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2017 DIGILAW 1115 (HP)

Krishan Dutt Premi v. State Of H. P.

2017-09-21

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. - The instant Appeal stands directed against the judgment rendered on 23.10.2008/30.10.2008 by the learned Special Judge, Kullu, H.P. in Sessions trial No. 45 of 2006, whereby, the learned trial Court acquitted the Accused/appellant herein, for his committing an offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, however, he convicted the Accused/appellant herein for his committing offences punishable under Sections 354 and 509 of the IPC and sentenced him as under:- Sections Imprisonment imposed 354, IPC To undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo further imprisonment for a period of one month. 509, IPC To undergo rigorous imprisonment for a period of six months and to pay fine of Rs. 2,000/- and in default of payment of fine amount to undergo further imprisonment for a period of one month. All the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that Accused, who was posted as Tehsildar at Keylong during the year 2005/2006 had gone to the house of Tulsi Ram Complainant on 9.03.2006 in connection with some partition proceedings. however, the proceedings could not be carried out on that day as it started snowing. The staff i.e. Kanungo Prem Singh and Patwari Ram Lal, who were accompanying him returned to Udaipur but he accused stayed back in the house of complainant. As per the prosecution case, during his stay in the house of the complainant in the night Accused directed the complainant to massage his body and also demanded liquor and asked him to arrange a woman for him for the night. He also asked the complainant and his wife to take liquor with him which they refused. He also insisted on sleeping in their bed room. Lastly, while the complainant left the room for leaving the utensils outside after the meals the Accused caught hold of the wife of the complainant by her arms and asked her to sleep with him. She was, however, rescued by her husband on hearing her cries for help. The FIR was lodged by the complainant on 14.03.2006 and the matter was investigated. She was, however, rescued by her husband on hearing her cries for help. The FIR was lodged by the complainant on 14.03.2006 and the matter was investigated. Since the complainant and his wife belonged to scheduled tribe the case was also registered under Section 3 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. 3. On conclusion of investigation(s), 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 stood charged by the learned trial Court, for his committing offences punishable under Sections 354 and 509 of the IPC read with Section 3 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. In proof of its case, the prosecution examined 10 witnesses. On conclusion of recording of prosecution evidence, the statement of the Accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, wherein, he claimed innocence and pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, recorded findings of conviction against the Accused/appellant herein. 6. The appellant/convict stands aggrieved by the judgment of conviction recorded against him by the learned trial Court. The learned counsel appearing for the appellant/convict has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing, being not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction recorded by the learned trial Court standing based on a mature and balanced appreciation, by it, of the evidence on record and theirs not necessitating any 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 alleged penal misdemeanors were purportedly committed by the Accused on 09.03.2006. 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 alleged penal misdemeanors were purportedly committed by the Accused on 09.03.2006. On the date aforesaid the Accused was lodged in the house of the prosecutrix. He had on 09.03.2006, in his capacity as Tehsildar, Udaypur proceeded to the spot, whereat, the abode of the prosecutrix is located, for his carrying into effect, the mode of partition prepared by the Naib Tehsildar. The penal misdemeanors ascribed to the Accused are borne in the testification of PW-1, the husband of the prosecutrix. PW-1 has testified, of, the Accused after taking off his clothes, his beseeching his wife to massage his back. He has also testified of the Accused querying his wife qua the number of illicit relations she has established besides communicating to her of his establishing illicit relations with 95 ladies. The aforesaid queries put by the Accused to the prosecutrix, are, testified by PW-1, to put the prosecutrix to shame. In addition, he has testified, of, the Accused insisting upon them to permit him to sleep with them on the bed, which, both share as husband and wife, insistences whereof were successfully resisted by