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2017 DIGILAW 1056 (HP)

State of H. P. v. Sanjeev Kumar @ Deepu

2017-09-12

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. By way of instant criminal appeal filed under Section 378 CrPC, challenge has been laid to the impugned judgment dated 29.4.2017, passed by the learned Judicial Magistrate, 1st Class, Dehra, District Kangra, H.P., in Case No. 106-II/2012, whereby respondent-accused came to be acquitted of charge framed against him punishable under Section 354 IPC. 2. Necessary facts as emerge from the record are that on 26.5.2012, complainant/prosecutrix got her statement recorded under Section 154 Cr.PC (Ext.PW6/A) stating therein that she cooks food at Government Primary School Bhatawa, whereas her husband works in a jeweler shop at Bhiwani, Haryana. Prosecutrix further alleged that on 23.5.2012, at about 9:30 pm, she was watching TV, while her children had gone to sleep after having meals and when she went out behind the house for urination, respondent-accused (Rajeev @ Deenu) suddenly came there and caught hold of her with bad intention. Prosecutrix pushed the accused and shouted for help, but nobody came at the spot. On 24.5.2012, complainant-prosecutrix made an application to the Pradhan, Gram Panchayat and Ward Panch. Complainant also averred in the complaint that she also informed her husband telephonically. On 25.5.2012, Pradhan Gram Panchayat and Ward Panch visited her house but they could not come to any conclusion. The complainant reported the matter to police on 26.5.2012, when her husband came back to home. On the basis of aforesaid complaint/report recorded under Section 154 of the Cr.PC, formal FIR Ext.PW7/B, came to be registered under Section 354 of the IPC, against the respondent-accused. After completion of investigation, police presented before the Court below. 3. Learned Judicial Magistrate, Ist Class, Dehra, District Kangra, H.P., after being satisfied that prima-facie case exists against the respondent-accused framed charge against the respondent accused under Section 354 IPC, to which the accused pleaded not guilty and claimed trial, however fact remains that he did no lead any evidence in support of his defence. Learned trial Court on the basis of evidence adduced on record by the prosecution, acquitted the respondent-accused of charge framed against him under Section 354 IPC. In the aforesaid background, appellant-State has approached this Court against the acquittal recorded by the court below, by way of instant proceedings, seeking therein conviction of the respondent-accused after setting aside judgment of conviction recorded by the court below. 4. Mr. In the aforesaid background, appellant-State has approached this Court against the acquittal recorded by the court below, by way of instant proceedings, seeking therein conviction of the respondent-accused after setting aside judgment of conviction recorded by the court below. 4. Mr. M.L. Chauhan, learned Additional Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the court below, strenuously argued that the impugned judgment is not sustainable in the eye of law as the same is not based upon the proper appreciation of evidence and as such, same deserves to be quashed and set-aside. Mr. Chauhan, further contended that bare perusal of impugned judgment clearly suggests that learned court below failed to appreciate the evidence in its right perspective, as a result of which erroneous findings have come on record and respondent-accused has been acquitted on very flimsy grounds. To substantiate his aforesaid arguments, Mr. Chauhan, made this Court to travel through the evidence led on record by the prosecution to demonstrate that prosecution successfully proved beyond reasonable doubt that respondent-accused made an attempt to outrage the modesty of the complainant, who at that relevant time was alone in her house. Mr. Chauhan, further contended that version put forth by the complaint could not be brushed aside by the court below solely on the ground that no independent witness was associated. Mr. Chauhan, further contended that if the statement given by the complainant is read in its entirety, it is sufficient to conclude that accused committed offence punishable under Section 354 IPC. While concluding his arguments, Mr. Chauhan, contended that impugned judgment passed by the learned court below is result of misreading, mis-appreciation and mis-construction of evidence led on record by the prosecution, which otherwise was sufficient to hold accused guilty of having committed offence punishable under Section 354 IPC. With the aforesaid submissions, Mr. Chauhan, contended that respondent-accused deserves to be convicted after setting aside the judgment of acquittal recorded by the court below. 5. I have heard the learned Additional Advocate General and carefully gone through the record. 