Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 4 November, 2016
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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Cr. Appeal No. 272 of 2014
Decided on: 4th November, 2016
State of Himachal Pradesh .......Appellant
Versus
of
Paramjeet Singh @ Bangu ...Respondent
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
rt
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. Virender Verma, Addl. A.G.
For the respondent: Mr. Gaurav Gautam and Ms. Megha
Kapur Gautam, Advocates.
Dharam Chand Chaudhary, Judge (Oral)
State of Himachal Pradesh is in appeal before this Court. The complaint is that learned trial Court has acquitted the respondent (hereinafter referred to as the 'accused') of the charge under Sections 341, 323, 506 and 376 read with Section 511 of the Indian Penal Code vide judgment dated 11.03.2014 passed in RBT Sessions Case No. 3-J/VII/14/12 erroneously without appreciating the prosecution evidence in its right 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 2perspective. The evidence as has come on record by way of testimony of the prosecutrix who has stepped into .
the witness box as PW-5 and that of her mother PW-6 and her uncle PW-7. The evidence as has come on record by way of testimony of PW-1, the Pradhan of of Gram Panchayat is also stated to be erroneously ignored. The evidence qua age of the prosecutrix as rt has come on record by way of birth certificate Ext. PW-
9/A and PW-11/K have also been erroneously brushed aside.
2. The charge against the accused in a nut shell is that on 1.9.2012 around 1.00 p.m. at village Papahan under Police Station, Jawali, District Kangra he wrongfully restrained the prosecutrix from proceeding ahead on her way to home from school after appearing in examination. He asked her to disclose the name of her parents and when she was about to disclose name their names to him, he put his hand on her shoulder. She objected to such unbecoming behaviour of the accused and asked him as to what he was doing.
Instead of letting her free, he dragged her inside the ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 3 maize field situated nearby and asked her to kiss him, failing which, threatened to torn out her clothes. She .
objected to such behaviour of the accused and on this he put his hand on the string of her salwar. On hearing that someone is going on motorcycle, she raised an of alarm. The motorcyclist, none-else but her uncle Praveen Kumar (PW-7) on hearing her cries entered rt inside the maize field and noticed that the accused had caught hold the prosecutrix and was kissing her. On observing the presence of someone (PW-7) there, the accused set the prosecutrix free and fled away. PW-7 could not caught hold him. It is with these allegations, a case under Sections 341, 323, 354 and 506 IPC was registered against him in Police Station, Jawali, District Kangra vide FIR Ext. PW-11/A, on the basis of application Ext. PW-1/A made by PW-6 Sandla Devi, the mother of the prosecutrix to Smt. Santosh Kumari (PW-1) Pradhan Gram Panchayat, Papahan.
3. The investigation in the case was conducted by Sub Inspector Ashwani Kumar, PW-11. It is pertinent to note that the prosecutrix and her mother both have ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 4 refused for getting the medical examination of the prosecutrix conducted. Any how, the prosecutrix was .
medically examined by PW-2 Dr. Sulekha Gupta vide MLC Ext. PW-2/A. No injury except for an abrasion was noticed on right wrist and on right knee joint. The of Radiologist PW-4 Dr. Raman Sharma and Dr. Sulekha Gupta PW-2 both have disclosed the radiological age of rt the prosecutrix as 16 to 18 years. Such opinion Ext. PW-
4/B was formed by them on the basis of X-ray films Ext. P-
3 to Ext. P-8. The date of birth certificate Ext. PW-9/A was produced in evidence by PW-9 Rajinder Singh, Trained Graduate Teacher, Government Senior Secondary School, Guglara. Birth certificate Ext. PW-11/K was also obtained by the I.O from Secretary, Gram Panchayat, Papahan. The mother of the prosecutrix and her uncle Praveen Kumar were associated during the course of investigation and their statements under Section 161 of the Code of Criminal Procedure were recorded.
4. Learned trial Court after holding trial and on analyzing the evidence available on record has arrived at a conclusion that the prosecution has failed to prove ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 5 its case against the accused beyond all reasonable doubt. The accused has, therefore, been acquitted of .
the charge as pointed out at the very out set.
5. On behalf of the appellant-State, Mr. Virender Verma, learned Additional Advocate General of has forcefully contended that in view of own statement of the prosecutrix supported by that of her mother PW-6 rt and uncle PW-7 as well as corroborated by the link evidence available on record, the prosecution has been able to bring the guilt home to the accused. Therefore, according to Mr. Verma, the findings of acquittal recorded by learned trial Court being beyond pleadings of the parties and evidence available on record are legally unsustainable.
6. On the other hand, Mr. Gaurav Gautam, learned counsel representing the accused-respondent has urged that what to speak of cogent and reliable evidence produced by the prosecution, the present is a case of no evidence and as such, according to him the impugned judgment calls for no interference by this Court.
