High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 113 of 2009.

Reserved on: 01.11.2016

Date of Decision: 30.11.2016.

______________________________[_____________________________

Chinta Mani ……...Petitioner

Versus

Dharam Dutt and Anr. …....Respondents

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting

1

? Yes

For the petitioner: Mr. Bimal Gupta, Senior Advocate with Mr.

Vineet Vashishta, Advocate.

For the respondent: Mr. Dinesh Sharma, Advocate, for respondent

No.1.

Mr. P.M. Negi, Additional Advocate General

with Mr. Ramesh Thakur, Deputy Advocate

General, for respondent No.2.

________________________________________________________

Sandeep Sharma, J. (Oral)

The present criminal revision petition filed under Section 397

read with Section 401 of the Cr.PC, is directed against the judgment

dated 27.4.2009, passed by the learned Additional Sessions Judge,

Solan, HP, in Criminal Appeal No. 26-S/10 of 2008, affirming the

judgment of acquittal dated 14.8.2008, passed by the learned

Additional Chief Judicial Magistrate, Kasauli, District Solan, HP, in Case

No. 372/2 of 2000, whereby the respondent-accused (hereinafter

Whether reporters of the Local papers are allowed to see the judgment? Yes.

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referred to as the accused) was acquitted of charges punishable

under Sections 377, 511 & 506 of IPC.

2. Briefly stated facts as emerged from the record are that on

the statement made by victim namely Jai Singh, recorded under

section 154 Cr.PC, police lodged FIR against the accused under

Sections 377, 511 & 506 of the IPC at Police Station Kasauli. The victim

stated before the police that on 2.11.2000, he was returning back from

school and at about 4:00 PM, when he reached near Shiv Temple, R&T

wing CRI Kasauli, accused namely Dharam Dutt offered him money to

purchase sweets. He further stated that he got lured and he was taken

in a Gali behind the house by the accused, where he removed the

trouser of the victim up till his knees and the accused also removed his

trouser. He applied saliva on his anus and then attempted to

penetrate his organ but at that time Santosh Singh came there. He

further stated that on seeing him, they both put up their trousers. On

suspicion, Daram Dutt inquired as to what they were doing and Jai

Singh i.e. Victim, disclosed that accused gave him Rs. 5/- coin and

committed unnatural offence with him. He further stated that

thereafter he went home and did not disclose the incident to anyone.

On 3.11.2000 (the next day), he disclosed the incident to his father and

his father took him to police station where the case under Sections 377,

511 and 506 IPC, was registered at Police Station Kasauli. Police after

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lodging of aforesaid complaint, prepared the site plan and got victim

and accused medically examined from Medical Officer at Zonal

Hospital, Solan, from where it obtained medico legal certificate. Police

also claimed to have seized Rs. 5/- coin from the accused vide

separate memo in the presence of witnesses namely Santosh Singh and

Chinta Mani. Accused was arrested but later on was released on bail.

Police after completion of investigation, presented the challan in the

competent court of law.

3. Learned Additional Chief Judicial Magistrate, Kasauli,

District Solan, HP, on being satisfied that prima facie case exists against

the accused put notice of accusation to the accused to which he

pleaded not guilty and claimed trial. Subsequently, on the basis of

evidence adduced on record by the prosecution, acquitted the

accused of offences punishable under Sections 377, 506 and 511 of the

IPC.

4. State being aggrieved and dis-satisfied with the judgment

of acquittal passed by the learned trial Court, preferred an under

Section 374 of Cr.PC before the Court of learned Additional Sessions

Judge, Solan, HP, which was also dismissed. Since respondent-State

failed to file an appeal against the judgment of learned Sessions

Judge, Solan, father of the victim namely Chinta Mani, filed the instant

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criminal revision petition before this Court laying therein challenge to

the judgment of acquittal passed by the courts below.

5. Mr. Bimal Gupta, Senior Advocate duly assisted by Mr.

Vineet Vashishta, Advocate, representing the petitioner vehemently

argued that the impugned judgments of acquittal recorded by the

Courts below are not sustainable as the same are not based upon the

correct appreciation of evidence available on record, as such, same

deserve to be quashed and set-aside. Mr. Gupta, strenuously argued

that bare perusal of judgment passed by the learned trial Court clearly

suggests that while recording the statement of PW2 Jai Singh (Victim),

the principles and guidelines as envisaged under Section 118 of the

Indian Evidence Act, were not followed by the Presiding Officer and as

such, judgment passed by the learned trial Court deserves to be

quashed and set-aside. He further stated that since aforesaid glaring

aspect of non-compliance of Section 118 was brought to the notice of

learned Sessions Judge, in the first appeal, it was incumbent upon him

to remand the case back to the learned trial Court to rectify the

irregularity or mistake by recalling the witnesses for re-examination that

too, especially when it was noticed by learned trial Court while

recording the judgment of acquittal. While referring to the judgment

passed by the learned trial Court, Mr. Gupta, contended that it is

evident from the judgment that trial Court itself observed that

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statement of PW2 was not recorded by the courts below under Section

