Himachal Pradesh High Court
State Of Himachal Pradesh vs Tripta And Others on 13 June, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CrMP(M) No. 322 of 2017
Decided on: June 13, 2017
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State of Himachal Pradesh ...Applicant/appellant
Versus
Tripta and others ...Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1?
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For the applicant: Mr. M.L. Chauhan and Mr. R.K. Sharma,
Additional Advocates General.
For the respondents: Nemo
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Sandeep Sharma, J. (Oral)
Instant petition under Section 378(3) CrPC has been filed seeking leave to file appeal against judgment dated 24.10.2016 passed by the learned Judicial Magistrate 1st Class, Court No. VIII, Shimla in Cr. Case No. 44-2 of 2013/10, whereby respondents-
accused (hereafter, 'accused'), who were charged with commission of offence under Sections 323 and 325 read with Section 34 IPC, have been acquitted.
2. Briefly stated the facts of the case as emerge from the record are that complainant lodged a complaint on 29.6.2010 at Police Station, Dhalli against the accused, Tripta, Jyoti Rathore and Rahul Chanjata, stating therein that on 28.6.2010, at about 10.00 Whether reporters of the Local papers are allowed to see the judgment? .
::: Downloaded on - 14/06/2017 23:59:56 :::HCHP -2-am, Tripta, who happened to be wife of the complainant, alongwith co-accused Jyoti Rathore and Rahul Chanjata came to his quarter and started beating him with fist blows and sticks. Complainant .
further reported to the police that due to aforesaid beatings having been given by the accused, he sustained simple as well as grievous injuries on his person. Complainant further alleged in the complaint that after giving beatings to him, all the accused left the place and went to "Purani Kothi" in search of Shakuntla, who was working as maid for the complainant and gave beatings to her also, on the pretext that she was living in adultery with the complainant. On the basis of aforesaid complaint made on 28.6.2010, FIR No. 150/10 dated 12.8.2010 under Sections 323 and 325 read with Section 34 IPC was registered against accused.
3. After completion of investigation, police presented Challan in the competent Court of law. Learned trial Court, on being satisfied that prima facie case exists against accused, framed charge under Sections 323 and 325 read with Section 34 IPC, to which accused pleaded not guilty and claimed trial. Learned trial Court, on the basis of material adduced on record by the prosecution, acquitted the accused of the charges framed against them. In the aforesaid background, appellant-State has filed instant petition seeking leave to appeal, for setting aside judgment of acquittal consequently seeking conviction of the accused. At this stage, it may ::: Downloaded on - 14/06/2017 23:59:56 :::HCHP -3- be noticed that the Court, while taking cognizance of the matter called for record of the court below vide order dated 9.5.2017. After receipt of record of Court below, the court proceeded to decide the .
leave to appeal accordingly.
4. Mr. M.L. Chauhan, learned Additional Advocate General, while inviting attention of this Court to impugned judgment of acquittal passed by learned Court below, vehemently argued that same is not sustainable in the eyes of law, as the same is not based on correct appreciation of evidence adduced on record by the prosecution, as such, same deserves to be quashed and set aside.
With a view to substantiate his aforesaid arguments, Mr. Chauhan, made this Court to travel through evidence led on record by the prosecution to demonstrate it was proved beyond doubt that accused gave beatings to the complainant, as a result of which, he suffered simple as well as grievous injuries on his person. Mr. Chauhan, while specifically inviting attention of this Court to the statement of PW-1 namely Rajpal Chanjta and PW-3 Shakuntla, forcefully contended that learned Court below erred in concluding that version put forth by them can not be relied as there are material contradictions in the statements having been made by both the aforesaid witnesses. Mr. Chauhan, while taking this Court through the statements of aforesaid witnesses, strenuously argued that both the eye witnesses unequivocally stated that they were ::: Downloaded on - 14/06/2017 23:59:56 :::HCHP -4- given beatings by the accused at the residence of the complainant and as such judgment passed by learned Court below can not be allowed to be sustained. With the aforesaid submissions, Mr. .
Chauhan, prayed that accused may be convicted for the charges framed against them under Sections 323 and 325 read with Section 34 IPC, after setting aside judgment of acquittal passed by learned Court below.
