Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 408 of 2003. Dated of Decision: September 8, 2010. State of H. P. …… Appellant. Versus Prem Chand. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. A.K. Bansal, Additional Advocate General with Mr. J.S. Rana, Assistant Advocate General. For the Respondent : Mr. Chaman Negi, Advocate vice Mr. Anup Chitkara, Advocate. Surinder Singh, J. (oral) : The conviction and sentence passed by the learned trial Court for the offence punishable under Section 354 of the Indian Penal Code was reversed by the learned Sessions Judge in Criminal Appeal No.21-K/X of 2001 filed by the respondent on 1.7.2003, hence the instant appeal by the State. 2. In nutshell the case of the prosecution as emerges from the evidence on record can be stated thus. The respondent was a revenue Patwari. He had joined, about 10 days before the alleged incident, in Patwar - 2 - Circle Dagoh. The evidence on record shows that there were two factions in the village, one headed by Matwar Singh and another by complainant party. The complainant party was not happy with the transfer of respondent in their Patwar Circle, which was allegedly got done at the instance of Matwar Singh group. 3. The defence raised is that Matwar Singh had called the respondent for dinner and after taking dinner, respondent was given torch by Shri Matwar Singh and left to his residence in Patwarkhana, which was about one kilometer. On the way, fell the house of complainant. Complainant accompanied by Sanjay Kumar met him on the way. Both were totally drunk. Respondent was asked by them as to who was and identified him in the light of the torch and picked up the quarrel with him. Since his posting was objected to by the complainant party, as such he was given thrashing badly with the result he fell unconscious. He was left by them in the Patwarkhana. Next morning, the matter was reported to Tehsildar by the Chowkidar (DW2). Tehsildar alongwith some villagers took the respondent to Civil Hospital Palampur, from where he was referred to Zonal Hospital, Dharamshala, for the management of his injuries. Thinking that the injuries sustained by the respondent were serious in nature, - 3 - apprehending that he might die and apprehended their implication, as such, PW2 Puran Chand lodged the FIR with the police on 26th July, 1996, alleging that during the intervening night of 24th and 25th July,1996, he was sleeping in his house in village Dagoh alongwith his daughter PW1 Prosecutrix, aged about 10 years. While they were asleep, the complainant heard the knocking of the door. The door was opened. It was respondent who requested to provide shelter. The complainant offered him a bed in the ground floor, whereas the complainant alongwith his daughter slept on the first floor in the ‘Bohar’( a room in the upper storey). During midnight, the complainant Puran Chand woke up on the call of his daughter. She complained that her Salwar had been removed by the respondent. Immediately thereafter, a complaint was made to the Pradhan of the Panchayat during the night. The respondent is alleged to have admitted his guilt and confessed in writing. Later the matter was alleged to have been reported to Tehsildar. next day i.e. on 25th July, 1996. 4. On the statement Ex.PA of the prosecutrix, police lodged report on 26.7.1996. PW2 Puran Chand, complainant handed over a vest Ex.P1 alleged to be that of the respondent, which was taken into possession by the - 4 - police vide memo Ex.PW2/A. Statement of the prosecutrix was converted into FIR under Section 354 of the Indian Penal Code in Police Station Baijnath. Police prepared the site plan and recorded statements of the witnesses and after completing the investigation, the challan was presented in the Court for the trial of the respondent. 5. The respondent was charge-sheeted for the aforesaid offence and at the end of trial, he was convicted and sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs.1,000/- with default clause. The respondent felt dissatisfied by the judgment of the conviction and sentence, hence filed an appeal before the learned Sessions Judge. 6. The learned Sessions Judge reappraised the evidence on record and set-aside the judgment of conviction and sentence, resulting into the acquittal of the respondent. 7. Shri A.K. Bansal, learned Additional Advocate General duly assisted by Shri J.S. Rana, learned Assistant Advocate General vehemently argued that the learned Sessions Judge took the hyper-technical view for acquitting the respondent, whereas the statement of the prosecutrix was duly corroborated by the statement of her - 5 - father and other witnesses, therefore, there are grounds to convert the acquittal into conviction. 8. Contra, Shri Chaman Negi, learned counsel for the respondent supported the impugned judgment of acquittal. