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2018 DIGILAW 1927 (HP)

Rikko Devi v. Sant Ram

2018-11-02

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. (Oral) By way of instant petition filed under Section 378 (3) CrPC, applicant/complainant has sought leave of this Court to file appeal against judgment dated 29.6.2018 passed by the learned Chief Judicial Magistrate, Chamba, District Chamba (HP) in Case No. 206-I/2013, whereby respondents No.1 and 2-accused (hereinafter, 'accused’), who were charged with and tried for the commission of offence punishable under Sections 354, 427 and 323 IPC, have been acquitted of the aforesaid charges. 2. Briefly stated the facts as emerge from the record are that the a complaint came to be filed on behalf of the applicant with the Police Station, Pangi, District Chamba, Himachal Pradesh alleging therein that on 20.8.2012 in the morning she had linked her fields through a Kuhal and when water stopped coming in the said Kuhal, she went to see the Kuhal and noticed that accused Sant Ram had diverted water to his fields, upon which applicant diverted the water to her fields, when allegedly, Sant Ram came from behind, caught hold of her breasts, tore her shirt and broke her golden chain. It is further alleged that accused No.2 Devi Saran, brother of accused No.1 also came to the spot and aided the former in commission of offence and in this process both the accused gave beatings to the applicant. On hearing her cries, brother of applicant Mahender, Jalam Singh, Man Singh and Jeevan Singh came to spot and rescued applicant from clutches of accused. Applicant is stated to have sustained injuries on her body. Incident was narrated by applicant to her uncle Bhim Singh (PW-7) and sister Rajo Devi and accordingly, they approached the police for lodging of FIR in question. Police after lodging of FIR, started investigation into the alleged crime and took into possession shirt Ext. P-1 and got the applicant medically examined from MO, CHC Killar, who issued MLC Ext. PW-5/C. Statements of witnesses were recorded. On completion of investigation, Challan came to be presented in the competent Court of law i.e. Chief Judicial Magistrate, Chamba. 3. Learned Court below, on finding prima facie case against accused, served notice of accusation for having committed offence punishable under Ss. 354, 323 and 427 read with S. 34 IPC, to which accused pleaded not guilty and claimed trial. Prosecution in order to prove its case against accused, examined as many as eight witnesses. 3. Learned Court below, on finding prima facie case against accused, served notice of accusation for having committed offence punishable under Ss. 354, 323 and 427 read with S. 34 IPC, to which accused pleaded not guilty and claimed trial. Prosecution in order to prove its case against accused, examined as many as eight witnesses. No witness was examined by the accused in their defence, however, in the statements recorded under S. 313 CrPC, they denied the case of prosecution and claimed to be innocent. 4. Subsequently, the learned Court below below, vide judgment dated 20.6.2018, acquitted the accused of the aforesaid charges by concluding that the prosecution has not been able to prove the case beyond all reasonable doubt. Since the State chose not to file an appeal laying therein challenge to the judgment of acquittal passed by the learned Court below, complainant has approached this court by way of present application seeking therein leave to file appeal against the impugned judgment of acquittal. 5. Mr. Rakesh Chauhan, learned counsel representing the applicant, vehemently argued that impugned judgment passed by the learned trial Court is not sustainable in the eye of law as the same is not based upon correct appreciation of evidence adduced on record by the prosecution and as such same deserves to be set aside. Mr. Chauhan, while inviting attention of this Court to the impugned judgment passed by learned trial Court vis-à-vis evidence led on record by the prosecution, strenuously argued that prosecution proved beyond reasonable doubt that the accused tried to outrage the modesty of the applicant/complainant. Mr. Chauhan, further contended that there is ample evidence, be it ocular or documentary, adduced on record by the prosecution, suggestive of the fact that on 20.8.2012, accused not only gave beatings to the complainant/applicant but tried to outrage her modesty and as such prayed that leave to appeal may be granted and accused may be convicted for the charges framed against him, after setting aside the judgment of acquittal. 6. Mr. Kulbhushan Khajuria, learned counsel representing respondents No. 1 and 2/accused, while inviting attention of this Court to the impugned judgment of acquittal passed by the learned Special Judge, vehemently argued that it has rightly appreciated the evidence adduced by the respective parties and acquitted the accused finding no evidence against them. Mr. 6. Mr. Kulbhushan Khajuria, learned counsel representing respondents No. 1 and 2/accused, while inviting attention of this Court to the impugned judgment of acquittal passed by the learned Special Judge, vehemently argued that it has rightly appreciated the evidence adduced by the respective parties and acquitted the accused finding no evidence against them. Mr. Khajuria, further argued that the FIR lodged by the complainant is counter-blast to the FIR lodged by them. Mr. Khajuria, further averred that the prosecution has miserably failed to bring home the guilt of the accused and as such, learned Special Judge is right in acquitting the accused. Mr. Khajuria, further argued that since there was no truth in the allegations levelled by the complainant against accused, as such only the State has chosen not to file any appeal against the acquittal of his clients and the complainant just to harass and humiliate the accused, has filed the instant application seeking leave to file appeal against the judgment passed by learned Special Judge, which deserves to be dismissed. 