118 of the Indian Evidence Act, meaning thereby, court below failed to

exercise jurisdiction vested in it and on this sole ground, learned first

appellate Court should have allowed the appeal filed by the State. He

further stated that since both the courts below have taken hyper

technical view while acquitting the respondent for non-compliance pf

Section 118 of the Indian Evidence Act, matter needs to be remanded

back to the learned trial Court for re-examination. While concluding his

arguments, Mr. Gupta, further argued that both the courts below have

not appreciated the statement of PW2 i.e. Victim which was otherwise

sufficient to prove that respondent accused had in fact committed the

offence punishable under Section 377 read with 511 of IPC. He further

stated that cross examination conducted upon this witness nowhere

suggests that defence was able to shatter his testimony, wherein he

categorically stated that accused committed unnatural offence with

him by paying him Rs. 5 coin. Mr. Gupta further stated that since it

stands duly proved on record that accused had paid a Rs. 5 coin, to

the victim, prosecution was successful in proving that on the relevant

time, respondent committed sodomy by alluring the victim and as

such, judgment passed by the courts below deserve to be quashed

and set-aside. He also stated that learned trial Court while acquitting

the accused gave undue weightage to the evidence produced in

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defence, which was to save himself and admittedly, who were

interested witnesses. In the aforesaid background, Mr. Gupta while

placing reliance upon following judgments passed by Hon’ble Apex

Court prayed that instant matter needs to be remanded back to the

learned trial Court for re-examination especially in view of the non-

compliance of provisions contained in Section 118 of the Indian

Evidence Act, which reads as under:-

1. Venkatesan vs. Rani and Anr., 2013 (14) SCC 207

2. Narayan Iranna Potkanthi v. State of Maharashtra,

1994 0 CrLJ 1752: 1994 3 RCR (Cri) 102; 1994 0

Supreme (Mah) 74, Bombay High Court (At

Aurangabad)

3. Kabiraj Tudu v. State of Assam 1993 2 Crimes (HC)

647; 1994 0 CrLJ 432, Gauhati High Court.

6. Mr. P.M. Negi, learned Additional Advocate General, duly

assisted by Mr. Ramesh Thakur, learned Deputy Advocate General,

representing the State supported the contention put forth by Mr.

Gupta. Mr. Negi, apart from aforesaid submissions having been made

by Mr. Gupta, stated that medical evidence adduced on record by

the prosecution was not read in its right perspective by the courts

below. Mr. Negi further stated that since an attempt to commit

sodomy by the respondent accused stands duly prove d on record,

courts below should have not interpreted the medical evidence in the

way it has been interpreted. He specifically invited attention of this

Court to the Section 511 of the IPC to state that when proseuciton

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specifically alleged that there was an attempt to commit sodomy,

medical evidence adduced on record by the prosecution should not

have been interpreted by the court below to suggest that act was not

complete, rather, medical evidence supports the version put forth by

the respondent accused. While inviting attention to the medico legal

opinion given by the doctor, Mr. Negi, stated that if opinion given by

medical expert is read juxtaposing the statement made by PW2 as well

as PW3, it stands duly proved on record that accused made an

attempt to commit unnatural offence with victim and as such,

judgment of acquittal passed by the courts below deserve to be

quashed and set-aside.

7. Mr. Dinesh Sharma , Advocate, represen ting the

respondent-accused supported the judgments passed by the courts

below. Mr. Sharma, vehemently argued that there is no illegality and

infirmity in the impugned judgments. While referring to the impugned

judgments, Mr. Sharma, strenuously argued that same are based upon

the correct appreciation of the evidence available on record as well

as law and as such, there is no scope of interference, especially in view

of the con-current findings of facts as well as law recorded by the

courts below. With a view to refute the contention put forth by Mr.

Gupta, that there was non-compliance of Section 118 of the Indian

Evidence Act, Mr. Sharma, contended that even if for the sake of

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argument, it is presumed that procedure as laid down in Section 118

was not followed at the time of recording the statement of PW2, the

perusal of the judgment passed by the courts below clearly suggests

that statement of victim (PW2) recorded by the court below was

closely examined and dealt with by the courts below while examining

the genuineness and correctness of the complaint filed by PW2 against

the accused. While specifically referring the Para-18 of judgment

passed by the learned trial Court, Mr. Sharma stated that though

learned trial court observed that his predecessor in interest did not

follow the procedure laid down in Section 118 of the Act while

recording the statement of PW2, who was admittedly minor at that time

but If the judgment is read in its entirety, it nowhere suggests that

version of PW2 was not considered by the court below and complaint

was simply dismissed on the ground of non-compliance of Section 118

of the Indian Evidence Act. Mr. Sharma, while referring to the judgment

passed by the courts below specifically invited attention of this Court to

the reasoning given by the court below to demonstrate that the courts

below have dealt with statement of PW2 and as such, there is no force

in the contention of Mr. Gupta, that accused was acquitted on

account of non-compliance of Section 118 of the Act. While

concluding his arguments, Mr. Dinesh forcefully stated that this Court

has very limited powers while exercising its revisionary powers under

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Section 397 of the Cr.PC to re-appreciate the evidence, especially

