State of Himachal Pradesh vs Yashwant Singh

Sanjay Karol, J.—Assailing the judgment dated 29.12.2005, passed by learned Special Judge, Chamba Division, Chamba, H.P., in Sessions Case No. 34 of 2004, titled as State of Himachal Pradesh vs. Yashwant Singh, whereby respondent-accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 11.8.2003, accused Yashwant Singh, with an intent of outraging the modesty of the prosecutrix (PW-1) criminally intimidated and assaulted her. This was so done at about 6.30�7.00 p.m., in the house of Sh. Madan Singh (PW-2) who witnessed the incident alongwith Sh. Sarwan Singh (PW-3). Complainant lodged report with the police and as such F.I.R. No. 71/2003, dated 17.8.2003 (Ext. PW-11/A) was registered at Police Station Chowari, Distt. Chamba, under the provisions of Section 3(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, against the accused. Dy.S.P. Devakar Sharma (PW-13) conducted the investigation. Complainant was got medically examined from Dr. Parveen Sharma (PW-7) who issued MLC (Ext. PW-7/A) which was taken on record. From the spot, broken bangles (Ext. P-1) of the prosecutrix and diary of the accused (Ext. P-2) were recovered by the police. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under the provisions of Sections 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC & ST Act) as also Sections 323, 506 and 509 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined thirteen witnesses and statement of the accused under Section 313 Cr.P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offences. Hence, the present appeal by the State.

Having heard Mr. R.S. Verma, learned Addl. Advocate General on behalf of the State and Mr. Surender Sharma, learned Advocate, on behalf of the accused as also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution, I am of the considered view that no case for interference is made out at all. Judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, I am of the considered view that prosecution has failed to establish essential ingredients so required to constitute the charged offences.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in�AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.""

In her examination-in-chief, prosecutrix (PW-1) does state that on 11.8.2003 at about 6.30�7.00 p.m. when she had gone to the house of Sh. Madan Lal to fetch milk, accused came and started abusing her. He started calling her by names and abused her. This was so done in the presence of Madan Lal, Sarwan Singh, Nirjala and Kanta Devi. Accused also gave beatings with fist and kick blows. Incident was reported to the police, who took action. This version of hers, prima facie, appears to have been corroborated by witnesses namely Sh. Madan Singh (PW-2) and Sh. Sarwan Singh (PW-3). However, close scrutiny of cross examination part of their testimonies would only reveal that not only they have contradicted themselves but also controverted each other. Also their testimonies, in the examination-in-chief part, stand belied and contradicted from the record.

In her complaint (Ext. PA), prosecutrix nowhere states that accused uttered offending words so as to constitute an offence punishable under the provisions of the SC & ST Act. She admits that there are houses of other persons in close proximity. Significantly none from the neighbourhood came to support her version. Also the Investigating Officer (PW-13) did not ascertain true facts, pertaining to occurrence of the incident, from the neighbourhood. In fact, PW-13 in his cross examination admits that when complainant made her statement for the first time "there was nothing against the accused" and only subsequently she made an application in which there were improvements pertaining to the whole episode. Under these circumstances testimonies of PW-2 and PW-3 who were close relatives and with whom complainant (PW-1) is having proximity, cannot be said to be inspiring in confidence.

Significantly PW-2 had reason to depose against the accused. There was dispute between him and accused with regard to the articles belonging to the accused. Witness appears to be interested in the sense that he would go to the extent of falsely deposing against the accused.

Medical evidence proved through the testimony of Dr. Parveen Sharma, (PW-7) who has exhibited MLC (Ext. PW-7/A) only establishes tenderness and bruises on certain parts of body of the prosecutrix. Significantly it remains unexplained as to why prosecutrix was examined the following morning and that too at 12.00 noon. After all incident stood reported to the police on 11.8.2003 at 8.45 p.m. It is not that no medical facility was available close by. Delay in getting the prosecutrix examined also renders the prosecution case to be doubtful.

In the instant case F.I.R. was registered on 17.8.2003, whereas, incident pertains to 11.8.2003. Thus delay also remains unexplained. In fact, it only fortifies testimony of the Investigating Officer (PW-13), that initially nothing was alleged by the prosecutrix against the accused. It be also observed that even in the MLC name of the assailant is not mentioned.

Having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, to the effect that accused intentionally insulted and intimidated the complainant who is a member of a Scheduled Tribe with an intent to humiliate her in public view; voluntarily caused hurt to the complainant; criminally intimidated her and uttered offending words intending to insult her, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by the Court below are not borne out from record, are perverse, illegal, erroneous or arisen out of incomplete appreciation of prosecution evidence. There are improvements, which are major, embellishments and contradictions, rendering the testimonies of these witnesses to be shaky and unbelievable.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.