Shanti Devi vs State of Uttarakhand

Umesh Chandra Dhyani, J.—Since the aforesaid Criminal Revision and the Criminal Government Appeal arise out of the same judgment and order dated 26.02.2004, passed by Sessions Judge, Haridwar, therefore, both the cases are being decided by this common judgment for the sake of brevity and convenience.

PW1 Smt. Shanti Devi (revisionist herein) wrote a complaint on 17.10.1994 against Jogendra Singh Thakur, which was registered as case crime No. 300/1994 at police station Roorkee, District Haridwar, enumerating the facts contained therein that she was the resident of Durga colony and lived all alone in her house. Her husband was working in the Indian Army in Assam. On 17.10.1994 at 8.15 AM, his neighbour Jogendra Singh Thakur (accused-respondent) came to her house and tried to outrage her modesty. She pushed him aside, came out of the house and raised an alarm. Witnesses, Surendra Singh Rawat and Thaman Singh Rawat came there. Accused used casteist remarks. She sustained injures. She therefore lodged an FIR in relation to the said incident.

After investigation of the case, a charge-sheet was submitted against the accused-respondent for the offences punishable under Sections 452, 354 IPC and Section 3(11) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case was committed to the court of Special Judge (SC/ST Act). When the trial began and prosecution opened it''s case, charge against the accused person was framed for the selfsame offences, to which he pleaded not guilty and claimed trial.

PW1 Smt. Shanti Devi (victim), PW2 Surendra Singh Rawat, PW3 Deputy S.P. Vishram Singh Kathoriya and PW4 Dr. A.S. Shukla were examined on behalf of the prosecution. Incriminating evidence was put to the accused u/s 313 Cr.P.C., in reply to which he said that he was falsely implicated in the case. No evidence was given in defence.

After conclusion of the trial, learned Sessions Judge, Haridwar, vide judgment and order dated 26.02.2004, acquitted the accused of the charges levelled against him. Aggrieved against the same, present Government Appeal was preferred by the State and the Criminal Revision was preferred by the revisionist Smt. Shanti Devi.

PW1 stated in her examination-in-chief that on 17.10.1994, at 8:00 AM, she was all alone in her house. Her neighbour Jogendra Singh Thakur came inside her house and made an attempt to outrage her modesty. She pushed him aside and raised alarm. Her neighbours Surendra Singh Rawat and Thaman Singh Rawat came there. Accused used casteist remarks against her. She sustained injuries. She also proved her complaint (Ex.Ka-1) She also proved the recovery memo (Ex.Ka-5) of her broken bangles, saree and blouse. She also said that she was medically examined in Government Hospital, Roorkee.

In her cross-examination, she stated, among other things, that she went to the Government Hospital on the same day when the incident took place. She was all alone when the incident took place. She further stated that her three minor children were also present in the house (she did not disclose the same in her complaint and even in her examination-in-chief). Her elder son was Raju and he was aged about 12-13 years at the time of incident. The house of accused Jogendra Singh was situated at a distance of 10 ft. from her house. One Amar Singh was also her neighbour. She was not aware that accused Jogendra Singh Thakur was the member of Bhartiya Kishan Union. She also highlighted the credentials of the accused and prosecution witnesses in her cross-examination. She also stated that the complaint was got written by one Balwant Singh. She admitted in her cross-examination that she has instituted three criminal cases against the accused. She was matriculate. She was awarded a sum of Rs. 1,000/- by the State as compensation, as the case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was lodged by her. She admitted that she had no enmity with Jogendra Singh Thakur before the date of incident. She requested Balwant Singh to write the complaint soon after the incident took place. When she went to lodge the FIR, Balwant Singh (scribe of the FIR) accompanied her to the police station. According to her, she was coming to her house after washing utensils. No facility of electricity was available when the incident took place. She was medically examined by the male doctor. Accused Jogendra Singh instituted case against her, which was pending adjudication. She denied the suggestion that she was caught red handed with one Virendra in compromising position and the accused was falsely implicated in the case.

PW2, an independent witness, stated in his examination-in-chief that Smt. Shanti Devi''s son Raju (not examined) came to him and informed that her mother was being beaten by the accused. PW2 alongwith Thaman Singh Rawat went to Shanti Devi''s house. PW2 and Thaman Singh Rawat saw Jogendra Singh coming out of Shanti Devi''s house. Accused was using abusive language against her. The victim told PW2 that the accused had made an attempt to outrage her modesty.