when it stands duly proved on record that the courts below have dealt

with each and every aspect of the matter very meticulously. In this

regard, reliance is placed upon the judgment passed by Hon’ble Apex

Court in case State of Kerala Vs. Puttumana Illath Jathavedan

Namboodiri (1999)2 Supreme Court Cases 452, wherein it has been

held as under:-

“In its revisional jurisdiction, the High Court can call for and

examine the record of any proceedings for the purpose of

satisfying itself as to the correctness, legality or propriety of any

finding, sentence or order. In other words, the jurisdiction is one of

supervisory jurisdiction exercised by the High Court for correcting

miscarriage of justice. But the said revisional power cannot be

equated with the power of an appellate court nor can it be treated

even as a second appellate jurisdiction. Ordinarily, therefore, it

would not be appropriate for the High Court to re-appreciate the

evidence and come to its own conclusion on the same when the

evidence has already been appreciated by the Magistrate as well

as Sessions Judge in appeal, unless any glaring feature is brought

to the notice of the High Court which would otherwise tantamount

to gross miscarriage of justice.”

8. I have heard learned counsel for the parties as well

carefully gone through the record

9. True, it is that this Court has very limited powers under

Section 397 Cr.PC while exercising its revisionary jurisdiction but in the

instant case, where accused has been acquitted of charges, it would

be apt and in the interest of justice to critically examine the statements

of the prosecution witnesses solely with a view to ascertain that the

judgments passed by learned courts below are not perverse and same

are based on correct appreciation of the evidence on record.

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10. As far as scope of power of this Court while exercising

revisionary jurisdiction under Section 397 is concerned, the Hon’ble

Apex Court in Krishnan and another Versus Krishnaveni and another,

(1997) 4 Supreme Court Case 241; has held that in case Court notices

that there is a failure of justice or misuse of judicial mechanism or

procedure, sentence or order is not correct, it is salutary duty of the

High Court to prevent the abuse of the process or miscarriage of

justice or to correct irregularities/incorrectness committed by inferior

criminal court in its judicial process or illegality of sentence or order. The

relevant para of the judgment is reproduced as under:-

8. The object of Section 483 and the purpose behind conferring

the revisional power under Section 397 read with Section 401,

upon the High Court is to invest continuous supervisory jurisdiction

so as to prevent miscarriage of justice or to correct irregularity of

the procedure or to mete out justice. In addition, the inherent

power of the High Court is preserved by Section 482. The power of

the High Court, therefore, is very wide. However, the High Court

must exercise such power sparingly and cautiously when the

Sessions Judge has simultaneously exercised revisional power

under Section 397(1). However, when the High Court notices that

there has been failure of justice or misuse of judicial mechanism

or procedure, sentence or order is not correct, it is but the salutary

duty of the High Court to prevent the abuse of the process or

miscarriage of justice or to correct irregularities/ incorrectness

committed by inferior criminal court in its judicial process or

illegality of sentence or order.”

11. Before adverting to the merits and demerits of the present

case, this Court deems it fit to refer to Section 118 of the Indian

Evidence Act, which is reproduced herein below:-

118 Who may testify. —All persons shall be competent to testify

unless the Court considers that they are prevented from

understanding the questions put to them, or from giving rational

answers to those questions, by tender years, extreme old age,

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disease, whether of body or mind, or any other cause of the same

kind. Explanation.— A lunatic is not incompetent to testify, unless

he is prevented by his lunacy from understanding the questions

put to him and giving rational answers to them.

12. Perusal of aforesaid provision of law suggests that all the

persons are competent to testify before the court save and except

court comes to conclusion that they are not able to understand the

question put to them or from giving rational answers to those questions,

by tender years, extreme old age, and disease, whether of body or

mind, or any other cause of same kind, meaning thereby courts below

are under obligation in terms of aforesaid section before recording the

statement of any person to ascertain whether they are capable of

deposing before the Court and can they give rational answers to the

questions, which may be put to them during the examination. Section

118 specifically provides that persons of tender age, extreme old age

and having disease, which may be of body or mind are required to be

dealt with in accordance with the Section 118 of the Act.

13. Admittedly, in the present case, PW2 at the time of

recording his statement was minor and presiding officer while recording

his statement ought to have complied with the aforesaid Section to

ascertain whether he is capable of understating the question put to

him or can he give rational answers, to those questions, in view of his

tender age or not.

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14. Admittedly, Para 16 of the judgment p assed by the

learned trial Court suggests that presiding Officer who had recorded

statement of PW2 had not resorted to voir-dire” in terms of Section 118

while recording the statement of child witness i.e.PW2 to ascertain

whether he was capable of understating and answering the questions.

Presiding Officer who delivered the judgment of acquittal later on

categorically stated in its judgment that there was no material on

record to state that he had made any such preliminary examination in

terms of Section 118 of the Act as well as guidelines of Hon’ble Apex

Court and our own high Court in case title Romeshwar vs. State of

Rajasthan AIR 1952 SC 54 and State of HP v. Anmol Kumar , 1996 (2) CLJ

HP 330, respectively.