::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 67. As pointed out hereinabove, the charge framed against the accused is under Sections 341, 323, .
506 and 376 read with Section 511 of the Indian Penal Code. In order to infer the commission of an offence punishable under Section 341, the restraint should be of wrongful and in a manner so as to prevent a person from proceeding beyond the circumscribing limits. For rt example, if a person walking within a vacant space, which is blocked by another person and thereby prevented him from proceeding in any direction beyond the circumscribing line of wall such another person can be said to have committed an offence within the meaning of Section 341 of the Indian Penal Code and rendered himself liable to be punished under Section 341 of the Code. Similarly, in order to infer the commission of an offence punishable under Section 323 of the Indian Penal Code, there must be material available on record that the offender has voluntarily caused the hurt to the victim and as regards the offence punishable under Section 376 read with Section 511 of the Code, the essential ingredients are that the offender must found to ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 7 have done any act towards the commission of substantive offence viz. in the case in hand an offence .
punishable under Section 376 of the Code. The first and foremost question which needs adjudication in the present case is that it is the accused alone who of restrained the prosecutrix wrongfully and voluntarily caused hurt to her as well as did any act to be treated a rt step towards the commission of an offence punishable under Section 376 of the Indian Penal Code within the meaning of Section 511 of the Code.
8. The first version qua the manner in which the occurrence has taken place find mentioned in the application Ext. PW-1/A addressed to the Pradhan, Gram Panchayat, Papahan. In this application, the name of the accused has been disclosed as Baggu son of Shri Nana Ram. His name as per the prosecution case is Paramjeet Singh @ Bangu, whereas, name of his father is Harnam Singh. The prosecutrix while in the witness box as PW-5 tells us that it is the accused who met her and asked to disclose the name of her parents and that when she was about to disclose their names, he put his ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 8 hand on her shoulder. When she objected to such conduct and behaviour of the accused, he dragged her .
to nearby maize fields. She was asked to give kiss to him and that in case he is not allowed to kiss her, he would tear her clothes. On this, he put his hand on the string of of her salwar, however, her uncle PW-7 Praveen Kumar came there for her rescue. The accused ran away from rt the place. She revealed the occurrence to her uncle Praveen Kumar and also disclosed that the person who had been outraging her modesty was having beard.
According to her, accused was seen by her outside the liquor vend and it is her uncle who disclosed that he was resident of nearby village. In order to connect the accused with the commission of offence, the prosecutrix has further stated that when she accompanied by other women folks visited the house of the accused on the same day, he was found to have ran away therefrom.
Interestingly enough, in her cross-examination, she has stated that the name of the boy who had assaulted her was not known to her. Not only this but she has admitted the suggestion that the accused was arrested on the ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 9 basis of suspicion. It is as such the identity of the accused was disclosed by them to the police. Her .
testimony also reveals that test identification parade was not got conducted by the police during the investigation of the case. In view of the statement made by the of prosecutrix while in the witness box, the ingredients of an offence punishable under Section 341 of the Indian rt Penal Code nor that of Section 323 IPC are made out for the reason that the present is not a case where she was restrained wrongfully by the accused from moving in a particular direction or voluntarily caused hurt to her. At the most the accused/assailant has applied force and taken the prosecutrix inside the maize fields. The testimony of another material prosecution witness Sandla Devi to the extent that it is the accused who had taken the prosecutrix inside the maize field is hearsay. Though, in the application Ext. PW-1/A, it is she who had disclosed the name of accused as Baggu son of Nana Ram and while in the witness box she has stated that it is her daughter the prosecutrix who told her that accused Baggu had met her on the way from the school to the ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 10 house. The prosecutrix was not knowing the name of accused as she has said while in the witness box, who .
told PW-6 that the name of the boy who dragged her daughter inside the maize fields is Baggu remained unexplained. Not only this but in her cross-examination, of she has denied that it is her daughter who has disclosed the physical features of person who assaulted her.
rt Though, it is stated by her voluntarily that her daughter has disclosed only that the boy was having beard, however, in the application Ext. PW-1/A this witness has not disclosed that boy was having beard. She admits that when the accused was apprehended by the police, he was clean shaved and also that he was arrested only on suspicion. Therefore, the testimony of the prosecutrix and that of her mother PW-6, if scrutinized minutely, it is not at all established that it is the accused alone and none else who dragged the prosecutrix inside the maize fields and outraged her modesty.
