IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 258 of 2010 Judgment reserved on 14.12.2010. Date of decision: 21.2.2011. Smt. Veena Devi .. Appellant-Complainant. Versus Rajiv and others .... Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant : Mrs. Ranjana Parmar, Advocate. For Respondents Mr. B.S. Thakur respondents No. 1 to 3. Mr. J.S. Guleria, Assistant Advocate General, for respondent No. 4. _____________________________________________________ Surinder Singh, J. The present appeal has been preferred by the victim under Section 372 of the Code of Criminal procedure, against the judgment of acquittal passed by the learned Additional Sessions Judge in criminal appeal No. 42 of 2008 decided on 7.11.2009 1 Whether the reporters of Local Papers may be allowed to see the judgment? - 2 - whereby the conviction and sentence passed by the learned trial Court in a complaint case for offences punishable under Sections 354 and 323 Indian Penal Code convicting the respondents was reversed, consequently, the accused-respondents wre acquitted. 2. Mrs. Ranjana Parmar, learned counsel for the appellant vehemently argued that the learned Additional Sessions Judge has wrongly evaluated the evidence on record and set aside the well reasoned judgment of the learned trial Court which has caused a material prejudice. 3. Contrary Shri B.S. Thakur, Advocate supported the impugned judgment of acquittal and ventilated that there is no error therein. 4. To appreciate the rival contention of the parties, it shall be relevant first here to state the facts and allegations on which the accused-respondents were put on trial. 5. The complainant is the wife of Yudhbir Singh. It is alleged that on 12.9.2001, she had gone to Takoli forest for grazing her cattle. Around 11 a.m. accused Rajiv Kumar appeared from behind the - 3 - bushes and caught hold of her from her breast, tore her shirt and started pressing her nipples. In the meantime, other two respondents appeared and tried to open the knot of the string of her salwar. Accused Manish Kumar started kissing her, causing injuries on her cheek and breast. On this mis- behaviour, she raised alarm by which her mother-in- law Kaushalya Devi got attracted from the nearby place in the forest, where she was cutting grass and rescued her. In nutshell, she alleged that accused persons had outraged her modesty. It was also mentioned in the compliant filed by her before the learned trial Court that when she went to the Police Station to lodge her report, on the same day around 2.30 p.m., she was asked to come next day. Even on 13.9.2001, she kept on waiting along with her mother-in-law in the Police Station itself till 4 p.m. The accused persons came along with some other persons to SHO. She and her mother-in-law also entered the room of the SHO in which the accused persons had entered. She identified them as accused in the presence of the SHO and holding them responsible for outraging her modesty. - 4 - Surprisingly, SHO abused the complainant and her mother-in-law and did not take any action. Thus without any loss of time on 14.9.2001, she filed a private complaint against the respondents. She made the request for her medical examination, which was allowed by the learned trial Court. 6. Finding a prima facie case against the accused persons, for the offences aforesaid, they were tried for the aforesaid offences and at the end of the trial, they were convicted by the learned trial Court. Vide order dated 25.11.2008, each of the respondents were sentenced to undergo rigorous imprisonment for one month under Section 323 and to 6 months rigorous imprisonment and fine of `1000/- each under Section 354 Indian Penal Code. In default of payment of fine, the respondents were further ordered to undergo simple imprisonment for one month. Both the sentences were ordered to run concurrently. 7. Against the aforesaid judgment of conviction and sentence, criminal appeal No. 42 of 2008, was filed by the respondents before the learned first appellate court. The learned first - 5 - appellate court relied upon the documents Ext. D1 to Ext. D3, came to the conclusion that the parties had strained relations though held that the testimony of the complainant cannot be brushed aside merely on this premise but at the same time it could not be blindly relied upon. Thus, took into consideration the contradictions in the statements of the prosecutrix with respect to role played by the respondents and also that her torn clothes were not produced in the court to substantiate her version and much significance was attached to the time mentioned in the MLC and also the incident which otherwise on the conclusion was stated to be incorrect. The learned first appellate court did not believe the version of CW2 Kaushalya Devi that when the complainant had raised alarm, accused persons would not have been holding the complainant in the same position till the arrival of the mother-in-law of the complainant. Hence accused persons were given the benefit of doubt. 