Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 784 (HP)

Sohan Lal v. State of Himachal Pradesh

2017-07-10

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Instant Criminal revision petition filed under Section 397/401 of the Code of Criminal Procedure, is directed against the judgment dated 29.2.2008, passed by learned Sessions Judge, Shimla in Criminal Appeal No.11-S/10 of 2007, affirming the judgment of conviction and sentence dated 22.1.2007/ 23.1.2007, passed by the learned Judicial Magistrate, 1st Class, Theog, District Shimla, H.P. in criminal Case No.291-1 of 2005, whereby learned trial Court held petitioner (hereinafter referred to as ‘accused’) guilty of having committed the offence punishable under Section 354 of IPC and accordingly convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 2000/- and in default of payment of fine, to further undergo simple imprisonment of three months. 2. Briefly stated facts as emerge from the record are that complaint Ex.PW4/A came to be lodged with the Superintendent of Police, Shimla on 12.9.2005 at the behest of PW-4, Sh. Hem Chand. Complainant alleged in the aforesaid complaint that petitioner-accused namely Sohan Lal Dangi, R/o village Vijuvi, Post Office Sarog, Tehsil Theog, posted as Teacher in Govt. Primary School, Gawach called her daughter Suman (PW-3) in the office room for the purpose of brooming. However, subsequently when PW-3 went in the room for the said purpose, accused made an entrance in the said room and thereafter embraced her and gave 3-4 kisses to her. Daughter of the complainant got frightened and hurriedly left the room. As per complainant, on the date of incident other officials and students of the school had gone to place Sainj with a view to participate in the tournament. On the receipt of aforesaid application, FIR Ex.PW1/A came to be registered at Police station, Theog on 15.9.2005. After completion of the investigation, police presented the challan in the competent Court of law. 3. The learned trial Court being satisfied that a prima-facie case exist against the accused, put notice of accusation to the accused under Section 354 of IPC, to which he pleaded not guilty and claimed trial. However, fact remains that learned trial Court on the basis of evidence adduced on record by the prosecution held petitioner-accused guilty of having committed offence punishable under Section 354 of IPC and accordingly convicted and sentenced him, as per the description already given hereinabove. 4. However, fact remains that learned trial Court on the basis of evidence adduced on record by the prosecution held petitioner-accused guilty of having committed offence punishable under Section 354 of IPC and accordingly convicted and sentenced him, as per the description already given hereinabove. 4. Feeling aggrieved and dissatisfied with the impugned judgment dated 22.1.2007, passed by the learned trial Court, present petitioner-accused filed an appeal under Section 374 of the Code of Criminal Procedure before the learned Sessions Judge, Shimla, which came to be registered as Criminal Appeal No.11-S/10 of 2007, however fact remains that aforesaid appeal was dismissed, as a result of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, present petitioner-accused approached this Court by way of instant criminal revision petition, praying therein for his acquittal after quashing and setting aside the impugned judgments of conviction passed by the learned Courts below. 5. Mr. Anup Chitkara, Advocate duly assisted by Ms. Sheetal Vyas, Advocate, learned counsel representing the petitioner, while inviting attention of this Court to the impugned judgment passed by the learned courts below, vehemently contended that the same are not based upon the correct appreciation of the evidence adduced on record by the prosecution and as such, same deserves to be quashed and setaside. Mr. Chitkara, further contended that bare perusal of the impugned judgment passed by the courts below suggest that both the courts below have erred in not appreciating the evidence in its right perspective, as result of which, erroneous findings to the detriment of the petitioner-accused have come on record, who is admittedly an innocent person. 6. With a view to substantiate his aforesaid argument, Mr. Chitkara, learned counsel representing the petitioner, made this Court to travel through the certain documents to demonstrate that FIR on behalf of PW-4 i.e. father of the victim is a afterthought and counter blast to the FIR lodged by the accused on 9th September, 2005, wherein he had leveled allegations of beating against PW-4, Hem Chand, father of the victim. While inviting attention of this Court to the statement of PW-1, SHO , Ramesh Sharma, Mr. Chitkara contended that it has specifically come in his statement that accused had got registered an FIR against the complainant regarding quarrel and case against PW-4 was filed in the competent Court of law. Similarly, Mr. While inviting attention of this Court to the statement of PW-1, SHO , Ramesh Sharma, Mr. Chitkara contended that it has specifically come in his statement that accused had got registered an FIR against the