Dismissed

State v. Dhani Ram

Himachal Pradesh HC1 Jun 2017CR.A/138/2009

Case brief

AI extract

What is this about?

In a criminal appeal under Section 378 Cr.P.C., the High Court dismissed the State's appeal against an acquittal. The Bench held that the prosecution failed to prove the guilt of the accused beyond reasonable doubt due to contradictory witness statements, uncorroborated allegations, and suspicious behavior regarding the delay in lodging the FIR.

What did the court decide?

The criminal appeal was dismissed; the acquittal of the respondent was upheld. Pending applications were disposed of.

State Vs Dhani Ram — Constitutional and Fundamental Rights | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. Appeal No. 138 of 2009 Reserved on: 15.05.2017 Decided on: 01.06.2017 __________________________________________________________ State of Himachal Pradesh …..Appellant Versus Dhani Ram ……Respondent ___________________________________________________ Coram_ The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes. ____________________________________________________ For the appellant : Mr. Pushpinder Jaswal, Dy. AG with Mr. Rajat Chauhan, Law Officer. For the respondent : Mr. G.R. Palsra, Advocate.

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Chander Bhusan Barowalia, Judge.

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The present criminal appeal, under Section 378

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of the Code of Criminal Procedure has been maintained by the appellant-State, against the judgment of acquittal, dated 25.09.2008, passed by the learned Sub Divisional Judicial Magistrate Chachiot at Gohar, District Mandi, H.P., in Police challan No. 70-1/2007.

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The key facts, giving rise to the present appeal as per the prosecution story are that on 15.01.2007,

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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complainant alongwith her husband came to the Police post Balichowki and reported that on 14.01.2007, the complainant alongwith her husband, Hem Raj, children and her sister-in-law, Bhuvneshwari went to the house of their

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relative Nika Ram at Nauna as guests and after having food, two separate double beds were given to them for sleeping and the complainant alongwith her three daughters, sister-in-law and grand-daughter of Nika Ram slept on one double bed, whereas on the another double bed accused Dhani Ram and one other person, who runs a clinic in Nauna were slept. At about 1.00 a.m., when the complainant was in deep sleep, accused came towards her bed and after putting his hands inside her blanket started touching her private parts, on this, she woke up and asked him not to do so, but despite that accused also put his hands into her salwar, thereafter she raised noise and on

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her noise, her husband, sister-in-law and children woke up. Further the case of the prosecution is that the accused insulted the complainant by his act and due to shame, the complainant could not report the matter earlier. On the basis of complainant’s statement, FIR was registered against the accused.

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Prosecution, in order to prove its case, examined

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as many as 6 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 25.09.2008, acquitted the accused.

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I have heard the learned counsel for the parties and gone the record carefully.

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Learned Deputy Advocate General has argued that the judgment of acquittal, passed by the learned Court below, is against the facts, which has come on record and is liable to be set aside, as the learned Court below has failed to take into consideration that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. On the other hand learned counsel for the accused-respondent has argued that the prosecution has failed to prove the guilt of the accused and there is no evidence against the accused which connects him with the alleged offence and the judgment passed by the learned Court below needs no interference.

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To appreciate the arguments of learned Deputy Advocate General and learned defence counsel, this Court

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has gone through the record in detail and minutely scrutinized the statements of the witnesses.

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PW-1, complainant, while appearing in the witness box stated that on 14.01.2007, she alongwith her husband, children and her sister-in-law, went to the house of Nika Ram at Nauna. After having their food they slept on two double beds in a single room and on one double bed, the complainant alongwith her three daughters, her sisterin-law, Bhuvneshwari and grand-daughter of Nika Ram, Sita Devi slept, whereas on another double bed, her husband, Hem Ram, Dhani Ram and one other person, who runs a chemist shop, slept. At about 1.00 a.m., the accused woke up and came towards the bed of the complainant, he also started touching her private parts and put his hands into her salwar. On this, she raised noise and on her noise, all the persons woke up and after the said occurrence, on 15.01.2007, she reported the matter at Police Post Balachowki. In her cross-examination she stated that she was not familiar to the accused and has heard the name of the accused in the house of Nika Ram. She stated that on the said day, she has taken her food at 10.00 p.m. and she is not aware about the exact time when the accused and Parkash have taken their food. She deposed that about half

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an hour after having food, she alongwith her three daughters, her sister-in-law and Sita Devi has gone to sleep and kept the light on, the door was also open and about 11.00 p.m., her husband, accused Dhani Ram and Prakash came to the room, but she does not know who switched off the light and closed the door. She admitted that she saw the time to be 1.00 a.m., on the wall clock, after raising noise, when she switched on the light, but they have not called Nika Ram during the night or any other person. She further admitted that after the said occurrence, they have left to their quarters in a vehicle and reported the matter to police on 15.01.2007. She deposed that from their quarters, the distance of police post is ½ kms and due to shame, she could not go to the police on the same day, but her husband went to police post Balichowki. She further deposed that on the next day, at 9.00 a.m., her husband went to open the medical store, who returned back at 6.00 p.m. She admitted that the accused had not come to the house of Nika Ram in her presence and had come inside the room with her husband, during night.

