IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.82 of 2003. Date of decision: 23rd December, 2009. State of H.P. …..Appellant. Versus Roshan Lal and another ……Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1No . For the appellant: Mr. Vikas Rathore, Additional Advocate General. For the respondents: Mr. M.L. Brakta, Advocate. Surinder Singh, J (oral). The State has challenged the acquittal of the respondents recorded by the learned trial Court vide his judgment dated 27th September, 2002 for the offences under Sections 294 and 506 of the Indian Penal Code. Precisely, facts giving to the present case can be stated thus. Complainant Radha Sharma was a student of B.A. 2nd year studying in RKMV College at Shimla. She used to attend the classes around 2.40 p.m. It is alleged that the respondents were aware of her to and fro movements. Thus on 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. No. - 2 - 5th August, 2000 they chased her and passed indecent remarks and threatened her to forcibly take her away if she would not talk to them. This pursuit continued for couple of days. Her friends, who used to accompany her, also left her company because the respondents had also threatened them to spoil their lives. Thus the complainant made a written complaint Ext.PA to the Incharge, Police Post, Syari, District Solan. The Incharge of the Police Post sent this complaint to the Police Post, Lakkar Bazar, Shimla, as the alleged incident and offence fell within their jurisdiction. On the basis of this complaint, FIR Ext.PW-3/B was formally registered on 16th August, 2000. The investigation was taken up by PW-3 Head Constable Chander Mani. He took the complainant, lady Constables and PW-5 Constable Himmat Singh along and apprehended Roshan Lal near “Regal Cinema” Lakkar Bazar, Shimla. After his identification and verifying his antecedents, he was brought to Police Post and during his interrogation he disclosed the name of respondent Pappu as his accomplice, who was also called to the Police Post next day. Respondent Pappu was also identified by the complainant. The police recorded the statements of the complainant as well as her sister PW-2 Lata Sharma. On completing the investigation, Challan was put up in the Court for the trial of the respondents. - 3 - Finding a prima facie case, notice of accusations was put to the respondents for the offences aforesaid. The respondents denied the allegations and claimed trial. To prove its case the prosecution examined the complainant and her sister PW-2 Lata Sharma, besides examining the other official and formal witnesses. The respondents were also examined under Section 313 of the Code of Criminal Procedure, their case was denial simplicitor. No evidence in defence was led. At the end of the trial, the respondents were acquitted by the learned trial Court on the ground that there have been material improvements and contradictions in the statements of the witnesses which make the prosecution case a suspect. Shri Vikas Rathore, learned Additional Advocate General, has vehemently argued that there were no material contradictions and improvements which go to the root of the case. Had the trial Court appreciated the evidence of the prosecution in right perspective, it would not have acquitted the respondents. Shri M.L. Brakta, learned counsel for the respondents, supported the impugned judgment of acquittal passed by the learned trial Court. - 4 - I have given my thoughtful consideration to the rival contentions of the parties and reappraised the evidence on record. I find that the prosecution has failed to prove the offences charged beyond a reasonable doubt. In order to secure the conviction for the offence under Section 294 of the Penal Code, the prosecution is required to prove two particulars, viz. (i) the accused has done any obscene act in any public place and has sung, recited or uttered any obscene song, ballad or words in or near any public place; and (ii) has caused annoyance to others. If the act is not obscene or is not done in any public place or sung, recited or uttered any obscene song balled or words in or near any public place or that it has caused no annoyance to others, no offence can be said to have been committed by the accused. In the instant case, neither the complainant in her initial complaint Ext. PA nor during the trial of the case has uttered even a single word to satisfy the ingredients of the aforesaid offence. Although, during her statement before the Court she stated that the respondents had threatened to commit rape or to take her forcibly if she would not talk to them, but this fact does not find mentioned in her earlier version Ext.PA. The complainant in Ext.PA mentioned that the respondents had also been threatening her friends that in case they would accompany her, they would also spoil them, but - 5 - none of her friends was examined to corroborate her version. Further, I find a material contradiction in her statement before the Court and her initial complaint Ext.PA. As PW-1, she stated that on 5th August, 2000 her sister PW-2 Lata Sharma had been accompanying her, whereas this fact does not find mentioned in the complaint (Ext.PA). In the cross-examination, she admitted that she did not state anything about the threatening to commit rape by the respondents but stated that the respondents had been chasing her right from Lakkar Bazar to the bus-stand, whereas PW-2 Lata Sharma made another version. She stated that PW-1 had been making the complaint to her about the respondents. Thus she came to Shimla alongwith her as she was also to take the security amount from the College. On 16th August, 2000 when she was accompanying her sister two boys caught hold of her from the arms and started doing obscene acts. Thus, the complaint Ext.PA was filed by the complainant in Police Post, Syari on the same day, whereas it was filed on 14th August, 2000, as stated by PW-4 ASI Bhup Ram. She further stated that the respondents were caught by the police at Bus-stand Lakkar Bazar, whereas PW-3 Head Constable Chander Mani and PW- 5 Constable Himmat Singh stated that only one of the respondents, i.e., Roshan Lal was caught hold by them near “Regal Cinema”, which is a material contradiction. It shows that PW-2 was not with PW-1 and her version is incorrect. Further, - 6 - PW-1 Radha Sharma also did not say anything about the incident allegedly having taken place on 16th August, 2000. Even the name of respondent No.2 does not find mentioned in Ext.PA/FIR On culling the evidence, I find the statements of the complainant and her sister Lata Sharma contradictory to each other with respect to the offences charged which cannot be made basis to convert the acquittal into conviction of the respondents. For the foregoing reasons, the findings of acquittal recorded by the learned trial Court cannot be interfered with as these are borne out from the evidence on record. As such, the appeal is dismissed. The bail bonds entered upon by the respondents at any stage during the proceedings of this case shall stand discharged. December 23rd, 2009 (Surinder Singh),J. (rc)