Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 783 (HP)

Kamaljit alias Kamal v. State of Himachal Pradesh

2013-09-02

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, Judge The petitioner has been convicted by the two courts below for offence punishable under Section 354 IPC, hence petitioner has filed the petition under Section 397 read with Section 482 Cr.P.C. assailing judgment dated 11.9.2007 passed by Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala in Criminal Appeal No. 8/G/2005 affirming judgment dated 15/27.1.2005 passed by Additional Chief Judicial Magistrate, Dehra in RBT Criminal Case No. 28-II/04/2002. 2. The prosecution case in brief is that on 17.5.2002 at about 6.30 p.m. at village Saloha accused caught hold prosecutrix from breast, who raised alarm. It is alleged that PW-3 Rukko Devi came there, on seeing her, the accused fled away from the scene of occurrence. The husband of the prosecutrix was not at home, therefore, prosecutrix could not lodge the report as it was already late in the evening, next day the prosecutrix went to her parents house and disclosed the incident to her sister in law Sarla Devi, both of them went to lodge the report. PW-4 ASI Amar Singh met the prosecutrix on the way at Khundian bazaar, the prosecutrix made a statement Ex.PW-2/A under Section 154 Cr.P.C. before ASI Amar Singh on 18.5.2002 in the evening at about 7.30 P.M. Thereupon FIR Ex.PW-4/A was registered. On completion of investigation, report under Section 173 Cr.P.C. was submitted against the petitioner for commission of offence under Sections 354, 506 IPC. 3. The notice of accusation was put to the petitioner for commission of offence under Section 354 IPC. The petitioner pleaded not guilty and claimed trial. The prosecution examined four witnesses. The statement of petitioner was recorded under Section 313 Cr.P.C, he led no evidence in defence. On conclusion of trial, the Additional Chief Judicial Magistrate on 15.1.2005 convicted the petitioner under Section 354 IPC and on 27.1.2005 sentenced the petitioner under Section 354 IPC to undergo rigorous imprisonment for six months and fine of `1,000/-, in default of payment of fine, the petitioner was directed to further undergo simple imprisonment for one month. The appeal filed by the petitioner has been dismissed by the Additional Sessions Judge on 11.9.2007, hence the petitioner has come in revision. 4. I have heard learned counsel for the petitioner and Mr. M.L.Chauhan, Additional Advocate General for the respondent. The appeal filed by the petitioner has been dismissed by the Additional Sessions Judge on 11.9.2007, hence the petitioner has come in revision. 4. I have heard learned counsel for the petitioner and Mr. M.L.Chauhan, Additional Advocate General for the respondent. It has been submitted on behalf of the petitioner that the two Courts below have taken perverse view, they have misconstrued and misinterpreted the evidence in convicting and sentencing the petitioner. The prosecution has miserably failed to prove the charge. The sentence imposed is excessive. The learned Additional Advocate General has submitted that the two Courts below have recorded concurrent findings of facts. The prosecution has proved the case against the petitioner. In revision, re-appreciation of the evidence is not permissible. He has supported the impugned judgments. 5. Ex. PW-2/A is the statement of prosecutrix under Section 154 Cr.P.C. recorded at 7.30 p.m. on 18.5.2002 wherein it has been stated that occurrence took place on 17.5.2002 at about 6.30 p.m. In Ex.PW-2/A the prosecutrix has stated that while she was proceeding towards her cow-shed, the accused all of a sudden appeared and touched her breast with his hand, she raised alarm and on hearing her alarm, Rukko Devi came there and on seeing her the accused ran away. Ex.PW-1/B is the MLC of prosecutrix indicating she was examined by the doctor at about 7.45 p.m. on 18.5.2012. In the MLC, it has been stated the prosecutrix had no external or internal injury on her body. 6. On the basis of Ex.PW-2/A, FIR Ex.PW-4/A was registered on 18.5.2002. In the FIR, the distance between Police Station and the place of occurrence has been given about 40 KM. Ex.PW-4/B is the site plan showing three cow-sheds of Prem Chand, Banku Ram and Trilok Chand. The prosecutrix is the wife of Trilok Chand. The occurrence allegedly took place at point ‘A’ in front of cow-shed of Trilok Chand. The houses of Hoshiar Singh, Raj Kumar and accused are also shown in the site plan. 7. PW-1 Dr. Anita Sharma has stated that she examined prosecutrix and issued MLC Ex.PW-1/B. She has stated that no injury was found on the person of prosecutrix. The prosecutrix