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 10. It stands established on record that the respondent was found unconscious and in an injured condition in the Patwarkhana in his residence on 25.7.1996 at about 8 a.m., which fact is substantiated by DW2 Kirla Ram, Chowkidar, who in turn had reported the matter to the Naib Tehsildar DW3 Milkhi Ram, which fact has also been admitted by DW3 above. He testified that on receiving the message, he visited the spot and found the respondent in an injured condition and removed him to Civil Hospital in a Taxi with the help of few other persons. Though he had tried to enquire from the respondent as to what had happened, but the respondent was not in a position to speak. The doctor informed that he would treat the injured only after the matter is reported to the police. Since the respondent was not in a position to speak and was serious, FIR with respect to injuries sustained by him - 6 - could not be got registered. Naib Tehsildar assured when the respondent would gain consciousness and would be able to make statement himself, he would inform police. Thereafter the doctor medically examined the respondent. This fact also stands corroborated by the statement of DW5 Dr. Vineet Agarwal to whom the appellant was taken for treatment. He stated that the respondent was got admitted in the hospital at Palampur on 25.7.1996 from where he was referred to the Zonal Hospital, Dharamshala at 5 p.m. on 26.7.1996. He proved the documents Ex.DW5/A to C to this effect. The respondent remained hospitalized till 30th July, 1996. The grievous injuries sustained by the injured were noticed as follows:- (i) Fracture lower and right ulna; (ii) Stitched wound scalp; and (iii) Fracture transperse L2 right side. To this effect, certificate was proved by DW4 Dr. S.M. Mehta of Zonal Hospital, Dharamshala. 11. The prosecution story did not reveal that after the alleged incident, as projected by PW2 Puran Chand the respondent was given beatings either by him or the villagers, nor there is a case with respect to the alleged confession made by the respondent orally or in writing, - 7 - rather, it was their case that during the night a report was made to the local Panchayat and thereafter to the Tehsildar but no such complaint found the light of the day nor Tehsildar testified it. There is also no case of the prosecution that the respondent had sustained injuries due to fall except that of the statement of the Investigating Officer PW7 Dhian Chand. 12. The condition of the respondent was stated to be critical when he was noticed by DW-2 Kirla Ram Chowkidar and also by PW3 Milkhi Ram Naib Tehsildar lying in his residence and this fact is also clear from the nature of the injuries sustained by him. To manage the injuries, the respondent was referred from Civil Hospital Palampur to the Zonal Hospital Dharamshala. 13. Thus against the above background, possibility cannot be ruled out that on coming to know about the critical condition of the respondent, PW2 Puran Chand might have fabricated a false story against the respondent for which he had a time to deliberate. 14. The prosecutrix alleged about molestation, but pertinently in her cross-examination, she admitted that the respondent after taking dinner in the house of Matwar Singh, (who was also stated to be the Vice-President of the Panchayat and admittedly from a rival group) was - 8 - returning to his residence around 9-10 p.m. but she expressed her ignorance that a dispute had been taken place between the respondent and her father and also that her father gave beatings to the respondent and he was left high and dry in the injured condition in the Patwarkhana. Significantly, she admitted that she was sleeping alone in the room and the door was bolted from inside. She did not say that her father was also sleeping in the same room. 15. Now coming to the story as propounded by PW2 Puran Chand, which is also subject to a lot of criticism. PW-2 Puran Chand the father of the prosecutrix stated that someone had knocked at the door violently. On opening the door, respondent entered inside and Puran Chand asked him where he had been in the dead night. On this, respondent told him that he was coming from the house of Matwar Singh, since it had become dark, he requested the complainant to provide him shelter. On this complainant provided him a bed in the room in ground floor and he alongwith his daughter slept in the first storey in the ‘Bohar’. As stated above, this statement of the complainant is in sharp contradiction with the statement of the prosecutrix. He further stated that after sometime, respondent came on the roof of the house, on the pretext - 9 - that he had some matter to discuss with him. On this, he (complainant) told the respondent that he should go to sleep and discuss the matter in the morning. After some discussion, respondent went to his room. Around 1.00 a.m., when he was a sleep, he woke up on hearing some sound, it was then the prosecutrix told that the respondent had tried to molest her. He scolded the respondent, who then fled away from the spot. While escaping, he could only capture his torch and under vest. On 25.7.1996, he is said to have reported the matter to the Tehsildar, which fact has not been corroborated by Tehsildar. He further stated that the respondent admitted his guilt and pleaded to be pardoned, but again in view of the statement of the doctors and the Naib-Tehsildar, as discussed above the respondent was not in a position to talk on 25.7.96 as he was seriously injured and was serious, therefore his version does not inspire confidence. He further stated that on 26.7.1996, he reported the matter to the police and handed over the vest to them, which was taken into possession vide memo Ex.PW2/A. 16. In his