PW-1. However, the Accused asked him to arrange for a girl, for sleeping with him during the night, request(s) whereof was also spurned by PW-1. Thereafter, PW-1 testifies that after the Accused had taken meals, he (i.e. PW-1) had proceeded to ''Chala'' for removing utensils, whereupon, he heard out bursts of his wife, leading him to discover, of, Accused nabbing her from her arm(s) and forcing her to sleep with him. Also his noticing, of, his wife weeping and upon his intervening(s), his successfully separating them. However, during his cross-examination, he was confronted with his previous statement recorded in writing, comprised in Ex.PW1/A, wherein the aforestated testificatory communication(s) borne in his examination-in-chief, of, the prosecutrix massaging the body of the Accused, are wholly amiss, whereupon, the aforesaid testification is hence rendered ingrained with a vice of falsehood. 10. The testification of PW-1 is supported by PW-2, the prosecutrix. 10. The testification of PW-1 is supported by PW-2, the prosecutrix. However, with the prosecutrix knowing neither English or Hindi rather hers being fit to comprehended only the local dialect of the area concerned, hence, the trial Court appointed her daughter for translating into the local dialect, all the apposite queries put to her in the Court language. Consequently, with the intervention of the translator appointed by the Court, the prosecutrix, was, in the local dialect, hence explained, by her daughter, all apposite queries put to her in the Court language, whereafter, on the translator receiving answer (s) thereto, of the prosecutrix, made translation(s) thereof in Hindi, all whereof hold articulation(s) corroborative, of, the prior thereto rendered testification by PW-1. The testification of PW-2 in corroboration to the testification of PW-1, was, also permitted to be recorded by the learned defence counsel, given his being well conversant with the local dialect, as, understood and spoken by the prosecutrix. However, in her crossexamination, she has deposed that she had massaged the back and arm of the Accused with oil, whereas, she has omitted to therein disclose, of, the Accused prior thereto taking off his clothes, thereupon, she contradicts the testification of PW-1, of, the Accused taking off, his clothes, whereafter, his wife massaging his back with oil. The aforesaid inter se contradictions vis-a-vis the testifications of PW-1 and of PW-2, does cast a spell of prevarication with respect to a pivotal aspect, hence, undermining the prosecution version, crucially when in respect thereof, the testification of PW-1, has been hereinabove concluded to be devoid of vigour. The entire conversation(s) occurring, inter se the Accused and the prosecutrix, conversation(s) whereof, held disparaging over tones vis-a-vis the modesty of PW-2, comprised in his striving to elicit from her, the number of illicit relations she has enjoyed also of the Accused disclosing to her of his holding illicit relations with 95 ladies, stands, in her cross-examination testified, by PW-2 to be held directly amongst her husband and the Accused, whereafter, her husband translating in the local dialect the contents of the conversation(s) held inter se them. The aforesaid fact of PW-1 conveying to her in the local dialect, the contents of the apt conversation(s), purported conversation(s) whereof hold disparaging overtones of modesty vis-a-vis PW-2, does not apparently occur in the testification of PW-1. The aforesaid fact of PW-1 conveying to her in the local dialect, the contents of the apt conversation(s), purported conversation(s) whereof hold disparaging overtones of modesty vis-a-vis PW-2, does not apparently occur in the testification of PW-1. Consequently, conversation, if any, with purported disparaging overtones vis-a-vis the modesty of the prosecutrix, appear(s) to purportedly occur only inter se the Accused and PW-1 also it then naturally remained unconveyed in the local dialect, by, PW-1 to PW-2. In aftermath, the purported disparaging conversation(s) with tinge(s) of its outraging the modesty of the prosecutrix, given its remaining neither in the local dialect, hence, conveyed by PW-1 to PW-2 nor understood by her, rather its purportedly taking place directly inter se PW-1 and the Accused, it, hence cannot be said to encumber shame upon the prosecutrix also it appears, of, the testification of PW-1 in respect thereof being a result of concoctions or contrivances, merely, for falsely implicating the Accused. 