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2010 DIGILAW 22 (PNJ)

State Of Himachal Pradesh v. Manohar Lal

2010-01-04

SURINDER SINGH

body2010
Judgment Surinder Singh, J. 1. The acquittal of the respondents, for the offences punishable under Sections 354, 452, 324, 325 and 506 read with Sec.34 of the Indian Penal Code, passed by the learned trial Court in case No.28/ 2 of 2001, on 29.6.2002, has been challenged by the State in this appeal. 2. In brief, the prosecution story can be stated thus. On 27th February, 2001, around 3 p. m. , there was some marriage ceremony in the house of a co-villager of the complainant PW1 Sharda Devi. Her husband and children had gone there, but she was alone in her house. It is alleged that the respondents finding her alone, entered in her house and asked about her welfare. She objected their entry and asked them as to how they dare to enter into her room. On this, respondent Manohar Lal grappled with her and caught hold of her breasts. When she tried to wriggle out from his clutches, his co-accused Tarsem followed the pursuit. She raised hue and cry. On hearing the commotion, PW2 Roshan Lal maternal uncle of the complainant, came to the spot and found that the complainant was pinned down by both the respondents present in her room. When he asked them as to what they were doing there, they left her and gave kick blows and also fisticuffed him. Thereafter, they ran away from the spot. While running, they warned the complainant that in case, they would get another chance, she would not be spared. She narrated the entire incident to her husband on his arrival, late in the evening. Next day, i. e. on 28th Feburary, 2001, FIR was lodged in Police Station Nirmand, which is at a distance of about 20 K. M. from her village. 3. Pw7 Parkash Chand SI/sho, Police Station Nirmand visited the spot and prepared site plan ex. PW7/a of the place of alleged incident. He recorded statements of the witnesses and also got the prosecutrix as well as PW2 Roshan Lal medically examined from PW5 Dr. R. D. Goyal. Roshan Lal was referred for the X-ray of his right arm and sky-gram Ex. PW5/b showed fracture of acromion, thus, injury no.6 was opined to be grievous and others simple in nature. On completing the investigation, the challan was presented in the court for the trial of the respondents, for the offences aforesaid. 4. R. D. Goyal. Roshan Lal was referred for the X-ray of his right arm and sky-gram Ex. PW5/b showed fracture of acromion, thus, injury no.6 was opined to be grievous and others simple in nature. On completing the investigation, the challan was presented in the court for the trial of the respondents, for the offences aforesaid. 4. Respondents were accordingly charge-sheeted. They pleaded not guilty to the charges and claimed trial. Prosecution examined complainant Sharda Devi (PW1), her maternal uncle Roshan Lal (PW2), neighbours Sita Devi (PW3) and Lata Devi, PW5 Dr. R. D. Goyal, Alam Chand, Radiologist (PW6) and si/sho Parkash Chand (PW7 ). 5. Respondents were also examined under Sec.313 of the Code of Criminal Procedure. Their case was denial simplicitor and no evidence in defence was led. 6. At the end of the trial, respondents were acquitted, precisely on the grounds that the alleged occurrence was allegedly witnessed by PW3 Sita Devi, but her name did not find mentioned in the FIR nor she supported the case of the prosecution and also that there have been material contradictions in the statements of the complainant and PW2 Roshan Lal, as PW1 complainant Sharda Devi stated that Roshan lal was thrown by the respondents from the verandah, whereas, PW2 Roshan Lal deposed that he was thrown towards the Khalian and also that the complainant stated that Roshan Lal sustained the fracture of left arm, whereas, Roshan Lal testified that he sustained fracture of right forearm. Learned trial Court also observed that statement of Roshan Lal was not found believable because he was brought to hospital by kewal Ram and Udey Ram as stated by him, whereas, complainant Sharda Devi stated that she took him to the hospital. Further the independent witnesses PW3 Sita Devi and PW4 Lata Devi did not support the prosecution case and Sky-gram of the alleged fracture of the arm of Roshan Lal could not be connected with the grievous injury allegedly caused to him. 7. Shri Vikas Rathore, learned Deputy Advocate General, for the appellant, forcefully argued that the learned trial Court appreciated the evidence on record in a slip-shod and perfunctory manner, the reasoning for acquittal was manifestly wrong, thus unsustainable. 