Kali Ram vs State of H.P.

Sanjay Karol, J.—Assailing the judgment dated 18.3.2002/21.3.2002 passed by the Judicial Magistrate, 1st Class, Chopal, District Shimla, in Case No. 69-1 of 2001, titled as State of H.P. vs. Kali Ram, as affirmed by the Additional Sessions Judge, Fast Track Court, Shimla, H.P. vide judgment dated 1.5.2007 passed in Criminal Appeal No. 6-S/10 of 2004/02, titled as Kali Ram vs. State of Himachal Pradesh, the accused-petitioner has filed the present Revision Petition u/s 397 read with Section 401 of the Code of Criminal Procedure, 1973. In relation to FIR No. 44 of 2001 dated 15.5.2001 registered at 11.20 a.m. at Police Station Chopal, District Shimla, H.P., accused was charged for having committed offences punishable under the provisions of Sections 354, 323, 325 and 506, I.P.C. The trial Court in terms of the aforesaid judgment convicted the accused for having committed an offence punishable under the provisions of Sections 354 and 323, IPC. The State or the complainant did not prefer any appeal challenging the order of acquittal of the accused with regard to the other charges. However, against the judgment of conviction, accused preferred an appeal, which stands dismissed by the lower Appellate Court.

It is the case of the prosecution that on 14.5.2001 prosecutrix (PW-1) was going to the house of her sister, who was married to Shri Karam Chand (PW-4) at Village Ghanari. From her house in Village Dyandli she came to Nerwa from where she took a Bus upto a place known as Rawelpul and from where she started walking through the forest. When she reached at a place known as Tulki Khad, accused Kali Ram suddenly appeared and assaulted her. He pressed her breast and gave tooth bite on her cheek. This was so done with intent to outrage her modesty. Accused pushed her as a result of which she fell on the ground and her tooth broke. Also accused gave beatings with fist blows and kicks. When prosecutrix cried for help, her brother-in-law (PW-4) arrived on the spot alongwith Rajinder alias Hem and Santosh Kumar (DW-1). Seeing them, accused ran away from the spot, but threatened the prosecutrix of doing away with her life, if she disclosed the incident to any person. Thereafter, prosecutrix went to the house of her sister at Village Ghanari alongwith her brother-in-law. Following morning i.e. 15.5.2001 alongwith PW-4 she came to the Police Station and lodged a report at 11.20 a.m. Prosecutrix was taken to the Hospital by the Investigating Officer Raj Kumar (PW-6), where she was examined by Dr. S.L. Chauhan (PW-5), who prepared Medico Legal Certificate. For the purpose of dental examination, she was referred to Ripon Hospital at Shimla, where she was examined by Dr. Vijay Chauhan (PW-2), who issued Medico Legal Certificate (Ext.PW-2/A) enclosing x-ray (Ext.PW-2/B) and film (Ext.PW-2/C). Investigating Officer Raj Kumar (PW-6) visited the spot on 20.5.2001 and conducted the investigation. There he collected the tooth and prepared the site plan. He recorded statements of the witnesses and with the completion of investigation presented the challan in the Court.

Accused was charged for having committed offences punishable under the provisions of Sections 354, 323, 325 and 506 of the Indian Penal Code to which he did not plead guilty and claimed trial.

In order to establish its case, in all prosecution examined six witnesses, including the prosecutrix and her brother-in-law Shri Karam Chand (PW-4). Significantly, prosecution did not examine two material witnesses for the reason that they had been won over. After the statement of the accused was recorded under the provisions of Section 313 of the Criminal Procedure Code, in which he took up a plea of false implication, apart from prior animosity and incident of scuffle, which took place between him, prosecutrix and Karam Chand (PW-4), the accused examined two witnesses in defence. Those witnesses were not examined by the prosecution.

After trial, accused was convicted for having committed offences punishable under the provisions of Sections 354 and 323, IPC and acquitted for having committed offences punishable under the provisions of Sections 325 and 506, I.P.C.

He was sentenced to undergo simple imprisonment for a term of three months for an offence punishable under the provisions of Section 354, IPC and for a period of one month for an offence punishable under the provisions of Section 323, IPC and pay fine of Rs. 500/- each in relation to both the offences, failing which to further undergo simple imprisonment for a period of 15 days.

