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2012 DIGILAW 41 (HP)

Tarlok Singh v. State of Himachal Pradesh

2012-01-13

KULDIP SINGH

body2012
JUDGEMENT Kuldip Singh, Judge This revision is directed against judgment dated 28.7.2006 passed by learned Sessions Judge, Hamirpur in Criminal Appeal No. 30 of 2005 affirming judgment dated 4.11.2005 passed by learned Judicial Magistrate 1st Class, Court No. II, Hamirpur in Criminal Case No. 80- II/2004 convicting and sentencing the petitioner under Sections 354, 506 IPC. 2.The prosecution case, in brief is that PW-1 prosecutrix came to Police Station alongwith her father in law PW-5 Jhondu Ram. The statement of prosecutrix was recorded, she has stated that on 19.4.2004 she was carrying fire wood from place Sikander to her residence. At about 7.00 – 7.15 p.m. petitioner came on the spot, he undressed himself and pulled ‘Dupatta’ of the prosecutrix. On asking what he was trying to do, the petitioner replied that he is doing what a man does with a woman. The petitioner pulled the prosecutrix towards him after throwing fire wood load which was on her head. The prosecutrix was forcibly embraced by the petitioner. The prosecutrix raised hue and cry, the petitioner threatened that he would kill her. On hearing the cries of the prosecutrix, her sister in law PW-4 Sunita Devi came on the spot. On seeing Sunita Devi, the petitioner fled away with his clothes. The prosecutrix narrated the incident to her mother and father in law. On the statement of the prosecutrix, FIR Ex.PW-1/A was registered. The investigation was conducted, spot map Ex.PW-3/A was prepared. On completion of investigation, report under Section 173 Cr.P.C. was prepared. On the basis of material on record, charge for offences punishable under Sections 354, 506 IPC was framed and put to the petitioner. He pleaded not guilty and claimed trial. 3.The prosecution has examined five witnesses and produced some documents. The statement of petitioner under Section 313 Cr.P.C. was recorded, he denied the prosecution case. The petitioner did not lead any evidence in defence. On conclusion of trial learned Judicial Magistrate on 4.11.2005 convicted and sentenced the petitioner for offences punishable under Sections 354, 506 IPC which has been upheld by the learned Sessions Judge, Hamirpur on 28.7.2006. 4.I have heard the learned counsel for the parties and have also perused the record. It has been submitted on behalf of the petitioner that the two Courts below have misconstrued and misinterpreted the material on record and erred in convicting and sentencing the petitioner under Sections 354, 506 IPC. 4.I have heard the learned counsel for the parties and have also perused the record. It has been submitted on behalf of the petitioner that the two Courts below have misconstrued and misinterpreted the material on record and erred in convicting and sentencing the petitioner under Sections 354, 506 IPC. The learned Assistant Advocate General has submitted that the prosecution has proved the case against the petitioner. There are concurrent findings of facts against the petitioner. The view taken by the two Courts below emerges from the evidence on record. He supported the impugned judgment and prayed for dismissal of the revision. 5.PW-1 prosecutrix has stated that their vehicle of fuel wood unloaded fuel wood on 19.4.2004 half kilometer from their residence. She and her sister in law Sunita Devi were carrying the fuel wood on their heads at about 7.15 p.m., her sister in law was following her. The petitioner came from down, he removed his clothes except underwear and threw her fuel wood load and pulled her ‘dupatta’. She cried but petitioner threatened that he would finish her. She again cried and petitioner embraced her and pressed her breasts. In the meantime, her sister in law came there and petitioner ran away after extending threat that today she had been saved but he would not spare her. She and her sister in law went to their home and narrated the incident to their mother in law. Thereafter, her father in law came and incident was narrated to him also. An FIR was lodged on the next day. 6.PW-1 in cross-examination has stated that she was carrying the fuel wood from place Sikander to her residence which is at a distance of half kilometer. They are not on talking terms with petitioner. She was not medically examined. They reached Police Station at 9.30 a.m. Her sister in law reached after 3-4 minutes. PW-3 Parkash Chand is the Investigating Officer. He has stated that he reached the spot on 24.4.2004. He prepared the spot map Ex.PW-3/A. 7.PW-4 Sunita Devi has stated that on 19.4.2004 at about 7.00 – 7.30 p.m. she and her sister in law were carrying fire wood for community feast (Bhandara) to the temple. She was following her sister-in-law. The petitioner came, she asked him what he was doing, he pulled ‘dupatta’ of her sister in law and pressed her