Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 436 (HP)

State of Himachal Pradesh v. Avtar Singh

2019-04-22

SANDEEP SHARMA

body2019
JUDGMENT : SANDEEP SHARMA, J. 1. By way of instant Criminal appeal filed under Section 378 of the Code of Criminal Procedure, challenge has been laid to judgment of acquittal dated 2.4.2009, passed by learned Sessions Judge (Forest) Shimla, District Shimla, Himachal Pradesh, reversing the judgment of conviction/ sentence dated 13.2.2006/18.2.2006, passed by learned Judicial Magistrate, 1st Class, Jubbal, camp at Theog, District Shimla, H.P., whereby learned trial Court though held all the respondents/accused guilty of having committed the offence punishable under Section 323 read with Section 34 of IPC, but while extending the benefit of provision of Probation of Offenders Act, 1958, released the respondent/accused Kumari Vibhuti on probation. 2. Briefly stated facts, as emerge from the record are that on 7.10.2003, complainant namely. Smt. Asha Rathore (PW-4) telephonically informed the police with regard to quarrel allegedly took place at Shankar Niwas, Court Colony, Theog. Police after having visited the spot recorded the statement of the complainant under Section 154 Cr.P.C. Ex.PW4/A, wherein she alleged that she is married to accused Avtar Singh and out of their wedlock a daughter was born. Allegedly, accused Avtar Singh started ill-treating her and she was left by him in her brother's house. Though, accused Avtar Singh filed Divorce Petition against the complainant, but same was dismissed. Subsequently, complainant filed petition for Restitution of Conjugal Rights, which was allowed, but accused Avtar Singh despite there being Decree of Restitution of Conjugal Rights passed in favour of the complainant, started living separately with another accused namely, Rita Devi. On 7.10.2003, complainant went to see the accused in his quarter at Theog and as soon as she entered into his house, accused started beatings her and threw her out of the room, as a consequence of which, she suffered injuries on her arm and other parts of her person. Person namely, Rita Kanwar(PW-6), who had accompanied the complainant to the quarter of the accused was also given beating by the accused while she was trying to save her from the clutches of the accused. On the basis of aforesaid statement given by the complainant under Section 154 Cr.P.C, a formal FIR Ex.PW2/B came to be registered against the accused. Person namely, Rita Kanwar(PW-6), who had accompanied the complainant to the quarter of the accused was also given beating by the accused while she was trying to save her from the clutches of the accused. On the basis of aforesaid statement given by the complainant under Section 154 Cr.P.C, a formal FIR Ex.PW2/B came to be registered against the accused. After completion of the investigation, police presented the challan in the competent Court of law, who being satisfied that a prima-facie case exist against the accused, charged them for the offence punishable under Sections 323 read with Section 34 of IPC, to which they pleaded not guilty and claimed trial. However, fact remains that despite opportunity, they failed to lead evidence in defence. 3. Learned trial Court vide judgment dated 13.2.2006 held all the accused guilty of having committed the offence punishable under Section 323 IPC, however fact remains that accused Vibhuti, who at that time had not completed 20 years of age was given benefit of provisions of Probation of Offenders Act, 1958. Learned trial Court convicted the accused Avtar Singh and sentenced him to undergo simple imprisonment for a term of six months and to pay fine of Rs. 1000/-, and in default of payment of fine, to further undergo simple imprisonment for a period of one month, whereas accused Rita was convicted and sentenced to undergo simple imprisonment for 15 days and to pay fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment for 15 days. 4. Feeling aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial Court, present respondents-accused preferred an appeal in the Court of learned Sessions Judge (Forest) Shimla, District Shimla, H.P., who vide judgment dated 2.4.2009 set aside the judgment of conviction recorded by the learned trial Court and acquitted all the respondents-accused of the charge framed against them under Section 323 read with section 34 IPC. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, praying therein for restoration of the judgment of conviction recorded by the learned trial Court after setting aside the judgment of acquittal recorded by the learned Sessions Judge(Forest) Shimla, H.P. 5. I have heard learned counsel representing the parties and perused the record carefully. 6. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, praying therein for restoration of the judgment of conviction recorded by the learned trial Court after setting aside the judgment of acquittal recorded by the learned Sessions Judge(Forest) Shimla, H.P. 5. I have heard learned counsel representing the parties and perused the record carefully. 