated that the accused was giving beatings to rt the complainant with hand and fist blows and this fact was disclosed by her to the police, however, such fact does not find mention in the statement recorded by the police. Similar, deposition made by her that she had disclosed to the police that bangles of the complainant were broken, does not find mention in the initial statement given by her to the police. She in her cross-
examination specifically admitted that accused Kaushalya Devi and Kamal Singh had not given any beatings to the complainant with danda blows. Now, if at this stage, statements given by PW-1 and PW-2 are examined critically, this Court has no hesitation to conclude that there are major contradictions in their statements.
24. Smt. Bimla Devi, PW-1 categorically stated in her examination-in-chief that when accused Kamal Singh appeared and started scuffling with her, she raised hue and cry and then ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...20...
daughters of the accused namely Anjana Kumari and Sanjana, his son Bittu and his wife Kaushalya Devi came on the spot. But, .
she nowhere stated that after hearing her hue and cry, PW-2, Saroj Kumari and PW-5, Sunita Devi came to the spot. Whereas, PW-2, Saroj Kumari in her statement stated that after hearing cries of the complainant they reached on the spot and found that of accused Kamal Singh was giving beatings to the complainant and she was lying on the ground. Similarly, PW-1 stated that accused Kamal Singh had given danda blows but PW-2 admitted rt in her cross-examination that accused Kaushalya Devi and Kamal Singh had not given any danda blows to the complainant.
25. Conjoint reading of the statements given by PW-1 and PW-3, clearly suggest that there are material contradictions in the statements given by both the prosecution witnesses and, as such, same cannot be termed to be trustworthy.
26. Sunita Devi, PW-5 also stated that on 14.11.1999 at about 7/8 PM when she was talking to her parental aunt, whereas her mother had gone to answer the call of nature in their courtyard, thereafter they heard cries of her mother and when they came out, saw that a scuffle was going on between the complainant and the accused. Thereafter, accused pushed her mother and jumped over the wall and ran away. She further stated that thereafter accused started hurling abuses and after ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...21...
hearing the noise, wife of the accused and his daughters came on the spot. She also stated that wife of the accused was holding .
danda in her hand. She categorically stated that when they came inside, they saw that the clothes of her mother were torn.
She stated that police came on the spot and took into possession Ex.P1 and Ex.P2 vide memo Ex.PW1/B. During her cross-
of examination, she admitted that she is serving at Chamba and wife as well as daughters of the accused Kamal Singh were standing on the other side of the wall and were hurling abuses rt from there. She categorically admitted in her cross-examination that they had not entered into their houses.
27. PW-3, SI Rattan Chand also stated that in the year, 1999 he was posted as ASI. He stated that on 18.11.1999, he visited the spot and prepared spot map Ex.PW3/A and had taken into possession Ex.P1 and Ex.P2. He also stated that bangles pieces were put in a parcel and sealed with seal impression 'R' and were thereafter taken into possession vide memo Ex.PW1/B. During his cross-examination, he admitted that he had not recorded the statement of Anjana Kumari and Sanjana. He also admitted that there is no path, which leads to the house of the accused from the back side of the kitchen of the complainant. Now, if the statements of PW-3 and PW-5 are read in conjunction with the statements of PW-1 and PW-2, it can be safely concluded that ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...22...
none of the prosecution witnesses have been specific with regard to the spot of the occurrence as well as presence of family .
member of the accused. All the prosecution witnesses have contradicted the statements of each other. PW-1 stated that when she raised hue and cry, family members of the accused reached the spot, whereas PW-2 and PW-5 stated that after of hearing the cries of the complainant they reached the spot.
Whereas PW-1 has nowhere stated that after hearing hue and cry, her family members reached the spot. PW-2, Saroj Kumari also rt contradicted with the statement of PW-1 with regard to the alleged beatings given to her by the accused Kamal Singh because PW-2 categorically stated that accused Kaushalya Devi and Kamal Singh had not given any beatings to the complainant with danda blows. PW-5, Sunita Devi also stated that none of the family members entered into their house; rather she stated that wife as well as daughter of the accused were standing other side of the wall and were hurling abuses from there.
