IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 157 of 2004 Date of Decision : July 19, 2010 State of H.P. …Appellant v. Narbir Singh & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Ram Murti Bisht, Dy. A.G. For the respondents: Ms. Nishi Goel, vice Mr. Shrawan Dogra, Advocate. Sanjay Karol, J. (Oral) . For an offence which is alleged to have been committed on 18.7.1998, accused were put to trial. In terms of judgment dated 15.5.2001 passed by learned Judicial Magistrate Ist Class, Chopal Distt. Shimla, in Crl. Case No.161-1 of 1998, titled as State of H.P. vs. Narbir Singh & Ors., the accused stand acquitted of the charged offence. 2. On 18.7.1998 at about 2.00 p.m. accused Surinder Singh along with accused Narbir and Devinder Singh in furtherance of a common intention assaulted PW-3 (name not disclosed) with an intention to outrage her modesty. They not only committed the crime of outraging her modesty but also 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 caused grievous and simple hurt to her and her husband. Sh. Bhupinder Singh (PW-2) who arrived at the spot after hearing the cries of PW-3. The matter was reported to the police by PW- 3 on the basis of which F.I.R. dated 19.7.1998 (Ext.PW-6/A) was recorded with the Police Station, Chopal under Sections 323 & 354/34 IPC against the accused persons. The shirt worn by PW-3 which was torn by the accused persons and was stained with blood was also taken into possession by the police during the course of the investigation. One of the dandas (Ext.P-3) with which the accused had allegedly given beatings to the complainant party was also taken into possession by the police. PW-3 and her husband were got medically examined at Civil Hospital, Nerwa and the medical report (Ext.PW-5/A) issued by Dr. Sudershan Thakur (PW-5) was taken on record. 3. With the completion of the investigation challan was presented in the Court for trial. The accused persons were charged for having committed an offence punishable under Sections 323, 325 & 354 read with Section 34 IPC to which they did not plead guilty and claimed trial. In order to prove its case prosecution examined 8 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. The Court below acquitted the accused of the charged offence, hence the present appeal. 4. As per the medical record proved on record and also the statement of the Doctor Sudedrshan Thakur (PW-5), there is 3 no doubt that both PW-3 and her husband PW-2 had injuries on their body. This however would not mean that the same were caused by the accused persons in the alleged incident. The prosecution has to link the accused to the charged offence by leading clear, cogent and convincing material. The Doctor has opined that it cannot be said with certainty that the injuries could be caused by a particular weapon. He has also opined that the same could be caused due to fall on hard surface. 5. The incident is alleged to have been witnessed by Sh. Beer Singh (PW-1), Sh. Ram Lal (PW-7), Sh. Sandeep (PW-8) and one Smt. Pushpa who was not examined in the Court. 6. PW-1 & PW-7 have not supported the case of the prosecution and inspite of having been extensively cross- examined by the Public Prosecutor nothing material has come out in their statements which would even prima facie link the accused to the alleged incident. 7. PW-8 has to some extent supported the prosecution. He has simply stated that he saw the accused persons give beatings to his ‘Bhabi’ (Smt. Krishna Devi) and he intervened to save her. The statement of this witness cannot be relied upon to prove the prosecution case for the simple reason that in his cross-examination he admits that he has got enmity with the accused persons and that a case in which he is an accused is pending in the Court and that in the said case the accused persons are the witnesses. He also admits that the said matter 4 arises out of prior animosity between him and the accused persons. 8. Nonetheless, the version of this witness renders the version given by both PW-2 & PW-3 to be doubtful. He has not said anything about the presence of PW-2 on the spot. He is silent about the fact that which of the accused persons had given beatings. He does not whisper anything about the incident of outraging of modesty of PW-3 by the accused persons. 9. As per the version of PW-3, while she was working in the field the accused persons with a common intention had come to outrage her modesty. Now this version of hers stands contradicted by herself as also her husband. In her cross- examination she admits that accused No.1 Narbir Singh and accused No.3 Devinder Singh reached the spot only after her husband had reached at the spot. Now if this were true then obviously it cannot be said that all the accused persons had any common intention of outraging the modesty of PW-3. 10. Further, according to PW-3 she was given beatings by the accused with a danda. Now this version is not supported by PW-8. Further recovery of danda at the spot is doubtful. The police had arrived at the spot much after the incident and Sh. Lachhi Ram (PW-4) witness to the alleged recovery of the danda does not support the prosecution. The same being planted by someone else cannot be totally ruled out. 5 11. The version of Sh. Bhupinder Singh also does not inspire confidence. He does not state anything about the outraging of modesty by the accused persons. In fact both PW-2 & PW-3 have admitted that there is animosity between them and the accused persons. Statements of the witnesses of the complainant party do not inspire confidence. This inquiry cannot be linked to the alleged incident. Hence, it cannot be said that prosecution has been able to prove its case by leading clear, cogent or convincing material on record. 12. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down in Mohammed Ankoos and others vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94, it cannot be said that the Court below has not correctly appreciated the evidence on record or that acquittal of the person has resulted into travesty of justice. No ground for interference is called for. The present appeal is dismissed. Bail bonds, if any, furnished by the accused are discharged. July 19, 2010. (Sanjay Karol) (rana) Judge.