7. Shri Vikas Rathore, learned Deputy Advocate General, for the appellant, forcefully argued that the learned trial Court appreciated the evidence on record in a slip-shod and perfunctory manner, the reasoning for acquittal was manifestly wrong, thus unsustainable. He further argued that the complainant and PW2 Roshan Lal have fully corroborated the prosecution version and PWs 3 and 4 aforesaid have offered a material contradiction to their version, but the learned trial Court based its findings on assumptions, by drawing wrongful inference on the evidence adduced by the prosecution, thus the acquittal of the respondents is bad in law. 8. Shri J. L. Bhardwaj, learned counsel for the respondents, countered the above arguments, on the ground that there has been unexplained delay, in dispatching the FIR to the Illaqa Magistrate and further that there has been material contradictions in the statements of the complainant and her witnesses as noticed by the learned trial Court and the findings of acquittal are based on record. Therefore, no interference is called for. 9. I have heard the learned counsel for the parties and have reexamined the evidence of the prosecution carefully and in depth, in the light of the above submissions. 10. Pw1 Sharda Devi and PW2 Roshan Lal, both are the injured witnesses, therefore, their version has to be appreciated in the right perspective and can not be brushed aside on flimsy grounds. 11. The complainant unequivocally and without any contradiction supported her initial version (PW1/a)given to the police, during the trial with respect to the incident regarding outraging her modesty. She testified that on 27th February, 2001, the respondents entered into her room and questioned them as to why they have entered in her premises, they caught hold of her breast turn-by-turn, as alleged and embraced her. She also stated that PW2 Roshan Lal got attracted to the hue and cry raised by her and he intervened and relieved her from the clutches of the respondents, but the respondents also manhandled roshan Lal and gave him beatings, with the result, he sustained various injuries including fracture of his left arm. She further stated that Sita Devi also reached the spot and relieved her and Roshan Lal from the respondents. She stated that her maternal Uncle Roshan Lal was pushed from the verandah and while recessing away, both of them threatened her with dire consequences. She proved the report Ex. She further stated that Sita Devi also reached the spot and relieved her and Roshan Lal from the respondents. She stated that her maternal Uncle Roshan Lal was pushed from the verandah and while recessing away, both of them threatened her with dire consequences. She proved the report Ex. PW1/a as correctly recorded version by the police. But in cross-examination, nothing material could be extracted from her. A fatal suggestion in affirmative was put to her on behalf of the respondents that she sustained the bluish marks on her breasts, which in other words was referable to the incident in question. 12. Pw2 Roshan Lal has corroborated her version in unequivocal terms in material particulars. He categorically stated that he was attracted by the cries of the complainant. He rushed to the spot and found her in the clutches of the respondents. When he asked as to what was happening, respondents left the complainant and started beating him and gave kick and fist blows. He fell down and sustained fracture of his right arm and he was thrown out towards Khalian. He also stated that he was medically examined by the doctor and his statement was recorded by the police. His testimony was sought to be disputed in cross-examination that he had lodged a case against the father of Tarsem respondent, but, he stated that a case was lodged by Mohar Singh and not by the father of respondent Tarsem, against him in the Court of s. D. M. and S. D. M had visited the spot. He also led his evidence in that case, but there is nothing on record to show what is the relation of Mohar Singh with the respondents and why the said witness was interested to implicate the respondents in a false case. However, insofar as the entry by the respondents in the room of complainant and outraging her modesty and giving beatings to him could not be shattered. 13. Pw3 Sita Devi and PW4 Lata Devi, both were declared hostile to the prosecution. The respondents are related to them, but significantly, they have admitted the presence of the respondents on the spot on the day of incident and hearing of some commotion. PW5 Dr. 13. Pw3 Sita Devi and PW4 Lata Devi, both were declared hostile to the prosecution. The respondents are related to them, but significantly, they have admitted the presence of the respondents on the spot on the day of incident and hearing of some commotion. PW5 Dr. R. D. Goyal has proved simple injuries on the person of PW2 Roshan Lal, but the prosecution failed to prove that injury No.6 in the right arm of roshan Lal was grievous one, as the X-ray could not be connected with the facture of PW2 Roshan Lal and this fact has also been admitted by PW6 Radiologist Alam Chand. 