28. PW-3, S.I. Rattan Chand categorically stated in his cross-examination that there is no path, which leads to the house of the accused from the back side of the kitchen of the complainant. PW-1, Bimla Devi also admitted in her cross-
examination that there are 5-6 houses near her house. Admittedly, in the present case, none of the independent witness from the ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...23...
locality was associated by the prosecution. Admittedly, in the present case, PW-2 and PW-5 are closely related to the .
complainant (PW-1). True it is that testimony of these witnesses cannot be brushed aside solely on the ground that they are related to the complainant. But in the present facts and circumstances of the case where admittedly number of houses of were there adjacent to the house of the complainant, where this alleged occurrence took place, prosecution could always associate independent witness to prove its case beyond rt reasonable doubt. In the present case, it stands duly proved on record that the complainant was not having good relation with the accused as they were having litigation with regard to the path pending in the court. The version put forth by PW-2 and PW-5 being close relative of the complainant cannot be accepted on its face value, in the absence of some independent witness of the locality, which could be easily available given the timing of the occurrence i.e. 7/8 PM.
29. In the present case, PW-1 stated that accused Kamal Singh gave danda blow to her and other accused Kaushalya Devi also gave beatings to her with hands and first blows. But PW-
2 stated that accused persons were giving beatings to complainant with hand and fist blows, whereas PW-5 stated that accused Kamal Singh pushed her mother and thereafter ran ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...24...
away from the spot after jumping over by the wall. The story put forth by PW-5 that accused Kamal Singh after pushing her mother .
jumped over the wall has been not supported by any of the prosecution witnesses. Moreover, PW-5 stated that other accused persons were standing on their own landed property, which was on the other side of the wall. Admittedly, all the prosecution of witnesses have contradicted with regard to the allegations of beatings given to the complainant by the accused. Moreover, no medical evidence worth the name has been led on record to rt corroborate the statement of complainant and other witnesses with regard to the beatings, if any, given to the complainant.
Hence, in the absence of medical evidence, the version put forth by the prosecution with regard to the injuries received by the complainant cannot be accepted at all. As far as recovery of Ex.P1 and PW-2, which were taken into possession in the presence of PW-1 and PW-5 also appears to be doubtful because none of these witnesses stated that Ex.P1 and Ex.P2 were put in a parcel and sealed with seal impression 'R' and thereafter were taken into possession. In the present case admittedly on the face of the evidence available on record, PW-1 and PW-5 have contradicted to the statement of PW-3 and, as such, statements made by these, two witnesses are required to be dealt with great caution and care. Hence, in view of the observations made hereinabove, ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...25...
recovery of Ex.P1 and Ex.P2 from the spot is doubtful and cannot be relied upon.
.
30. PW-1,Bimla Devi in her statement nowhere stated in clear terms that accused Kamal Singh used some criminal force with intent to outrage the modesty of the complainant. She only stated that accused Kamal Singh gave beatings to her but she of nowhere stated in her statement before the Court that her clothes were torn by the accused, rather complete reading of her statement leaves no doubt in the mind of the Court that her rt testimony does not inspire confidence and same does not appear to be trustworthy.
31. Plain reading of Section 354 of IPC reproduced hereinabove suggests that it is essential for bringing accused within the ambit of section 354 IPC, to prove that criminal force is used on any woman that too with an intent to outrage her modesty or in other way whoever assaults or uses criminal force on woman, knowing fully well thereby that he will be outraging her modesty, shall be liable for punishment prescribed under this section.
32. In totality of facts and circumstances of the case, this Court has no hesitation to conclude that the prosecution has not been able to prove its case beyond reasonable doubt and, as such, same has been rightly rejected by the learned trial Court ::: Downloaded on - 15/04/2017 20:35:01 :::HCHP ...26...
below. Consequently, in view of the aforesaid discussion, this Court sees no merit in the present appeal preferred by the .
petitioner-State and the same is accordingly dismissed along with pending applications, if any.
(Sandeep Sharma )
June 14, 2016 Judge.
(shankar)
of
rt
::: Downloaded on - 15/04/2017 20:35:01 :::HCHP