State of H.P vs Sher Singh & anothers

Sureshwar Thakur, J.

1.The instant appeal stands directed by the State of Himachal Pradesh against the judgment rendered on 16.02.2009 by the learned Addl. Chief

Judicial Magistrate, Court No.1, Mandi, H.P. in Criminal Case No. 93-II/2001, whereby, he acquitted the accused for theirs allegedly committing

offences punishable under Sections 354, 294, 509 IPC read with Section 34 of the IPC.

The facts relevant to decide the instant case are that on 10.4.2001 at about 5.15 p.m. at place Bangot, accused Sher Singh an Lakshman Ram in

furtherance of their common intention have used criminal force against Kumari Nirmal Devi with an intention to outrage her modesty and also done

obscene activities to annoy her. Accused Sher Singh is alleged to have opened his pant and used filthy language against complainant Nirmala Devi. At

that time, complainant Nirmala Devi was accompanied by her mother Smt. Soma Devi. Smt. Nirmal Devi qua the occurrence lodged the FIR with

Police Station Balh and thereafter the police completed all the codel formalities.

On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal

Procedure was prepared, and, filed before the learned trial Court.

The accused stood charged by the learned trial Court for theirs committing offences punishable under Sections 354, 294, 509 IPC read with Section

34 of the IPC. In proof of the prosecution case, the prosecution examined 7 witnesses. On conclusion of recording of the prosecution evidence, the

statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court, wherein the accused

claimed innocence, and, pleaded false implication.

On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.

The State of H.P. stands aggrieved by the judgment of acquittal recorded in favour of the accused/respondents, by the learned trial Court. The

learned Addl. Advocate General for the State, has concertedly, and, vigorously contended qua the findings of acquittal recorded by the learned trial

Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the material

on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs

standing replaced by findings of conviction.

On the other hand, the learned counsel appearing for the accused/respondents herein has with considerable force and vigour, contended qua the

findings of acquittal recorded by the learned trial Court rather standing based on a mature and balanced appreciation by it of the evidence on record,

and, theirs not necessitating any interference, rather theirs meriting vindication.

This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on

record.

The apposite FIR is borne in Ex.PW3/A. The aforesaid FIR, as lodged on 12.04.2001, contains, recitals qua an alleged incident which occurred, on

04.2001. However, no explication has emanated either from the complainant or from the prosecution vis-a-vis the belated lodging of the FIR,

thereupon, the recitals borne therein, are construable to be sequel of proactive premeditation or contemplation, besides hence are rendered

unamenable for imputation of credence thereto. The aforesaid inferences, are, enhanced by the factum of non occurrence, in the apposite FIR, the

name of co-accused Lakshman, whereas, the aforesaid is testified to be also accompanying co-accused Sher Singh besides is testified to use filthy

language.

Furthermore, even though, the prosecutrix, and, her mother deposed consistent versions qua the occurrence, yet their consistent testifications qua

the recitals borne in Ex.PW3/A, rather lose their probative sanctity, (a) given both eye witnesses to the occurrence one Indru, who testified as PW-1,

and, one PW Ratni Devi, who testified as PW-6, rather hence in their respectively rendered testifications hence resiling from their previous statements

recorded in writing, (b) also upon theirs being, on a request made by the learned APP, hence declared hostile by the learned trial Magistrate, yet theirs

during the course, of their respective cross-examination(s), rather not making any articulations, supportive of the charge. The effects of the aforesaid

independent witnesses to the occurrence, not, lending succor to the consistent testifications of the prosecutrix, and, her mother, obviously hence render

all the echoings made by the prosecutrix, and, her mother, in their respectively rendered testifications, to hence, not acquire any creditworthiness,

rather with the FIR being belatedly lodged, and, with no tangible explanation being purveyed by the prosecution, for the belated lodging of the FIR,

thereupon, it has to be firmly concluded of the complainant, and, her mother inventing a coloured version(s) qua the occurrence, rendering them,

hence, to be not amenable for imputation of credence thereto.

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in

a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from a gross

perversity or absurdity of mis-appreciation and non appreciation of evidence on record.

Consequently, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgment is affirmed and maintained.

All pending applications also stand disposed of. Records be sent back forthwith.