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2014 DIGILAW 259 (HP)

Sarla Devi v. Ram Pal

2014-03-25

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, J. In this appeal, complainant Sarla Devi has assailed the judgment dated 17.10.2005, passed by Additional Chief Judicial Magistrate, Jawali, District Kangra, H.P., in Criminal Complaint No.65-II/02, titled as Smt. Sarla Devi Versus Ram Pal & others. 2. Private complaint dated 21.01.2002, filed under Sections 451, 354, 323, 506 read with Section 34 of the Indian Penal Code, stands dismissed. 3. Complainant alleges that on 09.01.2002 at about 3.00 PM, accused persons forcefully entered her property and tried to dispossess her. When she objected, all the accused caught her; “tore her clothes”; and accused Ram Pal also outraged her modesty. All this was done on the asking and at the insistence of Litru Ram, accused No.4. When complainant cried for help, Kamlesh Kumari (CW-2) and Manohar Lal (CW-3) reached the spot and rescued her. Matter was reported to the police and Panchayat, but since no action was taken, a private complaint was filed. 4. In support of her case, after charges were framed against the accused, complainant examined three witnesses. Statements of accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they pleaded false implication. Evidence in defence was led. 5. Disbelieving the testimonies of complainant’s witnesses, Court below acquitted the accused of the charged offences. Hence the present appeal. 6. Perusal of the record, including the testimony of complainant’s witnesses, reveal following facts:- (a) There is nothing on record to substantiate complainant’s (CW-1) version about the complaint having been lodged either with the Panchayat or the police; (b) Witnesses Kamlesh Kumari (CW-2) and Manohar Lal (CW-3) are not residents of village Dehri; (c) They are in close relations with the complainant; (d) No independent witness stands examined by the complainant; and (e) Dehri is a big village having at least 50-100 houses and none was examined from the village or associated during investigation. 1. 7. Though the accident is of 09.01.2002 yet first formal document, in the shape of complaint, was filed only on 21.01.2002. 8. Careful perusal of testimony of complainant’s witnesses would also reveal that there are improvements, embellishments and contradictions, which render their testimony to be doubtful. Presence of CW-2 and CW-3, on the spot, at the time of occurrence, appears to be doubtful. Accused stand acquitted of the charged offences. Valuable right has accrued in their favour. 8. Careful perusal of testimony of complainant’s witnesses would also reveal that there are improvements, embellishments and contradictions, which render their testimony to be doubtful. Presence of CW-2 and CW-3, on the spot, at the time of occurrence, appears to be doubtful. Accused stand acquitted of the charged offences. Valuable right has accrued in their favour. The accused can be convicted only, and only if complainant is able to establish her case beyond reasonable doubt. 9. Now Manohar Lal admits that he resides in another village. He came to village Dehri only to visit the house of his Uncle Karam Chand (not examined). Significantly he admits that distance between the house of Karam Chand and that of the complainant is ½ km. To visit his Uncle’s house, he does not have to pass through the house of the complainant. His explanation of having lost in the village, while finding way to his Uncle’s house, does not inspire confidence. It is not his case that house of the complainant is situated on the road, where he accidently got down from the bus. It is also not his case that he had enquired about the way to the house of his Uncle from passerby/villagers. He states that he heard cries coming from the house of the complainant and only thereafter rushed to the spot. This version appears to be false. Importantly he feigns ignorance about the fact that the village is inhabited. Significantly his exaggerations about the alleged occurrence is to the extent that accused Litru Ram instigated accused Ram Pal to rape the complainant, which in fact is not the complainant’s case. After all, incident is alleged to have taken place in the presence of accused Usha Devi and Karmi Devi, wife and mother of Ram Pal. 10. Kamlesh Kumari also is not a resident of village Dehri. Her house is at a distance of 7-8 kms. Though she narrates the version which the complainant wants the Court to believe, but however this witness admits that till such time, Manohar Lal reached the spot, she did not do anything. This conduct of hers is totally unbelievable, rendering her testimony to be unreliable. After all, accused persons had outraged the modesty of her sister-in-law. Why did she not intervene; call for help or report the matter to the police/relations has not been explained. 11. This conduct of hers is totally unbelievable, rendering her testimony to be unreliable. After all, accused persons had outraged the modesty of her sister-in-law. Why did she not intervene; call for help or report the matter to the police/relations has not been explained. 11. Coming to the testimony of the complainant, it be only observed that even she has not spoken the truth with regard to the number of houses and the persons residing in village Dehri. She has not bothered to place on record the complaint, if any, lodged with the police or the Panchayat. It is not her case that during this period either she was handicapped; threatened or intimidated by the accused persons. It is also not her case that she is illiterate and had no access to legal remedy. It is also not her case that there is none other than her in her family. Members may have not witnessed the incident, but then they could have surely reported the matter to the authorities. Also none from the Panchayat or police stands examined. The delay, thus stands unexplained. Even otherwise her statement does not inspire confidence. Her version that matter was reported to the police and Panchayat, stand contradicted by CW-2. According to whom none had gone to the police/Panchayat after the incident. In fact, she states that none had gone to the doctor either. Apparently there is dispute between the two parties and it is in this background that complainant was duty bond to establish the charges against the accused, beyond reasonable doubt, which in the instant case are lacking. 12. The Court below, in my considered view, has correctly and completely appreciated the evidence so placed on record by the complainant. It cannot be said that the judgment of the trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record, resulting into miscarriage of justice. 13. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the complainant. Having considered the material on record, I am of the considered view that complainant has failed to establish the essential ingredient so as to constitute the charged offences. 14. The accused persons have had the advantage of having been acquitted by the trial Court. To dislodge the same, onus heavily lies upon the complainant. Having considered the material on record, I am of the considered view that complainant has failed to establish the essential ingredient so as to constitute the charged offences. 14. The accused persons have had the advantage of having been acquitted by the trial Court. 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 trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. 15. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.