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PW-2, Hem Raj, husband of the complainant,

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has deposed that on 14.01.2007, he alongwith his family has gone to Nauna and after having their food, they had slept

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in a single room on two separate double beds and on one double bed he, accused Dhani Ram and Ved Prakash, who deals in medicine had slept, whereas on the other double bed his wife, three daughters, his sister and Sita Devi were slept. At about 1.00 a.m., the accused stood up and went to answer the call of nature, after urinating he came inside the room and started doing mischief with his wife, who was sleeping on the other bed. In his cross-examination, he admitted that he is familiar to the accused for the past 6-7 years and has good friendship with him as the accused used to sit in his shop daily. He deposed that on the said day, he had taken food with his wife and family members and he does not know that with whom the accused and Ved Prakash have taken their food. He admitted that at 8.00 to 9.00 p.m., he alongwith his wife and family members went to sleep and accused came to their room at 11.00 pm. He further admitted that when the accused alongwith Ved Prakash came to room he was still awake, but her wife and other relatives were sleeping. He deposed that at 1.00 am, after hearing noise, he woke up and switched on the light of the room. He further deposed that he has not called

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Nika Ram during the night and straightaway went to Balichowki. He admitted that he knows the telephone

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numbers of police post Balichowki, as well as the Police station Aut, as he is a news reporter. He further admitted that he has not informed the incident to Police on the same day. He stated that on the next day at 8.00 am, he went to open his shop and from his shop the distance of Police Post is about five minutes. He denied that he had borrowed money from the accused for the operation of his wife. He further denied that due to enmity, he has registered a false case against the accused.

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The material contradiction, which, in the present case has come on record, is that the complainant has stated that she has not seen the accused earlier and she saw him first time, when he came inside the room alongwith her husband at 11.00 pm. On the other hand, PW-2, husband of the complainant, in his cross-examination, specifically admitted that he knows the accused for the last 6-7 years and has good friendly relation with him, as he used to come to his shop daily. He further admitted in his crossexamination that he alongwith his wife and other family members had gone to sleep between 8.00 to 9.00 pm, whereas the accused and Ved Prakash have come to the room at 11.00 pm and at that time he was awake. The other contradiction, which has come on record, is that the

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complainant, in her cross-examination has stated that after the said occurrence, she raised noise and switched on the light at 1.00 pm, however on the other hand, PW-2, husband, has stated that on hearing noise, he stood up and switched on the light. Further, though the complainant, her husband, her children and her sister-in-law came to the house of Nika Ram as guests, but after the incident, they have not called Nika Ram, rather they left for their quarters at Balichowki. Therefore, the behavior of the complainant and her husband not to disclose the incident to the owner of the house is highly improbable. It is also strange that the alleged third person, Ved Prakash, who could be the prime witness in the present case, has not even been cited as a witness.

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As far as PW-3, Nika Ram, is concerned, he has denied that on 14.01.2007, Hem Raj, alongwith his family members has come to his house as guest. Similarly, PW-4, Sita Devi, has also feigned ignorance about the fact that whether Hem Raj had come to their house or not. In her cross-examination, she denied the fact she slept with the complainant and heard noise at 1.00 am. Thus, both these witnesses have not supported the prosecution’s case.

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The case of the prosecution neither been

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supported by PW-3, Nika Ram nor PW-4, Sita Devi, however as per the prosecution story, when the alleged act was committed by the accused, Sita Devi was sleeping with the complainant, but Sita Devi has denied the case of the prosecution in its entirety. Likewise, PW-3, Nika Ram, has also denied the fact that on 14.01.2007, the husband of the complainant alongwith his family had come to his house.

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PW-6, Shiv Chand, Investigation Officer of the case has deposed that on 15.01.2007, the complainant came to the police post Balichowki and registered rapat Ex. PW-5/A, which was sent through Constable Pankaj Kumar No. 164 to Police Station Aut, on the basis of which FIR Ex. PW-6/A was registered and the endorsement Ex. PW-6/B was made. Thereafter he prepared site plan Ex. PW-6/C and recorded the statement of the witnesses Nika Ram, Ex. PW6/D and Sita Devi, PW-6/E. In his cross-examination, he admitted that distance of the quarters of the complainant from police post is about 200 meters.

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Thus, in the absence of any reasonable and plausible explanation, with regard to delay in reporting the matter, an adverse inference has to be drawn against the prosecution story and the contradictory statements of the witnesses create suspicion. Even the version of the

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complainant and her husband are contradictory. It has also come on record that the husband of the complainant is press reporter and their quarters are just at a distance of 200 meters from the police post, despite that they have not lodged FIR immediately, but after 18 hours, at 6.00 pm, the matter was reported to the police.

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It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.

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The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.

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So, this Court finds that, prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt.

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In view of the aforesaid decisions of the Hon’ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stands disposed of.

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(Chander Bhusan Barowalia) Judge

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1^st June, 2017

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(raman)

State v. Dhani Ram

Case brief

What is this about?

What did the court decide?

State v. Dhani Ram

Case brief

What is this about?

What did the court decide?

What the court decided

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