Shamsher Singh vs State of Haryana

Jitendra. Chauhan, J.—This appeal is directed against judgment and order dated 16.8.2002 whereby the learned Trial Court convicted the Appellant for the offence under Sections 366/354 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- u/s 366 of the Indian Penal Code and in default thereof, to further undergo rigorous imprisonment for one year and also to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- u/s 354 of the Indian Penal Code, and in default of payment of fine, to undergo further rigorous imprisonment for two months. Both the sentences were ordered to run concurrently.

Brief facts of the case are that prosecutrix Smt. Usha lodged a report with the police to the effect that on 14.4.2001, at around 10.00 a.m., when she was going to fetch water from the well, accused-Appellant Shamsher Singh abducted her and took her to the house of one Hardeva and then touched her with blandishment and bite on her cheeks with an intention to outrage her modesty. Her clothes were torn during scuffling and on raising shrieks by the prosecutrix, her jethanis Smt. Krishna and Smt. Munni rushed to the spot and on seeing them, the accused-Appellant fled away. During the course of investigation, site plan was prepared and statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure. After completion of investigation, the accused-Appellant was challenged to face trial.

The accused-Appellant was charge-sheeted for the offence punishable under Sections 366/354 of the Indian Penal Code to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined Inderpal, Draftsman as P.W. 1, Dr. Ishwar Singh Punia as P.W. 2, Prosecutrix Smt. Usha as P.W. 3, Smt. Krishna, the eye-witness as P.W.-4 and ASI Ishwar Chander as P.W. 5.

P.W. 1-Inderpal, Draftsman, has categorically deposed that he visited the spot on 8.5.2001 and his statement was recorded by the police on 22.5.2001. He also proved the scaled site plan, Exhibit PA.

P.W. 2-Dr. Ishwar Singh Punia stated that on 14.4.2001, at around 8.00 p.m., he medico legally examined the prosecutrix Smt. Usha and made the following observations:

The patient was fully conscious having well awareness of time, place, person. BP 110/80. Pulse 100 p.m.

P.W. 2 also deposed with regard to the history of molestation and assault around 10.30 a.m. and proved the following injuries on the person of the prosecutrix :

Complaint of both cheeks, but no external mark of injuries seen.

Complaint of plan lumber region of back. No external mark of injury seen.

P.W. 3-prosecutrix Smt. Usha has corroborated the version as given in the complaint. P.W. 4-Smt. Krishna, sister-in-law (Jethahi) of the prosecutrix, has stated that in the month of April, 2001 at around 10.00 a.m. when she was tethering cattle in the compound of her house, she heard a noise raised by Smt. Usha, on which she rushed to the spot as the accused-Appellant had forcibly taken her in a deserted house of Hardeva. She further stated that she noticed bite marks on the cheeks of Smt. Usha and her clothes were torn and on seeing her, the accused-Appellant fled away.

P.W. 5-ASI Ishwar Chander, Investigating Officer of the case, deposed that on 14.4.2001, Smt. Usha made an application, Exhibit PC, on the basis of which, formal FIR, Exhibit PC/1, was registered and she was got medico legally examined at Civil Hospital, Gohana. P.W. -5 further stated that he recorded the statements of Smt. Krishna and Smt. Munni and completed the investigations.

The accused-Appellant was examined u/s 313 of the Code of Criminal Procedure in which he pleaded his innocence and stated that the present case has been foisted upon him. The accused-Appellant examined Smt. Dhanno as D.W. 1 in his defence.

Upon appreciation of evidence, learned, trial Court convicted and sentenced the accused-Appellant as mentioned in para 1 in the outset of this judgment.

Hence the appeal.

Learned Counsel for the Appellant submits that the case under Sections 366/354 of the Indian Penal Code is not made out against the Appellant. He has referred to the statement of P.W. 2-Dr. Ishwar Singh Punia who medico legally examined the prosecutrix. This witness has admitted in his cross-examination that the injuries on the person of the prosecutrix could be from 4/5 days to 10 days prior to her examination and the same could also be caused by a blunt weapon.

Learned Counsel has next argued that no independent witness has been examined in the instant case and Smt. Krishna, P.W. 4, being immediate family member of the prosecutrix, is an interested witness. The Appellant has been falsely implicated in the instant case on account of hostility existing between the parties as the husband of the complainant had tried to outrage the modesty of Meena, wife of accused-Appellant Shamsher.