cross-examination, he admitted that there are two factions in his village. One is headed by Man Singh and another by Matwar Singh, however he denied that respondent was got transferred in their Patwar Circle - 10 - by Matwar Singh group, but he admitted that Matwar Singh had invited the respondent for dinner and after obtaining his torch, he was going to the Patwarkhana, which fact also corroborated by the statement of the prosecutrix, as discussed above. He also admitted that his house fell in between the house of Matwar Singh and Patwarkhana. He denied that he gave beatings to the respondent, he fell unconscious, thereafter he was left in Patwarkhana, but however, stated that he was handed over to the Panchayat members during the night around 3 a.m. where he gave written apology. It is pertinent to note that said writing, or the complaint made to the Panchayat was also not produced to lend strength to his version, thus, statement of PW2 caused a serious dent in the prosecution story. It is further significant to note, he admitted that next day, Tehsildar Jaisinghpur and some employees of the SDM Court had visited Patwarkhana, but he expressed his ignorance that the Chowkidar had made report to the Tehsildar about the condition of the respondent and also that in the same condition the respondent was removed to the local hospital at Palampur from where he was referred to Zonal Hospital Dharamshala. However, he admitted that this news was published in the newspaper, but according to him he was - 11 - the author of the said news which again appears to be improbable. He denied the suggestion that since the condition of the respondent was serious on account of fatal injuries caused to the respondent by him, as such, in order to save himself, he manipulated this case against the respondent. He also contradicted himself that a report was given to the Panchayat which was handed over to the police, but no such complaint was found on the file. With respect to handing over the torch to the police, he stated that he did not hand over the torch to the police, because it belonged to him which was lent by his children to Matwar Singh, which fact when confronted with the statement under Section 161 of the Code of Criminal Procedure, did not find mentioned. 17. It has also come in the evidence that the complainant besides the prosecutrix was having two other children i.e. one daughter and a son. He did not say as to where, they were sleeping on that night. 18. PW3 is the mother of the prosecutrix. She stated that during the night of 24th and 25th July, 1996, she was not at her residence. She had gone to the house of her sister at Drang. Except her own statement, there is no other evidence on record. Neither this fact was stated by the prosecutrix nor her father. PW4 Milap Chand stated - 12 - that he was informed by one PW6 Sanjay Kumar about the alleged incident having taken place with the prosecutrix. Statement of Sanjay Kumar aforesaid is also shrouded with doubts. 19. The statement of PW6 Sanjay Kumar is also full of embellishment and improbabilities. He was running a shop in village Dagoh at a distance of about 25 feet from the house of the prosecutrix. He gave a different story. Prosecutrix and her father (PW2), stated that they were sleeping in the ‘Bohar’ (a room) on the upper storey, but according to PW6 they were sleeping on the roof of the ground floor. He was attracted by the cries and he could see that the prosecutrix was weeping and was not having her trouser, which is contrary to the version given by the prosecutrix as she did not state that her Salwar was put off and was naked. He further stated that Puran Chand PW2 told him to call for Pradhan and he brought Milap Chand, Pradhan on the spot alongwith one ward member Parshottam, which fact was not stated either by the prosecutrix or her father (PW2). He also stated that at that time, respondent was pleading for mercy. But this fact is absolutely contrary to the statement of Puran Chand, who has stated that when he woke up on the cries of the prosecutrix, the respondent had fled away from the spot. - 13 - He also admitted in the cross-examination about the existence of two factions in the village and also the fact that the respondent was transferred to Patwar Circle Dagoh and had joined just 8 days before the alleged incident, but however he pleaded his ignorance that Man Singh was not happy with the transfer of the respondent as Patwari in that Patwar Circle. He also expressed his ignorance that on 25.7.97(date wrongly mentioned as it should be 25.7.1996) the respondent was found in unconscious condition in the Patwarkhana and he even did not hear that the Tehsildar and other employees visited in the Patwarkhana Dagoh and also about the fact that the respondent was removed to the hospital. He also stated that the respondent had admitted his guilt in writing before the Pradhan, but that writing, as already stated above was not produced during the trial of the case. He was also confronted with his statement recorded under Section 161 of the Code of Criminal Procedure wherein it was not recorded that when he reached the spot, respondent was also present in the house of the complainant. He further contradicted himself that when Milap Chand Pradhan had visited the house of the complainant Puran