5. I have heard the learned counsel for the parties and gone through the record carefully.
6. During the proceedings of the case, this Court had an occasion to peruse impugned judgment as well as evidence on record led by prosecution, perusal whereof certainly does not suggest that learned Court below has misread, misappreciated or misconstrued the evidence adduced on record by the prosecution, rather, this Court, after having carefully perused entire evidence led on record, sees no illegality or infirmity in the finding of the learned Court below that no reliance can be placed upon statements of PW-1 and PW-3, as there are material contradictions in their statements with regard to version/story put forth by prosecution. In the instant case, prosecution, with a view to prove its case, examined as many as eight witnesses, but statement of PW-1 complainant, namely Rajpal Chanjta and PW-3 Shakuntla Devi being witnesses of spot, are material for adjudication of the case.
::: Downloaded on - 14/06/2017 23:59:57 :::HCHP -5-7. PW-1 Rajpal, in his statement before learned Court below deposed that he had constructed a house in Dhalli and he resided there with his wife, Tripta and son Rahul till July, 2010. He .
further stated that on 1.7.2017, his wife and son had thrown him out of house after giving beatings. It has also come in his statement that on 16.6.2010, his wife Tripta and son Rahul had given beatings with sticks and fist blows. He also stated that accused Tripta hit him with pressure cooker, as a result of which his ear drum was damaged. It has also come in his statement that he lodged complaint with regard to aforesaid incident at Police Station Dhalli.
However, perusal of statement of PW-1 suggests that at the time of alleged incident, there were about six people alongwith accused Tripta but, interestingly, there is no mention, if any, of the others, save and except Rahul and Jyoti in the complaint, Ext PW-1/A. Complainant PW-1 further stated before the Court that his injuries were treated at IGMC Shimla. It has also come in his statement that he has kept PW-3 Shakuntla as his maid on 1.7.2010, but she did not use to stay at night with him. PW-1 further stated that he lodged a complaint PW-1/A with regard to aforesaid incident and he also stated that MLC Mark PX, was with regard to injury caused to him by the accused in the aforesaid incident. However, PW-1, in his cross-examination, admitted that he had lodged complaint, Ext. PW-
1/A on 29.6.2010. In his cross-examination, PW-1 further admitted ::: Downloaded on - 14/06/2017 23:59:57 :::HCHP -6- that accused Tripta had given him beatings with pressure cooker and he had not mentioned this fact in his complaint, i.e. Ext. PW-
1/A. Similarly, he feigned ignorance that on 1.7.2010, whether he .
was at his house at "Happy Cottage" or at his rented accommodation at Fairlawns. It also emerges from the statement recorded by police on 18.8.2010 that at the time of incident, he was residing at his house named "Happy Cottage" with his family. In his cross-
examination, he specifically denied having any dispute with his wife and children but admitted that complaint was registered against him by police station Sadar, at the behest of wife on 13.7.2008. He also admitted that at Police Station Dhalli, complaint was lodged against him by his wife Tripta and he remained arrested in that case. He also admitted that case under Domestic Violence Act was also registered against him by his wife Tripta, which is still pending trial. Careful perusal of statement having been made by complainant namely Rajpal Chanjta certainly persuade this Court to agree with the findings returned by the learned Court below that no reliance can be placed upon his statement in view of material contradictions.
8. In his statement, PW-1 categorically admitted that till 1.7.2010, he was residing with his family at "Happy Cottage", however, in his complaint, Ext. PW-1/A, he alleged that on 28.6.2010, he was given beatings by accused at his rented accommodation at Fairlawns. Similarly, in his complaint, Ext. PW-
::: Downloaded on - 14/06/2017 23:59:57 :::HCHP -7-1/A, he stated that incident took place on 28.6.2010, at his rented accommodation at Fairlawns. It is not understood when complaint himself claimed that he was residing with his family till 1.7.2010 at .
"Happy Cottage", how he could be given beatings at Fairlawns in his rented accommodation, by the accused. Similarly, there is no mention of his being hit by pressure cooker in the complaint, Ext.
PW-1/A. Apart from above, no pressure cooker was ever produced by him to the police, as such learned Court below rightly rejected aforesaid version put forth by the complainant. This Court, after having carefully perused statement of PW-1 has no hesitation to conclude that version put forth by PW-1 is untrustworthy/unreliable and could not be relied upon by court below to hold the accused guilty of the offences, they were charged with.