15. Careful perusal of aforesaid judgments having been relied

upon by the learned trial court in its judgment clearly suggests that

evidence of child witness is admissible and learned trial Court in terms

of section 118 of the Act is required to verify that child was capable of

understanding and answering the question put to him. While having

glance to the aforesaid provision of law as well as judgments passed by

the Hon’ble Apex Court as well as this Court , one comes to

inescapable conclusion that it is mandatory upon the Presiding Judge

before recording the statement of child witness, to verify that he or she

is/was capable to understand and answer the questions put to him/her

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and if aforesaid provision is not complied with, evidence of child is not

worthy putting any reliance. Admittedly, in the present case, as has

been discussed herein above, presiding officer failed to resort to

provisions contained in Section 118, as a result of which, no reliance, if

any could be placed on the statements of child witness and no

conviction could be recorded on the basis of the same.

16. At this stage, Mr. Gupta, vehemently argued that since

learned trial Court failed to comply with the aforesaid provision of law,

matter needs to be reexamined by the learned trial Court by recalling

the child witness but this Court is unable to accept the aforesaid

contention, simply because perusal of judgment passed by the courts

below suggests that though they had not resorted to provisions

contained in Section 118 while recording acquittal of the accused but

statement of PW2 i.e. child has been dealt with very carefully vis-à-vis

other evidence adduced on record by the prosecution. If, for the sake

of argument, submission made by Mr. Gupta, is accepted at this stage

that no reliance could be placed on the statement of PW2 which was

made in violation of Section 118, natural corollary would be dismissal of

the case of the prosecution which was entirely based upon the

statement of PW2. Learned Court after detecting the aforesaid

illegality having been committed by his predecessor in interest had two

options (1) to re-examine PW2 after complying with the provisions

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contained in Section 118 of the Act or (2) to reject the case of the

prosecution on this sole ground by placing no reliance upon the

statement of PW2 whereby, admittedly he was not resorted to” voir

dire”. However, in the present case, as clearly emerge from the

judgments passed by the courts below, version put forth by PW2 has

been dealt with meticulously by the courts below and due reliance has

been placed on the same while recording acquittal of the accused.

17. This court solely with a view to ascertain the genuineness

and correctness of the judgments of the court below and to ensure

that same are not perverse, carefully perused the statement of PW2 Jai

Singh, perusal whereof nowhere suggests that he was unable to

understand question put to him, rather close scrutiny of his statement

clearly suggest that he has been very very straightforward and candid

in stating the sequence of events as allegedly occurred at that time of

alleged incident, it is another matter that sequence of events narrated

by him could not get further corroboration from other material

prosecution witnesses. Hence this Court is of the view that no fruitful

purpose would be served in case prayer having been made by Mr.

Gupta, is accepted and matter is remanded back for re-examination

to learned trial Court. Apart from above, PW2 namely Jai Singh must

have become major during the pendency of the present petition and

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there would be no occasion before the Court to record his statement

afresh by resorting to section 118 of the Act.

18. True, it is that in view of the judgments having been relied

upon by Mr. Gupta, this Court can remand the case back to the

learned trial Court for re-examination in light of non-compliance of

provisions contained in the Section 118 of the Act but as has been

discussed above, no fruitful purpose would be served by remanding the

case at hand at this stage in view of the fact that PW2 Jai Singh (victim)

has gained majority. In view of subsequent development, there would

be no occasion to record his statement by complying Section118 of the

Act. Secondly, as has been discussed in detail above, perusal of

statement made by the learned trial Court PW2 clearly suggests that he

was capable of understanding the questions and answers which were

put to him by the opposite side.

19. It is well settled that evidence of child witness is not

required to be rejected per-se Court as a rule of prudence considers

such evidence with close scrutiny and only on being convinced about

the quality and reliability can record conviction i.e. Golla Yelugu

Govindu v. State of A.P., AIR 2008 SCC 1842.

20. In the present case, this Court after perusing the statement

of PW2 i.e. child witness is fully convinced and satisfied that trial Court

below has carefully considered his evidence and only on being

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convinced proceeded to decide the case in light of other evidence

available on record.

21. PW2 Jai Singh while deposing before the Court, stated that

he is 12 years old. As per story of prosecution on 2.11.2000, when victim

was returning from the school, accused offered him Rs. 5 coin and took

him towards a ‘Gali’ behind the house where he committed unnatural

offence with him but when he was committing aforesaid act , one

Santosh Singh (PW3) reached at spot and then, he as well as the

accused immediately put on their trousers. On being questioned by

PW3 victim disclosed that accused committed unnatural offence with

him by paying Rs. 5 but interestingly in the present case, there is nothing

on record that PW3 Santosh Singh, who was acquaintance of the

father of the victim ever disclosed aforesaid act of sodomy allegedly

committed by the accused with the PW2 jai Singh to his father

Chintamani. Victim disclosed commission of offence to his father next

day and then he was taken to police station by his father. Victim in his

statement under Section 154 Cr.PC stated that when accused was

attempting to thrust his organ into his anus, Santosh Singh appeared on

the scene and thereafter he as well as accused put up their trousers,

whereas PW2 Jai Singh in his statement before the Court stated that

accused committed act of carnal intercourse. In his cross-examination,

he further stated that he did not know the accused from before but in

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his statement Ext.PW1/A he has stated that accused lured him by