6. With the aforesaid submissions, Mr. Chauhan, contended that respondent-accused deserves to be convicted after setting aside the judgment of acquittal recorded by the court below. 5. I have heard the learned Additional Advocate General and carefully gone through the record. 6. After having carefully perused records of the court below, this Court is not inclined to agree with the contention of Shri M.L. Chauhan, learned Additional Advocate General, that there is mis-reading, misrepresentation and mis-interpretation of evidence led on record by the prosecution by the court below while acquitting the respondent-accused of charge framed against him under Section 354 IPC, rather this Court after having gone through the evidence led on record by the prosecution, has no hesitation to conclude that learned court below while acquitting the respondent-accused of charge framed against him under Section 354 IPC has dealt with each and every aspect of the matter very meticulously and there appears to be no scope of interference by this Court. 7. In the case at hand, prosecution with a view to prove its case beyond reasonable doubt examined as many as seven witnesses, but statements of PW1 (complainant), PW2 and PW3 are relevant for ascertaining the correctness of judgment of acquittal recorded by the court below. 8. PW1 Parveen Kumari (complainant) while claiming that she works as mid-day meal worker in Government Primary School stated that on 23.5.2012, at around 9:30 pm, she was watching TV alongwith her kids. She further deposed before the court below that after having meals, her children had gone to sleep and when she went outside from backdoor to attend the call of nature, suddenly accused came there and when she asked him that why he has come, accused with bad intention hugged her. Complainant pushed him away and told him that she will tell his wife and his mother. It has specifically come in her statement that she shouted at that relevant time but no one came at the spot of the occurrence, as her father-in-law and mother-in-law stay at different place. PW1 further stated that on 24.5.2012, she reported the matter to Gram Panchayat vide application Ext.PW1/A. She also stated that she informed her husband about this incident on 25.5.2012 and her husband came on 26.5.2012. She further stated that thereafter on 27.5.2012, she alongwith her husband went to police station to report the matter. PW1 further stated that on 24.5.2012, she reported the matter to Gram Panchayat vide application Ext.PW1/A. She also stated that she informed her husband about this incident on 25.5.2012 and her husband came on 26.5.2012. She further stated that thereafter on 27.5.2012, she alongwith her husband went to police station to report the matter. In her statement, she admitted that she inadvertently got recorded the name of the accused as Rajeev Kumar but later on, she came to know that name of the accused is Sandeep. In her cross-examination, complainant (PW1) admitted that there is a case pending against her, her mother and her brother, regarding beatings allegedly given by them to the Pradhan. In her cross-examination, she admitted that she had disclosed factum with regard to the aforesaid incident in the application Ext.PW1/A, but then she was confronted with the documents, where it was not so recorded. PW1 further admitted that there is a dispute pending between her and her parents-in-law and the matter was pending in the Panchayat. She feigned ignorance to the suggestion put to her that accused (Sanjeev Kumar) had supported her father and mother-in-law and he was compelling her to vacate the room. Aforesaid witness in her cross-examination further admitted that when she had gone to attend the call of nature, she was not having a torch and she had no conversation with the accused (Sandeep Kumar) at that relevant time. In her cross-examination, she stated that she identified the accused in the light coming from TV as she was urinating near the door. Most importantly, in her cross-examination, complainant (PW1) admitted that in the application Ext.PW1/A (complaint given to Panchayat), word ‘Rajeev’ was written by her. She further admitted that aforesaid word ‘Rajeev’ was written by her after the application was given to Pradhan. 