Himachal Pradesh High Court
State Of Himachal Pradesh vs Chhotu Ram on 5 January, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 618 of 2008
Date of Decision 05th January, 2017
________________________________________________________
State of Himachal Pradesh ....Appellant.
Versus
Chhotu Ram ....Respondent
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes
______________________________________________________________
For the Appellant: Shri Rupinder Thakur,
Addl.Advocate General with Shri
Pankaj Negi, Deputy Advocate
General
For the Respondent: Ms. Meera Devi, Advocate
__________________________________________________________________
Vivek Singh Thakur, J.(Oral)
This appeal has been preferred by the State against acquittal of the respondent vide judgment dated 1.7.2008 passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr H.P. in Cr. Appeal No. 5 of 2005 titled Chhotu 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 08/01/2018 23:03:43 :::HCHP 2 Ram vs. State of H.P., whereby conviction and sentence imposed upon respondent, vide judgment dated 30.3.2005 passed by .
learned Sub Divisional Judicial Magistrate, Ani in criminal case No. 75-2 of 2004 in case FIR No. 78/2004 dated 29.8.2004 registered under Sections 354, 294, 506, 290 and 510 IPC in P.S. Ani, has been reversed.
2. I have heard learned counsel for parties and have also gone through record of the case.
3. Prosecution case, in brief, is that on 29.8.2004 at about 12.45 PM, respondent, under influence of liquor, came on shop of PW1 Shakuntla and asked her to join him and on her refusal, respondent molested and abused her. Complainant was rescued by PW2 Asha Devi and PW3 Kamla Devi from clutches of the respondent. Complainant rushed to the police station, lodged FIR Ext.PW1/A, whereafter investigation was carried on. Accused was got medically examined through PW4 Dr.Manjit Singh, who issued MLC Ext.PW4/A. Site map Ext.PW5/A was prepared.
Statements of witnesses were recorded. On completion of investigation, prima facie finding complicity of accused in commission of offence, challan was presented in Court.
4. On conclusion of trial, respondent was convicted under Section 290, 294, 354 and 506 IPC and was sentenced to ::: Downloaded on - 08/01/2018 23:03:43 :::HCHP 3 pay fine of Rs.200/- for offence punishable under Section 290 IPC, simple imprisonment for one month for offence punishable .
under Section 294 IPC and to pay fine of Rs.500/-, simple imprisonment for three months and to pay fine of Rs.500/- for offence punishable under Section 354 IPC and simple imprisonment for three months and pay fine of Rs.500/- for offence punishable under Section 506 IPC and in default of payment of fine, to further undergo simple imprisonment for two months for all aforesaid offences.
5. In appeal, preferred by the respondent, learned Sessions Judge has acquitted him from the offences charged.
Hence, the present appeal.
6. Prosecution has examined five witnesses. PW1 Shakuntla Devi is complainant, PW2 Asha Devi and PW3 Smt. Kamla Devi are spot witnesses. PW4 is Dr.Manjeet Singh who has medically examined the respondent. PW5 SHO Manohar Lal is Investigating Officer.
7. As per prosecution case, occurrence took place on 12.45 PM. PW1 has lodged FIR Ext.PW1/A at 1 PM i.e. within fifteen minutes of occurrence stating therein that respondent under the influence of liquor came to her and asked her to join his company him and on her refusal started abusing which was ::: Downloaded on - 08/01/2018 23:03:43 :::HCHP 4 objected by her. Thereupon, respondent started molesting her, whereupon she started crying. She was rescued by Kamla Devi .
and Asha Devi who were present on spot at that time. In her deposition in Court, PW1 corroborated her statement made in Ext.PW1/A with little negligible difference that respondent molested her and started abusing her on her refusal to accompany him. PW2 Asha Devi has fully corroborated the statement of PW1 complainant. PW3 in her deposition in Court has also stated that accused caught complainant from her breast and asked her to accompany him and on refusal of complainant, he started abusing her.
8. Respondent was medically examined at 3 PM within about two hours of incident. On examination, it was noticed by the doctor that patient was breathing of alcohol (smelling of alcohol), his conjuctiva of both eyes were congested, pupils were equal and showed sluggish reaction to light, pulse was full and bouncing, gait was disturbed and patient was unable to walk in a straight line, corrodination was impaired and patient was oxcited.