7. I have heard the learned counsel for the parties and gone through the record carefully. 8. Having heard the learned counsel for the applicant and perused record, this court sees no reason to interfere with the well reasoned judgment passed by the learned Court below, which definitely is based upon correct appreciation of the attending facts and circumstances of the case. 9. Close scrutiny of the material available on record reveals that dispute inter se complainant and the accused arose on account of diversion of water coming through a Kuhal. Complainant (PW-1), in her examination-in-chief stated that on 20.8.2012, at about 10.30 am, she was irrigating her fields through a Kuhal but suddenly water stopped and then she went to the spot and found that the accused Sant Ram had broken the Kuhal and diverted water towards his fields. She further deposed that when she inquired from the accused Sant Ram, he not only abused her but caught hold of her breast and torn her shirt. She further stated that when she raised hue and cry, brother of accused, Devi Saran also came on the spot and caught hold of her and gagged her mouth. She further deposed that when she inquired from the accused Sant Ram, he not only abused her but caught hold of her breast and torn her shirt. She further stated that when she raised hue and cry, brother of accused, Devi Saran also came on the spot and caught hold of her and gagged her mouth. Complainant also alleged that both the accused named above gave her beatings with kick and fist blows and when she cried for help, her brother Mahender, Jalam Singh, Man Singh and Jeevan Singh came to the spot and rescued her from the clutches of accused. She stated that due to beatings by accused, she lost her golden chain, earring and nose-pin and sustained injuries on her left arm and left side breast and other parts of the body. She deposed that both the accused, who are brothers, tried to outrage her modesty and in this regard, she had lodged report at Police Station, Pangi, which is marked as Mark 'X’. During her cross-examination, complainant fairly admitted that accused also lodged a criminal case against her and her family members regarding the same incident prior to her lodging the case against the accused. She also admitted that a criminal case is pending against her and her brothers Mahender Singh, cousin brothers Man Singh, Jeevan Singh and Jalam Singh, which has been lodged by Devi Saran, in which wife of Devi Saran and her niece had sustained injuries. Complainant also volunteered that the accused have lodged a false case. Complainant denied the suggestion that they used to call the accused and their family members by their caste and obstructed them from entering the temple by proclaiming that they belonged to lower caste. Complainant admitted that the accused had lodged case prior to lodging of complaint by her. She denied the suggestion that accused never caught hold of her from breast nor gave her beatings nor any golden chain or earring and nose-pin had been lost. She feigned ignorance as to on which part of body she sustained internal injuries. Complainant stated that when police took her shirt entire Praja was also present on the spot. 10. Similarly, PW-2 Mahender Singh stated that on 20.8.2012, he was doing construction work of temple when at about 10.30am, he heard noise of crying of his sister. She feigned ignorance as to on which part of body she sustained internal injuries. Complainant stated that when police took her shirt entire Praja was also present on the spot. 10. Similarly, PW-2 Mahender Singh stated that on 20.8.2012, he was doing construction work of temple when at about 10.30am, he heard noise of crying of his sister. He alongwith Man Singh and Jeevan visited the spot and saw that accused Sant Ram and Devi Saran were giving beatings and they had also torn the shirt of his sister from left side. He further deposed that they saved their sister from the clutches of accused and during scuffle, his sister lost her earring, nose-pin and a golden chain. In his cross-examination, this witness stated that 40-50 persons were doing construction work of temple and out of them, Govind Ram, Chaman Singh, Basant Singh, Hari Lal, Hem Raj, Paras Ram and Roshan Lal etc. were present there. He stated that the construction work of temple was being done adjacent to the fields and place of occurrence was at a distance of 200 metres from the temple. He further stated that they only witnessed the occurrence and none else saw it. He feigned ignorance as to for how much time quarrel continued. He also stated that the Police Station is at a distance of 17 kms form the spot. He also feigned ignorance that on same day, wife of accused Devi Saran and niece Suman were also got medically examined. He denied that the case was pending against them qua the same incident. He feigned ignorance that the case pending against him was regarding setting on fire the orchard of accused in which his real brother Rakesh and Kishan and cousin brother Bodh Ram are accused. He also feigned ignorance that one case is also pending against his sister (complainant) in which he, Rakesh Kumar, Kehar Singh, Jeevan Singh and Man Singh are also accused. He denied that the case which was pending against them was qua giving beatings to Devi Saran, Hir Dei and Suman. He denied the suggestion that accused have not given any beatings to his sister nor molested her. However, he feigned ignorance about the fact that accused had lodged FIR on the same day prior to lodging FIR by his sister. 