Even if the statement given by PW2 is considered to be true, the fact remains that he did not see the accused trying to outrage her modesty. It was victim''s son Raju, who informed PW2 that his mother was being assaulted by accused. Another witness Thaman Singh Rawat was not examined by the prosecution.

Nowhere in the complaint, PW1 wrote that her three minor children were also present when the incident took place. This fact that she was accompanied by her three minor children in her house came for the first time in her cross-examination. In her cross-examination, she stated that her elder son Raju was aged about 12-13 years at the time of incident. Why Raju was not examined on behalf of the prosecution? Why this fact was not mentioned in the complaint that her three minor children were present at home at the time of incident? They would have been the best eyewitnesses to depose that accused trespassed the house and tried to outrage the modesty of their mother. But, they did not do so. According to PW2, it was Raju (PW1''s son), who came to him and told that his mother was being assaulted by the accused. Why Raju did not do anything to resist assault on his mother?

There is another aspect of the matter If PW2 and Thaman Singh were present when the incident took place, why PW1 went to one Balwant Singh to write the complaint? It is the admission of PW1 that she instituted three cases for the offence punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against Jogendra Singh Thakur, for which she was given a compensation of Rs. 1,000/- from the State Government.

On the one hand, she stated that Jogendra Singh Thakur instituted a case against her and she instituted three cases against the accused. On the other hand, she stated that accused had no enmity with her prior to the incident. The date of writing of the complaint was not mentioned in the complaint itself. This fact was also admitted by PW1 in her cross-examination. It was also not disclosed in the FIR that as to what words were uttered by the accused while passing casteist remarks.

PW3 was the Investigating Officer of the case and PW4 medically examined the injuries of the victim. PW4 found 3 linear abrasions, one superficial abrasion, one cuticular abrasion and one reddish contusion on the person of victim. According to the medical officer, the injuries as sustained by the victim were fresh, simple in nature and were caused by friction against hard object. The Medical Officer (PW4) opined in the cross-examination that the injuries as sustained by PW1 were not possible due to felling. On the other hand, it did not appear to the medical officer that the injuries sustained by PW1 were self-inflicted injuries. Learned trial court did not believe the prosecution story. The accused was granted benefit of doubt. The trial court found material inconsistency in the ocular testimony of PW1, vis-a-vis, site-plan (Ex.Ka-4). The trial court also found anomaly in the ocular testimony of PW1. One of the surprising element was that the presence of her three minor children was not disclosed in the FIR. She did not disclose the same even in her examination-in-chief. The said fact was disclosed only when she entered into the witness box for her cross-examination. It was Raju (PW1''s son) aged about 12-13 years, who is stated to have informed PW2 about the incident. PW2 did not see the incident. PW2 was informed by Raju (not examined), who were the elder son of PW1. The specific details of abuse, which was alleged to have been hurled by the accused against PW1, were not disclosed. In any case, the evidence tendered by PW1 did not inspire confidence. Her evidence should be taken with a pinch of salt and exactly the same was done by the trial court.

It will also be apt to reproduce herein the observations of Hon''ble Apex Court in Ashok Kumar Vs. State of Rajasthan,

Law is well settled. While caution is the watchword, in appeal against acquittal as the Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at; the provision does not inhibit (sic) any restriction or limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading, interference is imperative otherwise existence of law shall be rendered meaningless.

Learned trial court, therefore, committed no mistake in holding that the prosecution was unable to prove it''s case against the accused-respondent to the hilt. Learned trial court also gave other cogent reasons for not believing the prosecution story. This Court also assessed the prosecution evidence independently to come to the conclusion that the prosecution was not able to prove it''s case against the Accused-respondent beyond a shadow of reasonable doubt. The respondent is liable to be given benefit of doubt. Moreover, it is well settled law that if two views are reasonably possible on the basis of the evidence on record, then the view taken in favour of the accused must be preferred. This Court is unable to take a different view from what was taken by the court below. No interference is, thus, called for in the impugned judgment and order.

The Criminal Revision and the Criminal Government Appeal are dismissed.

Let a copy of this judgment alongwith lower court record be sent to the Court below.