offering him Rs. 5 coin to purchase sweets. If PW2 was not knowing the

name of the accused at the time of the commission of sodomy, it is not

understood how he made the statement under Section 154 Cr.PC

before the Court that person namely Dharma Dutt offered him money

to purchase sweets. PW3 Santosh Singh in his statement stated that he

saw victim as well as accused in gali whereafter they put on their

trousers. He further stated that on his inquiring from victim, he disclosed

that the accused gave him Rs. 5 coin for sweets. Even in cross-

examination, he stated that when he reached there, accused as well

as victim were putting up their trousers. PW3 further stated that on his

asking, victim disclosed that accused had committed unnatural act

with him but there is nothing in his examination-in –chief as well as cross-

examination which could suggest that he saw the accused committing

unnatural offence with the victim because he categorically stated that

when he reached at spot, he saw accused as well as victim putting up

their trousers. He nowhere stated that he saw the accused committing

sodomy. Moreover, as has been discussed above, it is not understood

why didn’t he disclose aforesaid act of sodomy allegedly committed

by the accused to his father or to police at first instance.

22. Similarly there is no explanation that why didn’t he call

other persons on the spot. It is only on 4.11.2000, he came forward to

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support the version put forth by PW1 which compels this Court to draw

adverse inference. It has specifically come in his statement that he was

known to father of the victim. Similarly, perusal of statement of PW3

belies the case of the prosecution. He in his statement himself sated

that victim had returned back the coin of Rs. 5 to accused, whereas

case of prosecution is otherwise. But, PW2 Victim has nowhere stated in

his depositions made before the Court that he returned Rs. 5 coin to the

accused. PW3 Santosh Singh, in his cross-examination stated that he

had not disclosed the alleged incident to Chintamani because he did

not know the victim or the child of Chintamani.

23. This aforesaid explanation rendered by the Santosh Singh

cannot be accepted in view of the peculiar facts and circumstances.

As per PW3, after seeing accused and the victim in the gali, he inquired

about the incident, whereupon victim disclosed that accused

committed unnatural offence with him. It cannot be accepted that at

that juncture after seeing such heinous crime allegedly having been

committed by the accused on a child, Santosh Singh PW3 did not

inquire about the antecedents of the accused as well as victim.

Because PW2 Jai Singh in his examination in chief specifically stated

that Santosh uncle got him released from the spot of occurrence. If the

child witnesses knew Santosh Singh, it is difficult to accept that PW3

was not aware that victim was the son of Chinta Mani PW1. PW1 father

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of the victim is admittedly not an eye witness to the occurrence rather

he made deposition before the Court on the basis of information he

gathered from the victim as well as PW3 Santosh.

24. Since statement of PW1 is solely based upon the sequence

of events narrated by the victim, version put forth by him was rightly not

accepted by the Courts below in terms of section 7 of the Indian

Evidence Act. Bare perusal of the statement given by PW1 leaves no

doubt that he made an attempt to exaggerate the statement made

on record by PW2 Jai Singh.

25. PW1 stated that his son disclosed that during the

intercourse he had experienced piercing pain whereas statement of

victim PW2 nowhere suggests that. PW2 in his statement only stated

that accused attempted to thrust his organ into his anus by applying

saliva on his anus and at that juncture Santosh Singh appeared at the

scene. Wherein PW1 in his statement before Court, stated that filthy act

of carnal intercourse was committed by the accused.

26. Close scrutiny of statement of PW1 Chinta Mani father of

the victim clearly suggest that he exaggerated and improved upon the

statement made by PW2 solely with a view to ensure conviction of the

accused, who admittedly by leading convincing and cogent evidence

on record proved that there was an animosity between him as well

PW1 and PW3. Otherwise also testimony of PW1 could not be looked

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into. As far as PW3 is concerned, this Court has no hesitation to

conclude that there are material contradictions in his statement ,

moreover he has nowhere stated that he saw the accused committing

sodomy with Jai Singh, rather he simply stated that when he reached at

the spot of occurrence, he saw both the accused and the victim

putting on their trousers. Similarly as has been discussed above, PW3

nowhere explained that why he did not bring incident to

notice/knowledge of the father of the victim, especially when he knew

him.

27. Conjoint reading of aforesaid prosecution witnesses

nowhere suggests that accused committed sodomy with victim (PW2)

who was minor at that time. According to PW7 i.e. I.O. victim disclosed

qua the fact of Rs. 5 coin at the time of registration of FIR. In his cross-

examination, he stated that he sealed Rs. 5 coin at the spot, whereas

PW1 in his cross –examination admitted that he saw Rs. 5 coin for the

first time in the police station only when it was produced by the

accused which itself belies the statement of PW7. PW1 stated that coin

was taken into possession by the Police only when Santosh Singh had

appeared and till that time neither he nor Santosh Singh was aware of

Rs. 5 coin. Aforesaid statement made by PW1 belies the version put

forth by PW3, who himself stated that victim told him that accused

lured him by giving Rs. 5 coin. Similarly, Chintamani PW1 stated that at

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the time of recording of FIR, Santosh Singh PW3 was not present with

him and he had only come to the police station at about 2.30/3:00 pm.