11. He denied the suggestion that accused have not given any beatings to his sister nor molested her. However, he feigned ignorance about the fact that accused had lodged FIR on the same day prior to lodging FIR by his sister. 11. PW-3 Jalam Singh, stated that he did not remember the date and month but about 3-4 year back, he was doing construction work of temple in the village. He further stated that he was called by the police and one shirt Ext. P1 was taken into possession by the police vide Fard Ext.PW-1/A, which bears his signatures under red circle at place 'B’. He identified the shirt to be the same and stated that except this nothing has happened in his presence. This witness was declared hostile and cross-examined by the prosecution, wherein he denied that on 20.8.2012, he, Man Singh, Jeevan and Mahender Singh visited the spot on hearing the noise of Mahender Singh and saw that accused had caught hold of victim and also torn her wearing shirt. He further denied that they rescued the victim from the clutches of accused. This witness admitted that the shirt was handed over to the police by victim. Though this witness admitted that accused belong to his village and are known to him but denied the suggestion that for this reason, he was deposing falsely. He has denied portion 'A’ to 'A’ of his statement, Marj 'J’ recorded by the police. 12. PW-4 Jeevan Singh, stated that on 21.8.2012, he was doing construction work at Kuthal Village when at about 10.30 am on hearing noise of Mahender Singh, he and Bhim Singh visited the spot and saw that Devi Saran and Sant Ram (both accused) had caught hold of victim and had also torn her shirt. He stated that they rescued the victim from the clutches of accused. He stated that accused had torn the shirt of accused and victim had lost her golden chain and nose-pin. During cross-examination, this witness stated that meeting at Kuthal Village was on 20th August. He stated that accused persons belong to Scheduled Caste family and they belong to Rajpoot family. He feigned ignorance that on 20.8.2012, father of accused was ousted from the temple by saying that they belong to Scheduled Caste family. During cross-examination, this witness stated that meeting at Kuthal Village was on 20th August. He stated that accused persons belong to Scheduled Caste family and they belong to Rajpoot family. He feigned ignorance that on 20.8.2012, father of accused was ousted from the temple by saying that they belong to Scheduled Caste family. He admitted that accused and his family members have lodged criminal case against him, Mahender Singh and Rakesh Kumar qua trespass into the house. Self stated that it was false case. He feigned ignorance that aforesaid case was lodged against them on 20.8.2012. He also admitted that victim is also accused in the aforesaid case. He denied that they did not allow the accused to irrigate their fields through Kuhal and broken the same. He feigned ignorance about distance of temple from the fields. He stated that at the time of occurrence, there were 30-35 persons gathered on the spot. He denied the suggestion that they proclaimed that accused belonged to Scheduled Caste Family and restrained them from entering into the temple. He denied that accused neither torn the shirt of victim nor molested her. 13. Careful perusal of the statements having been made by aforesaid witnesses, if read in conjunction, clearly suggest that all the prosecution witnesses are closely related to each other. It also emerges from their statements that 40-45 persons were present on the spot at the time of alleged incident. It is not understood as to why prosecution failed to associate independent witnesses especially when they were available in abundance. 14. Leaving everything aside, statement having been made by PW-3 Jalam Singh completely demolished the case of the prosecution because he specifically denied the case of prosecution that on the date of alleged incident, accused not only gave beatings to the complainant rather made an attempt to outrage her modesty. True it is that this witness was declared hostile and cross-examined but if cross-examination conducted upon this witness is perused carefully, it nowhere suggests that prosecution was able to extract anything contrary to what he stated in his examination-in-chief, rather, he specifically denied that on 20.8.2012, he after having heard cries of complainant, visited the spot alongwith Man Singh, Jeevan (PW-4) and Mahender Singh (PW-2). He specifically denied that he alongwith other persons i.e. PW-3, PW-4 and PW-2 rescued the victim from the clutches of the accused. He specifically denied that he alongwith other persons i.e. PW-3, PW-4 and PW-2 rescued the victim from the clutches of the accused. He specifically denied portion 'A’ to 'A’ of his statement Mark 'J’, recorded by the police. If statement of PW-4, Jeevan is read, it also suggests that accused persons belong to Scheduled Caste family, whereas complainant and prosecution witnesses belong to Rajpoot community. Statement of PW-4 suggests that on 20.8.2012, father of accused was ousted from the temple by saying that they belong to Scheduled Caste. This witness categorically admitted that accused and their family members lodged a criminal case against him, Mahender Singh (PW-2) and Rakesh Kumar qua trespass into house. He specifically admitted that victim-complainant is also accused in the present case. 15. PW-2 Mahender Singh stated that construction work of temple was being done adjacent to the fields and place of occurrence is 200 metres from temple, whereas complainant, in her statement, deposed that construction work of temple was being done at a distance of half a kilometre and it was being done by Praja, in which her brother Mahender Singh, uncle Kehar Singh, cousin