9. Now if coming to the testimony of Praveen Kumar who allegedly came for the rescue of the prosecutrix is seen, he seems to have deposed falsely ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 11 that the accused was seen by him while dragging the prosecutrix and pressing her mouth because the .
prosecutrix has also not said so while in the witness box as according to her on observing the presence of someone there, the accused set her free and ran away.
of She has not said that her uncle Praveen Kumar has tried to caught hold that boy, therefore, his testimony to this rt effect is also false. When as per his version in cross-
examination he did not notice the colour of the clothes worn by the assailant, how he could have deposed that he noticed the boy while dragging the prosecutrix or that he tried to caught hold him. As per his version, he had disclosed the identifying features of the person to the police, however, PW-6 has denied the disclosure of such features to the police except for that the boy was having beard. As per further version of PW-7, he was not knowing the name and father's name of the boy who had assaulted the prosecutrix nor test identification parade was got conducted by the police. Therefore, his testimony is also not suggestive of that it is the accused who was the assailant. According to prosecutrix, it is PW-
::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 127 who had revealed to her that the boy who had assaulted her belongs to nearby village. However, the .
accused is not a resident of any other village and rather resident of village Papahan itself, to which the prosecutrix and PW-6 as well as PW-7 belong. Meaning of thereby that the accused is the resident of the same village. As per version of the prosecutrix, he had noticed rt the accused sitting outside a liquor vend, however, no-
one i.e. salesman etc., has neither been associated nor examined during the course of investigation. The present in the light of what has been said hereinabove is, therefore, a case where the identity of the accused is not at all proved. He, therefore, cannot be said to have assaulted the prosecutrix and outraged her modesty, in the manner as claimed by the prosecution.
10. Be it stated that the photographs Ext. P-8 to Ext. P-15 pertain to the fields. One hair clip is visible in the photograph Ext. P-14. The photographs Ext. P-9, P-10 and P-15 show the grass and maize field in badly crushed condition. The grass and crop in such a condition do not match with the prosecution case because had the ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 13 prosecutrix been only taken inside the fields and within no time PW-7 appeared there for her rescue, this would .
have not been the condition of the grass and also the maize crop in the field. In this regard, without commenting any further qua this aspect of the matter, of suffice would it to say that the factual position has been concealed by the I.O for the reasons best known to him.
rt Any how, the prosecutrix seems to have been taken inside the maize crop and an attempt to assault her sexually also seems to have been made, however, it is not at all proved beyond all reasonable doubt that the assailant was the accused alone and none else.
Therefore, the link evidence as has come on record from the photographs and also the recovery of broken pieces of bangles from the place of occurrence is hardly of any help to the prosecution case. The injuries on the neck and wrist of the prosecutrix were found simple in nature, as is evident from the perusal of MLC Ext. PW-2/A. Her age has been claimed below 16 years, however, the evidence i.e. the school certificate Ext. PW-11/K issued by the Secretary, Gram Panchayat, Chalwara cannot ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 14 be treated as a validly proved proof qua the date of birth of the prosecutrix recorded therein has to be .
treated as correct for the reason that the birth and death register has not been produced nor the Secretary, Gram Panchayat, Chalwara examined during the of course of trial. The certificate has simply been produced in evidence by the I.O. while in the witness box.
rt Therefore, the same cannot be treated as a valid proof qua the date of birth of the prosecutrix. The extract of parivar register Ext. PW-11/H cannot also be treated as legal and valid proof qua the age of the prosecutrix.
The another certificate Ext. PW-9/A proved by PW-9 TGT, Government Senior Secondary School, Guglara, District Kangra cannot also be said to be treated as valid proof so as to the date of birth of the prosecutrix is concerned for the reason that the same has not been proved to be issued on the basis of school record i.e. the admission and withdrawal register maintained in the primary school which could have only been treated as the primary evidence qua the date of birth of the prosecutrix and not the certificate issued from the record of Senior ::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 15 Secondary School, that too, without producing the admission and withdrawal register. On the other hand, .
the radiological age of the prosecutrix in the opinion of Radiologist PW-2 at the relevant time was between 16 to 18 years. While determining the age of a person of radiologically, margin of two years on either side is always there. Therefore, if such margin is taken into rt consideration, the prosecutrix may have been 18 years or 20 years of age also on the day of occurrence. The benefit of such error as per settled legal principles always available to the accused and not to the prosecution.
11. In view of the re-appraisal of the evidence hereinabove and examining the prosecution case from each and every angle, the only irresistible conclusion would be that the prosecution has failed to prove its case against the accused beyond all reasonable doubt.
The accused has rightly been acquitted by learned trial Court. We, therefore, find no illegality, irregularity or infirmity in the impugned judgment. The same, as such, is hereby affirmed.
::: Downloaded on - 15/04/2017 21:30:34 :::HCHP 1612. For all the reasons discussed hereinabove, this appeal fails and the same is accordingly dismissed.
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Personal bonds furnished by the accused shall stand cancelled and surety discharged.
(Dharam Chand Chaudhary)
of
Judge
(Vivek Singh Thakur)
November 4, 2016 Judge
(naveen)
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