8. I have scrutinized the impugned judgment of acquittal passed by the learned Additional Sessions Judge viz-a-viz the evidence on record. The - 6 - findings arrived at by him are not at all convincing and borne out from the record. 9. On 14.9.2001 the complainant had filed an application for her medical examination along with the private complaint. After taking into consideration the peculiar facts and circumstances, her prayer for medical examination was accepted by the trial Court and the direction was issued to the Incharge PHC, Amb to conduct medical of the complainant and submit report. 10. On merits, prosecutrix as CW1 substantiated her allegations made in the complaint. She categorically stated that respondent Rajiv Kumar came there behind the bushes and caught hold of her from her breast and tore of her clothes. He was followed by accused Lavlu who tried to untie the string of her salwar. Accused Ramesh caught hold of her from her Chuni. By these activities, she sustained injuries on her breast and face. She raised alarm. On hearing it, her mother-in-law came there and relived her from the clutches of the respondents. Same day, she reported the matter to the police. The MHC told her to wait and come next day. On - 7 - the next day, she kept on waiting till evening. Respondents also came to the Police Station to meet SHO. She along with her mother-in-law followed them in the room of the SHO and pointed out that they were the persons responsible for outraging her modesty. The behaviour of the SHO was uncalled for and he used derogatory remarks that the complainant and her mother-in-law be thrown out of the Police Station. Hence, the complaint. 11. Dr. R.K. Garg has proved the medico legal certificate Ext. CW3 having been issued by him after examining the prosecutrix on 14.9.2001 at 5.30 p.m. He noticed the following injuries on the person of the complainant:- (i) Multiple abrasions on both Breasts. Upper pat direction of abrasion from upper to lower side. Extending from 3 to 5 cm below clavicle to nipple and areala. Size 8 to 10 cm long. Colour of abrasions red to bluish. Dried crust of retralid blood at few places. (ii) A small abrasion on the right shoulder and an abrasion on the right side of scalpel. - 8 - (iii) Abrasions on both lalenal side of hip 5 am below ileal crant an right side and 3.5 cm on left side. Direction from posterior to anterior side. No crust over the abrasions. 12. The nature of the injuries were simple and probable duration was 24 to 48 hours. The doctor aforesaid categorically stated that these injuries can be sustained by the prosecutrix on account of catching and pressing her breast. However, in cross-examination he also admitted that such type of injuries can be self inflicted. But significantly no such case was in defence in the cross-examination of the other witnesses by the accused. CW 2 Kaushalya Devi mother-in-law of the complainant has offered corroboration to her version in material particulars. 13. Learned first appellate Court attached too much significance to the slight variations appearing in the statements of the prosecutrix and her mother-in-law which were natural and could be essentially there and as they were examined in the court in the presence of the accused after five years of the alleged incident. Both these witnesses - 9 - were subjected to lengthy cross-examination. She admitted that accused Rajiv Kumar was in the army but feigned ignorance that her husband and her father-in-law Milkhi Ram had felled and stolen the poplar trees from the land of the father of accused Rajiv Kumar and were interrogated by the Police. She also denied having attacked ASI with her sickle and a case to this effect was made against them. She also denied any enmity with the accused persons, as alleged. She further denied that the subject matter was inquired by the Dy.S.P., Amb which was proved to be false and also that the present complaint was lodged to pressurize the respondents in another case with respect to committing theft of the poplar trees. 14. CW2 Kaushala in her cross examination also denied the enmity with the respondents as alleged and also about the fact of attacking the ASI with sickle by the complainant. 