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2017 DIGILAW 1306 (HP)

State of H. P. v. Shamsher Singh

2017-11-28

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed by the State of Himachal Pradesh against the impugned judgment rendered on 1.8.2008, by the learned Chief Judicial Magistrate, District Kinnaur at Reckong Peo, H.P. in Criminal Case No. 108-2 of 04, whereby the learned trial Court acquitted the respondent (for short ‘accused’) for the offences punishable under Sections 354, 323 and 506 IPC. 2. Facts in brief are that on 8.11.2004 at about 10.30 a.m. while Smt. Kamla Devi was sitting on the bench outside the shop, accused came to the spot and inquired from the complainant as to why she was laughing and caught Smt. Kamla Devi from the breast, torn her shirt, slapped her, when Smt. Kamla Devi raised alarm, her husband came to the spot and saved her. The matter was reported to the police. The police took into possession the torn shirt and after collecting evidence during the investigation challenged the accused for offences punishable under Section 354, 323 and 506 IPC. 3. Notice of accusation stood put by the learned trial Court to the accused for his committing offences punishable under Sections 354, 323 and 506 IPC to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 5 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. He did not choose to lead any evidence in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused. 6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. The learned counsel appearing for the respondent has with considerable force and vigor contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. 7. The learned counsel appearing for the respondent has with considerable force and vigor contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating 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. PW-4 prosecutrix, has, rendered communications in FIR borne in Ext. PW 4/A of (i) on 8.11.2004 at about 10.30 a.m., when she was sitting on a bench outside the shop of her husband, thereat, the accused/respondent making his arrival, (ii) whereupon his questioning her about the reason for hers staring at him, (iii) in response thereto, she replied that she was not staring at him, (iv) subsequent thereto, she narrates of the accused clasping her, from, her breast besides his proceeding to slap her on her face, in sequel whereto, blood started oozing from her nose. She also communicates therein, that in the scuffle, her shirt comprised in Ext. PW1/A begetting tearing on its breast. (v) Thereafter, she narrates therein, of her husband Chander Singh interceding in the scuffle, which ensued inter-se her with the accused AND his hence rescuing her from the clutches of the accused. (vi) She also makes communications, in FIR borne in Ext. PW 4/A, of, Shankar Lal and other witnesses’, eye witnessing the relevant incident. Her versions qua the occurrence comprised in Ext. PW4/A, would be construable to be both trustworthy besides inspiring, (a) upon evident occurrence, of, absolute concurrence inter-se the versions borne in Ext. PW4/A vis-à-vis her testification, (b) her testification in Court being bereft of any gross improvements besides embellishments vis-à-vis her previous statement recorded in writing, (vi) however, when the prosecutrix stepped into witness box, she made open digressions therefrom, especially when therein she omits to echo, (a) of the accused at the relevant time, staring at her, (b) in her examination-in-chief, she testifies, of, PW1 her husband, evacuating her, from the clutches of the respondent, whereas in the latter part of her cross-examination, she articulates of the accused after belaboring her, his fleeing from the site of occurrence, to the premises of a mechanic located in vicinity thereof. Conspicuously, hence she dispels the factum borne in her examination-in-chief, of her husband interceding in the relevant scuffle. Conspicuously, hence she dispels the factum borne in her examination-in-chief, of her husband interceding in the relevant scuffle. The aforesaid contradictions inter-se the aforesaid testifications rendered by the prosecutrix vis-à-vis the versions’ qua the occurrence borne in FIR comprised in Ext. PW4/A, are not minimal rather are critical, (i) given theirs eroding the genesis of the prosecutrix case, of, PW1, the husband of the prosecutrix interceding in the scuffle, which, purportedly erupted inter-se the accused/respondent vis-à-vis the complainant, (ii) also, the testification rendered by PW-2, in corroboration, to, the testification of PW4 is also hence rendered frail besides his presence at the site of occurrence, is also dispelled. Even though, the purported independent witness, to the occurrence, render testifications qua the prosecutrix, at the site of occurrence being subjected to penal misdemeanor by the accused, whereupon, upon intercessions being made by her husband, hers being rescued from the clutches of the accused, (iii) yet their respective testifications qua the aforesaid fact, ARE for alike aforesaid reasons HENCE rendered enfeebled, given (iv) reiteratedly the prosecutrix in the last part of her cross-examination, making a disclosure, whereby, she dispels the presence of her husband at the site of occurrence, concomitantly, thereupon the testifications rendered by the prosecution witnesses, in purported corroboration vis-à-vis the testification, of PW-4 qua the material factum of presence of PW-2, at the site of occurrence are also ingrained with a vice of falsity. Corollary thereof is that the genesis of the prosecution case, is rendered vulnerable TO skepticism besides their presence at the site of occurrence is rendered suspect, thereupon no reliance can be placed upon the testifications of ALL the prosecution witnesses. 10. Be that as it may, accelerated momentum to the aforesaid inference, is galvanized by the prosecutrix remaining, not, medically examined, for hence making a firm inference, (a) of her testification carrying narrations, of, injuries being caused upon her in sequel to her being belabored by the accused, in sequel whereto blood oozing from her nose, dripping onto her shirt, hence staining it with blood marks, hence carrying an aura of veracity. Contrarily, this Court is constrained, to benumb her testification, imperatively, (b) when upon the shirt being produced in Court, the learned trial Court, not, recording any observation, of, it carrying any stains of blood nor its recording any observation, of, shirt Ext. Contrarily, this Court is constrained, to benumb her testification, imperatively, (b) when upon the shirt being produced in Court, the learned trial Court, not, recording any observation, of, it carrying any stains of blood nor its recording any observation, of, shirt Ext. PW1/A carrying tearings upon the portion appertaining to breast thereof, (ii) rather its being observed, to beget tearings of its neck. 11. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of acquittal has committed any legal misdemeanor, in as much, as, it having mis-appreciated the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the learned trial Court, merit, any interference. 12. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.