Dismissed

State of Himachal Pradesh v. Kashmir Singh So Sh. Chet Ram

Himachal Pradesh HC16 Sept 2017CR.A/50/2016

Case brief

AI extract

What is this about?

Cr.App. 50 of 2016 dismissed State appeal against Sessions Court acquittal in rape and criminal intimidation case. Bench upheld finding that prosecutrix testimony was inconsistent and unreliable, preventing proof beyond reasonable doubt.

What the court decided

AI extract

State of Himachal Pradesh Vs Kashmir Singh So Sh… — Cheque Dishonour | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr.Appeal No. 50 of 2016

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Date of Decision: September 16, 2017

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State of Himachal Pradesh …Appellant.

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Versus

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Kashmir Singh ..Respondent. Coram:

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The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice. The Hon’ble Mr. Justice Sandeep Sharma, Judge.

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Whether approved for reporting?¹ No.

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For the Appellant: Mr. R.S. Verma, Additional Advocate General. For the Respondent: Mr.Vikas Rathore, Advocate, Legal Aid Counsel, for the respondent.

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Sanjay Karol, Acting Chief Justice (oral).

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On 28.02.2014, prosecutrix (PW.13), lodged a

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complaint at Police Station, Balh, District Mandi, H.P., on the basis of which FIR No.71/2014, dated 28.02.2014 (Ex.PW.17/A), under the provisions of Sections 376 and 506 of the Indian Penal Code, was registered against accused Kashmir Singh.

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1 Whether reporters of the local papers may be allowed to see the judgment?

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In short, prosecutrix alleged that on 24.07.2005, she was married to Ravinder Singh son of present accused Kashmir Singh. Her husband was gainfully employed and during the year 2011 to January, 2013, when he was away to Saudi Arabia, her father-inlaw, the present accused, tried to molest and outrage her modesty. Though she complained such conduct to her mother-in-law, but was asked to keep mum. On the return of her husband, she brought the matter to his notice. Unfortunately on 26.01.2014, her husband expired. Prior thereto, on 21.01.2014, accused gave him beatings. Perhaps it is this, which prompted him to commit suicide. Soon after death of her husband, on 28.02.2014 at about 6.30 a.m., accused sexually assaulted her in the store room of the house. She narrated the incident to her brother, who took her to Mandi and after consulting an Advocate, lodged the complaint.

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Inspector Shamsher Singh (PW.19)

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commenced investigation. Prosecutrix was got medically examined; her statement under Section 164 of the Cr.P.C. (Ex.PW.13/B) recorded; accused arrested and

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medically examined; and evidence, scientific in nature, taken on record. 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.

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Record reveals that accused was charged for having committed offences punishable under the provisions of Sections 376 and 506 IPC, to which he did not plead guilty and claimed trial.

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In order to establish its case, prosecution examined as many as 21 witnesses and statement of the accused under Section 313 Cr.P.C., was also recorded, in which he took defence of innocence and false implication. In his defence, accused examined his mother Hima devi (DW.1).

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Finding the testimony of the prosecutrix not to be inspiring in confidence, trial Court acquitted the accused on both counts, in terms of judgment dated 16.05.2015, passed by Additional Sessions Judge (1) Mandi, District Mandi, H.P., in Sessions Trial No. 13 of 2014, titled as State of H.P. Versus Kashmir Singh. It is the correctness of the said judgment, which is subject

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matter of challenge in the present appeal, so filed by the State under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

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It is a settled principle of law that even though acquittal confers a right of innocence upon the accused, but then the Appellate Court has wide powers. It can examine and re-appreciate the record in its entirety and reverse such of those findings, which are perverse, erroneous and illegal.

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The question, which needs to be considered, is as to whether findings returned by the trial Court are based on correct and complete appreciation of material placed on record or not?

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In the instant case, certain facts are not in dispute: (a) that Prosecutrix is a major; (b) was married to son of the accused; (c) for two years i.e. from January, 2011 to January, 2013, her husband was working abroad; and (d) on 26.01.2014 her husband died.

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Prosecution case primarily rests upon the testimonies of Vidya Devi (PW.1), Pradeep Kumar (PW.2) and the prosecutrix (PW.13).

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To begin with, we may observe that independent witnesses i.e. Vidya Devi and Pradeep Kumar have not supported the prosecution at all. Allegedly prosecutrix had narrated the incident to these persons and/or witnessed the same. Now these witnesses have turned hostile. When cross-examined by the Public Prosecutor, we do not find them to have corroborated the version of the prosecutrix or stated the prosecution case. We see no reason for disbelieving their testimonies.

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But then, it is not the law that version of the prosecutrix needs corroboration. If her version, fully inspiring in confidence, establishes the prosecution case, accused can still be convicted solely on her statement.