15. Although in the statements under Section 313 of the Code of Criminal Procedure, respondents have stated that it was a false case because of the alleged enmity inter se the parties and to - 10 - substantiate the fact of the allegations as put to the aforesaid witnesses with respect to the felling of poplar trees and attacking the ASI with the sickle they examined DW1 HHC Bhagan Singh. He stated that on 25.9.2001 an application was received from Milkhi Ram against Ram Swarup and Ramji Dass which was marked for inquiry to SDPO. He could not say about the contents of the application and its out come but accused persons tendered in evidence Dxt. D1 a copy of judgment dated 31.8.2004 whereby respondents Lavlu and Manish Kumar were acquitted with respect to the allegations that on 24.5.2003 around 5.30 p.m. they had caused grievous hurt to Milkhi Ram, father-in-law of the complainant. Pertinently, the incident in question on which the respondents were tried for the offence, pertains to the year 2001, i.e., two years prior to the incident which culminated in the acquittal of the respondents vide judgment Ext. D1. Similarly Ext. D2 is the judgment dated 31.7.1996 wherein Yudhbir Singh husband of the complainant is an accused. He was acquitted in that case. It relates back to the year 1991 wherein Yudhbir Singh was accused along - 11 - with others which was registered at the behest of Ram Swarup father of Lavlu and Manish Kumar accused persons with respect to theft of aluminum wire from the store and Ext. D3 is the copy of the judgment with respect to the allegations leveled by Milkhi Ram father in –law of the complainant against Shounki Ram, Chain Singh and Subhash Chand. Their relationship with the accused persons has not been established. 16. The defence so raised is not convincing. Ext. D1 copy of the judgment shows about the allegations of the year 2003 i.e. after filing of the present complaint. In the judgment Ext. D2 Yudhbir Singh husband of the complainant and Ram Swarup father of the accused Lavlu and Manish were accused. It is not husband of the complainant who had leveled the allegations against Ram Swarup, as already noticed above in the judgment Ext. D3 connection of the respondents with the complainant is not established. There is absolutely nothing on record to show that Yudhbir Singh husband of the complainant had lodged any case with respect to - 12 - the theft of poplar trees either against the accused persons or their father. 17. In so far as duration with respect to the injury is concerned, as already stated above, prosecutrix was examined on 14.8.2001 at 5.30 p.m. and in the opinion of the doctor the probable duration of the injuries is 24 to 48 hours. The incident had taken place on 12.9.2001 which tallies with the time of incident and not prior to 48 hours as held by the learned first appellate Court. Therefore, the findings of acquittal recorded by the leaned first appellate Court are not borne out from the record and in my opinion, judgment of acquittal is perverse as such respondents are held guilty for the offence punishable under Section 354 and 323 read with Section 34 Indian Penal Code, hence convicted. 18. As far as the sentence is concerned, learned trial Court had also called for the report of the Probation Officer. Respondent Rajiv Kumar is serving in the Army. Nothing adverse has been reported against him by the Probation Officer. None of the respondents is previous convicts as per orders of the learned trial court. Accused Manish Kumar - 13 - and Lavlu had completed the age of 18 years on the date of commission of the office but were below 21 years on the day of alleged incident. As per matriculation certificate of Rajiv Kumar his date of birth is 11.7.1978. He is around 22 years. 19. Keeping in view the torture of trial and also the fact that the alleged incident had taken place about 10 years back, the interest of justice would be met in case respondents are given the benefit of Section 4 of the Probation of Offenders Act. 20. Also by now the respondents have settled in life and their sending to the prison would further harm their future and association with the hardened criminals in the jail may effect their psyche. Therefore, a chance to reform is given to each of them. 21. Keeping in view the extenuating and mitigating circumstances on record, instead of passing substantive sentence, respondents are ordered to execute the bond in the sum of `10,000/- each with one surety each in the like amount to the satisfaction of the learned trial Court in terms of - 14 - Section 4 of the Probation of Offenders Act within one month from today to keep peace and be of good behaviour and further each of them shall deposit a sum of ` 5000/- as compensation within the aforesaid period, which shall be paid to the appellant (victim), failing which, it shall be recoverable as a fine. The appeal stands disposed of. February 21 , 2011. ( Surinder Singh ), (cm) Judge