IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev.No. 23 of 2004. Date of Decision:19.8.2010. _______________________________________________ Mohinder. ….Petitioner. Versus State of H.P. .….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the appellant : Mr. Anup Chitkara, Advocate. For Respondent. : Ms. Ruma Kaushik, Addl. Advocate General. Dev Darshan Sud, J.(Oral). Petitioner challenges his conviction under Sections 452, 354 and 323 of the Indian Penal Code for which he has sentenced to undergo rigorous imprisonment for two years and fine of Rs.2,000/- for offences under Section 452 I.P.C., rigorous imprisonment for one year and fine of Rs. 2,000/-for offences under Section 354 I.P.C. and simple imprisonment for six months and fine of Rs.1,000/- for offences under Section 323 I.P.C. This sentence and findings have been affirmed by the learned Addl. Sessions Judge. 2. The prosecution case in brief is that PW1 Bimla Devi, mother of the prosecutrix filed an application before the Police stating therein that her husband Puran Chand and elder Whether reporters of the Local papers are allowed to see the judgment? yes. 2 son Ravinder Kumar were not in the village and was away in connection with his official work while four minor children including the prosecutrix were alone sleeping in the house. On 14.2.2001 at around 10 p.m, petitioner-accused broke open the window of her house, trespassed, assaulted and molested the prosecutrix and bit her on her chin. When she returned to the village next day on 15.2.2001, her children narrated the entire story to her whereupon she went to the Police Station and filed application with S.H.O. Police Station, Dharamshala on the basis of which F.I.R. Ext.PW1/A was registered under Sections 452 and 323 I.P.C. 3. Ten witnesses were examined by the prosecution in support of their case. The manner of trespass into the house was narrated as breaking open the window of the room and opening the bolt from inside. Thereafter the prosecution case is that the accused slept in the bed with the prosecutrix and bit her on the chin. She raised an alarm and the accused fled away from the scene of occurrence. The children also raised a hue and cry and narrated the entire incident to PW4 Smt.Pajjo Devi. 4. The courts below on the basis of the evidence have convicted the petitioner and sentenced him to undergo imprisonment on various counts as noted above. 5. Learned counsel appearing for the petitioner urges that the prosecution case cannot sustained on the evidence on record. He submits that it is full of contradictions which go to the very root of the case and if accepted, it would 3 negate the very occurrence. He urges that this is apparent from a mere reading of the evidence and does not require a detailed examination. In particular, he refers to the evidence of PW10 Dr. Savitri Chauhan, PW5 Gujro Devi, PW2 prosecutrix and PW3 Km. Bandana younger sister of the prosecutrix to urge that it does not prove the prosecution case. 6. Before adverting to the submissions made by learned counsel, I must observe that the learned trial Court does not seem to have considered the evidence in its entirety. After stating in the judgment as to what has been said by each witnesses, the court abruptly in one paragraph holds that in view what has been stated by the witnesses of the prosecution, the case against the petitioner stands proved. 7. Section 354 of the Indian Penal Code requires the judgment to be written in an analytical manner. The learned trial Court holds: “17. In view of statements of PWs 1,4,5 and 6 it is proved that next morning the matter was narrated to Vimla Devi and the occurrence was also narrated to PW5, Gujro Devi and PW6, Rajesh Kumar, Pradhan of the Panchayat. PWs 5 and 6 also visited the spot and they also observed that door of the house was lying broken and the household articles were also lying scattered inside the house of Vimla Devi. The medical evidence also corroborated the prosecution case as PW10, Dr. Savitri Chauhan conducted medical examination of Kumari Sapna and she found one tooth bite injury on her chin. 18. So in view of the evidence led by the prosecution it is proved beyond all shadows of doubt that during night of 14.2.2001 the accused trespassed into the house after breaking open the widow and he tried to outrage modesty of Kumari 4 Sapna, but the children raised hue and cry well in time. Not only this the accused again trespassed into the room with an intention to outrage modesty of Kumari Sapna. But the children again raised hue and cry and then they saved themselves by going to the house of their neighbour Smt. Pajjo. So the statements of PWs 1 to 6 and 10 have proved the prosecution case beyond all shadows of doubt that during the intervening night of 14.2.2001 and 15.2.2001 the accused trespassed into the house of Bimla Devi with an intention to molest and outrage modesty of Kumari Sapna and he forcibly tried to molest and outrage her modesty and he caused hurt on her chin by giving tooth bite to Kumari Sapna while she was sleeping inside the house. So keeping in view the entire facts and circumstances of the case, the prosecution case is proved and as such this point is decided in affirmative.” 