IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 254 of 2003 Date of Decision: 28.10.2011 State of H.P. …Appellant. Versus. Rajesh Kumar alias Hachu …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for Reporting? No. For the appellant: Mr. Vivek Thakur, Addl. A.G. For the Respondents: Mr. N.K. Thakur, Advocate. Deepak Gupta, J (oral) 1. This appeal by the State is directed against the judgement dated 17.1.2003 passed by the learned Additional Sessions Judge, Mandi whereby he acquitted the accused of having committed offences punishable under Sections 453, 366, 354 and 323 of the Indian Penal Code. 2. The prosecutrix is an old lady, aged 75 years. She had been a patient of Arthritis for about 30 years when the incident in question took place. The prosecution case is that on 29th October, 2000 at about 9.30 pm PW-2 Sarita Devi daughter-in-law of the prosecutrix (PW-3) had taken her to the 2 bathroom and after her mother-in-law used the bathroom she brought her back and made her sit on the cot. She thereafter herself went to the bathroom to answer the call of nature. When she was inside the bathroom she heard loud calls of her mother-in- law. She came out and noticed that the accused who was her neighbour had caught the prosecutrix and held her in his lap and was taking her outside the house near the verandah. On seeing the complainant PW-2 he immediately threw the prosecutrix on the courtyard which was cemented and ran away from the spot. The prosecutrix received some minor injuries. PW-2 raised a hue and cry and on the alarm being raised by her, Jaimala, Kamla Devi, Prem Lata and Swarna reached at the spot. Thereafter the prosecutrix was taken to the hospital and PW-2 lodged a complaint with the police on the basis of which FIR was registered. Investigation was conducted and after investigation, the accused was charged with having committed offences aforesaid. After trial the accused has been acquitted and hence this appeal by the State. 3. I have heard Mr. Vivek Thakur, learned Additional Advocate General on behalf of the State and Mr. N.K. Thakur, learned counsel for the accused. PW-2 has virtually repeated in her examination-in-chief what was stated by her in the 3 complaint. However, while appearing in Court she also stated that when she saw her mother-in-law the Nara of her salwar was found to be opened. This fact had not been stated by her in the complaint made to the police. The police came on the next day. In cross-examination she stated that the police was informed on telephone about the occurrence by one Chanda Sharma of the village. According to her she did not go to the police station on the night but only went to the hospital on the night of the occurrence. She does not remember at what time the report was lodged by her with the police. She admits that the relations between her family and the family of the accused were strained for more than six years and they were not on visiting and talking terms with the accused. According to her the relations got strained after the accused was involved in a case with some minor girl. She also admits that in 1998 her brother- in-law Yashwant was involved in an altercation with the accused. She goes on to state that her mother- in-law fell unconscious inside the room when the accused struck her waist with fist blows and put his hand in the mouth of the prosecutrix. She was confronted with her statement recorded under Section 161 Cr.P.C. where it was recorded that the accused had carried the prosecutrix on his shoulder 4 whereas in Court the witness stated that the accused had carried the prosecutrix on his lap. 4. The prosecutrix PW-3 aged 75 years stated that after her daughter-in-law had left her in her room the accused came inside the room and she immediately raised an alarm by saying that ‘Hachu’(probably the pet name of the accused) had entered the room. She states that the accused put his hand on her throat and used force against her body and also tried to untie the salwar. She became unconscious and does not know what happened thereafter. She has shown her ignorance about the strained relations between the parties and states that she is not aware about any such strained relations. According to her she regained consciousness one day after the incident. 5. PW-4 Jaimala is also a daughter-in-law of the prosecutrix and according to her on hearing the cries of PW-2, she and other persons came to the site of occurrence and they saw the accused lifting the prosecutrix and throwing her in the courtyard. 6. PW-5 Shesh Ram is a Member of the Gram Panchayat, Datwar. According to him on the next morning i.e. 30th October, 2000 he alongwith Jamna Devi Pradhan was informed by the family members of the prosecutrix about the incident and they then visited the spot. 5 7. PW-7 Anirudh is the son of the prosecutrix and husband of PW-4. According to him when he returned to his house on the intervening night between 29.10.2000 and 30.10.2000 he was informed by his wife that the accused had tried to take away their mother from the room and on being seen he had thrown the mother in the courtyard. He states that thereafter he alongwith PW-2 and some other persons went to the police station where the report was lodged. He further states that the prosecutrix had already been taken to the hospital and shown to the lady doctor. In cross-examination he stated that when he reached the village, Pradhan Jamna Devi had already reached the spot of occurrence. The other witnesses are formal in nature. 8. A bare reading of the statements of the prosecution witnesses clearly indicate that the story of attempt to rape is totally a false story. There was no such allegation in the original compliant and it was much later that this version of the string of the salwar being untied was introduced. One also cannot loose sight of the fact that the prosecutrix is 75 years old and this version of the prosecution that the accused was attempting to rape her is not supported by any evidence. In case he had attempted to rape 6 her why would he have tried to take her across the courtyard towards his house. 9. The only question is whether the prosecution has proved beyond reasonable doubt that the accused is guilty of lurking house trespass and of causing injuries to the prosecutrix. There is no manner of doubt that the version of the prosecutrix and her family is consistent in this regard that the accused allegedly tried to cause some injuries by throwing the prosecutrix in the courtyard and this caused injury to her. The main issue is whether the statements of the witnesses should be believed or not. There is no rule of evidence which suggests that the version of relatives cannot be believed. In fact in a case like the present one where the occurrence allegedly took place in the house the only natural witnesses would be the close relatives. Having held so we are of the opinion that in this case because of the facts proved on record it would be very unsafe to rely upon the testimony of the witnesses. 10. The reasons for not relying upon the testimony of the witnesses are: (1) admittedly there were strained relations between the family of the accused and the complainant side; (2) it stands admitted by the complainant side that for the last six years they were not in talking terms with the accused; (3) that the witnesses are not truthful witnesses because they 7 have made substantial improvements in the statements made in Court. Whereas the initial case set up was of trespass and causing injuries to the prosecutrix during the course of investigation and while recording the evidence in Court a new case was sought to be introduced to implicate the accused in an offence of attempt to rape. 11. The version of PW-2 who is the most important witness that she lodged the FIR cannot be believed because in Court she has stated that she did not visit any other place except the hospital at night. If she had only visited the hospital how the report had been recorded in the police station at 1.30 am. In the main FIR it is recorded that a report was lodged at 1.30 at night. Rapat Roznamcha Ext.PW-8/A shows that it was recorded at 1.30 am. If that was correct then the statement of Sarita Devi that she did not visit any place, other than the hospital, at night is false. The statement of Sarita Devi and PW-7 Anirudh son of the prosecutrix that the prosecutrix was taken to the hospital at night does not appear to be correct because the MLC Ext.PW-1/B shows the date and hours of arrival of the prosecutrix in the hospital to be 10.30 am on 30.10.2000. It is also not understandable that when the statement of Sarita Devi clearly disclosed the commission of a cognizable offence why the FIR itself was not lodged at 1.30am 8 on 30.10.2000. Why was the FIR has recorded at 1.35 pm after 12 hours, is not explained. 12. Keeping in view the aforesaid circumstances we are of the considered opinion that it would be very risky to rely upon the statements of the prosecution witnesses. Therefore, we find no merit in this appeal, which is accordingly dismissed. Bail bonds discharged. ( Deepak Gupta ) Judge. October 28, 2011 (Sanjay Karol) (vt) Judge.