On the other hand, learned State counsel has argued that the case of the prosecution is proved beyond all reasonable doubts. The FIR in the instant case was registered on 14.4.2001, which proves the authenticity of the version of the prosecution. The ocular version is supported by the medical evidence, as Dr. Ishwar Singh, P.W. 2, has stated that the injuries on the cheeks of the prosecutrix could be on account of teeth biting.

I have heard learned Counsel for the parties and perused the records of the case.

Admittedly, Smt. Krishna, P.W. 4 and Smt. Munni are the sisters-in-law (Jethanis) of the prosecutrix. However, the prosecution version cannot be disbelieved on the score that they are interested witnesses.

The occurrence in the instant case had taken place on 14.4.2001 at 10.00 a.m. The prosecutrix was medico legally examined on the same day at 8.00 p.m. by Dr. Ishwar Singh Punia, P.W. 2. In his cross-examination, this witness has stated that the injuries mentioned in the MLR could be 4/5 or 10 days old. All the injuries could be caused by a blunt weapon like danda (stick) or fist and slap blows. It can be caused by teeth biting also, but no mark of injury of teeth was seen.

From the admission of the Doctor that the injuries could be 4 to 10 days old, the whole case of the prosecution becomes doubtful. The date and time of occurrence is not disputed. From Exhibit D1, it is made out that the parties were inimical to each other. In such eventuality, there is possibility of false implication of the Appellant.

In the instant case, the ocular version is not inconsistent with the medical evidence. In the similar circumstances, the Hon We Supreme Court in the State of Haryana v. Ram Singh 2002 (1) RCR (Cri) 443 has observed as under:

The judgment under appeal admittedly does not contain a whisper even pertaining to the contradictions between eyewitnesses'' account and the medical evidence. In the contextual facts and as noticed above, medical evidence runs positively counter to the eye-witnesses'' account rendering the ocular testimony not being dependable or trustworthy. There is no credible evidence on record. It is significant that all the so-called eye-witnesses were produced in Court by the police from its custody in handcuff condition and it is only on the witness box that the handcuffs were released and taken up from the body of the person. All of them are under-trial Petitioners being involved in a murder trail. The Court thus has to scrutinise its evidence with a little bit of caution and scrutiny so as to judge their veracity. Admittedly all the supposed eye-witnesses are relations of the deceased. As such, they fall within a category of interested witness. It is not that the evidence ought to be discredited by reason of the witness being simply an interested witness but in that event the Court will be rather strict in its scrutiny as to the acceptability of such an evidence. High Court has principally relied on the 161 statements and the contradictions available on the record have not been taken note of. In our view this is a clear error on the part of the High Court. Some weapons have been seized along with the cartridges and it has been stated that such recovery was effected in terms of the disclosure statements. Before this Court it has been strongly urged that the same is in contravention of Section 27 of the Evidence Act. Undoubtedly, Section 27, though provides an exception, but the Court should always be vigilant about the circumvention of its provision - "Sarkar on Evidence (15th Edition)" has the following to state on Section 27:

...The protection afforded by the wholesome provisions of Sections 25 and 26 is sought to be whittled down by the police by their ingenuity in manipulating the record of the information given by the accused in the case- diary in such a manner as to make it appear that it led to the discovery of some facts although the police might have made such discovery from other sources. When a fact is once discovered from information received from another source, there can be no discovery again even if any information relating thereto is subsequently extracted from the accused. A devise sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered lay buried or hidden and require him to make a search for them at the spot indicated to the accused, or sometimes the articles are first produced before the accused and thereafter statements purporting to have been made by him about the so-called discovery are recorded. Court should be watchful that the protection afforded by Sections 25 and 26 should not be dependent on the ingenuity of the police officer in composing the narrative conveying the information relating to the alleged recovery of a fact.

In view of the above, the present appeal is accepted and the Appellant is acquitted of the charges by giving the benefit of doubt to the Appellant. The Appellant is stated to be on bail. His bail bonds shall stand discharged.

Since the main appeal is decided, misc. application(s) pending, if any, shall stand disposed of accordingly.