14. On culling the evidence, in my opinion, the witnesses of the prosecution were able to prove the incident in question. It stands established on record that the respondents had committed the house tress-pass to outrage the modesty of the complainant and also caused wrongful restraint to her and their act was clearly suggestive of sex which is the very essence of womens modesty. The culpable intention of the respondents is writ large. The reaction of the complainant, in the instant case is natural and very relevant. She had raised hue and cry and PW2 Roshan Lal got attracted and reached the spot, but while relieving her from the clutches of the respondents, he was also given beatings. The presence of the respondents on the spot stands established and incident, as alleged stands proved. 15. The contention of the learned counsel for the respondents that there are material contradictions in the statements of prosecution witnesses, as noticed by the learned trial Court is worth rejecting. These contradictions are quite insignificant and the trial Court should have ignored them. The statement of the complainant and also of PW2 Roshan Lal both are confidence inspiring. The doctor (PW5) and even PWs 3 and 4 aforesaid materially corroborated their version. Therefore, but for the findings of acquittal for the offences under Sections 325 and 506 I. P. C. , the reasoning given for acquitting them under Sections 452, 354, 323 read with Sec.34 of the Indian Penal Code is perverse, thus unsustainable. 16. The doctor (PW5) and even PWs 3 and 4 aforesaid materially corroborated their version. Therefore, but for the findings of acquittal for the offences under Sections 325 and 506 I. P. C. , the reasoning given for acquitting them under Sections 452, 354, 323 read with Sec.34 of the Indian Penal Code is perverse, thus unsustainable. 16. The next contention raised by the learned counsel for the respondents that the delay in sending the FIR to the Illaqua Magistrate is also fatal, as the complainant stated that she visited the police station on 27th and 28th of February as well but the FIR was recorded on 28th February and it was received by the Magistrate on 2nd March, 2001, which was the result of due deliberations. 17. Although the complainant stated that she had visited police station on 27th and 28th February, but her statement Ex. PW1/a does not bear the date when it was given to the police but the endorsement of MHC thereon shows that on its basis FIR was registered on 28th February, 2001 and on the same day she was got medically examined in CHC Nirmand. The copy of FIR was sent to the Illaqa Magistrate located at ani sub-division a far off place around about 100 Kms. from Police Station Nirmand. The copy of FIR was received by the Magistrate at 10 a. m. on 2nd March, 2001. Pertinently, neither the Investigating officer was questioned on the delay part nor any question was asked from the complainant that the FIR was lodged after due deliberations, but on analyzing the evidence, the incident in question stands established. Therefore, delay if any, in sending the FIR to the Illaqa Magistrate is neither material nor fatal to the prosecution, otherwise also mere delay in sending the report to the Magistrate, in all cases as a rule does not vitiate the trial. 18. In fact, the delay in dispatch or transmission of the FIR to the Magistrate must be looked into from the point whether the FIR sought to be projected as FIR was in fact the first information report or that first information report had been ante-dated, which fact in the instant case is not involved. 18. In fact, the delay in dispatch or transmission of the FIR to the Magistrate must be looked into from the point whether the FIR sought to be projected as FIR was in fact the first information report or that first information report had been ante-dated, which fact in the instant case is not involved. In Jinnat Mia alias jinu Mia and others vs. State of Assam [ (1998) 9 Supreme Court Cases 319], the Apex Court observed that delay in the dispatch of the FIR is not always a circumstance on the basis of which the entire prosecution case could be said to be fabricated, but it all depends upon the facts and circumstances of each case where the circumstance of delay may lead to serious conclusions. 19. Thus, the acquittal of the respondents for the offences under Sec.452,354 and 323 read with section 34 of the Indian Penal Code is set-aside being perverse, accordingly, the respondents are convicted for the said offences. However, their acquittal under Sections 325 and 506 of the Indian Penal code is affirmed. Consequently, the appeal stands partly allowed. 20. Respondents be produced on January 8th, 2010, to hear them on the quantum of sentence.