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2014 DIGILAW 1832 (HP)

State of Himachal Pradesh v. Jeet Singh

2014-12-08

SURESHWAR THAKUR

body2014
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal is directed by the state against the impugned judgment, rendered on 20.2.2013, by the learned Sessions Judge, Sirmaur, District at Nahan, Himachal Pradesh, in Criminal Appeal No. 90-Cr.A/10 of 2011 whereby, the learned Sessions Judge while reversing the judgment of conviction recorded against the accused/respondent by the learned Judicial Magistrate, 1st Class, Rajgarh, District Sirmuar, H.P., acquitted the accused for his having allegedly committed offences punishable under Sections 354 and 323 IPC. 2. The brief facts of the case are that on 8.9.2009 the complainant alongwith his father Sunder Singh came to report the matter at police Station pachhad. She revealed that on 7.9.2009 she was studying in her room. At about 12.45 a.m., when she proceeded to the toilet, then someone caught hold of her from behind and pressed her breast and kissed her. When she turned back, the person was found to be Jeet Singh, who was wearing a ladies suit. On hers raising an alarm, her parents have attempted to evacuate her from the clutches of the accused by entering into the scuffle with the latter, who however successful in fleeing from the spot. In this incident her shirt was torn off and she also suffered injuries on her head and back. Prior to this incident the accused had thrice done such obscene acts with her. On the basis of her statement an FIR came to be registered and the investigation was taken up. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 3. The accused was charged, for, his having committed offences punishable under Section 354 & 323 IPC, to, which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure, was recorded, in, which he pleaded innocence and claimed false implication. He chose to lead evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure, was recorded, in, which he pleaded innocence and claimed false implication. He chose to lead evidence in defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused. On an appeal, preferred by the accused, before the learned Sessions Judge, the Learned Sessions Judge, while reversing the judgment of conviction recorded by the learned trial Court, acquitted the accused. 6. The State is aggrieved by the judgment of acquittal, recorded by the learned Appellate Court. The learned Deputy Advocate General has concertedly and vigorously contended that the findings of acquittal, recorded by the learned Appellate Court, are, not based on a proper appreciation of evidence on record, rather, are sequelled by gross mis-appreciation of the material on record. Hence, he, contends that the findings of acquittal be reversed by this Court in exercise of its appellate jurisdiction and be replaced by findings of conviction. 7. On the other hand, the learned counsel for the respondent has with considerable force and vigour contended that the findings of acquittal recorded by the Appellate Court are based on a mature and balanced appreciation of evidence on record and do not necessitate interference rather merit vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The learned first appellate Court had on incisive discernment of the testimonies of the prosecutrix as well as of her parents, who deposed as PW-2 and 3, while theirs unfolding material embellishments and improvements over the version qua the incident comprised in the FIR, concluded hence that the truth of the version recorded in the FIR is eroded. The findings and conclusions arrived at by the Appellate Court would not entail reversal unless a circumspect reading and an analysis of the testimonies of prosecutrix as well as of PWs 2 and 3, her parents, portrays perse absurdity or perversity in their appreciation by the learned first appellate Court. 10. The findings and conclusions arrived at by the Appellate Court would not entail reversal unless a circumspect reading and an analysis of the testimonies of prosecutrix as well as of PWs 2 and 3, her parents, portrays perse absurdity or perversity in their appreciation by the learned first appellate Court. 