IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 548 of 2003 Date of Decision 25th May ,2011 ________________________________________________________ State of H.P. ….Appellant. Versus Parveen Kumar ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ________________________________________________________ For the Appellant: Ms. Shubh Mahajan, Deputy Advocate General. For the Respondent: Mr. Y.W. Chauhan, Advocate. ______________________________________________________________ Dev Darshan Sud, J (oral) The State challenges the acquittal of the petitioner for offence under Section 354 IPC. The case of the prosecution is that the respondent-accused assaulted one Gangi Devi PW1 who was admitted in District Hospital at Nahan. The prosecution case is that the complainant was admitted in hospital on 29.8.2002 and was in Bed No. 13 in the General ward. She was suffering from numbness of her body below her waist. On 30.8.2002 her husband left her in the hospital and her 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 mother-in-law PW2 Santro Devi was attending the complainant. In the intervening night of 30th and 31st August, 2002 the accused entered the ward of the hospital, switched off the lights, slept in the bed with the complainant and pressed her breast and private parts. She raised an alarm. The complainant’s mother-in-law and other patients of the ward got up. The lights were switched on. The accused fled away from the scene of occurrence. One Usha Devi was also one of the patients and she identified the accused as Parveen Kumar, who had a ‘dhaba’ on the Mall Road, Nahan. The incident was also narrated to the Nurse on duty. In order to prove its case, the prosecution examined six witnesses, out of them three witnesses namely complainant PW1 Gangi Devi, PW2 Santro Devi, her mother-in-law and PW3 Sunder Singh are relevant so far as the occurrence is concerned. Though Smt. Gangi Devi and Smt. Santro Devi have tried to prove the prosecution case, but there are certain contradications in their evidence which are very material and basic and which go to the root of the case. 2. Adverting firstly to the evidence of Sunder Singh, he states that he was on the hospital gate and wards were visible from there. At no point of time he had not seen the lights switched off. He saw that all the lights were switched on. PW2 Santro Devi states that she was sleeping on the same bed with Gangi Devi PW1. In these circumstances, it becomes difficult to accept the case of prosecution that the respondent had slept on the bed of the complainant as it seems to be physically impossible considering that a bed cannnot accommodate three persons. It is also not clear as to whether the respondent was 3 standing near the bed and assaulted the complainant while standing. 3. But the basic point for consideration is that Smt. Usha Devi, who had actually identified the respondent, has not been produced. Why she has not been examined is also not explained. In a number of cases, it has been observed by the Supreme Court that though Courts do not interfere in investigation, yet giving up the star witness who has actually seen the occurrence and identified the culprit is a serious lapse on the part of prosecution which requires to be explained. The blame cannot be apportioned on the Court, which has decided the case on merits. 4. Learned Deputy Advocate General urges that evidence of the prosecutrix cannot be disbelieved as she has no motive to implicate the petitioner herein. She submits that for the same reason, the evidence of PW2 Santro Devi cannot be discarded as both the complainant and her mother-in-law corroborated each other in all material particulars. Accepting this argument, when I considered the evidence of PW1 and PW2 is considered, it is not clear as to how third person came to sleep in the bed, which is already occupied by two persons. Further, the case according to the prosecution is that incident was narrated to the Staff Nurse. No attempt has been made even to examine this witness. It is in the evidence of prosecution that the hospital was over crowded on that day and there were two patients on each bed. In these circumstances, I do not find any force in the submissions made by the State. It has been held more than once that if two views are possible on the evidence adduced in a 4 case, the one favouring the accused should be preferred by the Court(s) more especially in appeal against the acquittal. Appeal stands dismissed. Bail bonds are discharged. May 25th, 2011 (Dev Darshan Sud), ms Judge