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Let us now examine the testimony of prosecutrix. In Court, she states that for two years i.e. 2011 to January, 2013, when her husband was abroad, her father-in-law, i.e. present accused, tried to develop illicit relationship with her, as also molest her. This was so done on several occasions. She did disclose such fact to her mother-in-law as also grand mother-in-law, but was advised to live separately from the accused and not

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disclose the incident to anyone. On 21.01.2014, accused quarreled with her husband and also tore his clothes, as a result of which, her husband started consuming liquor and remained in a state of intoxication. Consequently on 26.01.2014, her husband took quarrel with her as a result of which she informed her brother, who advised her not to inform the police. Her husband also abused her father and brother. On 26.01.2014 itself, accused made hue and cry that his son had committed suicide. She admits that a case against her father and brother was registered under Section 306 IPC. She does state that her statement was not recorded by the police. She further goes on to state that on 26.01.2014, accused tried to disconnect the electricity of her room. On 28.02.2014, at about 6.30 a.m., while she was in kitchen, accused came and asked her to bring his bag, so kept in the store. When she went to bring the same, accused chased her and after bolting the door from inside, sexually assaulted her and all this, despite her resistance. Threats to her life were also extended by him. Soon thereafter, she informed her brother about the incident, which led to the

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filing of the case. She also states that she was medically examined at Zonal Hospital, Mandi.

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Thus far so good, however even when we examine the cross-examination part of her testimony, we find the witness to have contradicted herself on several counts. Such contradictions are not minor, but glaring, rendering her testimony to be totally unreliable and the witness unworthy of credence. In fact to us, her version appears to be totally improbable and not true, if not false.

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We find that in Court, she has made several improvements from her previous statement, so recorded by the police, with which she was confronted. No doubt, prosecutrix is a house-lady, but then she had access to her relatives. In fact, she admits that she had telephonically informed her father and brother about the quarrel, which her husband had, had with her. Significantly, at that point in time, she never narrated the incident to anyone. Her parents are living just at a distance of 6-7 kms. Why is it that for two years when her husband was away, she did not make any grievance

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about the alleged misconduct and overt acts of the accused to them?

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Further, one notices that the incident in question came to be reported to the police immediately after registration of the case against her father and brother. This was in relation to the death of her husband. Police found her husband to have committed suicide only on account of overt acts of her father and brother, leading to registration of a case against them, under Section 306 IPC. Her version that she resisted the acts does not appear to be true. In fact, it stands materially contradicted as in her cross-examination, she admits that “I had not cried for help” and further “I had not disclosed to my mother about the incident”. It has also come on record that for last seven years she had been living separately from her in-laws. Her relationship with her inlaws was definitely not cordial. She admits that “It is correct that my mother, my maternal uncle Bhim Singh, and my aunt Saravmangla. And my Mousi Maya Devi, mother in law of my elder sister came to our house and requested the accused to keep me with them in a joint family, 4-5 days prior to this incidence. It is incorrect

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that the wife of my brother remained with me up to 28.2.2014”. Significantly no grievance of any overt acts was made at that time. Why would her family members request the accused to keep the prosecutrix, if he was at fault.

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It has also come in her version that after telephonically narrating the incident to her brother, she started walking towards her parental house and met him on the way. On way she admits not to have disclosed the incident to anyone, more so to the Pradhan and members of the Panchayat of Magarpadharu or Baggi. She admits that Police Station, Balh, was on way to Mandi. She explains of not reporting the matter to the police by stating that relatives of the accused were posted there. But then, this version to our mind is not proven on record. It is vague and unspecific. Crucially she admits in her cross-examination that her husband committed suicide as a result of beatings given by her father and brother. Now this totally belies her original version of the accused having beaten her husband resulting into his becoming alcoholic.

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It is in this backdrop, we find version of the prosecutrix to be totally uninspiring in confidence. Contradictions and improbabilities are galore rendering her not to be a reliable witness. To us, there is no doubt about such fact.

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It be also observed that father and brother of the prosecutrix have not been examined as prosecution witnesses. In fact, when we peruse the testimony of Leela Devi (PW.14), mother of the prosecutrix, we find her to have contradicted the version of her daughter. According to the mother, she had been informed by her daughter about the overt acts of the accused, which fact stands categorically denied by the latter.

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We may also observe that even by way of corroborative evidence, prosecution has not been able to establish the version of the prosecutrix. Dr.Anjali (PW.6), who proven MLC (Ex.PW.6/B), does not categorically state that immediately prior to medical examination, prosecutrix was subjected to sexual assault.

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Court below does not find prosecution to have proven its case, beyond reasonable doubt, to the effect that on 28.02.2014 at about 6.30 a.m., at place

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Mashyathan (Balh) accused had sexual intercourse with the prosecutrix and criminally intimidated her to kill her, by leading clear, cogent, convincing piece of evidence.

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The Court below, in our considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of the trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

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The accused person 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 Prandas Vs. The State, AIR 1954 SC 36, since it cannot be said that trial Court 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.

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For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused

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are discharged. Record of the trial Court be immediately

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sent back.

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(Sanjay Karol), Acting Chief Justice.

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September 16, 2017 (Purohit)

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(Sandeep Sharma), Judge.

State of Himachal Pradesh v. Kashmir Singh So Sh. Chet Ram

Case brief

What is this about?

What the court decided

State of Himachal Pradesh v. Kashmir Singh So Sh. Chet Ram

Case brief

What is this about?

What the court decided

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