Himachal HC sends 2006 molestation appeal back: evidence of two uncharged incidents was never admissible
Justice Rakesh Kainthla held that testimony about two other girls the accused allegedly molested the same night was inadmissible under Sections 5 and 14 of the Evidence Act, and that the Sessions court relied on it to uphold the conviction.
A criminal revision filed in 2014 against a conviction recorded in 2010 for an incident in May 2006 has ended, for now, with the Himachal Pradesh High Court sending the case back to the appellate court. Justice Rakesh Kainthla held that the prosecution had led evidence of two other incidents the same night, involving two other girls, for which no charge was ever framed, and that the Additional Sessions Judge had relied on that evidence to affirm the conviction of Balwinder Singh alias Titi for house trespass and outraging a woman's modesty. The evidence was inadmissible under Sections 5 and 14 of the Indian Evidence Act. The appellate judgment was set aside and the appeal remitted, with a direction to decide it on the evidence of the first incident alone.
A courtyard in Kangra at 3.30 a.m.
The informant, whose name the judgment withholds to protect her identity, was living with her children while her husband was away in Jammu and Kashmir earning a living. On the night of 15 May 2006 she was sleeping in her courtyard. At about 3.30 a.m. the accused entered and began acting indecently with her. She pushed his hands away and asked what he was doing; her bangles broke in the struggle. Her children woke and tried to catch him, but he ran. The children identified him in the moonlight.
In the morning she reported the matter to the Pradhan, who said she would make enquiries from the accused. The informant later came to know that the accused had molested two other girls. The police registered an FIR. Ramesh Kumar (PW11), the investigating officer, prepared a site plan and seized the broken pieces of bangle lying at the spot. He also seized a pair of shoes, a torch and a towel, and the accused produced a pair of slippers, which were seized separately. The parcels went to the Forensic Science Laboratory at Junga, whose report said the shoes and the slippers were similarly worn out and could have been used by one person, though no definite opinion could be given.
Eleven witnesses, three incidents, one charge
The challan was presented before the Judicial Magistrate First Class, Indora, for offences under Sections 451 and 354 of the Indian Penal Code. The notice of accusation put to the accused was specific: that on 16 May 2006 at about 3.30 a.m. he committed house trespass in the informant's house and outraged her modesty. Nothing was put to him about any other incident. He pleaded not guilty and claimed trial.
The prosecution then examined eleven witnesses. The informant (PW1) and her son (PW2) described the incident in the courtyard. The second victim (PW8), her mother (PW3) and her grandmother (PW4) narrated a second incident, and the third victim (PW6) and her brother (PW7) narrated a third. Surinder Singh (PW5) did not support the prosecution. Veena Pathania (PW9) witnessed the recovery, Ashok Kumar (PW10) carried the case property to the laboratory, and Rajinder Singh (PW12), the MHC, received it for deposit. In his statement under Section 313 of the Code of Criminal Procedure the accused denied the prosecution case in its entirety and led no defence evidence.
On 24 November 2010 the trial court held that the informant's statement was convincing, inspired confidence and was corroborated by her son, and that there was no reason to disbelieve them. It sentenced the accused to one year's simple imprisonment and a fine of ₹3,000 under Section 451, and two years' simple imprisonment and a fine of ₹3,000 under Section 354, with default sentences of two and four months and the substantive terms running concurrently.
The accused appealed to the Additional Sessions Judge-I, Kangra at Dharamshala, sitting at the Circuit Court at Indora. On 24 October 2013 the appeal was dismissed. The appellate court agreed that the informant's testimony was corroborated by her son and by the recovery of the broken bangles. It added that the police had recovered the accused's shoes, torch and towel, and that the second and third incidents were also proved.
The ground that was argued, and the concession that met it
The revision petition, filed in 2014, raised the usual grounds: the witnesses were closely related to each other and had made a false case, the sample seal had not been deposited with the MHC by the investigating officer, three incidents of the same kind in one night showed the police had exaggerated the version, and the witnesses contradicted each other on material points.
At the hearing Mr Atharv Sharma, for the petitioner, pressed one point. The trial court had framed the charge for the first incident only, yet the prosecution had examined witnesses to the second and third incidents, and the appellate court had specifically held those incidents proved. The prosecution could not prove an incident that was not the subject matter of the charge. Considering that evidence had materially prejudiced the accused. He asked that the appellate judgment be set aside and the matter remitted for fresh consideration after excluding the irrelevant evidence.
Mr Jitender Sharma, Additional Advocate General, conceded that the charge covered only the first incident and that leading evidence of the other two had not been permissible. He argued only that no prejudice had been caused, and asked that the revision be dismissed.