8. The provisions of Section 354 Cr.P.C. were considered by the Supreme Court in Mukhtiar Singh Vs. State of Panjab, AIR 1995 SC 686, thus: 12.We have gone through the judgment of the learned trial Judge and find that the same is far from satisfactory. Both, the order of acquittal as well as the order of conviction, have been made by the trial court in a most perfunctory manner without even noticing much less, considering and discussing the evidence led by the prosecution or the arguments raised at the bar. The trial court noticed the prosecution case, the medical evidence and the material collected during the investigation of the case besides the arrest of different accused persons on different dates in paras 1 to 23 of the judgment. In paragraph 24 it noticed the names of the prosecution witnesses and in paragraphs 25 and 26 it noticed the fact that the accused had been examined under Section 313 Cr.P.C. It was in paragraphs 28 to 32, noticed above, that the orders of acquittal and conviction were made. The trial court was dealing with a serious case of murder. It was expected of it to notice and scrutinize the evidence and after considering the submissions raised at the bar arrive at appropriate findings. In vain have we searched through the 5 cryptic judgment of the trial court, the reasons which prevailed with it to acquit the respondents in Criminal Appeal No. 489 of 1985 or convict the appellants in Criminal Appeal No. 434 of 1985. On the plainest requirement of justice and fair trial the least that was expected of the trial court was to notice, consider and discuss, howsoever briefly, the evidence of various witnesses as well as the arguments addressed at the bar. The trial court has not done so. The trial court apparently failed in the discharge of its essential duties. There is no mention in the judgment as to what various witnesses deposed at the trial, except for the evidence of the medical witness. The judgment does not disclose as to what was argued before it on behalf of the prosecution and the defence. The judgment is so infirm that we are unable to appreciate as to how the findings were arrived at. The judgment of the trial court is truly speaking not a judgment in the eyes of law. The trial court appears to have been blissfully ignorant of the requirements of Section 354(1)(b) Cr.P.C. Since, the first appeal lay to this Court, the trial court should have reproduced and discussed at least the essential parts of the evidence of the witnesses besides recording the submissions made at the bar to enable the appellate court to know the basis on which the 'decision' is based. A 'decision' does not merely mean the ‘conclusion’ it embraces within its fold the reasons which form the basis for arriving at the 'conclusions’. The judgment of the trial court contains only the ‘conclusions’ and nothing more. The judgment of the trial court cannot, therefore, be sustained…….. ..” (PP 689&690) (Emphasis Supplied) 9. In C.Magest Vs. State of Karnatka, (2010) 5 SCC 645, the Supreme Court rules: “45 It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasize, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh Vs. State of 6 U.P. (2008) 16 SCC 686: (2008) 11 SCR 286, has held: (SCC p.704, para 14) “14. “21……The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy;…the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” (P 655). 10. These are the cardinal principles governing appreciation of evidence and also writing a judgment which should and ought to consider each and every point which emerges from the analysis of the evidence on record, the submissions made their effect on the entire case and not merely a cryptic conclusion arrived at. This is more so in view of the fact that this court in revisional jurisdiction is precluded from coming to its own conclusion by analysis of the evidence afresh. 11. Adverting to the submission made by the learned counsel appearing for the petitioner, the first point urged is that if the case of the prosecution is considered in its totality, the infliction of the injury on the chin of the prosecutrix is not established. He has referred to the evidence of PW5 Smt. Gurjo Devi who was Samiti member and in whose presence the police had gone to the house of the complainant during investigation of the case. She states that no statement was made by the prosecutrix stating that the accused had bitten her on the chin. 12. PW10 Dr.Savitri Chauhan who proved M.L.C. Ext.PW10/A simply stated that there is injury on the chin of 7 the prosecutrix. The medical examination seems to have been casual and cursory because this witness does not opine in Ext.PW10/A as to how the