Having heard learned counsel for the parties and perused the record, I am of the considered view that petitioner has made out a case for interference. Impugned judgments have resulted into travesty of justice and illegality. It cannot be said that prosecution has been able to prove its case, much less, beyond reasonable doubt. In my considered view, trial Court got swayed with the fact that the prosecutrix was a young girl of 20 years and presumed that whatever she deposed was the only truth and that she could not have deposed falsely in the Court.

In my considered view, the lower Appellate Court did not weigh the testimonies of the prosecution witnesses in the backdrop of the animosity and the scuffle which took place between the parties, a day prior to the incident in question. The Court presupposed that marks of teeth on the cheek of the prosecutrix were in fact that of the accused. His findings are too presumptuous. Unexplained delay in registration of the FIR, is brushed aside on the ground that nothing existed to show that there was prior consultation by the complainant. Further the Court pre-supposed that the defence witnesses were in fact present on the spot of the incident, forgetting that there was a categorical denial by them. Findings are not on the basis of foundation of his definite opinion, based on his subjective and objective analytical appreciation of evidence of the relevant witnesses, which is evident from his following observations:--

It appears to me that the accused caught hold of the prosecutrix (PW-1), threw her on the ground and caused the injuries to her with intent to settle the scores as a brawl had admittedly taken place between him (accused), prosecutrix and her Jeeja (PW-4) on the previous day i.e. 13.5.2001.

Prosecution examined six witnesses. Prosecutrix is PW-1 and her brother-in-law Shri Karam Chand is PW-4. FIR was registered by Shri Pat Ram (PW-3) and investigation was conducted by Shri Raj Kumar (PW-6). Dr. Vijay Chauhan (PW-2) and Dr. S.L. Chauhan (PW-5) are the Doctors who medically examined the prosecutrix.

Accused examined Shri Santosh as DW-1 and Shri Suresh as DW-2 as his witnesses.

At the threshold, it may be noticed that with regard to offence under the provisions of Sections 325, 506 of the Indian Penal Code, the Courts below have not believed the testimonies of PW-1 and PW-4 being the only independent witnesses of the prosecution. Findings with regard to the fact that the accused pushed the prosecutrix as a result of which she fell down and broke her tooth not having been proved on record have attained finality.

Now if the Courts below did not believe the testimonies of these witnesses in totality, it was absolutely necessary and incumbent upon them to have adopted an approach of caution and scrutinized the testimonies with circumspection.

Significantly Doctor Vijay Chauhan has deposed that there was no corresponding injury on the gum and internal mouth of the prosecutrix to show that the tooth was broken as a result of the force used by the accused. No doubt time gap between the date of the incident and the opinion of the Doctor is there, but, however, such corresponding injury, if any, could not have healed within a period of one week. Also Doctor has also opined that the tooth (Ext. P-2) was extracted from the socket and there was no corresponding injury inside the mouth/gum. As such the version of the prosecutrix was disbelieved.

The defence of the accused that he stands falsely implicated in the instant case on account of the incident, which took place on 13.5.2001, in which accused himself sustained injuries as a result of the beatings given both by the prosecutrix and PW-4, stands materially proved not only by the defence witnesses Santosh (DW-1) and Suresh (DW-2), who in fact were cited as the prosecution witnesses, but also from the categorical admissions made by PW-4 in his cross-examination.

Prosecution did not examine the defence witnesses as the Public Prosecutor made a statement that they were won over. It is settled proposition of law that the fact that the witnesses stand won over has to be established by cogent and convincing material on record. Witnesses are required to be examined in Court as they can be cross-examined by the Public Prosecutor. In this regard reference can be made to the decision of the Apex Court rendered in Bakhshish Singh Vs. The State of Punjab, .

Both DW-1 and DW-2 have deposed that on 13.5.2001, they witnessed both PW-1 and PW-4 quarrelling with the accused. This was outside the shop of one Shri Ravinder, who incidentally was also not examined by the prosecution despite being a cited witness.

Having gone through the testimonies of these two witnesses, it does not appear that they were won over. These witnesses are not the witnesses to the occurrence of the incident in question, but witnesses to the incident, which took place one day prior to the incident in question. DW-1 has deposed that there was blood on the body of the accused. Also PW-4 threatened that they would file a false case. This testimony of DW-1 stands corroborated by DW-2, who specifically deposed that prosecutrix had pelted stones on the accused outside his shop, resulting into blood oozing out from the head and staining the clothes.