11. Be that as it may, the previous statement in writing of the prosecutrix, is recorded in Hindi, yet beneath thereto, no, apposite noting(s) occur with echoings of the Investigating Officer appointing a translator, for, explicating in the local dialect, its contents to the prosecutrix, whereafter his assuring of its contents being comprehended besides understood by the prosecutrix. Non occurrence of the aforesaid apposite note, beneath her previous statement recorded in writing by the Investigating Officer, with an echoing, of, its contents standing explicated in the local dialect to her by a translator appointed by the Investigating officer, also contents thereof being understood besides comprehended by the prosecutrix, renders it unamenable for any imputation of any solemnity thereto, rather it appears, of, the Investigating Officer concerned suo moto inventing the previous statement recorded in Hindi of the prosecutrix. Consequently, when the prosecutrix stepped into the witness box, to depose in respect of the contents borne therein, her testification is belittled, given hers not being joined in the investigation (s) nor hers making any previous statement before the Investigating Officer concerned, whereas, the recording of her previous statement in writing was peremptory for hers being cited as a witness also for hers thereafter stepping into the witness box, for proving contents thereof. The apt sequitur therefrom is that the testification of the prosecutrix in corroboration to the testification of PW-2 loses its vigour. The apt sequitur therefrom is that the testification of the prosecutrix in corroboration to the testification of PW-2 loses its vigour. Further apt sequitur(s) therefrom, is of the testification of PW-1, for lack of corroborative vigour thereto being lent by PW-2 (the victim), is, hence, rendered frail besides even the prosecution version is rendered ingrained with vice(s) of concoctions and inventions. 12. Be that as it may, the predominant penal misdemeanor of the Accused nabbing the prosecutrix also his coercing her to sleep with him, whereupon, the prosecutrix was taken to raise hue(s) and cry(ies), leading her husband to intervene, is testified by PW-1. However, PW-1 has in respect thereof deposed, that it occurred after the Accused had taken meals. Apparently, PW-1 served meals to the Accused in the kitchen. Since, the aforesaid predominant penal misdemeanor occurred immediately after the Accused taking meals also upon the purported absence of PW-1, given his proceeding to remove utensils from the "chala", "chala" whereof purportedly occurs at a place other than the kitchen, yet when there is no firm evidence qua the "chala" and the kitchen being located in contradistinct places also when hence adduction of firm evidence qua contradistinctivity (ies) in the location(s) of the "chala" and of kitchen, was, imperative, for hence enabling the Accused to seize, an opportune moment, given PW-1 proceeding from the kitchen to "Chala", located elsewhere, for, his perpetrating upon the prosecutrix, the purported penal misdemeanor. Consequently, absence of the aforesaid firm evidence rather begets a conclusion of both, the ''chala'' and kitchen being located at the same place, hence the Accused holding no opportune moment for grabbing the prosecutrix, especially given the presence thereat of PW-1, her husband. In aftermath, it appears that ascription(s) by PW-1 vis-a-vis the Accused, of, all the purported penal misdemeanors, being both engineered besides contrived, conspicuously, with the purported corroboration thereto purveyed by the prosecutrix, being, for all the reasons aforestated hence bereft of any credibility. 13. Moreover, the alleged incident occurred in the night of 9.3.2006 and a report qua the occurrence stood lodged on 14.03.2006, with the police station concerned, hence, there is an inordinate delay of five days in the lodging of the FIR. 13. Moreover, the alleged incident occurred in the night of 9.3.2006 and a report qua the occurrence stood lodged on 14.03.2006, with the police station concerned, hence, there is an inordinate delay of five days in the lodging of the FIR. The aforesaid delay of five days in the lodging of the FIR has remained unexplicated, despite PW-1 holding telephone facility(ies) at his house also when they could well have been availed, for his/theirs promptly lodging a report in respect of the occurrence either with the police or with the Panchayat concerned. Consequently, with PW-1, not, making any prompt reporting of the occurrence either to the police or to the panchayat concerned nor with the delay in the lodging of the FIR holding any tinge of any sound explication, renders it to be gripped with a vice of concoction besides with a vice of afterthought, rendering it to be unamenable to credence. 14. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has not, appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court suffers from a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 15. Consequently, the instant Appeal is allowed and the impugned judgment is quashed and set aside. The Accused is acquitted of the offences charged. Fine amount, if any, deposited by the Accused before the learned trial Court be forthwith refunded to him. Records be sent back henceforth.