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Himachal Pradesh High Court · body

2016 DIGILAW 810 (HP)

Taru alias Ude Ram v. State of H. P.

2016-05-16

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The learned trial Court convicted the accused/revisionist for his committing offences punishable under Sections 341, 354 and 506 of the Indian Penal Code. It also imposed upon the accused/convict consequent sentences for his committing the afore referred penal misdemeanors. The learned trial Court proceeded to hence sentence him to pay fine of Rs.500 for commission of offence under Section 341 of the IPC. In default of payment of fine amount, he was sentenced to undergo simple imprisonment for a period of 7 days. He was further sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.2,000/- for commission of offence under Section 354 of the IPC. In default of payment of fine he was sentenced to undergo simple imprisonment for a period of one month. He was further sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.1,000/- for commission of offence punishable under Section 506 and in default of payment of fine he was sentenced to undergo further imprisonment for one month. All the sentences were directed to run concurrently. The accused/convict preferred an appeal before the learned Additional Sessions Judge, Fast Track Court, Kullu, H.P. against the judgment of conviction and sentences recorded against him by the learned trial Court. The Appellate Court rendered a judgment in affirmation to the conviction and sentences as stood recorded against him by the learned trial Court for his committing offences punishable under Sections 341 and 354 of the IPC. However, it set aside the conviction and sentence as stood recorded against him by the learned trial Court for his committing an offence punishable under Section 506 of the IPC. The accused/convict has been led to institute the instant revision petition therefrom before this Court seeking therein the setting aside of findings of convictions and consequent sentences concurrently imposed upon him by both the learned Courts below. 2. The facts relevant to decide the instant case are that on 14.7.2006 at about 9.30 a.m., the complainant/prosecutrix was going to her shop at Haripur. Near her house, accused had parked his scooter. When she was proceeding towards her shop, accused intercepted her on the way with his scooter. She tried to go ahead ignoring the presence of the accused. The facts relevant to decide the instant case are that on 14.7.2006 at about 9.30 a.m., the complainant/prosecutrix was going to her shop at Haripur. Near her house, accused had parked his scooter. When she was proceeding towards her shop, accused intercepted her on the way with his scooter. She tried to go ahead ignoring the presence of the accused. After covering some distance, scooter was parked by the side of the road by the accused. She was caught from her arm by accused. He stated to her that he wanted to talk to her in nearby forest. She told him that she would talk to him at Haripur. The accused again insisted upon the prosecutrix to talk with her in the forest and stated that he would show her as to how rape was committed. She was caught by the accused and her sweater and shirt were torn. He tried to outrage her modesty. She raised alarm. It was secluded place. Nobody came on the place of occurrence. She managed to wriggle out of the clutches of the accused. She went to nearby house to make telephonic call, but phone was found out of order. Thereafter she reached near Haripur Post Office through field. Accused was found standing there. He chased her upto STD-booth. She wanted to make a telephonic call from STD booth, but she was not having telephone number with her. She boarded bus. Accused threatened to teach her lesson. Accused chased the bus on his scooter upto Jagatsukh. Near Jagatsukh scooter of accused overtook the bus. Complainant availed the opportunity to return back to Haripur by boarding another bus in order to avoid the wrath of accused. She came to Police Station, Manali via 15 Mile. The incident was reported to Police at Police Station, Manali on the basis of which FIR was registered. The police completed all the codel formalities. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 4. The accused was charged by the learned trial Court for his committing offences under Sections 341, 354 and 506 of the IPC. In proof of the prosecution case, the prosecution examined 5 witnesses. 4. The accused was charged by the learned trial Court for his committing offences under Sections 341, 354 and 506 of the IPC. In proof of the prosecution case, the prosecution examined 5 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused/convict under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court in which the accused claimed innocence and pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/convict. In an appeal preferred by the accused/revisionist before the learned Addl. Sessions Judge, Fast Track Court, Kullu, the latter affirmed the conviction and consequent sentences recorded by the learned trial Court against the accused/convict for his committing the offences punishable under Section 341 and 354 of the IPC. However, the learned Appellate Court set aside the conviction and sentence recorded by the learned trial Court for his committing the offence punishable under Section 506 of the IPC. 6. The accused/convict is aggrieved by the judgments of conviction recorded by both the learned courts below. The learned counsel for the accused/convict has concertedly and vigorously contended qua the findings of conviction recorded by both the learned Courts below standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its revisional jurisdiction and theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by both the Courts below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather theirs meriting 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 sole testimony of the prosecutrix is sufficient to sustain findings of conviction against the accused/convict only when it inspires confidence besides is trustworthy. 