It is admitted fact that FIR with regard to aforesaid incident was

registered on 3.3.2000.

28. Now, if the statement of PW3 is perused, it suggests that

victim had returned the coin in the presence of Santosh Singh. PW2 in

his cross-examination while answering to the suggestion put to him by

the prosecution that he had handed over Rs. 5 coin to the police which

accused Dharm Dutt had given to him, feigned his ignorance about

the same, meaning thereby, the aforesaid claim of prosecution is

contrary to recovery memo Ext.PW1/B which suggests that police had

recovered Rs. 5 coin from the accused and same was identified by the

victim as well as Santosh Singh PW3.

29. Hence, in view of the aforesaid material contradictions, this

Court sees no reason to disagree with the findings returned by both the

courts below that version put forth by PWs1, 2 and 3 being contrary to

each other, cannot be made basis for recording conviction of the

accused. Accused has stated under Section 313 Cr.PC that he has

been falsely implicated by PW1 and Santosh Singh , who are not at

good terms with him and they both tried to implicate him in a false

case. With a view to substantiate his aforesaid stand, he examined

DW1 Sudarshna his wife, DW2 Satish Kumar and DW3 Beg Raj both

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employees of CRI Kasauli. It is admitted case of the parties that

accused prior to his retirement was an employee of CRI at Kasauli and

was working as Chowkidar there and there is no denial of the fact that

PW1 Chintamani is working as a packer while PW3 Santosh Singh is

working as Chawkidar in the CRI Kasauli. DW1 Sudarshna stated in her

examination in chief that Chintamani and Santosh Singh are not on

good terms with them for past about 8 years. She further stated that on

2.11.2000, Santosh Singh had come to their house and had threatened

her husband not to make complaints to the Officer, lest he would be

roped and taught lesson. Similarly, DW2 Suresh Kumar stated that in the

first week of October, 2000, when Chintamani and Santosh Singh were

taking tea in the canteen, they proclaimed that since Dharam Dutt

(accused’s) slanders to the officers, they would teach him a lesson.

30. DW3 Beg Raj also asserted that a quarrel had taken place

in the last week of October, 2000, between the accused on one hand

and Chintamani and Santosh Singh on the other hand with regard to

information given by the accused to his superior.

31. If aforesaid statements having been made by defence

witnesses are read in its totality, it certainly compels this Court to draw

inference that PW1 and PW3 were not having cordial relation with the

accused and they wanted to teach him lesson. Moreover, there is

nothing in the cross-examination conducted on these witnesses from

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where it could be inferred that they falsely deposed before the Court

to help the accused.

32. As per PW2, accused committed unnatural offence with

him, whereas per PW3 he went towards the street and found child noise

but nowhere stated that he heard cries of child. Similarly, there is no

discussion qua the semen, if any, upon the anus and pent of the

accused. If the version of PW-3 is taken to be correct that after seeing

him, both the accused and victim put on their trousers, there is nothing

on record to suggest that I.O. ever took into possession the pent of the

victim which could be helpful in finding out that semen, if any, had

fallen during the carnal intercourse allegedly committed by the

accused. PW2 in his statement stated that act had been completed by

the accused but PW6 Dr. P.D. Sharma, who examined the witnesses on

the evening of 4.11.2000, categorically stated that if act of sodomy had

been committed, there would have been signs of strain or injury. He

further stated that in the present case, where the child was small, there

should have been injuries in the perennial or anal region, if the act had

been committed. He specifically stated in examination that on

examination of victim, he did not find any injury or any stains of semen.

Perusal of MLC issued by Medical Officer clearly suggests that act, if

any, was not complete as alleged by PW2 , moreover, there is no

explanation on record by I.O. that when he reached at the spot why

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he did not take into possession the trousers of the accused and victim?

Hence, medical evidence led on record by the prosecution itself belies

the stand of the prosecution. PW3 has not supported the case of PW2

that act of carnal intercourse was complete rather he stated that when

he reached at spot, he saw accused as well as victim putting on their

trousers. Hence, this Court has no hesitation to conclude that there is

no direct or circumstantial evidence led on record by the prosecution

to connect the accused with the alleged offence . Accordingly, in

view of the material inconsistencies in the statement of PWs 1, 2 and 3

especially, the medical evidence led on record by the prosecution, this

Court sees no illegality and infirmity in the judgments passed by the

Courts below.

33. At this stage, learned counsel for respondent No.1, placed

reliance on judgment passed by the Hon’ble Apex Court in case titled

Bindeshwari Prasad Singh alias B.P. Singh and Ors. v. State of Bihar (Now

Jharkhand) and Anr., (2002) 6 SCC 650 , to suggest that in normal

circumstances, it may not be open for High Court to interfere with the

order of acquittal passed by the Court below merely because the trial

Court has taken wrong view of law or has erred in appreciation of

evidence, the relevant paras are read as under:-

“6. The matter was reported to the police. Thereafter the case

was investigated and the appellants were put up for trial before

the Sessions Judge, Dhanbad.