9. Statement of PW2, who happens to be husband of the complainant, may not be very relevant for ascertaining the genuineness and correctness of statement of the complainant since he was not present on the date of occurrence. PW2 while making his statement before the court below stated that he works in Haryana and on 24.5.2012, his wife (Parveen Kumari), telephonically informed him that accused namely Deenu alias Sanjeev Kumar mis-behaved with her. He further stated that on 25.5.2012, he reached here and on 26.5.2012, he alongwith his wife went to the police station to report the matter. PW2 while making his statement before the court below stated that he works in Haryana and on 24.5.2012, his wife (Parveen Kumari), telephonically informed him that accused namely Deenu alias Sanjeev Kumar mis-behaved with her. He further stated that on 25.5.2012, he reached here and on 26.5.2012, he alongwith his wife went to the police station to report the matter. In his cross-examination, PW2 admitted that his wife is accused of beating the members of Panchayat and matter is also pending before the Court. He also admitted that they went to police station after the incident of beating of Panchayat members. 10. PW3 (Atmi Devi), who happened to be a ward member of Panchayat Tipri, corroborated the version put forth by the complainant that on 24.5.2012, complainant had gone to her and told her that Sanjeev Kumar alias Deenu had a fight with her. She further stated that she as well as Pradhan namely Satish Kumar had pacified both the parties. PW3 in her statement categorically stated that complainant pushed Pradhan also. In her cross-examination, PW3 admitted that nothing happened in front of her. She also admitted that when complainant pushed Pradhan, Pradhan got lodged an FIR against the complainant (Parveen Kumari). She also admitted in her cross-examination that when police had come to the spot, complainant did not disclose police about the factum with regard to the case, if any, lodged by the Pradhan against her. Most importantly, this witness in her cross examination candidly stated that she told the police that Pradhan has made a case against her and she will also make false case. This witness also admitted factum with regard to the complainant’s having dispute regarding house with her in-laws. She also stated that accused helped other party, with whom the complainant has dispute. It has also come in her statement that there are 4-5 houses near the house of Parveen Kumari and no one heard about the incident. 11. Conjoint reading of statements having been made by the aforesaid prosecution witnesses certainly creates doubt with regard to the correctness of story put forth by the complainant/prosecutrix. It has specifically come in the statement of PW3 that there are 4-5 houses near the house of the complainant but for the reasons best known to the prosecution, nobody from the locality was cited as prosecution witness to give strength to the story of the prosecution. It has specifically come in the statement of PW3 that there are 4-5 houses near the house of the complainant but for the reasons best known to the prosecution, nobody from the locality was cited as prosecution witness to give strength to the story of the prosecution. Otherwise also, statement of PW1 made in Court is contradictory to her initial statement recorded by the police under Section 154 Cr.PC. At the time of lodging report to the police, she got the name of the accused recorded as Rajeev Kumar, but later on, she stated that name of the accused is Sandeep alias Deenu. She also admitted in her cross-examination that when she had gone to attend the call of nature, she was not having any torch with her and at that relevant time, she had no conversation with the accused and as such, version put forth by her with regard to presence of accused, who allegedly made an attempt to molest her, is not trustworthy. Rather, other evidence collected on record by the prosecution, suggests that there is/was prior animosity between the parties since respondent accused used to help in-laws of complainant in a dispute inter-se complainant and her in-laws. This court has reason to believe that complainant had a motive to falsely implicate the respondent-accused. So called independent witnesses, PW3 Atmi Devi to whom, respondent-accused had initially reported the matter, in her cross-examination categorically admitted that nothing happened in front of her, rather perusal of her statement suggests that pursuant to report submitted by the complainant she along with Pradhan namely Satish visited the house of the complainant. It also emerge from her statement that complainant mis-behaved with the Pradhan and, rather made an attempt to push him, as a result of which, proceedings came to be initiated against her at the behest of Up-Pradhan namely Satish Kumar. 