injury was caused or what was the possible weapon of offence etc. which caused the so called injury found on the person of the prosecutrix. Interestingly, in her cross-examination she says that neither the name of the accused was disclosed to her nor was she apprised of the fact that the prosecutrix had been assaulted by inflicting bite injury on her chin. She then admits that it is the first time in the Court she is stating that the injury was caused by biting. The probity of the evidence is writ large. Ext.PW10/A cannot be used for convicting the accused as there is no evidence to link to the injury to him. The reason why the cause was not stated in Ext.PW10/A is obscure. It was the duty of the doctor to have written in this certificate her complete observations. 13. Adverting to the evidence of the prosecutrix, PW2 Km.Sapna and her sister PW3 Km.Bandna who is a minor, even accepting their testimony as it is without going any further what they state is that it was a dark night and they could not see anybody. It is also on the record in the testimony of PW1 Bimla Devi that some kind of an attempt had been made to commit theft in her house which, in fact, was successful but she could not recollect the articles stolen. One more fact which should be taken note of is that in the spot map Ext.PW8/A, the window from where the accused is supposed to have broken into the house has been shown and marked as ‘C’. However, it is admitted by the prosecution as 8 recorded in the spot map that there is no bolt inside the door of the room. The prosecution case was that the petitioner had broken the glass panes, opened the bolt from inside and then gained entry. In the absence of recovery of any glass pieces and the fact that no bolt was found, the story not only becomes doubtful but one impossible to believe because the very nature in which the crime was committed becomes doubtful. 14. Learned counsel has also taken this court through the contradictions in the statements of the witnesses which have been made in their statement under Section 161 of the Code of Criminal Procedure and what is stated in the Court. Learned counsel refers two decisions of the Supreme Court in Tehsildar Singh and another Vs. State of U.P., AIR 1959 SC 1012 and Laxman and others Vs. State of Maharashtra, AIR 1974 SC 308 to urge that the statements can be used to test the veracity of the evidence of the person so making these statements. He submits that though this may not be substantive evidence yet the contradictions are of the nature when coupled with the other facts on record makes the chain of the occurrence as a impossibility and no conviction can follow. 15. The case set up by PW1 Bimla Devi is one of theft. The manner of breaking into the house is also not established on the record. Moreover even the infliction of the injury becomes doubtful. I may at this juncture add that PW3 Vandana has gone to the extent of saying that on the second 9 occasion when the petitioner again trespassed he took off his pants to assault the petitioner. This is not only a major improvements but a contradiction which goes to the very root of the case as this part has not at all been corroborated by the prosecutrix who has not stated a word about this occurrence. 16. In Vidyadharan Vs. State of Kerala (2004) 1 SCC 215, the Supreme Court, considering the principles applicable for conviction for offences under Section 354 I.P.C. holds that usually there is no reason as to why a lady should falsely implicate a person in a case under Section 354 I.P.C. The court then observes: “8 ………………..When a plea is taken of false implication, courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. In the instant case………………….” 9. In order to constitute the offence under Section 354 mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all cases. (See State of Punjab V. Major Singh, AIR 1967 SC 63:1967 Cri.L.J. 1). A careful approach has to be adopted by the court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 IPC are as under: (i) that the person assaulted must be a woman; (ii) that the accused must have used criminal force on her; and (iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.” (PP 220 & 221) 17. I find that both the courts below have not scrutinized the evidence at all to delve deep into the matter. 10 The findings arrived at by them are perverse as the evidence does not establish the incident at all. 18. In the totality of the facts and circumstances of the case, I hold that each of the factors which have been brought out in the evidence of the witnesses and which have not been considered by the courts below at all, the so called alleged offence committed by the petitioner becomes doubtful. 19. In these circumstances, this revision petition is allowed. The judgment of both the courts below are quashed and set aside. Bail bonds furnished by the petitioner shall stand discharged. (Dev Darshan Sud), Judge. August 19,2010(R)