What a revisional court may and may not do
Before turning to the merits, Justice Kainthla set out the limits of his jurisdiction by reference to the Supreme Court's decision this year in Kuntegowda v. Thurubaiah, 2026 SCC OnLine SC 1485. A revisional court does not act as an appellate court. It examines the correctness, legality and propriety of the findings below, does not dwell on the evidence as a court of appeal would, and should not reverse findings merely because another view is possible. Interference is reserved for findings that are perverse, grossly erroneous, glaringly unreasonable or untenable in law; orders passed after considering immaterial or irrelevant material, or no material at all; and cases where relevant material was ignored or discretion exercised arbitrarily. In Kuntegowda itself the Supreme Court restored concurrent findings of conviction that a High Court had upset in revision by re-examining the testimonies and documents as though it were hearing an appeal.
The second of those categories, an order passed after considering irrelevant material, was what the petitioner was complaining of.
Of no others: Section 5 and Section 14
Section 5 of the Indian Evidence Act permits evidence of the existence or non-existence of every fact in issue and of such other facts as the Act declares relevant, “and of no others”. The judge traced the exclusionary force of those words through a Full Bench of the Allahabad High Court in Collector of Gorakhpur v. Palakdhari Singh (1889), which held that Section 5 renders exclusive everything not covered by some later section of the statute, and the Patna High Court in Mt. Khedia v. Mt. Turia, AIR 1962 Pat 420, which held that a judge cannot admit evidence merely because he thinks it will help decide the matter. The Patna judgment adopted Lord Atkin's observation in Sris Chandra Nandy v. Rakhalananda that once a statute purports to contain the whole law of evidence, no judge may exercise a dispensing power to admit what the statute excludes, however much light the irregular evidence might throw on the issue.
The fact in issue here was whether the accused committed house trespass by entering the informant's house and outraged her modesty. The second and third incidents were not facts in issue, so no evidence of them could be led. The judge went further: the evidence was also barred by Section 14, which admits facts showing a state of mind only in reference to the particular matter in question, and whose illustrations (n), (o) and (p) make clear that a general disposition to commit crimes of a class is irrelevant.
Three old decisions illustrated the rule. In Emperor v. Panchu Das, AIR 1920 Cal 500, evidence that the accused had robbed women on earlier occasions was held inadmissible; the Calcutta High Court observed that the defence was a complete denial, so no question of intention or knowledge of the kind contemplated by Section 14 arose, and that evidence of a collateral offence cannot be received as substantive evidence of the offence on trial. In Emperor v. Gangaram Hari Pandit, decided by the Bombay High Court in 1920, evidence of previous murders by the accused was excluded as, in substance, evidence of bad character: its net result was to create the impression that the accused were in the habit of committing murders and must therefore have committed this one. And in Noor Mohamed v. King, AIR 1949 PC 161, the Privy Council applied the principle from Makin v. Attorney-General for New South Wales that the prosecution may not adduce evidence of other criminal acts to show that the accused is the kind of person likely to have committed the offence charged, and held that a murder conviction could not stand where evidence about the death of a second woman had been let in.
The evidence of the second and third incidents, the judge concluded, was inadmissible under Section 14.
Where the trial court stopped and the appellate court did not
That did not by itself condemn the conviction. Justice Kainthla noted that the trial court had confined itself to the testimonies of the informant and her son, and had referred to the witnesses of the other incidents only while answering a submission made before it. The appellate court, however, had relied on the recovery memos Ext. PW1/C and Ext. PW9/A relating to the second and third incidents and on the testimony of the witnesses to those incidents. That evidence was specifically inadmissible and could not have been considered.
The petitioner's submission was therefore correct: the appellate court had erred, and the error had materially prejudiced the accused. The judge did not reappraise the admissible evidence himself. “The First Appellate Court is a Court on facts,” he observed, before which a convicted person is entitled to make every submission on the appreciation of evidence. There was no option but to set aside its judgment and send the matter back with a direction to confine itself to the relevant evidence of the first incident and exclude the rest.
Order
The revision was allowed. The judgment of the Additional Sessions Judge-I, Kangra at Dharamshala (Circuit Court at Indora) dated 24 October 2013 was set aside. The matter was remitted to that court, which is to confine itself to the evidence of the first incident and exclude the evidence of the second and third incidents. The parties are to appear before the appellate court through counsel on 18 November 2026, and a copy of the judgment with the records of the courts below is to be sent back forthwith. The order does not touch the trial court's judgment of 24 November 2010; the appeal against it goes back for a fresh decision. The revision was reserved on 8 October 2026 and decided on 26 October 2026, and the judgment is marked as not approved for reporting.