It was also noticed that there was swelling on left side of his lip, with complaint of pain on right thigh medial side and clotted blood was also present at nostrils. Finally, it was opined by the ::: Downloaded on - 08/01/2018 23:03:43 :::HCHP 5 doctor that patient had consumed alcohol and he was under its effect.
.
9. In cross examination to witnesses, main defence appears to have been taken is that PW2 and PW3 were related to PW1 complainant and the spot of incident is bus stand and being so busy place, a large number of persons always remains present there and none of them has been associated as a witness. It is also put to complainant that complainant and respondent as well as PW2 and PW3 are vegetable sellers on the bus stand and in the shop of respondent, his wife also used to sit.
10. In his statement recorded under Section 313 Cr.P.C., in answer to question No. 7, as to why prosecution witnesses had deposed against him, the respondent had replied that complainant had borrowed Rs.1000/- from him and when he demanded the aforesaid money back, complainant lodged this false case against him. This defence has been disclosed for the first time in statement under Section 313 Cr.P.C.
11. It is settled that conviction cannot be based on statement made under Section 313 Cr.P.C. At the same time, plea of defence taken in statement under Section 313 Cr.P.C., not corroborated by material on record or proved by leading a reliable evidence, definitely might not be proving beyond ::: Downloaded on - 08/01/2018 23:03:43 :::HCHP 6 reasonable doubt, but establishing preponderance of probability of defence taken in statement under Section 313 Cr.P.C. The .
defence taken in statement under Section 313 Cr.P. is of no avail to the respondent as this defence was never put to PW1 complainant or spot witnesses PW 2 and PW3.
12. Plea of respondent that no independent witnesses out of the persons present on bus stand, who witnessed the incident, have been associated is also untenable for the reason that bus stand like a public place always have floating visitors.
The persons witnessing an incident at a particular point of time may or may not be available at the time of investigation being carried out by Investigating Officer.
13. It is also settled that testimony of related or interested witnesses cannot be brushed aside only on the ground that they are interested or related witnesses unless their interest to get the accused convict in any eventuality for extraneous reason is proved on record and also otherwise version of such witness is not found to be reliable. Undoubtedly, testimony of interested and related witnesses is to be dealt with more care and caution so as to rule out the false complicity of accused in offence. In present case there is no material contradiction or discrepancy in statements of PW1, PW2 and PW3, rather ::: Downloaded on - 08/01/2018 23:03:43 :::HCHP 7 circumstances of the case i.e. lodging of FIR within fifteen minutes of incident and medical examination of accused within .
two hours of incident and observation of doctor with corroboration the version of complainant that respondent was under the influence of liquor forfity the prosecution story.
14. Learned Sessions Judge has acquitted the accused without appreciating the entire evidence on record and has given weightage to the immaterial facts which were not affecting the root of prosecution story. The trial Court had correctly and completely appreciated the evidence on record and had rightly convicted the respondent. Therefore, conviction of respondent as ordered by the trial Court is upheld.
15. At this stage, learned counsel for the respondent submits that incident had taken place in the year 2004 and now after lapse of 13 years, it would not be appropriate to award substantial sentence to the respondent, rather it would be appropriate to extend the benefit of Probation of Offenders Act to the respondent as he has already faced the criminal proceedings for 13 years and had also undergone the trauma being a convict during pendency of appeal before learned Sessions Judge after conviction of the trial Court.
::: Downloaded on - 08/01/2018 23:03:43 :::HCHP 816. Considering her submissions and provisions of Section 4 of the Probation of Offenders Act before extending the .
benefit of provisions of this Act to the respondent, it would be appropriate to call upon the report of the Probation Officer.
Accordingly, Probation Officer, Ani is directed to submit his report in the Registry qua the respondent on or before 28.2.2018.
17. List on 7.3.2017 on which date the respondent shall remain present in person.
January 5, 2018 (Vivek Singh Thakur)
(ms) Judge
::: Downloaded on - 08/01/2018 23:03:43 :::HCHP