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Himachal Pradesh High Court · body

2017 DIGILAW 603 (HP)

Gian Chand v. State of Himachal Pradesh

2017-05-26

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgements of conviction concurrently pronounced by both the Courts below upon the appellant herein besides, is directed against the sentences pronounced upon him for his committing offences punishable under Sections 451, 323 and 506 IPC 2. The brief facts of the case are that on 7.6.2007 Smt. Dropti Devi reported the occurrence to the police stated that she belongs to village Khera and she is a house wife. On 7.6.2007 at about 8.30 a.m when she was bathing her children then accused Gian S/o Sant Ram trespassed in her courtyard caught her from hairs and she was laid down. Thereafter, he sits on her breast and started beating her with fist blows and kicks. He has also threatened her that he will not leave her and after hearing the cries Jagat Ram came to rescue her and who rescued her from the clutches of the accused person. F.I.R Ext. PW-1/A was registered against the accused person. During the course of investigation I.O. prepared spot map and MLC of the injured was obtained and after completing all codal formalities and on conclusion of the investigation into the offences, allegedly committed by the accused challan was prepared and filed in the Court. 3. A charge stood put to the convict/appellant herein, by the learned trial Court, for his committing offences punishable under Sections 451, 323 and 506 IPC to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 6 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. However, he did not choose to lead any evidence in defence. 5. The accused person stands aggrieved by the findings of conviction concurrently recorded upon him by both the courts below, for his committing offences punishable under Sections 451, 323 and 506 IPC hence he thereafter prefers the instant appeal. The learned counsel appearing for the accused has concerted to vigorously contend qua the findings of conviction recorded by the learned Courts below standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. The learned counsel appearing for the accused has concerted to vigorously contend qua the findings of conviction recorded by the learned Courts below standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, she contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 6. On the other hand, the learned Additional Advocate General appearing for the State has with considerable force and vigour, contended qua the findings of conviction recorded by the Courts below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting vindication. 7. 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. 8. The prosecution was under a solemn duty to beyond reasonable doubt also to the hilt prove the version qua the occurrence embodied in the F.I.R borne in Ext.PW-1/A, wherein the complainant/victim has made a firm disclosure that on 7.6.2007 at about 8.30 a.m, when she was bathing her children in the Angan of her house, then at the aforesaid place the accused making his appearance and his proceeding to clutch her hair. Also she has disclosed therein that he threw her on the floor of Varandah, whereafter he proceeded to position himself on her chest. She has also disclosed therein that he thereafter proceeded to belabour her with kicks and fist blows. The aforesaid penal misdemeanor of the accused, sequelled hers raising out bursts and outcries, whereupon the presence of one Joghal Ram at the site of occurrence was aroused. She has also echoed therein that in sequel to the aforesaid assault perpetrated on her person by the accused, she sustained injuries on her head, on her arm as well as certain internal injuries stood sustained on her body. The mere fact of the aforesaid communications with respect to the occurrence being embodied in the F.I.R would not per se constrain any conclusion, that hence the prosecution succeeding in proving to the hilt the charge to which the accused stood tried, contrarily, it was incumbent upon the prosecutrix to depose in, closest tandem therewith. The mere fact of the aforesaid communications with respect to the occurrence being embodied in the F.I.R would not per se constrain any conclusion, that hence the prosecution succeeding in proving to the hilt the charge to which the accused stood tried, contrarily, it was incumbent upon the prosecutrix to depose in, closest tandem therewith. In other words, each of the communications occurring in the apposite F.I.R were enjoined to be testified by the complainant. In case some of the material particulars occurring in the apposite F.I.R remained omitted to be testified by the complainant, thereupon the version qua the occurrence embodied in the apposite F.I.R. would constrain a conclusion (a) particulars occurring therein for want of any testification in respect thereto by the prosecutrix hence concomitantly remaining unproven. (b) The version qua the occurrence hence being construable to be concocted also invented, hence fostering an inference that the prosecutrix had proceeded to falsely implicate the accused, with respect to his purportedly exaggerated penal misdemeanors. Corollary whereof, would be, that the prosecution not proving to the hilt the charge in respect whereof the accused stood tried. In making the aforesaid discernments “while” throughout bearing in mind the aforesaid disclosures occurring in the apposite F.I.R, an allusion to the testification of PW-1 makes a disclosure that the accused had, on ingressing onto her courtyard hence proceeded to clutch her hair whereafter he proceeded to belabour her with kick and fist blows besides proceeded to hurl abuses upon her. Subsequent thereto she has testified that the accused departed from the site of occurrence. She also testifies that one Joghal Ram had made his