Significantly even PW-4 in his testimony did not deny his presence at Rawelpul on 13.5.2001. Though initially he deposed that he did not remember, but subsequently admitted that on 13.5.2001 Hem Raj, accused and DW-1 were present at Rawelpul. There, quarrel took place between him and Kali Ram (accused) and even prosecutrix hit the accused on his head from which blood oozed. Hem Raj (alias Rajinder), Santosh and Suresh had separated them. Thus it stands proved on record that accused was beaten up by the prosecutrix and PW-4, one day prior to the incident in question.

It was in this backdrop that the testimonies of independent prosecution witnesses were required to be scrutinized with circumspection. Prior animosity is a double edged sword. False implication cannot be ruled out. PW-4 had threatened to do so.

In her examination-in-chief, prosecutrix has completely denied her presence at the time of occurrence of the incident of 13.5.2001, which version of hers, materially stands contradicted by PW-4. The contradiction is not minor. It is material and significant. It definitely probablises the defence of the accused.

Coming to the testimony of the prosecutrix, in her examination-in-chief she has deposed that on 14.5.2001 at about 12.30 p.m. she was going from her house in Village Dyandli to her sister''s house in Village Ghanari. She took a Bus from Nerwa upto a place known as Rawelpul, where she got down and started walking through the forest, where accused came from behind, caught her and threw her on the ground in the water. Accused put his hand on her breast and gave a bite with his teeth on her right cheek. When she cried loudly Karam Chand (PW-4), Rajinder and Santosh came on the spot. Accused again threw her on the ground and in that process her nose pin and chain were lost. Her shirt was torn from left shoulder. She received injuries on the shoulder and the back and her tooth was also uprooted. Accused gave kick blows and threatened to kill her. Thereafter, she went to the house of her brother-in-law and reported the matter to the police the following day. Police inspected the spot on 20.5.2001.

In my considered view, objective and careful scrutiny of her testimony in totality, would only establish that her version in Court cannot be said to be inspiring in confidence. At the cost of repetition, it be noticed that the trial Court disbelieved her version with regard to her tooth being uprooted as a result of her being allegedly thrown on the ground by the accused. Further she denied the factum of the incident of 13.5.2001, which version of her stands contradicted by PW-4. But most importantly, this witness has not explained the reason of delay in lodging the FIR. Prosecutrix is not an illiterate, rustic girl hailing from the remotest corner of the State. At the time of incident, she was studying in the 2nd year of her B.A. programme. Police Station was not far off. The incident took place at about 12.30 p.m. There was enough time for her to have travelled in the company of her brother-in-law up to the Police Station. She could have informed the shop keeper at Rawelpul and if required taken their help. It is nobody''s case that Police Station was inaccessible by road; no public transport available or that police could not be contacted on telephone. She deposed that being alone, matter could not be reported same day. But then in the next breath contradicts herself by stating that Karam Singh was also with her. She states that both of her statements are correct. Significantly she admits that due to sound of flow of water of the stream, voices could not be heard. Now, if this was so, then how could Karam Chand, Rajinder and Santosh arrived at the spot. Santosh has categorically denied his presence on the spot. He does not know about the incident in question. Rajinder has not been examined and Karam Chand (brother-in-law of the prosecutrix) has not explained his sudden presence on the spot. It is not his case that he was on the way to receive the prosecutrix to take her to his house. His testimony does not inspire confidence. Prosecutrix has also made exaggeration with regard to loss of chain and nose pin. These articles were never recovered by the police. Thus the version of the prosecutrix and her brother-in-law cannot be said to be inspiring in confidence.

Also prosecution has not been able to medically establish marks of teeth on the cheek of the prosecutrix only to be that of the accused.

There is yet another glaring infirmity in the prosecution case. Why is it that police visited the spot only on 20.5.2001. According to the Investigating Officer, he recovered the tooth from the spot, whereas according to the prosecutrix the same was handed over by her to the police on 20.5.2001. This was not done on the spot.

HC Raj Kumar (PW-6) has also admitted that Karam Chand (PW-4) and Constable Mohinder Singh are having some relationship. Hence possibility of false implication of the accused cannot be ruled out.

In my considered view, prosecution has not been able to prove, beyond reasonable doubt, the fact that the accused voluntarily caused hurt with an intent knowing that it is likely to cause hurt and/or assaulted/used criminal force intending to outrage the modesty of the prosecutrix. For all the aforesaid reasons, the revision petition is allowed, judgments of the Courts below, convicting and sentencing the accused, are set aside and the accused is acquitted of the charged offence. Bail bonds furnished by the accused are discharged.