was examined as PW-2. She has stated that on 17.5.2002 at about 6.30 p.m. she had gone to her cow-shed to give them fodder. In the meantime, accused started quarrelling with her and caught hold her from breasts. The prosecutrix was examined as PW-2. She has stated that on 17.5.2002 at about 6.30 p.m. she had gone to her cow-shed to give them fodder. In the meantime, accused started quarrelling with her and caught hold her from breasts. She shouted, Rukko Devi came there and on seeing her accused ran away. The police recorded her statement Ex.PW-2/A. In cross-examination, she has stated that the accused is her brother-in-law in relation. There are three houses adjacent to her cow-shed. The house of Rukko Devi is at a distance of 500 meters from her cow-shed. She sustained abrasion/scratches on her breast. The accused had caught hold and embraced her when Rukko Devi came. She went to her house weeping. There were two women in the adjacent houses at that time. On the next day, she went to her parents house and from there to Khundian alongwith Sarla where her statement was recorded by the police in bazaar. 8. PW-3 Smt. Rukko Devi has stated that on 17.5.2002 at 6.30 p.m. she was going to the house of prosecutrix, she heard some cries at her house. She saw Kamaljit holding the breast of prosecutrix and nothing more, he ran away. In cross-examination, she has stated that cow-shed of the prosecutrix is at a distance of two meters from her house. She had not seen the accused while holding the prosecutrix. The accused had run away when she reached there. She returned to her house and she does not know where the prosecutrix had gone. She is not on visiting terms with accused. There are 5-6 houses adjacent to the cow-shed. In further examination by the Prosecutor, she has stated that accused had caught the prosecutrix from breast in the cow-shed. In the further cross-examination by the defence counsel, she has stated that when she reached there then the accused had caught hold the prosecutrix from breasts but did not embrace her. The accused ran away the moment she tried to enter inside (cow-shed). 9. PW-4 Amar Singh, Investigating Officer has stated that on 18.5.2002 at the time of recording statement of prosecutrix under Section 154 Cr.P.C., Sarla Devi was with her. The houses and cowsheds of Banka Ram, Prem Chand, Hoshiar Singh, Raj Kumar, Kamlu (accused) etc. are adjacent to the cow-shed of the prosecutrix. The petitioner in his statement under Section 313 Cr.P.C. has denied the prosecution case. 10. The houses and cowsheds of Banka Ram, Prem Chand, Hoshiar Singh, Raj Kumar, Kamlu (accused) etc. are adjacent to the cow-shed of the prosecutrix. The petitioner in his statement under Section 313 Cr.P.C. has denied the prosecution case. 10. The material witnesses are PW-1 Dr. Anita Sharma, PW-2 prosecutrix and PW-3 Smt. Rukko Devi. The prosecutrix in her statement has stated that accused started quarrelling with her and caught hold her from breasts. She sustained abrasions/scratches on her breasts. The accused caught hold and embraced her when Smt. Rukko Devi came. As per the site plan Ex.PW-4/B, the occurrence took place at point ‘A’ in front of the cow-shed of the prosecutrix. PW-3 Smt. Rukko Devi initially stated that she saw Kamaljit holding the breast of prosecutrix and no more. In cross-examination, she said that she had not seen the accused while holding the prosecutrix. The accused had run away when she reached there. In further examination by the Prosecutor, she has stated that accused had caught the prosecutrix from breast in the cow-shed. But in further cross-examination by the defence counsel, she has stated that accused did not embrace her. 11. The statement of PW-3 on material particulars is wavering. At one point, she has stated that she had not seen the accused holding the prosecutrix but lateron she said that accused caught hold the prosecutrix from breast, but stated that the accused did not embrace the prosecutrix. She has stated that the accused caught hold the prosecutrix inside the cow-shed. She has not stated that any quarrel took place between prosecutrix and accused as stated by prosecutrix. She has thus contradicted the prosecutrix on material points. She has also stated that she is not on visiting terms with the accused. 