breasts, her sister in law was weeping. She was following her sister-in-law. The petitioner came, she asked him what he was doing, he pulled ‘dupatta’ of her sister in law and pressed her breasts, her sister in law was weeping. Thereafter, the petitioner left. In cross-examination, she has stated that petitioner has litigation with her father in law. PW-5 Jhondu Ram has stated that prosecutrix is his daughter in law. On 19.4.2004 he was not in the house, he came at about 8.00 p.m. On 20.4.2004 he and prosecutrix went to the Police Station and lodged FIR Ex.PW-1/A. In cross-examination, he has stated that the fuel wood was brought for community feast. He has admitted that he has litigation with petitioner. In the statement under Section 313 Cr.P.C. the petitioner has denied the prosecution case. 8.Ex.PW-1/A is the FIR which was registered on 20.4.2004 at 12.50 p.m. Ex.PW-3/A is the spot map showing temple. In Ex.PW-3/A point ‘A’ is the place from where the fuel wood was being brought. Point ‘C’ is the place where the incident allegedly took place. Point ‘G’ is the house of the prosecutrix. Point ‘H’ is the place where the temple is situated and fuel wood was being stacked. PW-4 Sunita Devi has stated that she and her sister in law PW-1 were carrying fuel wood to the temple for community feast. PW-5 Jhondu Ram has also stated that fuel wood was brought for community feast. PW-1 has stated that she was carrying fuel wood from place Sikander to her house. Ex.PW-3/A spot map read with statements of PW-4 Sunita Devi and PW-5 Jhondu Ram completely demolishes the case of the prosecution. The statement of PW-1 in view of statements of PW-4 and PW-5 and Ex.PW-3/A is totally false. The point ‘H’ in Ex.PW-3/A is on top and fuel wood was being carried on head from point ‘A’ to point ‘H’, the house of the prosecutrix PW-1 is at point ‘G’. The alleged place of incident is at point ‘C’ which nowhere comes on the way if one goes from point ‘A’ to point ‘H’. PW-1 and PW-4 have contradicted each other. PW-1 has said that she was carrying fuel wood from place Sikander which is near about point ‘A’ to her house, whereas PW-4 has stated that both of them were carrying fuel wood to temple which is at point ‘H’. PW-1 and PW-4 have contradicted each other. PW-1 has said that she was carrying fuel wood from place Sikander which is near about point ‘A’ to her house, whereas PW-4 has stated that both of them were carrying fuel wood to temple which is at point ‘H’. 9.The two Courts below have not appreciated the material contradictions which go to the root of the case. PW-1 has stated that they reached the Police Station at 9.30 a.m. but perusal of FIR Ex.PW-1/A indicates that FIR was lodged at 12.50 p.m. on 20.4.2004. It has not been explained why the FIR was not lodged at about 9.30 a.m. and why it was lodged at 12.50 p.m. It appears that the FIR Ex.PW-1/A was lodged after deliberations. 10. It has been submitted on behalf of the respondent that sole testimony of the prosecutrix in such type of cases is enough to convict the accused. The two Courts below have believed the testimony of prosecutrix. The scope for interference is very limited in revision. It has been held in Pandurang Sitaram Bhagwat v. State of Maharashtra AIR 2005 SC 643 that ordinarily a lady would not put her character at stake may not be wrong, but cannot be applied universally. Each case has to be determined on the touchstone of the factual matrix thereof. The law reports are replete which decisions where charges under Sections 376 and 354 of IPC have been found to have been falsely advanced. In the present case, the testimony of PW-1 prosecutrix is not of such nature which is enough to convict the petitioner. In fact the testimony of PW-1 does not inspire confidence. 11. The Supreme Court in Krishnan and another versus Krishnaveni and another (1997) 4 SCC 241 after noticing Sections 397, 401, 483 Cr.P.C., has held that when High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is 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 juridical process or illegality of sentence or order. The two Courts below have misconstrued and misinterpreted the evidence on record. The impugned judgment is not sustainable. 12. The two Courts below have misconstrued and misinterpreted the evidence on record. The impugned judgment is not sustainable. 12. In view of above discussion, the revision is allowed, judgment dated 28.7.2006 passed by learned Sessions Judge, Hamirpur in Criminal Appeal No. 30 of 2005 affirming judgment dated 4.11.2005 passed by learned Judicial Magistrate 1st Class, Court No. II, Hamirpur in Criminal Case No. 80-II/2004 convicting and sentencing the petitioner under Sections 354, 506 IPC, is set-aside. The petitioner is acquitted of the charge under Sections 354, 506 IPC. The fine amount, if any, deposited by the petitioner be refunded to him. The bail bonds of the petitioner are discharged.