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12.We have carefully considered the material on record and we

are satisfied that the High Court was not justified in re -

appreciating the evidence on record and coming to a different

conclusion in a revision preferred by the informant under Section

401 of the Code of Criminal Procedure. Sub-section (3) of Section

401 in terms provides that nothing in Section 401 shall be

deemed to authorize a High Court to convert a finding of

acquittal into one of conviction. The aforesaid sub-section, which

places a limitation on the powers of the revisional court,

prohibiting it from converting a finding of acquittal into one of

conviction, is itself indicative of the nature and extent of the

revisional power conferred by Section 401 of the Code of

Criminal Procedure. If the High Court could not convert a finding

of acquittal into one of conviction directly, it could not do so

indirectly by the method of ordering a re-trial. It is well settled by

a catena of decisions of this Court that the High Court will

ordinarily not interfere in revision with an order of acquittal

except in exceptional cases where the interest of public justice

requires interference for the correction of a manifest illegality or

the prevention of gross miscarriage of justice. The High Court will

not be justified in interfering with an order of acquittal merely

because the trial court has taken a wrong view of the law or has

erred in appreciation of evidence. It is neither possible nor

advisable to make an exhaustive list of circumstances in which

exercise of revisional jurisdiction may be justified, but decisions

of this Court have laid down the parameters of exercise of

revisional jurisdiction by the High Court under Section 401 of the

Code of Criminal Procedure in an appeal against acquittal by a

private party. (See AIR 1951 SC 196 : D. Stephens vs. Nosibolla;

AIR 1962 SC 1788 : K.C. Reddy vs. State of Andhra Pradesh; (1973)

2 SCC 583 : Akalu Ahir and others vs. Ramdeo Ram; AIR 1975 SC

1854 : Pakalapati Narayana Gajapathi Raju and others vs.

Bonapalli Peda Appadu and another and AIR 1968 SC 707 :

Mahendra Pratap Singh vs. Sarju Singh).

13. The instant case is not one where any such illegality was

committed by the trial court. In the absence of any legal infirmity

either in the procedure or in the conduct of the trial, there was no

justification for the High Court to interfere in exercise of its

revisional jurisdiction. It has repeatedly been held that the High

Court should not re-appreciate the evidence to reach a finding

different from the trial court. In the absence of manifest illegality

resulting in grave miscarriage of justice, exercise of revisional

jurisdiction in such cases is not warranted.

14. We are, therefore, satisfied that the High Court was not

justified in interfering with the order of acquittal in exercise of its

revisional jurisdiction at the instance of the informant. It may be

that the High Court on appreciation of the evidence on record

may reach a conclusion different from that of the trial court. But

that by itself is no justification for exercise of revisional jurisdiction

under Section 401 of the Code of Criminal Procedure against a

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judgment of acquittal. We cannot say that the judgment of the

trial Court in the instant case was perverse. No defect of

procedure has been pointed out. There was also no improper

acceptance or rejection of evidence nor was there any defect

of procedure or illegality in the conduct of the trial vitiating the

trial itself. At best the High Court thought that the prosecution

witnesses were reliable while the trial court took the opposite

view. This Court has repeatedly observed that in exercise of

revisional jurisdictional against an order of acquittal at the

instance of a private party, the Court exercises only limited

jurisdiction and should not constitute itself into an appellate court

which has a much wider jurisdiction to go into questions of facts

and law, and to convert an order of acquittal into one of

conviction. It cannot be lost sight of that when a re-trial is

ordered, the dice is heavily loaded against the accused, and

that itself must caution the Court exercising revisional jurisdiction.

We, therefore, find no justification for the impugned order of the

High Court ordering re-trial of the appellants.”

34. Reliance is also placed on judgment rendered by the

Hon’ble Apex Court in case titled K. Ramachandran v. V.N. Rajan and

Anr., (2009) 14 SCC 569. Para 40 of the judgment reads as under:-

“40. This question has been considered in the celebrated

judgment of Akalu Ahir & Ors. v. Ramdeo Ram [(1973) 2 SCC

583], where, after considering the judgments of D. Stephens v.

Nosibolla [1951 SCR 284], Logendranath Jha v. Polailal [1951

SCR 676], K.C. Reddy v. State of Andhra Pradesh [(1963) 3 SCR

412] and Mahendra Pratap Singh v. Sarju Singh [(1968) 2 SCR

287] this Court came out with categories of case which would

justify the High Court in interfering with the finding of acquittal

in revision: (Akalu Ahir case, SCC pp. 587-88, para8)

"(i) Where the trial Court has no jurisdiction to try

the case, but has still acquitted the appellant-

accused;

(ii) Where the Trail Court has wrongly shut out

evidence which the prosecution wished to

produce;

(iii) Where the appellate Court has wrongly held

the evidence which was admitted by the Trial

Court to be inadmissible;

(iv) Where the material evidence has been only

(either) by the Trial Court or by the appellate

Court; and

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(v) Where the acquittal is based on the

compounding of the offence which is invalid

under the law."