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 sole testimony of the prosecutrix is sufficient to sustain findings of conviction against the accused/convict only when it inspires confidence besides is trustworthy. It would be bereft of credence in case her testimony qua the ill-fated occurrence stands connoted by the depositions of PW-2 and PW-3, premises whereof of both stood visited by the complainant/prosecutrix to therefrom purvey a telephonic information to the police station concerned qua the occurrence to suffer a vice of falsity. Both PW- 2 and PW-3 are not eye witnesses to the occurrence. Their testimonies assume significance as the prosecutrix has unequivocally communicated in her testimony of the accused tearing both her shirt as well as her sweater during the span of the accused perpetrating penal misdemeanors upon her, especially when she in quick spontaneity to the occurrence visited the premises of PW-2 and PW-3 to therefrom purvey the apposite information to the police station concerned. Consequently, the echoing by each of them in unison of their noticing thereat the torn shirt as well as the sweater of the prosecutrix was imperative. However, both in their respective depositions omit to unfold the prime fact of on the prosecutrix visiting their respective premises theirs noticing hers wearing a torn shirt besides a torn sweater. The absence of voicing by each of them in their respective testimonies qua the aforesaid prime factum negates the testimony of the prosecutrix of the accused/convict during the spell of his perpetrating the alleged offences on her person, his tearing both her shirt as well as her sweater. When the aforesaid attribution by the prosecutrix to the accused stands repulsed arising from theirs not attaining corroborative succor from the testimonies of PW-2 and PW-3, premises whereof, she visited in quick spontaneity to the illfated occurrence besides when the tearing of both her shirt as well as her sweater were palpably noticeable, obviously, constrains this Court to hold of hers testimony being neither truthful nor trustworthy. As a corollary, when her testimony loses its creditworthiness qua the aforesaid prime factum, the ensuing deduction therefrom is of the prosecutrix hence contriving or rearing a false story against the accused/convict whereupon no reliance is imputable. 10. As a corollary, when her testimony loses its creditworthiness qua the aforesaid prime factum, the ensuing deduction therefrom is of the prosecutrix hence contriving or rearing a false story against the accused/convict whereupon no reliance is imputable. 10. On the previous date of hearing, the learned Additional Advocate General contended of the tearings of the shirt as well as of the sweater of the prosecutrix by the accused during the course of his subjecting her to penal misdemeanors were minimal, as such, rendered incapacitated both PW-2 and PW-3 to voice the aforesaid factum in their respective previous statements recorded in writing as also precluded them to communicate the aforesaid prime factum in their respective testimonies recorded on oath in Court. In sequel, he contended of any lack of communication of the aforesaid factum in their respective depositions by PW-2 and PW-3 of the aforesaid prime factum would not render the prosecution case to acquire any stain of inveracity. For testing the strength of the submission of the learned Additional Advocate General an order stood recorded by this Court qua the clothes of the prosecution held in the apposite malkhana being produced before this Court for enabling this Court to visualize the extent of tearings begotten upon the shirt and on the sweater of the prosecutrix. Today, both the shirt as well as the sweater of the prosecutrix stand produced before this Court. On inspection thereof , the shirt on its side holds tearings. Since, thereupon the prosecutrix was donning a sweater the palpable tearings of the shirt beneath it may obviously were unnoticeable. However, when the sweater as worn by the prosecutrix stands also noticed by this Court to be heavily torn naturally hence tearings thereof when were palpably noticeable to both PW-2 and PW-3 whereas both omitted to disclose in their respective testimonies of the prosecutrix on visiting their premises theirs noticing the tearings occurring on the sweater of the prosecutrix. Consequently, the aforesaid noticeable tearings occurring on the sweater of the complainant standing not narrated by PW-2 and PW-3 in their respective previous statements recorded in writing as also in their respective testimonies recorded on oath before the learned trial Court belies the version of the prosecutrix of during the course of perpetration of penal misdemeanors by the accused on her person, her sweater as well as shirt stood torn. Obviously, naturally she is then not to be construable either a trustworthy witness or a credible witness nor hence her version qua the prosecution case is to be construable to be inspiring confidence. 11. For the reasons which have been recorded hereinabove, this Court holds that both the learned Courts below have not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by both the learned Courts below suffer from perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 12. Consequently, the instant revision petition is allowed and the judgments of conviction and sentences recorded by both the learned Courts below against the accused/appellant are set aside. The accused/revisionist is acquitted of the offences charged. Fine amount, if any, deposited by him be refunded to him. Records be sent back forthwith.