12. It is now well settled law that conviction can be based on sole testimony of the prosecutrix provided the statement of prosecutrix inspires confidence. PW-3 Smt. Rukko Devi has not supported the prosecutrix on material particulars. Now it is to be seen whether the statement of prosecutrix is enough to uphold the conviction of the accused. According to prosecution, occurrence took place on 17.5.2002 at 6.30 p.m. The husband of the prosecutrix was not at home, therefore, the report could not be lodged with the police on 17.5.2002 by the prosecutrix or by anybody else to put the law enforcing agency in motion. According to prosecution, occurrence took place on 17.5.2002 at 6.30 p.m. The husband of the prosecutrix was not at home, therefore, the report could not be lodged with the police on 17.5.2002 by the prosecutrix or by anybody else to put the law enforcing agency in motion. It has come in evidence that the prosecutrix started at about 9.30 a.m. on 18.5.2002 in a van alongwith her sister in law Sarla. The distance between the place of occurrence and the police station is about 40 KM as per FIR Ex.PW-4/A. 13. The statement Ex.PW-2/A under Section 154 Cr.P.C. of the prosecutrix was recorded on 18.5.2002 at about 7.30 p.m., thereafter FIR Ex.PW-4/A was registered. The prosecution has not explained the delay for registration of the case atleast from 9.30 a.m. when the prosecutrix started in a van for reporting the matter, but statement under Section 154 Cr.P.C. was recorded at 7.30 p.m. on 18.5.2002. In these circumstances it is reasonable to infer that the case has been registered after deliberations, the possibility cannot be ruled out that true version has not come in the statement under Section 154 Cr.P.C. Ex.PW-2/A. 14. In the statement Ex.PW-2/A the prosecutrix has stated that while she was proceeding towards her cow-shed, the accused all of a sudden appeared and caught hold her from breast. She has not stated that accused embraced her. In the Court the prosecutrix has stated that accused embraced her. According to prosecutrix, she sustained abrasion/scratches on her breast when the accused caught hold her from breast. But PW-1 Dr. Anita Sharma, who examined the prosecutrix and issued MLC Ex.PW-1/B did not find any internal or external injury on the person of the prosecutrix. The oral statement of the prosecutrix regarding abrasions and scratches on her breast is not getting support from the medical evidence. 15. It has come in evidence that there are several houses and cow-sheds of different persons adjacent to the place of occurrence. There is no explanation why the investigating agency did not associate any other person in the investigation and examine such person in the Court except PW-3 Smt. Rukko Devi. PW-4 ASI Amar Singh has not stated that he made any attempt to associate any other person from the adjacent houses during investigation. According to prosecution, the prosecutrix cried when accused caught hold her from breasts. PW-4 ASI Amar Singh has not stated that he made any attempt to associate any other person from the adjacent houses during investigation. According to prosecution, the prosecutrix cried when accused caught hold her from breasts. But it is very surprising that no one responded to her cries except PW-3 Smt. Rukko Devi, who has contradicted the prosecutrix on material particulars. Sarla sister-in-law of prosecutrix whom prosecutrix must has disclosed first version has not been examined by prosecution, therefore, adverse inference is to be drawn against prosecution. In the facts and circumstances of the case, the statement of prosecutrix does not inspire confidence and is not enough to convict the accused. It will not be safe to convict the accused on the sole testimony of the prosecutrix which is not of such character so as to record a finding that the prosecution has proved the case beyond reasonable doubt. 16. It has been submitted on behalf of the State that in revision the scope is limited and evidence cannot be re-appreciated. In Krishnan and another vs. Krishnaveni and another (1997) 4 SCC 241 in the context of revisional powers of the High Court, the Supreme Court has held 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 judicial process or illegality of sentence or order. In the present case the illegality committed by the two Courts below cannot be allowed to be perpetuated when it has come to the notice of this Court that the view taken by the two Courts below is based upon misconstruction and misinterpretation of the evidence. The prosecution has failed to prove the case against the petitioner beyond reasonable doubt, the petitioner is entitled to benefit of doubt. The conviction and sentence of the petitioner recorded by the two Courts below under Section 354 IPC is not sustainable. 17. In view of above, the revision is allowed, conviction and sentence of the petitioner under Section 354 IPC is set-aside. The petitioner is acquitted of the accusation. The fine amount, if any, deposited by the petitioner, be refunded to him. The bail bonds of the petitioner are discharged.