complainant regarding quarrel and case against PW-4 was filed in the competent Court of law. Similarly, Mr. Chitkara, invited attention of this Court to the statement of PW-6, HC Subhash, who also admitted in his cross-examination that case came to be registered against PW-4 on the basis of complaint of the accused and in that case accused had filed a FIR against the present complainant. It has also come in his cross-examination that FIR lodged by the accused is prior in time of the present FIR. Mr. Chitkara, further contended that if statements having been made by the prosecution witnesses are read in conjunction, it certainly suggest that an attempt has been made to falsely implicate the petitioner-accused, who had been admittedly teaching in the same school for the last five years, wherein daughter of complainant was studying for the last 4-5 years. 7. While referring to the statements having been made by PW-3, Kumari Suman (victim), PW-4, Hem Chand (father of the victim) and PW-5, Smt. Kaushalya Hetta( mother of the victim), Mr. Chitkara, contended that there are material contradictions in their statements with regard to narration of incident by the daughter of complainant to her mother and thereafter to her father. PW-5, mother of the victim has stated that complainant PW-4 had gone to Shimla and returned home on 5th September, 2005, whereas PW-4 has stated in his statement that he returned to Theog from Shimla on 6th September, 2005. While concluding his argument, Mr. Chitkara, contended that bare perusal of the statement of victim (PW-3) itself suggests that complaints, if any, made to the Gram Panchayat, Truck union and thereafter to Chief Minister were made by PW-3 at the behest of PW-4, who purposely asked her to name petitioner-accused in the instant case. 8. Lastly, Mr. Chitkara, contended that there is no explanation, worth the name, with regard to delay in lodging the FIR. It is an admitted case of the prosecution that PW-4 had returned home on 6th September, 2005, and on that day he was informed with regard to alleged incident by his wife. 8. Lastly, Mr. Chitkara, contended that there is no explanation, worth the name, with regard to delay in lodging the FIR. It is an admitted case of the prosecution that PW-4 had returned home on 6th September, 2005, and on that day he was informed with regard to alleged incident by his wife. There is no explanation that why PW-4 kept mum for almost six days i.e. till 12th September, 2005, on which date when he directly complained to Superintendent of Police, Shimla, who lateron referred the matter to Police Station, Theog for investigation. While placing reliance on the statement of DW-1, Smt. Kamla i.e. fellow teacher in the school, learned counsel for the petitioner-accused stated that version put forth by this witness totally belies the version put forth by PW-4 as well as other material witnesses with regard to alleged calling of victim by the petitioner-accused from the prayer on the date of alleged incident. With the aforesaid submissions, Mr. Chitkara, contended that petitioner-accused has been falsely implicated by PW-4 just to put undue pressure upon the petitioner-accused to withdraw case got registered by him against PW-4. 9. Mr. M.L. Chauhan, learned Additional Advocate General, while refuting the aforesaid submissions having been made by the learned counsel representing the petitioner-accused, strenuously argued that there is no illegality and infirmity in the in the impugned judgment of conviction recorded by the courts below, rather bare perusal of the same suggest that both courts below have dealt with each and every aspect of the matter very meticulously and there is no scope of interference, whatsoever of this court, especially in view of the concurrent findings of fact and law recorded by the Courts below. Mr. Chauhan, further contended that bare perusal of the statements having been made by the prosecution witnesses clearly suggest that the prosecution has been able to prove its case beyond reasonable doubt that petitioner-accused committed offence punishable under Section 354 of IPC. While inviting attention of this Court to the statements of PW-3, PW-4 and PW-5, Mr. Chauhan, contended that, if statements made by these prosecution witnesses are read in conjunction, by no stretch of imagination, it can be said that there are material contradictions in the same with regard to timing and narration of events of allegedly took place on the date of incident. Chauhan, contended that, if statements made by these prosecution witnesses are read in conjunction, by no stretch of imagination, it can be said that there are material contradictions in the same with regard to timing and narration of events of allegedly took place on the date of incident. While referring to the arguments having been made by the learned counsel for the petitioner with regard to delay in lodging the FIR, Mr. Chauhan, contended that true it is that there is delay of six days, but same cannot be termed to fatal to the case of the prosecution because usually in our society parents are always reluctant to report such matter to the police as it may cause stigma. While praying for dismissal of the instant petition, Mr. Chauhan, contended that this Court has very limited powers to re-appreciate the evidence available on record. Learned Additional Advocate General, also placed reliance upon the judgment passed by the Hon’ble Apex Court in case State of Kerla versus Puttumana Illath Jathavedan Namboodiri (1999)2 SCC 452 . 