Chand (PW2), the respondent was not there, but was in the house of Matwar Singh. - 14 - 20. PW7 SI Dhian Chand is Investigating Officer. He is alleged to have visited the aforesaid village on 26.7.1996 in another FIR No.68/96 for investigation. It was only then the prosecutrix is alleged to have made her statement Ex.PA. It is not understood why the complainant did not report the matter on 25.7.96 in the police station. Even in her statement, there was no reference of informing the Panchayat prior to said statement nor about confessing the alleged guilt by the respondent. PW7 aforesaid also contradicted PW2 Puran Chand that on 26.7.1996, he had given a report in the Police Station in writing rather he stated that Puran Chand was not present on the spot on the day. He also did not state that any attempt was made by him to procure the presence of the respondent in order to find out the facts from the respondent. According to him, immediately after the incident, respondent was not traceable. He was on medical leave, whereas, he was admitted in the hospital at Palampur and then referred to Zonal Hospital Dharamshala and where he remained admitted till 30.7.1996, whereas he was hospitalized and a news item had also appeared in the daily newspaper as stated above. According to him after about 20 days i.e. on 16.8.1996, pursuant to the Hukumnama, the respondent is - 15 - stated to have joined the investigation. Even on that day, he deposed that he was in good condition despite the fact that the respondent was having fracture of his lower end of right Ulna and L2 of the right side and his right hand was plastered. He further stated that he had sustained injuries as he fell from stairs, whereas none of the witnesses have stated so, which means that the investigation was not fair and the prosecution witnesses have kept hidden something like an iceberg, and suppressed reality. 21. Further PW10 Himal Singh of the same village is alleged to have noticed the respondent during the intervening night of 24th/25th July, 1996 around 2.10 a.m. sitting outside in his compound, who was only wearing the underwear. He asked his identity and also told Puran Chand as to who was he. On this Puran Chand asked him to identify the man, but he could not identify him. On this, Puran Chand told that he was the respondent Patwari and it was thereafter PW2 stated that he had tried to molest his daughter, which version goes against the statement of PW2 aforesaid, as he with one breath stated that the respondent had fled away then stated he was taken to Pradhan where he confessed his guilt. Although, in his cross-examination he admitted that the respondent was in an injured condition and was not able to walk. He - 16 - also blown hot and cold in the same breath and admitted that on 24.7.1996 he did not see the respondent anywhere and then again stated that he noticed him at about 2.10 a.m. in the compound of his house. 22. The respondent himself examined as DW1 after seeking permission from the Court under Section 315 of the Code of Criminal Procedure and corroborated the defence version. He stated that after taking meals in the house of Matwar Singh, on his return he came across PW2 Puran Chand and Sanjay Kumar and on having asked as to who he was, he gave them his identity and thereafter they picked up a quarrel and was given severe beatings due to which, he fell down and fell unconscious. Thereafter they left him in the Patwarkhana and he regained his consciousness on 26.7.1996 and found himself in the hospital. He further stated that on 26.7.1996, PW2 Puran Chand and PW6 Sanjay Kumar came to the hospital and told him not to lodge any report against them and they would effect the compromise, but when he was referred to Zonal Hospital, Dharamshala, thinking that he would die, lodged a false complaint against him. Although in the cross-examination, he has stated that he did not lodge the report against the complainant party, but a false case was registered against him by them. - 17 - 23. On the critical examination of the aforesaid evidence, I find that the case of the prosecution is full of contradictions exaggeration and embellishment. The complainant party appears to have engineered a case against the respondent, may be due to the fact that the transfer of the respondent was got done by Matwar Singh group, or that in the fit of intoxication, PW2 Puran Chand and Sanjay Kumar some arguments ensued and they gave beatings to him. Finding the condition of the respondent serious, they lodged the present case to shield themselves, in case he would have died. 24. In the circumstances aforesaid, I find that a reasonable doubt has arisen with respect to the story as projected against the respondent for proving the offence punishable under Section 354 of the Indian Penal Code and I concur with the findings by the learned Sessions Judge to this effect. As such, the interference in the impugned judgment of acquittal is uncalled for as it is borne out from the record. In result, the appeal filed by the State fails and the impugned judgment of acquittal is upheld. The matter stands disposed of. 25. The respondent is discharged of his bail bonds, entered upon by him at any stage during the proceedings of the case. Send down the records. September 8, 2010 (Surinder Singh) (Pds) Judge.