IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.136 of 2004. Date of Decision: 12.11.2010. _______________________________________________ State of H.P. ….Petitioner. Versus Sudh Singh ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?No. For the petitioner : Mr. P.K.Sharma, Addl. Advocate General. For Respondent. : Mr.Raman Jamalta, vice Mr.S.M.Goel, Advocate. Dev Darshan Sud, J.(Oral). The State challenges the acquittal of the respondent for offences under Sections 498-A , 323 and 506 I.P.C. 2. The prosecution case is that respondent-Sudh Singh was married to complainant-Surjit Bhatia about fifteen years prior to the alleged occurrence. Relations were initially cordial but lateron differences developed between the parties when the respondent started ill-treating her at the behest of one “Baby” wife of Karamjit Singh with whom he had developed illicit relations. The case was patched up on number of occasions but ultimately, the parties separated, Whether reporters of the Local papers are allowed to see the judgment?yes . 2 the complainant is living with one of his son Anubhav and two children are with the respondent. 3. On 20.1.2000, the respondent barged into the room of the complainant, entered into a brawl with her, abused her and threatened to kill her. He is reported to have beaten her up. Some people came to the spot and he ran away from there and snatched the gold chain which she was wearing. 4. In order to prove this case, the prosecution has produced as many as nine witnesses. PW1 Rakesh Kumar and PW6 Gopal Dass were the purported eye witnesses who have resiled from their statement under Section 161 Cr.P.C. and state that no quarrel took place in their presence. Both these witnesses were subjected to searching cross- examination but I do not find anything in their statements which would in any manner implicate the accused. 5. Head Constable PW2 Ranjit Singh has proved the First Information Report registered with the police. 6. Adverting to the statement of PW3 complainant Surjit Bhatia, she states that she was married to the respondent in the year 1984. For some time, relations were cordial with them thereafter he developed illicit relations with his Bhabi Baby and at her behest he used to beat her up. So much so on one occasion he even tried to push out of the Jeep in which they were traveling and tried to kill her. Then she describes the incident on 20.1.2000 when according to her at around 7.00 in the morning, the respondent started 3 quarreling and brawling with her and beat her up with chappal. When other people came to the spot to rescue her, he grabbed a gold chain from her neck and ran away from the spot. In her cross-examination she admits that they had a locker in a joint name in Punjab National Bank. She also admits that the house in which she living separately is maintained by the respondent and is also providing food, shelter, clothing and rainment. 7. PW4 Mohinder Kaur is the mother of the complainant, who says that for 2-3 years after marriage her daughter was treated in a proper manner by the respondent whereafter he started maltreating her. She admits that no complaint with respect to this so called maltreatment etc. has been made by her or any of her family members either to the Panchayat or the police or any other authority. To similar effect is the evidence of PW5 Sh. Joginder Pal brother of the complainant. 8. That leaves the evidence of Dr. PW7 O.P.Ram Dev he states that he found three injuries on the person of the complainant. He found swelling on the left parietal region of the head and complaints of pain etc. There was no fracture. He admits that one of the injuries/pain can be caused due to cervical spondalites and that other injuries can be caused by a fall. In other words, there is no evidence even to link the respondent with causing of injuries so complained by PW3 Surjit Bhatia. 4 9. Learned Additional Advocate General submits that the evidence of the complainant should and ought to be accepted and cannot be treated as partisan as she is the best witness to testify to this fact. Looking to her evidence, what I find is that two of the independent witnesses as noticed supra have been declared hostile. The complainant admits having a locker under the joint name in P.N.B. and the fact that the accused-respondent has been providing her food, shelter and clothing etc. The statement is also vague and general and does not state anything about the injuries being inflicted by the accused or holding out threats against her. 10. In these circumstances, it becomes very difficult to hold that this statement can be accepted to convict the respondent. In fact, if the statement is read as a whole, what emerges is that there may have been a brawl between the parties but beyond that nothing else. It is admitted that both the parties are living separately, the complainant with one child and accused with the other two children. He has also providing food and shelter etc. to the complainant. The evidence of the mother and brother of the complainant cannot relied upon for concluding the guilt of the respondent for the reason that the statement cannot be accepted as being credible as no report regarding maltreatment etc. has been lodged by the complainant. The evidence of the doctor also does not link the respondent with the wrong doing. The ingredients under Sections 498 and 323 I.P.C. have neither been proved nor established from the evidence on record. 5 11. In these circumstances, I do not find any merits in this appeal which is accordingly dismissed. Bail bonds furnished by the respondent shall stand discharged. (Dev Darshan Sud), Judge. November 12, 2010(R) 6 Add: 1. From the consideration of the law relating to admissibility, credibility and appreciation of the evidence of a child witness, the principles settled are: (a) that the evidence of a child of tender years or a child as contemplated in law, cannot be discarded merely because of that reason . (b) Such evidence is not inadmissible even if no oath has been administered to such a witness. © On the question of credibility and appreciation, corroboration can be sought where the child is of tender years of age incapable of giving logical answers or the import of the questions put to a such witness. The element of tutoring has to be ruled out and where other corroborative evidence does not support the testimony of such a witness, it cannot be relied upon as being the sole evidence or convicting an accused. It is in the background of these principles that the evidence of the prosecutrix is being considered. . Add:2: The principle applied for appreciation of evidence in criminal trial has been laid down by the Supreme Court in C.Magesh and others Vs. State of Karnataka, (2010) 5 S.C.C.645, holding: “46. In a criminal trial, evidence of the eyewitness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and 7 equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. 48. Normally, it is not in practice to consider each and every individual evidence available; however we had to make an exception in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, we made this exception. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice.” What I find from the appreciation of the statement of the witnesses is that important facts have been contradicted in the testimony of each of the witnesses. Prosecutrix evidence is not supported either by the medical evidence or that of mother or PW5 Ishwari Devi. The evidence of Ishwari Devi is only to the effect that she joined in the chase being given by the mother of the prosecutrix. The mother has not witnessed anything save and except that she saw the accused purportedly running away from the scene of occurrence. Even if the principle of conviction based on circumstantial evidence is to be invoked, I do not find any chain of circumstances/events to link the appellant with the commission of the offences either of kidnapping or indecent assault. 8