10. This Court while proceeding to examine the fact of the prosecutrix having indulged in a bout of embellishments and improvements over the version qua the incident recited by her in the FIR, the imminent noticeable fact which grips the attention of the Court is of hers having mentioned in the FIR, that when she proceeded to the toilet, then someone caught her from behind. However, while she came to be examined on oath, she deposes that the narration in the FIR of hers having been grabbed from behind is inadvertently mentioned in the FIR. Consequently, then the genesis of the prosecution version qua the commencement of incident comprised in the recitals recorded in the FIR of the incident having occurred when the prosecutrix had gone to the toilet and then someone having caught her from behind has obviously come to be reneged or resiled by the prosecutrix while hers come to be examined on oath, it hence, perse constitutes a dire and material contradiction over the version qua the commencement of the incident as narrated by her in the FIR. In sequel, the genesis of the prosecution version, is eroded of its veracity. She had also proceeded to mention in the FIR that after hers having been grabbed by the accused, the latter had pressed her breast and kissed her. However while stepping into the witness box, she omits to attribute the said role to the accused, though ascribed to him in the FIR. Obviously then, too the version as spelt out qua the incident in the FIR has come to be contradicted by her while deposing as a witness on oath. Naturally then the contradiction qua the aforesaid facet belittles her credibility. Moreover other dire improvements in her deposition over the version qua the incident as spelt out in the FIR, have also occurred, inasmuch, as, she while being examined on oath has deposed that the accused tried to gag her to preclude her from shouting and asking for help. Naturally then the contradiction qua the aforesaid facet belittles her credibility. Moreover other dire improvements in her deposition over the version qua the incident as spelt out in the FIR, have also occurred, inasmuch, as, she while being examined on oath has deposed that the accused tried to gag her to preclude her from shouting and asking for help. The aforesaid fact as espoused by her on oath when not recorded by her in the FIR lodged at her instance is obviously an improvement and an embellishment casting a spell of doubt qua her credibility besides rendering prevaricated the version qua the incident as initially recorded in the FIR. The aforesaid contradictions and embellishments existing in the deposition of the complainant/prosecutrix are brazen, sharp and dire. Concomitantly, then, as aptly recorded by the learned first appellate Court, they render open an inference that the version as spelt out qua the incident by the complainant is unbelievable being wholly concocted. 11. Besides, the parents of the prosecutrix who deposed as PWs 2 and 3, too, have resorted to material contradictions, improvements and embellishments which hence render their testimonies to be imbued with the vice of falsity or prevarication. The contradictions resorted to by PW-2 and PW-3 are unraveled by the fact of the FIR recording that on the arrival of the parents at the site of occurrence on theirs hearing the cries of the complainant theirs having attempted to evacuate her from the clutches of the accused by entering into a scuffle with the latter, who however was successful in fleeing from the spot. The reticence of both the PWs 2 and 3 as well as of the prosecutrix qua the arrival of the PW-2 and PW-3 at the site of occurrence surges forth an inference that the prosecution version of PW-2 and PW-3 having arrived at the site of occurrence suffers from falsity. Consequently, their depositions qua the incident are rendered incredible. Moreover both PW-2 and PW-3 have rendered contradictory versions qua the spot where the prosecutrix was found lying. PW-2 deposes that the prosecutrix was found lying 25-30 feet away from the toilet yet PW-3 deposes that she was found lying 4-5 feet away from the toilet. Consequently, their depositions qua the incident are rendered incredible. Moreover both PW-2 and PW-3 have rendered contradictory versions qua the spot where the prosecutrix was found lying. PW-2 deposes that the prosecutrix was found lying 25-30 feet away from the toilet yet PW-3 deposes that she was found lying 4-5 feet away from the toilet. The contradictory versions spelt out by them qua the distance from the toilet where the prosecutrix was found lying too engenders a conclusion that as a matter of fact they never arrived at the site of occurrence rather they were apprised of it subsequently by the prosecutrix. Consequently, the version as espoused by them, qua the fact of theirs having found the prosecutrix lying near the toilet is imbued with falsity. 12. The summom bonum of the above discussion is that the contradictions, improvements and embellishments as unraveled hereinbefore erode the veracity of the prosecution version. Consequently, when the prosecution version is stripped off its truth, the benefit of doubt as afforded to the accused by the learned first appellate Court does not suffer from any perversity or absurdity comprised in its not appreciating the evidence on record in a wholesome, unbiased or impartisan manner. 13. In view of above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned first appellate Court is affirmed. Record of the learned trial Court be sent back forthwith.