1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 18 of 2005. Judgment reserved on : 20.09.2011. Date of decision: 20.10.2011. Bakshi Ram. ......Petitioner. Versus State of H.P. ......Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. M.S.Guleria, Advocate. For the Respondent : Mr.J.S.Rana, Asstt. Advocate General. Kuldip Singh , Judge. This revision is directed against the judgment dated 19.01.2005 passed by learned Sessions Judge, Mandi, in Criminal Appeal No. 4 of 2003 affirming judgment dated 13.02.2003 passed by learned Chief Judicial Magistrate, Mandi, in Police Challan No. 362-1/ 2000 convicting and sentencing the petitioner to undergo rigorous imprisonment for six months and pay a fine of `5,000/- and in default of payment of fine, he shall also undergo simple imprisonment for further six months under Section 354 IPC. 2. The prosecution case, in brief, is that on 11.09.2000 PW-1 made a statement Ext. PW1/A under Section 154 Cr.P.C that on 09.09.2000, she had gone to Mandi along with her friend PW-2 for purchasing some articles and after purchasing articles at 'Indira Market', when she was going to take clothes from a tailor near Post Office, 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Mandi, two boys started following her and their talks were obscene. One boy putting his hand on her shoulder started pulling her. He asked her to accompany him to perform marriage in the Court. She protested and on this that boy told that he is also a man. The complainant and her friend out of fear came back , but accused again followed them, they were talking in obscene language. At about 1.30 p.m., when they reached near 'Gandhi Bhawan' gate, then that boy again put his hand on her both shoulders and started using criminal force with the intention to commit offence and compelled her to marry him in the Court. The duty constable who was in uniform at that place caught hold of that boy and took him away. 3. It is also the prosecution case that complainant had earlier seen that boy in Mandi bazaar. The friend of that boy had uttered obscene words. The complainant along with her friend went to her mother, who was in the hospital and complainant narrated the incident to her. The names of boys were found to be Bakshi Ram and Parakash Chand. The complainant believed that incident had taken place at the instance of Parkash Chand. The accused had insulted the complainant with the intention to outrage her modesty. The complainant had not received any injury on her person. 4. The complainant during night received threatening phone calls. Parkash Chand had been earlier compelling the complainant to marry her sister Dharma. On this, a case under Sections 354, 506 read with Section 34 IPC was registered at Police Station, Sadar, Mandi. On completion of investigation, challan was filed. 5. The notice of accusation was put to the accused persons, 3 which was denied. The prosecution examined 7 witnesses and produced some documents. The statements of accused were recorded under Section 313 Cr.P.C. They led no evidence in defence. The accused Parkash Chand and Ajit Kumar were acquitted, but petitioner Bakshi Ram was convicted by learned Chief Judicial Magistrate for offence punishable under Section 354 IPC and sentenced as noticed above. He was acquitted for offence punishable under Section 506 IPC. The learned Sessions Judge dismissed the appeal on 19.01.2005, hence present revision. 6. I have heard Mr. M.S.Guleria, Advocate, learned counsel for the petitioner and Mr. J.S.Rana, learned Assistant Advocate General for the respondent and have also gone through the record. Mr. Guleria has submitted that the two courts below have mis-construed and mis- interpreted the evidence on record. There is unexplained delay in lodging the complaint. The prosecution witnesses have made improvements. No case under Section 354 IPC has been proved against the petitioner. Mere proposal for marriage is no offence. In alternative, he has submitted that petitioner may be given benefit of probation. 7. The learned Assistant Advocate General has submitted that two Courts below have rightly appreciated the evidence on record. There is no perversity in the impugned judgment. The evidence has been rightly appreciated. The evidence cannot be re-appreciated in revision. He has prayed for dismissal of the revision. 8. The complainant has appeared as PW-1. She has stated that on 09.09.2000, PW-2 was accompanying her, Bakshi Ram and another boy were following them and were conversing in obscene 4 language. A little away from Post Office, Bakshi Ram caught hold the complainant from shoulder and asked her to spend night with him on payment of ` 1,000/- or marry him by performing Court marriage, she objected. He said he is also a man. Out of fear, the complainant and her friend did not proceed further and returned, but Bakshi Ram near 'Gandhi Bhawan' caught hold her from shoulder and asked her to marry him, she objected. On this Bakshi Ram slapped her. She narrated the incident to her mother in the hospital. On inquiry, she came to know the name of accused as Bakshi Ram. 9. PW-1 continued that she reported the matter to the police along with her mother on 11.09.2000. In cross-examination, she has stated that occurrence took place on 11.09.2000. She had no talk with Bakhsi Ram before the incident. On the date of occurrence after the occurrence, she came to know the name of accused which was disclosed to the police on the same day. The occurrence took place at about 1/1.30 p.m. during the day. Many persons were present at the place of occurrence. One person in uniform witnessed the incident, who caught the accused. The Police Station is nearby. She reported the matter at the Police Station, her mother and friend accompanied her to the Police Station. 