10. I have heard learned counsel representing the parties and have carefully gone through the record made available. 11. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 SCC 241 ; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. The relevant para of the judgment is reproduced as under:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 12. During the proceedings of the case, this Court had an occasion to peruse the evidence adduced on record by the prosecution to prove its case against the petitioner-accused, perusal whereof certainly suggest that both the Courts below have not dealt with the evidence in its right perspective, rather this court after having carefully perused the evidence adduced on record by the respective parties, has no hesitation to conclude that both the Courts below instead of carefully examining/analyzing the evidence adduced on record by the respective parties swayed with the fact that allegation leveled against the petitioner-accused is /was of serious nature. In the instant case as per the case of the prosecution, the alleged incident occurred on 3rd September, 2005, whereas first report to police came to be filed on 12th September, 2005 i.e. after nine days of the alleged incident. All the prosecution witnesses have categorically stated in their statements that on 3rd September, 2005 alleged incident was narrated by the victim to her mother as well as sister. The explanation, if any, rendered on behalf of the prosecution for delay in lodging the FIR is that since the father of victim was away to Shimla and he only returned on 5th/6th September, 2005 and as such, no FIR could be lodged immediately after the alleged incident. Though, after going through the statements of PW-4 and PW-5, there appears to be contradiction with regard to date of arrival of PW-4 at Theog because it has come in the statement of PW-5 that PW-4 i.e. father of the victim retuned Theog on 5th September, 2005, whereas as per PW-4, he returned Theog on 6th September, 2005. 13. Though, after going through the statements of PW-4 and PW-5, there appears to be contradiction with regard to date of arrival of PW-4 at Theog because it has come in the statement of PW-5 that PW-4 i.e. father of the victim retuned Theog on 5th September, 2005, whereas as per PW-4, he returned Theog on 6th September, 2005. 13. Apart from above, even if it is presumed that PW-4 i.e. father of the victim had returned Theog on 6th September, 2005, there is no explanation for not lodging the FIR/Complaint for more than six days. It also emerges from the record that PW-4 instead of lodging complaint to the police wrote to truck union, where he was serving as a Secretary and to the Gram Panchayat. Most interestingly, aforesaid Gram Panchayat and truck union instead of reporting the matter to the police chose to write to the Hon’ble Chief Minister for taking action. It is only on 12th September, 2005, PW-4 reported the matter to the Superintendent of Police, Shimla and not to police station Theog, which was hardly at two minutes walking distance from his office. 14. At this stage, it may be pertinent to take note of the defence taken by the petitioner-accused, wherein he has categorically stated that instant FIR lodged at the behest of PW-4 is a counter blast to his FIR, which was admittedly registered on 9th September, 2005. PW-1, Ramesh Sharma (SHO) and PW-6 HC Subhash, investigating officers have categorically stated that accused had got registered an FIR against the complainant regarding quarrel and accordingly case came to be registered against PW-4. PW-6, has categorically admitted in his cross-examination that FIR lodged at the behest of the accused is prior in time of the present FIR. Leaving everything aside, PW-4 in his statement made before the Court has admitted the factum with regard to his visit to School on 9th September, 2005. Though, he has denied altercation, if any, with the accused on that day, but he has categorically admitted that he had obtained bail from the competent Court of law in that case. 15. This Court, after having carefully perused the material, as referred above, as well as statements made by these two police officials, sees substantial force in the argument of Mr. 15. This Court, after having carefully perused the material, as referred above, as well as statements made by these two police officials, sees substantial force in the argument of Mr. Anup Chitkara, learned counsel for the petitioner that entire story with regard to alleged molestation of PW-3 by accused was concocted by PW-4 in order to save himself from the prosecution initiated at the behest of the petitioner-accused. This Court also examined/viewed this case from another angle, as per statement of PW-4, when he returned back on 6th September, 2005 he was informed by his wife that victim is not going to school for the last 2-3 days. It is not understood what prevented PW-4 to visit the school on very next date i.e. on 7th September, 2005, whereas he visited the school on 9th September, 2005, on which date he allegedly gave beatings to the petitioner-accused. Most importantly, there is nothing in his statement i.e. PW-4 from where it can be inferred that when he visited the school, he reported alleged incident to other fellow teachers/staff. 