appearance at the site of occurrence yet he did not intercede in the scuffle. The aforesaid testification does not mete absolute corroboration qua the version qua the occurrence embodied in the apposite F.I.R., wherein she has made a disclosure that the accused had also positioned himself on her chest, whereupon the occurrence of the aforesaid fact in the F.I.R concerned, whereas its non occurrence in her testification, foments an inference that the prosecutrix had in the apposite F.I.R. hence unraveled an exaggerated version qua the occurrence, wherefrom the ensuable concomitant derivative is, that she therein had hence endeavoured concoction besides hence concerted to falsely implicate the accused. The further corollary thereof, is that the prosecution hence failing to prove to the hilt, the charge, especially when it stands anvilled upon the apposite F.I.R. Also with the prosecutrix in the apposite complaint making a communication that on hers raising shrieks and cries in sequel to her standing assaulted by the accused, one Joghal Ram making his appearance at the site of occurrence and on his rescueratory inter cession she being saved from the assault perpetrated upon her person by the accused yet while testifying she has not made any echoings in absolute tandem therewith rather she has therein disclosed that the aforesaid Joghal Ram had merely arrived at the site of occurrence and that he did not make any rescueratory intercession. The aforesaid rescueratory role ascribed in the F.I.R vis-à-vis one Joghal Ram and its non ascription qua him by her in her testification also constrains an inference that the prosecutrix is hence contriving to scuttle besides camouflage the truth qua the occurrence, hence her testimony qua the occurrence is rendered to be both uninspiring besides untrustworthy. Aggravated momentum to the aforesaid inference is lent by the fact of the aforesaid Joghal Ram “not” coming to be examined as a prosecution witness “whereas” on his stepping into the witness box he would have purveyed the entire truth qua the genesis of the prosecution case. In sequel, the suppression by the prosecution, of the truth qua the genesis of the occurrence, comprised in its omitting to lead into the witness box, the aforesaid Joghal Ram, begets an inference that the version qua the occurrence, for reasons aforesaid, testified by PW-1 being insufficient to record findings of conviction with respect to the charge to which the accused stood subjected to. 9. The learned Additional Advocate General has contended that with PW-3 making a disclosure in her testification that the apposite MLC Ext.PW-3/A revealing injuries in consonance with the testification of the prosecutrix also hers deposing that the injuries noticed by her to be occurring on her person being relatable to the time of occurrence, spelt in the apposite F.I.R hence, the prosecution succeeding in proving the charge. However, the aforesaid submission is not worthy of merit nor it countervails the ill-effect of the uninspiring testimony qua the occurrence purveyed by PW-1. However, the aforesaid submission is not worthy of merit nor it countervails the ill-effect of the uninspiring testimony qua the occurrence purveyed by PW-1. Moreso, when PW-3 has accepted the suggestion put to her by the learned defence counsel that the injuries borne on Ext.PW-3/A being sustainable by fall on hard surface. 10. The learned Additional Advocate General has also proceeded to contend that with the learned defence counsel while holding PW-1 to cross-examination, his putting suggestions to her, couched in an affirmative phraseology also with an apt communication therein that she is on talking terms with the accused , suggestion whereof also stood replied in the affirmative by PW-1 besides with the learned defence counsel while holding PW-1 to cross-examination, his casting a suggestion in an affirmative phraseology, that the accused had held talks with the victim/lady, for 15 to 20 minutes, suggestion whereof also evinced an alike affirmative response from the prosecutrix, hence the prosecution proving the presence at the site of occurrence of the accused also its proving the charge to which he stood tried ‘dehors’ the uninspiring and untrustworthy testimony purveyed by the prosecutrix with respect to the recitals held in the apposite F.I.R. The aforesaid submission holds weight only with respect to the presence of the accused at the relevant site of occurrence. However, his presence at the site of occurrence, cannot be extended to connote that the prosecution has proven the entire chain of incidents borne in the apposite F.I.R., contrarily the effect of the aforesaid acquiescence of the prosecutrix or of the accused, is that theirs conveying that she was on the relevant day holding talks with the accused rather than as communicated by her in her examination in chief that the accused on ingressing into her Varandah, his immediately launching an assault on her person, hence the aforesaid acquiescence rather also erodes the effect of the genesis of the prosecution version borne in both the apposite F.I.R also as held in her apposite testification, whereupon the Court is constrained to conclude qua a false version qua the occurrence standing reported to the police by the victim hence rendering it to be unbelievable. 11. 11. For the reasons which have been recorded hereinabove, this Court holds that 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 the learned Addl. Sessions Judge suffers from a gross perversity and absurdity of mis-appreciation and non appreciation of evidence on record. 12. In view of above discussion, the appeal is allowed and the impugned judgment rendered by the learned Addl. Sessions Judge, is set aside. The appellant/accused is acquitted of the offences charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Personal and surety bonds are cancelled and discharged.