6. Having carefully perused the material evidence adduced on record by the prosecution, be it ocular or documentary vis-a-vis reasoning assigned by the learned Sessions Judge (Forest)Shimla, while reversing the judgment of conviction recorded by the learned trial Court, this Court is not persuaded to agree with the contention raised by Mr. Kunal Thakur, learned Deputy Advocate General that learned Sessions Judge has failed to appreciate the evidence in its right perspective, as a consequence of which, erroneous findings have come to the fore. Rather, this court after having carefully examined the statements of prosecutions witnesses, is fully convinced and satisfied that there are material discrepancies and inconsistencies in the statements of prosecution witnesses and as such, no conviction could be based upon the same. It is not in dispute that complainant and respondent-accused No.1, Avtar Singh were married to each other in the year, 1992 and out of their wedlock one daughter was born. It is also not in dispute that Divorce Petition having been filed by respondent/accused No.1 was dismissed, but despite that he was not living with her wife i.e. complainant Asha Rathore(PW-4). Though, complainant in her initial statement given to the police under Section 154 Cr.P.C alleged that respondent/accused Avtar Singh despite there being decree of Restitution of Conjugal Rights had been living with co-accused namely Rita Devi at Shankar Niwa, Court Colony, Theog, but if the evidence collected on record by the prosecution is read in its entirety, it certainly compels this Court to agree with contention of learned counsel representing the respondents-accused that prosecution was not able to prove on record beyond reasonable doubt that after dismissal of Divorce Petition having been filed by the respondent-accused Avtar Singh, he was living with co-accused namely, Rita Devi. According to complainant, she was taken to the house of accused Avtar Singh by one lady Smt. Rita Kanwar(PW-6), whereas in her cross-examination, she stated that she was not known to Rita Kanwar(PW-6) before the alleged incident, whereas PW-6 in her cross-examination clearly admitted that she was known to complainant(PW-4) prior to the alleged incident. It has specifically come in her cross-examination that PW-4 was known to her as she oftenly used to visit her house at her village. It is not understood that why complainant made wrong statement to the Court with regard to her prior acquaintance with Smt. Rita Kanwar (PW6). 7. Leaving everything aside, version put forth by the complainant during her examination-in-chief that she met Rita Kanwar(PW-6) for the first time of alleged incident, itself cast serious doubt with regard to correctness of the story put forth by the prosecution, especially in view of the contradictory statement made by Rita Kanwar(PW-6). Apart from above, both PW-4 and PW-6 deposed before the Court below that when beatings were given to the complainant, her clothes were torn and some blood fell on these clothes, but interestingly torn and blood stained clothes of the complainant never came to be taken into possession by the police. 8. Si. Raghubir Singh(PW-7) Investigating Officer, admitted in the cross-examination that neither the clothes of the complainant were shown to the police nor the injuries on her person were so serious that blood might have fallen on them. If the statement of prosecution witnesses are read juxtaposing each other, it clearly emerges that at the time of alleged incident number of people had gathered at the spot of occurrence, but interestingly, none of the independent witnesses ever came to be associated by the police for the reasons best known to it. 9. Pw-5, Roshni Dogra, who happened to be owner of the house namely Shankar Niwas, Theog also not supported the case of the prosecution. She deposed that she had given room to one Virender Kumar and feigned ignorance whether accused Avtar and Reeta lived in that room and she also feigned ignorance that on 7.10.2003 there had been some quarrel between the parties. Version put forth by PW-5 Roshni Dogra, who happened to be owner of the house namely Shankar Niwas, where alleged incident took place, creates serious doubt with regard to correctness of the story put forth by the complainant. 10. Version put forth by PW-5 Roshni Dogra, who happened to be owner of the house namely Shankar Niwas, where alleged incident took place, creates serious doubt with regard to correctness of the story put forth by the complainant. 10. True, it is that version put forth by the prosecution witnesses, if any, cannot be brushed aside solely on the ground of non-association of the independent witnesses, but in the case at hand story put forth by the complainant does not inspire confidence, rather same appears to be concocted one and as such, non-association of independent witnesses, especially when they were available in the abundance, is fatal to the prosecution case. 11. Perusal of MLC Ex.PW1/A, which came to be proved by PW-1, Dr. Nipun Parihar, reveals that injuries, if any, on the person of complainant were caused/inflicted within 12 hours but in her cross-examination she admitted that there is no mention to this effect in the MLC Ex.PW1/A. She admitted in her cross-examination that she cannot tell the duration of injures by referring to this effect and as such, statement of PW-1 is of not much relevance as far as determination of guilt, if any, committed by the accused at the time of alleged incident. 12. 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. 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. 13. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction could be based upon the same. 14. Consequently, in view of the detailed discussion made hereinabove as well as law referred hereinabove, this Court sees no illegality and infirmity in the impugned judgment of acquittal passed by the learned Sessions Judge(Forest)Shimla, which otherwise appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld. Accordingly, the present appeal is dismissed being devoid of any merit alongwith pending applications, if any.