9. Similarly, PW-3 Shakuntla Devi, in her statement stated that on relevant date, accused came to the residential accommodation, 'Purani Kothi' and gave beatings with fist, kicks and sticks. She further stated that they forcefully took her to rented accommodation at Fairlawns, where she saw that accused had kept Rajpal, complainant. She further stated that she also noticed injuries on the body of Rajpal. It has also come in her statement that at Fairlawns, accused gave beatings to her as well as complainant Rajpal and thereafter, they dragged them to Police Station. However, in her cross-examination, she feigned ignorance ::: Downloaded on - 14/06/2017 23:59:57 :::HCHP -8- about the fact that her husband had filed a case of adultery against her and Rajpal. She admitted that she knew Rajpal for the last one year but did not work for Rajpal. She similarly, denied in her cross-
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examination that she worked as a maid for Rajpal. If version put forth by aforesaid witness PW-3 is read in its entirety, it is totally contradictory to the statement given by PW-1 Rajpal because PW-1 has nowhere stated that PW-3 Shakuntla was brought to Fairlawns from "Purani Kothi", where she was allegedly residing. Similarly, there is no mention, if any, of her being taken to Fairlanws by the accused, in the complaint, Ext. PW-1/A. Apart from above, there are material contradictions in the statements having been made by PW-
1 with regard to PW-3 working as a Maid for complainant. PW-3 has categorically denied that she was working as Maid for the complainant, hence, no reliance, if any, can be placed upon the statement of PW-3.
10. If statements of PW-1 and PW-3 are read in conjunction, this Court has no hesitation to conclude that, rightly, no reliance, if any, was placed upon their statements by the learned Court below, in view of material contradictions with regard to time as well as spot of alleged occurrence. Apart from above, there is another glaring aspect with regard to delay in lodging FIR. Admittedly, in the instant case, if story of prosecution is taken to be true on its face value, complaint was made on 29.6.2010, whereas FIR came to be lodged ::: Downloaded on - 14/06/2017 23:59:57 :::HCHP -9- on 12.8.2010 i.e. after a delay fo 40 days. Interestingly, there is no explanation worth the name for delay in lodging FIR. Investigating Officer, PW-6 ASI Vijay Kumar, has only stated that since MLC .
report was obtained late, FIR was registered after 40 days. Aforesaid explanation having been rendered by ASI PW-6 was rightly not accepted by learned Court below because delay in receiving MLC report can not be a ground to lodge FIR, after 40 days of registration of complaint, which was admittedly made on 29.6.2010.
11. Apex Court in Budh Singh v. State of U.P., (2006) 9 SCC 731, have held that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story. The Apex Court has held as under:
"21. He accepted that the FIR was produced before the Court of Chief Judicial Magistrate on 18.4.1992.This Court in Meharaj Singh v. State of U.P., [1994] 5 SCC 188, as regards the requirement of sending of the FIR to ::: Downloaded on - 14/06/2017 23:59:57 :::HCHP
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the Court, the inquest report as also the requirements to comply with other formalities provided for external checks, categorically held :
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of .
evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story. With a view to determine whether the FIR rwas lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have bee recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate.
Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-time to give it the colour of a promptly lodged ::: Downloaded on - 14/06/2017 23:59:57 :::HCHP
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FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot .
by PW 8."
The said decision of this Court was followed by a Three Judge Bench of this Court in Thanedar Singh v. State of M.P., [2002] 1 SCC 487 and also in, Rajeevan & Anr. v.
State of Kerala, [2003] 3 SCC 355 and Bijoy Singh & Anr. v. State of Bihar, [2002] 9 SCC 147.
22. We are, however, not oblivious of the fact that Meharaj Singh (supra) has been distinguished in Rajesh @ Raju Chandulal Gandhi & Anr. v. State of Gujarat, [2002] 4 SCC 426, stating :
"Relying upon the judgment of Meharaj Singh (L/Nk.) v. State of U.P. the learned counsel rappearing for the appellants has submitted that FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led in the trial. The object of insisting upon prompt lodging of the FIR is to obtain information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, the weapon of offence used as also the names of the witnesses. One of the external checks which the courts generally look for is the sanding of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultation and was then ante- timed to give it a colour of promptly lodged FIR. The reliance of learned counsel for the appellant on Meharaj Singh case is of no help to him in the instant case inasmuch as all requisite details are mentioned in panchnama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Ext. P-37 has not persuaded us to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of ::: Downloaded on - 14/06/2017 23:59:57 :::HCHP
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the case as noticed by the trial court, the High Court and by us hereinabove."
12. Consequently, in view of discussion made herein above, .
this Court sees no illegality or infirmity in the impugned judgment passed by learned court below, as such, same is upheld. Leave to appeal is rejected. Petition is dismissed.
(Sandeep Sharma) Judge June 13, 2017 (Vikrant) ::: Downloaded on - 14/06/2017 23:59:57 :::HCHP