Of course, these categories were declared by this Court to be

illustrative and this Court observed that other cases of similar

nature could also be properly held to be exceptional in nature

where the High Court could justifiably interfere with the order of

acquittal.”

35. In view of the peculiar facts and circumstances as

emerged from the record as well as statements made by the PWs, this

Court sees substantial force in the contention s of the counsel

appearing for the respondent-accused that accused was falsely

implicated on account of personal enmity between the parties. This

Court after carefully perusing the entire evidence led on record by the

parties sees no reason to differ with the findings recorded by the courts

below which appear to be based upon the correct appreciation of

evidence available on record. Apart from PW2 i.e vic tim Jai Singh,

prosecution cited two witnesses PW1 and PW3 to prove its case against

the accused but they nowhere proved the case of the prosecution

beyond reasonable doubt and as such learned trial Court rightly came

to conclusion that if two views are possible, the one which is favorable

to the accused may be adopted.

36. In this regard, I may refer to the judgment passed by the

Hon’ble Apex Court reported in State of UP versus Ghambhir Singh, AIR

2005 (92) SCC 2440, where Hon’ble Apex Court has held that if on the

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same evidence, two views are reasonably possible, the one in favour of

the accused must be preferred. The relevant paragraph is reproduced

as under:-

“6. So far as Hori Lal, PW-1 is concerned, he had been sent to fetch

a basket from the village and it was only a matter of coincidence

that while he was returning he witnessed the entire incident. The

High Court did not consider it safe to rely on his testimony because

he evidence clearly shows that he had an animus against the

appellants. Moreover, he evidence was not corroborated by

objective circumstances. Though it was his categorical case that

all of them fired, no injury caused by rifle was found, and, only two

wounds were found on the person of the deceased. Apart from

this PW-3 did not mention the presence of either PW-1 or PW-2 at

the time of occurrence. All these circumstances do create doubt

about the truthfulness of the prosecution case. The presence of

these three witnesses becomes doubtful if their evidence is

critically scrutinized. May be it is also possible to take a view in

favour o the prosecution, but since the High Court, on an

appreciation of the evidence on record, has recorded a finding in

favour of the accused, we do not feel persuaded to interfere with

the order of the High Court in an appeal against acquittal. It is well

settled that if on the same evidence two views are reasonably

possible, the one in favour of the accused must be preferred.”

The Hon’ble Division Bench of this Court vide judgment reported in

Pawan Kumar and Kamal Bhardwaj versus State of H.P., latest HLJ 2008

(HP) 1150 has also concluded here-in-below:-

“25. Moreover, when the occurrence is admitted but there are two

different versions of the incident, one put forth by the prosecution

and the other by the defence and one of the two version is proved

to be false, the second can safely be believed, unless the same is

unnatural or inherently untrue.

26. In the present case, as noticed hereinabove, the manner of

occurrence, as pleaded by the defence, is not true. The manner

of the occurrence testified by PW -11 Sandeep Rana is not

unnatural nor is it intrinsically untrue, therefore, it has to be

believed.

27.Sandeep Rana could not be said to have been established,

even if the prosecution version were taken on its face value. It was

pleaded that no serious injury had been caused to PW -11

Sandeep Rana and that all the injuries, according to the testimony

of PW-21 Dr. Raj Kumar, which he noticed on the person of

Sandeep Rana, at the time of his medical examination, were

simple in nature.”

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37. In the present case also there is no cogent and convincing

evidence led by the prosecution to prove the guilt of the accused,

rather by way of leading defence witnesses in his support, accused

successfully proved on record that there was a motive for PW1 and

PW3 to falsely implicate him.

38. At the cost of repetition, it may be stated that it is true that

any statement made in violation of Section 118 of the Act cannot be

read in evidence. But in the present case, as has been discussed in

detail, perusal of statement of PW2 nowhere suggests that he was

unable to understand the question put to him. Hence, both the courts

below taking cognizance of the statement made by PW2 proceeded

ahead to decide the matter in accordance with law. Since version put

forth by PW2 did not get corroboration from other material prosecution

witnesses, courts below righty refused to record conviction of the

accused merely on the statement of PW2.

39. This Court after carefully perusing the statement of PW2 is

also of the view that there is nothing such in the statement, which could

persuade courts below to record conviction of the accused. Even if at

this stage, case is remanded back to the court below for re-

examination of child witness in terms of Section 118 of the Act; no fruitful

purpose would be served at this stage, especially in view of the fact

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that by now, PW2 has gained majority. Moreover, PW2 nowhere

supported the case of the prosecution and he was declared hostile.

But even this Court keeping in view of the nature of offence allegedly

having been committed by the accused examined entire evidence in

its entirety, which nowhere proves the guilt of the accused.

40. Consequently in view of the detailed discussion made

herein above, this Court does not see any illegality and infirmity in the

judgments passed by the courts below and as such, same are upheld

and present petition stands dismissed.

30

th

November, 2016 (Sandeep Sharma),

manjit Judge.

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