12. PW5 Anupa Devi, corroborated the version putforth by PW1 and PW3 that prosecutrix had preferred an application to Up-Pradhan (Satish Kumar), which was entered at Sr. No. 1 at Panchayat Register. She also stated that after receipt of application, Up-Pardhan (Satish Kumar) and Atmi Devi Ward Panch, visited the spot with police and at that juncture, Up-Pradhan handed over the application Ext.PW1/A submitted by the prosecution to the police 21.6.2012. In her cross-examination, she also stated that she heard that complainant gave beatings to Pradhan at the spot. 13. She also stated that after receipt of application, Up-Pardhan (Satish Kumar) and Atmi Devi Ward Panch, visited the spot with police and at that juncture, Up-Pradhan handed over the application Ext.PW1/A submitted by the prosecution to the police 21.6.2012. In her cross-examination, she also stated that she heard that complainant gave beatings to Pradhan at the spot. 13. PW7 S.I. Rakesh Chand, who was I.O. admitted that there is no rapat in the court file regarding his visit to village Duhak, where this alleged incident occurred, rather in his cross-examination, he admitted that he had gone to the village in connection with investigation of case FIR No. 94/12. He also admitted that there are 2-3 houses near the house of the prosecutrix and at the distance of 20-25 meters, there are 10-15 houses. He also admitted that there is reference of Sanjeev in the statement of Pradhan. It has also come in his cross-examination that during investigation, it had come to his notice that prosecutrix also quarreled with the Panchayat Pradhan. This witness in his cross-examination admitted that no statement under Section 164 Cr.PC, was recorded by the Magistrate. 14. This Court after having carefully perused entire evidence led on record by the prosecution, sees no reason to differ with the finding returned by the court below that prosecution was not able to prove the guilt of the accused beyond reasonable doubt. In the case at hand, there is no independent witness to support the version put forth by the prosecutrix, which otherwise cannot be termed to be trustworthy. Otherwise also, as has been taken note above, there are material contradictions in the statement of the complainant (PW1) and as such, learned court below rightly not placed reliance upon her statement. PW1 (complainant) in her statement stated that she had informed her husband on 25.5.2012, whereas PW2 (her husband) stated that his wife informed him telephonically on 24.5.2012. Similarly, as has been noticed above, that perusal of application Ext.PW1/A allegedly given by the complainant to Pradhan Gram Panchayat, Duhak, suggests that name of respondent accused came to be inserted later on. Moreover, complainant in her cross-examination, herself admitted that she had written the name of the accused Rajeev in the application Ext.PW1/A after submitting the same to the Pradhan. Moreover, complainant in her cross-examination, herself admitted that she had written the name of the accused Rajeev in the application Ext.PW1/A after submitting the same to the Pradhan. It also emerge from the statement of prosecution witnesses that prosecutrix/complainant gave beatings to members of Panchayat, as a result of which, FIR came to be registered against the complainant. But similarly, this court finds that there is no explanation worth the name available on record with regard to delay of four days in reporting the matter to the police. Once, complainant could lodge a complaint with Gram Panchayat on the next date of occurrence, it is not understood that what prevented her from filing the complaint to the police that too when accused had allegedly made an attempt to outrage her modesty. 15. Leaving everything aside, statement of complainant, if read in its entirety, nowhere suggests that attempt, if any, was made by the respondent accused to outrage her modesty, rather after having gone through sequence of events as narrated by the prosecutrix, this Court sees force in the contention of learned counsel representing the accused-respondent that presence of respondent-accused at the site of occurrence is itself doubtful. Complainant has specifically admitted in her cross-examination that she was not having torch with her at the time of alleged occurrence and she could only see through the light of TV coming from the room. Aforesaid version put forth by the complainant does not appear to be trustworthy and the same was rightly not accepted by the court below. 16. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon’ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that “no man is guilty until proved so”, utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon’ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Most importantly, Hon’ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. Reliance is placed on Judgment passed by the Hon’ble Apex Court in C. Magesh and Ors. v. State of Karnataka (2010) 5 SCC 645 , wherein it has been held as under:- “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P., 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so", hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.” 17. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgment passed by the learned court below, which otherwise appears to be based upon the proper appreciation of evidence adduced on record and the same is accordingly upheld. Accordingly, the appeal is dismissed being devoid of any merits.