Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 1026 (HP)

STATE OF H. P. v. RAM MURTI

2013-12-16

SANJAY KAROL

body2013
JUDGEMENT SANJAY KAROL, J.- 1. IN this appeal, filed under Section 378 of the Code of Criminal Procedure, 1973, State has assailed the impugned judgment of acquittal dated 01.02.2007, passed by the Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P., in case No. 90-1-2006/48-II-2006. 2. IN short, it is the case of prosecution that on 5th April, 2006, Smt. Meena Devi (PW-1) had taken her daughter, Ms. Kumari Sheetal Sharma (complainant), for medical treatment to the Community Health Centre at Galore. At that time no doctor was present in the centre. The accused, who was working as a Pharmacist at the Centre, was called from his 1. Whether reporters of Local Papers may be allowed to see the judgment? residence. Complainant was suffering from kidney problem and her urine had blocked. She was taken to one of the rooms of the Health Centre where she was administered 5/6 pouches of I.V. fluid by the accused. At that time, PW-1 was present in the room. Other relatives, who accompanied PW-1, were waiting outside the room, in the corridor of the health centre. Another employee, Shri Shambhu Ram (PW-2) (wrongly referred to as Shankar Ram), who was working as Peon at the centre, was also present at that time. On the asking of accused, PW-1 went out of the room to drain out the pouch of urine in the toilet of the Health Centre. At that time, accused was alone in the room with the complainant. Just as PW-1 had covered a distance of about 15-20 feet, she heard cries of her daughter. Immediately she turned back and entered the room. There she saw the accused holding her daughter in his hands and kissing her. Seeing PW1, accused became perplexed and threw the patient on the bed. Thereafter, Peon Shri Shambhu Ram (PW- 2) and other relatives, including Smt. Reena Sharma (PW-5), Shri Desh Raj (PW-3) present in the corridor, entered the room. Patient was immediately taken away from the Health Centre, Galore, to District Hospital, Hamirpur, as she required urgent medical attention and treatment. Police was informed about the incident. SI-Fauja Singh (PW-8) reached Hamirpur and recorded the statement (Ex. PW-8/A) of the complainant, on the basis of which FIR No.67 of 2006 dated 06.04.2006 (Ex. PW-7/B) was registered at Police Station, Barsar under Section 354 of the Indian Penal Code. 3. Police was informed about the incident. SI-Fauja Singh (PW-8) reached Hamirpur and recorded the statement (Ex. PW-8/A) of the complainant, on the basis of which FIR No.67 of 2006 dated 06.04.2006 (Ex. PW-7/B) was registered at Police Station, Barsar under Section 354 of the Indian Penal Code. 3. UNFORTUNATELY, before the challan could be presented in the Court, complainant died on 02.06.2006. With the completion of investigation, challan was presented in the Court for trial. 4. ACCUSED was charged for having committed an offence punishable under Section 354 of the Indian Penal Code to which he did not plead guilty and claimed trial. In order to prove its case, in all, prosecution examined eight witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded, in which he pleaded false implication. No evidence in defence was led by the accused. 5. THE court below has acquitted the accused for the reason that prosecution could not prove its case beyond reasonable doubt. Hence the present appeal. 6. IT is one of those unfortunate cases where prosecution could not prove its case. In fact, prosecution witnesses, who are close relatives of the deceased, including PW-1, did not fully support the prosecution case, during trial. Having heard learned counsel for the parties and perused the record, I am of the considered view that in the instance case no ground for interference is made out. 7. SI-Fauja Singh (PW-8) states that he recorded the statement of the complainant, Sheetal Sharma (deceased) on 5th April, 2006, in the hospital at Hamirpur. Perusal of the statement, Ex. PW-8/A, clearly reveals that accused had actually outraged the modesty of the deceased. But however closure examination of testimonies of the witnesses only reveals that there is contradiction with regard to the place where such statement was recorded. According to PW-1, mother of the deceased, statement was recorded by the appellants at Galore and not at Hamirpur. She specifically states that this statement was recorded at 5:30 pm on the day of occurrence of the incident. But Shri Ajeet Singh (PW-4), who is the Head Constable, states that SI-Fauja Singh (PW-8) was sent from the police station directly to the hospital at Hamirpur at 9:45 PM. Thus, the genesis of the prosecution case itself is rendered doubtful. Complainant is not the mother but the deceased. 8. But Shri Ajeet Singh (PW-4), who is the Head Constable, states that SI-Fauja Singh (PW-8) was sent from the police station directly to the hospital at Hamirpur at 9:45 PM. Thus, the genesis of the prosecution case itself is rendered doubtful. Complainant is not the mother but the deceased. 8. ONE may have overlooked this contradiction, but for the fact that even the testimony of the mother cannot be said to be inspiring in confidence. Initially, she states that she had herself seen the accused hold the complainant in his hands and kiss her. But however, later on, she qualifies her statement by categorically deposing that this fact was disclosed to her by her daughter and she herself did not see anything. Now this is hearsay evidence. In sequence of events one cannot ignore the testimony of Shri Shambhu Ram (PW-2), who unequivocally has deposed that at the time when accused was inside the room, attending to the patient (deceased), he was standing near the door in the veranda and the wooden door was open. He states that he did not see any such occurrence of the incident. 9. AT this juncture one may also refer to the testimony of Smt. Reena Sharma (PW-5), a close relative of the complainant. She was declared hostile on the asking of the Prosecutor and despite her extensive cross-examination nothing fruitful could be elicited from her testimony. Though she admits that all the relatives, except for PW-1, were outside the room, but categorically denies having seen, noticed or heard about any of the illegal acts of the accused. In fact, she qualified her statement by deposing that the deceased had shouted on account of pain. 10. THERE is one more mitigating fact which has come on record through the testimonies of Shri Desh Raj (PW-3) and Smt. Reena Sharma (PW-5). Both of them state that complainant (deceased) was in great pain and agony and unconsciously would state things. In fact, Shri Desh Raj (PW- 3) states that in her unconscious state of mind, complainant had stated that the accused had teased her. Hence having discussed the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. 11. THE accused has had the advantage of having been acquitted by the Court below. Hence having discussed the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. 11. THE accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 , it cannot be said that the Court below incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for. As such, present appeal is dismissed, so also pending application, if any. Bail bonds, if any, furnished by the accused are discharged.