IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 317 of 2001 Date of Decision : 24.4.2008 State of H. P. …Appellant. Versus: Vijay Kumar …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For the respondent : Mr. Janesh Gupta, Advocate vice Mr. Neeraj Gupta, Advocate. Sanjay Karol, J. (Oral). The present appeal arises out of the judgment dated 11.12.2000 passed by the Judicial Magistrate Ist Class, Kasauli at Solan, H. P., in Criminal Case No. 358/2 of 1999/94, titled as State v. Vijay Kumar, acquitting the accused of the charged offences under Sections 354, 453 & 506 IPC. As per the case of the prosecution, on 30.1.1994 at about 2.00 A.M. the accused in village Dhadyan Ghat, Police Station Parwanoo with criminal intent entered the house of complainant Lata Devi (PW-4) and outraged her modesty and 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 also criminally intimidated her. The matter was reported by the complainant vide complaint Ext.PW-4/A and based thereupon FIR No. 9/94, dated 3.2.1994 Ext.PW-6/B was registered with Police Station, Parwanoo under Sections 454, 354 & 506 IPC. Upon receipt of the said information, the investigation was carried out. The bangles allegedly belonging to the complainant broken at the time of occurrence of offence, were recovered vide Recovery Memo Ex.PW-3/A. With the completion of the investigation, the challan was presented in the Court for trial. The accused was charged for the offences under Sections 452, 354 & 506 IPC, to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 8 witnesses and statement of the accused under Section 313 Cr.PC was also recorded and as per the defence of the accused he was falsely implicated due to prior animosity. Appreciating the material on record, the Court below acquitted the accused of the charged offences for the reason that two of the material spot witnesses were declared hostile and did not support the prosecution case and the sole testimony of PW-4 was not sufficient to prove the prosecution case beyond reasonable doubt for the reason that there were major improvements and contradictions in her statement which were fatal to the prosecution case. 3 I have heard the learned counsel for the parties and perused the record. Ext.PW-4/A is the complaint written by Smt. Lata Devi (PW-4) in her own handwriting which was lodged with the Police Station, Parwanoo on 3.2.1994. It is important to notice that the alleged incident is stated to have taken place on 30.1.1994. In the said complaint the complainant has categorically written that while she was sleeping with her husband in her house, on 30.1.1994 at about 2.00 P.M., the accused entered her house and with one hand caught hold of the complainant by her arm and put the other hand on her breast when she cried and shouted, her husband woke up and rescued her from the accused. Hearing her cries, even her brother-in-law came along with another person. However, the accused ran away from the spot. However, as per the sworn testimony of Smt. Lata Devi (PW-4), there are major variations and contradictions in her statement. In the Court she has denied having made any complaint wherein it was written that she was sleeping in her house with her husband at the time of alleged incident. She has also denied that her husband had saved her from the clutches of the accused at the relevant time. Importantly, Ext.PW-4/A has been written by the complainant in her own hand. Therefore, her sworn testimony cannot be believed to hold the accused guilty of the charged offence beyond reasonable doubt. Further, 4 in Court she has deposed that the accused had given a bite on her cheek which fact also does not find mention in her complaint. There is no medical evidence to corroborate this part of her statement. From the record, it is evident that the statements of Bala Ram husband of the complainant and Balwant were also recorded by the police during the course of the investigation but however, they were not examined by the prosecution during trial. In addition S/Shri Parkash Chand (PW-1) and Sheesh Ram (PW-2) who, as per the prosecution case were present at the site, have not supported the case of the prosecution at all and inspite of extensive cross-examination by the Public Prosecutor, they were declared hostile. The witnesses have not deposed anything from which the complicity of the accused in the charged offence can be ascertained. Shri Ram Rattan (PW-3) witness to the seizure memo Ext.PW-3/A no doubt has supported the prosecution case to the extent of the recovery of the bangles allegedly belonging to the complainant but that by itself would not prove the guilt of the accused beyond reasonable doubt. Shri Prem Singh (PW-5) another witness to the seizure memo Ext.PW-3/A however has not supported the case of the prosecution and was declared hostile. Inspite of cross- examination by the Pubic Prosecutor, there is nothing in his 5 testimony which would implicate the accused of the charged offence. S/Shri Ved Parkash (PW-6 & Padam Chand (PW-7) are police officials whose testimonies are formal in nature. Shri Amarjeet Singh (PW-8) is the Investigating Officer who carried out the investigation. According to him, he received application Ext.PW-4/A and Rukka Ext.PW-6/A was sent on the basis of which FIR Ext.PW-6/B was registered. He has deposed that 13 pieces of broken bangles were recovered by the police vide recovery memo Ext.PW-3/A. Even with regard to the recovery of these bangles, there is contradiction in the statements of PW-4 & PW-5. According to the seizure memo, the bangles were recovered from the spot, however, as per the statement of PW-3 they were handed over by the complainant to the Investigating Officer which fact has also been admitted by the complainant. Further, there is a delay in reporting the matter to the police. The alleged incident is stated to have taken place on 30.1.1994 and the matter was reported only on 3.2.1994. The complainant has justified the delay by stating that she had made futile attempts to lodge the complaint with the Panchayat therefore, the complaint was filed on 3.2.1994. The complainant has admitted that prior to the occurrence of the alleged incident, the police had visited the spot in relation to the quarrel which had taken place between the mother-in-law of the accused and the complainant. According to her, the matter was reported to 6 the police then the police visited to the village in relation to the inquiry of the said incident. Her justification is unbelievable for the reason that this fact is missing in the complaint itself. The testimony of PW-4 cannot be relied upon for the reason that there are major improvements and contradictions and keeping in view the background that there is prior complaint and animosity between the two families. Her statement does not inspire confidence and cannot be relied upon to convict the accused of the charged offence. It cannot be said that the prosecution has been able to prove the case beyond reasonable doubt. The accused has had the advantage of having been acquitted by the Court below. The material has been appreciated by the Court below in its entirety. I see no reason to interfere with the same and the appeal is accordingly dismissed. Bail bonds stand discharged. ( Sanjay Karol ), Judge. April 24, 2008 (rana)