16. Since, PW-4, Hem Chand had visited the school on 9th September, 2005 to report the incident to the school authorities, it was expected from him to file some complaint with the Principal/Headmaster of that school, but there is nothing on record suggestive of the fact that on 9th September, 2005 he made any complaint to the school authorities, meaning thereby altercation, if any, allegedly took place between the petitioner and PW-4 was all together for certain other reasons. At this stage, this court deems it fit to take note of statement of DW-1, who while stating that nothing happened on 3rd September, 2005 as alleged by the prosecution, categorically deposed that on 9th September, 2005 PW-4 visited the school and gave beatings to the petitioner. Interestingly, aforesaid witness DW-1 was not cross-examined on this point by the prosecution. There is no suggestion, worth the name, to this witness that beatings, if any, given by PW-4 to the petitioner-accused were on account of alleged eve-teasing committed by him on 3rd September, 2005. 17. Interestingly, aforesaid witness DW-1 was not cross-examined on this point by the prosecution. There is no suggestion, worth the name, to this witness that beatings, if any, given by PW-4 to the petitioner-accused were on account of alleged eve-teasing committed by him on 3rd September, 2005. 17. After having gone through the record as well as statements of the prosecution and defence witnesses, as have been discussed above, this court has no hesitation to conclude that both the courts below have not cared to examine/analyze the defence taken by the petitioner-accused in his statement recorded under Section 313 Cr.P.C. viz-a-viz statement of prosecution witnesses. Rather, both the courts below merely got swayed away with the fact that allegations made by minor child are /were of serious nature. If the statement having been made by PW-3, is read in its entirety, it certainly suggests that complaint/allegations, if any, were leveled by the victim at the behest of his father PW-4. It has specifically come in the statement of PW-3 that she was asked by PW-4 to write the complaint. Most importantly, when victim was confronted with Ex.PW3/A i.e. letter sent to Chief Minister, wherein she only stated that she was teased by the petitioner-accused, she also like PW-4 stated that she was hugged and kissed by the petitioner-accused on the alleged date of incident. 18. Careful perusal of the statement of aforesaid prosecution witnesses PW-3, PW-4 andPW-5, who were admittedly interested witnesses, certainly compels this court to conclude that there are/were lots of improvements in their statements as compared to first version they gave to police. If the statements of these witnesses are read/examined in the context of original complaint filed by the father of the victim to the truck union and Gram Panchayat, there appears to be lot of contradictions. 19. DW-1, Smt. Kamla (fellow teacher) has categorically stated in her statement that on the date of alleged incident victim (PW-3) was present in the prayer alongwith other students, but she was never called by the petitioner-accused during the prayer, as alleged by the prosecution witnesses. She has also stated that no such incident took place on that date. Cross-examination conducted on this witness nowhere suggests that the prosecution was able to shatter her testimony with regard to aforesaid version put forth by her. She has also stated that no such incident took place on that date. Cross-examination conducted on this witness nowhere suggests that the prosecution was able to shatter her testimony with regard to aforesaid version put forth by her. Since, it is the own case of the prosecution that after 3rd September, 2005 victim refused to go to school, it was incumbent upon the investigating agency to place on record attendance register of students from where it could be inferred that after 3rd September,2005 till 9th September, 2005 victim did not visit the school. 20. After having bestowed my thoughtful consideration to the evidence adduced on record by the prosecution, I am persuaded to agree with the contention of Mr. Anup Chitkara, learned counsel representing the petitioner that no reliance, if any, could be placed on the statements of PW-3, PW-4 and PW-5 by the courts below while holding petitioner-accused guilty of having committed offence punishable under Section 354 of IPC. Version put forth by PW-3, PW-4 and PW-5 do not appear to be trustworthy, rather this court after having carefully analyzed the aspect of delay in lodging the FIR, has no hesitation to conclude that PW-4 concocted false story to save himself from the prosecution launched against him at the behest of the petitioner-accused. 