brothers Man singh, Jeevan Singh and Jalam Singh were doing work, who came on the spot when she cried for help. In the statement, complainant, who is best person to narrate the actual incident, has stated that temple was being constructed at a distance of half a kilometre from the spot and as such, it is difficult to believe that noise, if any, of complainant was heard by her brothers Mahender Singh and others at a distance of half a kilometre. If it is presumed that above named persons had heard noise even then it is hard to believe that within a few minutes they reached the spot and till that time, accused were present on the spot. 16. Complainant also admitted in her cross-examination that a criminal case is pending against her brother Mahender Singh, Man Singh, Jeevan and Jalam Singh, which has been lodged by Devi Saran, wherein wife and niece of Devi Saran had sustained injuries. She denied that they used to call accused and their family by caste and obstructed them from entering the temple on the pretext that they belonged to Scheduled Caste. She admitted that accused persons lodged case prior to lodging of present case against them. 17. She denied that they used to call accused and their family by caste and obstructed them from entering the temple on the pretext that they belonged to Scheduled Caste. She admitted that accused persons lodged case prior to lodging of present case against them. 17. By now, it is well settled that in criminal trials, evidence of eye witnesses requires careful assessment and needs to be evaluated for its credibility. It has been repeatedly held by the Hon'ble Apex Court that fundamental aspect of criminal jurisprudence rests upon well established principle that, “no man is guilty until proved so.” 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. It has been repeatedly held by the Hon'ble Apex Court that there must be a string that should join evidence of all the witnesses, 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 the 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. 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. 18. Close scrutiny of evidence as discussed herein above clearly suggests that parties are /were inimical to each other and prior to lodging of FIR by complainant in the case at hand, accused Devi Saran had also lodged criminal case against the complainant and her brothers named above, vide FIR, Ext. D1, perusal of which clearly suggests that accused Devi Saran had filed complaint prior in time qua same incident against complainant and her brothers, which fact has been otherwise admitted by complainant and other witnesses, as such, learned trial Court rightly arrived at a conclusion that subsequent FIR lodged by complainant party is just a counter blast to the FIR lodged by the accused party. 19. At the cost of repetition, it may be observed that only the relatives of complainant heard the cries of the complainant and came to the spot for the rescue of complainant and further it is only the relatives of the complainant, who have been cited as witnesses by the prosecution, especially when as per own admission of the complainant and other prosecution witnesses, number of people had gathered at the spot. No doubt, statements of interested witnesses can not be brushed aside solely on the ground of nonassociation of independent witnesses but it is equally settled by now that, while determining guilt, if any, of the accused, on the basis of statement made by interested witnesses, courts are required to be extra cautious and they are required to see/determine, whether witnesses termed to be interested are going to be benefited in any way, while deposing in favour of complainant and against accused or not? 20. The Hon'ble Apex Court in Ajmer Singh vs State of Haryana decided on 15 February, 2010, [2010(2) RCR (Crl) 132] has held that the police has to show that efforts were made to associate independent witnesses but same could not be associated despite such efforts. 20. The Hon'ble Apex Court in Ajmer Singh vs State of Haryana decided on 15 February, 2010, [2010(2) RCR (Crl) 132] has held that the police has to show that efforts were made to associate independent witnesses but same could not be associated despite such efforts. The Hon'ble Apex Court held as under: “The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding.” 21. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding.” 21. In the case at hand, as is clear from record, accused who hail from Scheduled Caste community filed FIR on the same day i.e. Ext. D1 against complainant and her cousin, who are prosecution witnesses in the case at hand that they were not allowed to enter the temple and were given beatings being Scheduled Caste. Factum with regard to lodging of FIR prior in time stands duly admitted by complainant as well as other prosecution witnesses, meaning thereby all the witnesses associated by prosecution to prove its case are personally interested in the success of criminal case as they stand named by accused in the FIR lodged by them (accused). 22. Since cross FIR’s came to be lodged on same day qua same incident and in the same Police Station, one Investigating Officer ought to have investigated both the cases and after arriving at some definite conclusion, as to which party was aggressor/offender/guilty, should have presented the Challan in the competent Court of law but, in the case at hand, it has not been done and as such, learned Court below rightly held that this fact is fatal to the prosecution and proceeded acquit the accused. 23. Consequently, in view of discussion made herein above, this Court sees no illegality or infirmity in the impugned judgment passed by learned Special Judge, as such, same is upheld. Leave to appeal is rejected. Petition is dismissed.