10. PW-2 has stated that she does not remember the date, but the year was 2000, Bakshi caught hold PW-1 from shoulder and pulled her and asked her to marry him in the Court and spend night with him on payment of `1,000/-. He caught PW-1 from shoulder and pulled her near 'Gandhi Bhawan' and slapped her. A person who was in uniform caught Bakshi Ram and took him away. They went to hospital, the 5 mother of PW-1 came and matter was reported to the police. In cross- examination, she has stated that report was lodged on the date of occurrence. It took them about 10 minutes after the occurrence for lodging the report. 11. PW-3 Narender Sharma has stated that he sells cigarettes and newspapers near 'Gandhi Bhawan'. In September, 2000, during day time in front of his shop, one boy and one girl were having altercation. The boy slapped the girl and the girl also slapped the boy. PW-4 Basanti Devi mother of the complainant has stated that she accompanied her daughter and lodged the report in the Police Station. PW-5 Khem Chand has stated that he was posted at Police Post in the city. In September, 2000, he was on duty at 'Chohata' bazaar, two boys slapped the girl, then girl slapped the boy. He asked the boy why he has done the mischief, the boy said it was their internal matter. The girl did not approach him. 12. PW-6 SI Kirpa Ram has proved FIR Ex. PW6/A. PW-7 ASI Rattan Chand recorded the statement under Section 154 Cr.P.C Ex. PW1/A on 11.09.2000 of PW-1. The petitioner in his statement under Section 313 Cr.P.C. has stated that Parkash Chand had relations with the sister of PW-1 which got strained, Parkash Chand is his friend and, therefore, he has been falsely implicated in a false case. 13. Ex. PW1/A is the statement of PW-1 under Section 154 Cr.P.C. recorded on 11.09.2000. In this statement, it has not been stated what specific obscene words were uttered by petitioner nor it has been stated that petitioner asked PW-1 to spend night with him on payment of `1,000/-. It has also been stated that till the date of recording the statement Ex. PW1/A, PW-1 was enquiring about the name of that boy 6 and then came to know the name of petitioner Bakshi Ram. In the Court, PW-1 and PW-2 have not stated specific obscene words uttered by the petitioner. PW-3 is a shopkeeper, who sells cigarettes and newspapers near 'Gandhi Bhawan'. He has stated that one boy and one girl were having altercation. The boy slapped the girl and the girl also slapped the boy. PW-5 Khem Chand has stated that in September, 2000, he was on duty at 'Chohata' bazaar, two boys slapped the girl, then girl slapped the boy. PW-3 and PW-5 have not stated that petitioner caught hold the complainant from the shoulder and uttered obscene words to her. 14. PW-4 Basanti Devi, mother of the complainant, is not an eye-witness. The occurrence allegedly took place around 1/1.30 p.m. on 09.09.2000,but statement of PW-1 complainant under Section 154 Cr.P.C. was recorded on 11.09.2000. PW-1 complainant has stated that the occurrence took place on 11.09.2000. On the date of occurrence after the occurrence, she came to know the name of petitioner which was disclosed to the police on the same day. The complainant came to know the name of the petitioner on the date of occurrence itself, but no explanation has been given why the report was not lodged on 09.09.2000. 15. There is substance in the submission of learned counsel for the petitioner that there is unexplained delay in reporting the matter to the police and the statement Ex. PW1/A of complainant is afterthought and outcome of deliberations so also FIR Ex. PW6/A which was recorded on the basis of statement Ex. PW1/A. The occurrence allegedly took place in the bazaar in presence of policeman, who allegedly caught 7 the petitioner, but surprisingly, why no case was registered on 09.09.2000, that has not been explained. No independent witness nor even policeman PW-5 has supported the prosecution story. 16. There are material contradictions in the prosecution story and statements of PW-1, PW-2 read with statement under Section 154 Cr.P.C Ex. PW1/A and the statement of PW-3 and PW-5. PW-1 in her statement in the Court has even changed the date of occurrence when she has stated that occurrence took place on 11.09.2000. The utterances attributed to petitioner and stated by the complainant in the Court like asking the complainant to sleep with petitioner for a night on payment of `1,000/- are missing in statement of complainant Ex. PW1/A. As per prosecution story, three persons including petitioner were involved in the commission of offence. The trial Court rejected the case against Parkash Chand and Ajit Kumar which has been accepted by the prosecution. The trial Court has acquitted the petitioner under Section 506 IPC and convicted the petitioner only under Section 354 IPC. Thus, the Courts below did not accept the prosecution story as projected. 17. The learned Assistant Advocate General has submitted that in revision the evidence cannot be re-appreciated. It is not a case of re- appreciation of evidence, but it is a case where the two Courts below have mis-construed and mis-interpreted the evidence in convicting and sentencing the petitioner under Section 354 IPC. This Court has jurisdiction to interfere if the judgment of the Court below is perverse. The injustice done to a person cannot be allowed to be perpetuate when it has been established that judgment is perverse and based upon total mis-construction of evidence. 8 18. In Krishnan and another vs. Krishnaveni and another, 1997 (4) S.C.C. 241, the Supreme Court has held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. In the present case, the two Courts below have mis-construed and mis-interpreted the evidence in convicting and sentencing the petitioner under Section 354 IPC. The impugned judgment is not sustainable. 19. In view of above discussion, the revision is allowed. The judgment dated 19.01.2005 passed by learned Sessions Judge, Mandi, in Criminal Appeal No. 4 of 2003 is set-aside. The petitioner is acquitted for offence punishable under Section 354 IPC, fine amount, if deposited by the petitioner,be refunded to him. The bail bonds of the petitioner stand discharged. ( Kuldip Singh ), Judge. October 20 , 2011 (Krt)