21. Otherwise, also Courts below have erred in placing undue reliance upon the statements of PW-4 and PW-5, who were admittedly not the eye witnesses to the alleged incident. In the instant case, PW-3 could only be termed to be a sole eye witness, whose version otherwise does not appear to be trustworthy for the reasons stated above. Another material eye witness adduced on record by the defence is DW-1, Smt. Kamla i.e. fellow teacher, who has categorically stated before the Court that nothing happened on the date of alleged incident as alleged by the prosecution. Since, PW-3 categorically admitted that she wrote complaint Ex.PW3/A at the behest of her father, version put forth by her could not be lent much credence, especially in view of overzealous role played by her father i.e. PW-4 that too when FIR lodged against him at the behest of the petitioner accused is of prior in time. 22. 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. 22. 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. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in C. Magesh and others versus 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 emphasis, 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 Surja Singh v. State of U.P. (2008)16 SCC 686 : 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 situation 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 consistence in evidence amongst all the witnesses. 23. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses. 23. After perusing the statements of the prosecution witnesses as well exhibits placed on record, two views are possible in the present case and as such, the petitioner-accused is entitled to the benefit of doubt. The learned counsel for the petitioner-accused has placed reliance on the judgment passed by Hon’ble Apex Court reported in State of UP versus Ghambhir Singh & others, AIR 2005 (92) SC 2439, wherein the Hon’ble Apex Court has held that if on the same evidence, two views are reasonably possible, the one in favour of the accused must be preferred. The relevant paragraph is reproduced as under:- “6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch a basket from the village and it was only a matter of coincidence that while he was returning he witnessed the entire incident. The High Court did not consider it safe to rely on his testimony because he evidence clearly shows that he had an animus against the appellants. Moreover, his evidence was not corroborated by objective circumstances. Though it was his categorical case that all of them fired, no injury caused by rifle was found, and, only two wounds were found on the person of the deceased. Apart from this PW-3 did not mention the presence of either PW-1 or PW-2 at the time of occurrence. All these circumstances do create doubt about the truthfulness of the prosecution case. The presence of these three witnesses becomes doubtful if their evidence is critically scrutinized. May be it is also possible to take a view in favour of the prosecution, but since the High Court, on an appreciation of the evidence on record, has recorded a finding in favour of the accused, we do not feel persuaded to interfere with the order of the High Court in an appeal against acquittal. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.” 24. The Hon’ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:- “25. It is well settled that if on the same evidence two views are reasonably possible, the one in favour of the accused must be preferred.” 24. The Hon’ble Division Bench of this Court vide judgment reported in Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008 (HP) 1150 has also concluded here-in-below:- “25. Moreover, when the occurrence is admitted but there are two different versions of the incident, one put forth by the prosecution and the other by the defence and one of the two version is proved to be false, the second can safely be believed, unless the same is unnatural or inherently untrue. 26. In the present case, as noticed hereinabove, the manner of occurrence, as pleaded by the defence, is not true. The manner of the occurrence testified by PW-11 Sandeep Rana is not unnatural nor is it intrinsically untrue, therefore, it has to be believed. 27. Sandeep Rana could not be said to have been established, even if the prosecution version were taken on its face value. It was pleaded that no serious injury had been caused to PW-11 Sandeep Rana and that all the injuries, according to the testimony of PW-21 Dr. Raj Kumar, which he noticed on the person of Sandeep Rana, at the time of his medical examination, were simple in nature.” 25. Consequently, in view of the aforesaid discussion made hereinabove, this Court has no hesitation to conclude that the judgment passed by both the courts below are not based upon the correct appreciation of the evidence available on record and as such, same are quashed and set-aside. Accused is acquitted of the notice of accusation. His bail bonds are discharged. The fine amount, if any deposited by the petitioner-accused be released to him. The present criminal revision petition stands disposed of, so also pending applications, if any.