IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 67 of 2002 Reserved on: 01.06.2009 Date of decision: 02.07.2009 Ram Kishan alias Paula Ram ... Petitioner Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the petitioner: Mr. Suneet Goel, Advocate. For the respondent: Mrs. Shubh Mahajan, Deputy Advocate General with Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja , J.: This is a Criminal Revision filed by the petitioner under Sections 397, 401 read with Section 482 Cr.P.C., against the judgment passed by the learned Sessions Judge, Solan, on 9.4.2002, affirming the judgment passed by the learned Sub Divisional Judicial Magistrate, Nalagarh, dated 13.6.2001, convicting the petitioner under Section 354 I.P.C. The learned trial Court had sentenced the petitioner to simple imprisonment for a period of one year and to pay a fine of Rs.3000/- and in case of default of payment of fine, the appellant was to further undergo simple imprisonment for a period 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 of two months. On appeal, the sentence was reduced by the learned Sessions Judge to imprisonment for six months and the fine was also reduced to Rs.1000/- The petitioner was to undergo simple imprisonment for one month in case of default of payment of fine. Briefly stated, the facts of the case are that on 28.4.1998, a report was lodged with the police by complainant Smt. Krishni that her husband is already dead and she has got one son and daughter. The daughter has been married. She alleged that the petitioner several times had attempted to insult her and outrage her modesty. It was alleged that at about 8.00 A.M. when the complainant had gone to her fields, the petitioner came there, caught hold of her from arm and told her that he wants to insult her. It was further alleged that the petitioner caught hold of her from nipples and when she raised an alarm one Narata Ram who was going from the common passage, came there and other persons also gathered there. It was alleged that when she raised an alarm, the petitioner gave her fist and leg blows and in this process, her shirt was also torn. On this report, a case under Section 354 I.P.C. was registered. The learned trial Court put notice of accusation to the petitioner under Section 251 Cr.P.C. for offence punishable under Section 354 I.P.C. The learned trial Court tried the petitioner, held him guilty, convicted and sentenced him as detailed above. On appeal, the judgment passed by the learned trial Court holding the petitioner guilty was affirmed by the learned Sessions Judge but the sentence was reduced as detailed above. Heard learned counsel for the parties and have gone through the record of the case. 3 The submissions made by the learned counsel for the petitioner were that the petitioner had clearly alleged that the occurrence was seen by PW-3 Narata Ram and other persons had also gathered there but only Narata Ram and one PW Smt. Parvati have been examined, who have not supported the statement of the complainant. It was also submitted that the petitioner’s one hand has already been chopped off in an accident and he could not have pressed the nipples of the complainant with one hand and no witness has corroborated this version of the complainant including her brother-in-law to whom she reported about the incident immediately after the incident. It was submitted that there are reasons for falsely implicating the petitioner for which the allegations were also made that the complainant was pressing the petitioner to perform marriage with her since her husband had died and wife of the petitioner had also died. It was also submitted that the complainant was pressing the petitioner to transfer his land in her favour and perform marriage, for which she has falsely implicated the petitioner. It was also submitted that there are no reasons for not getting the complainant medically examined and the oral statement does not stand corroborated by other ocular evidence or medical evidence and keeping in view the contradictions in the statements of the witnesses, the findings of the learned trial Court holding the petitioner guilty and affirmed by the learned Appellate Court are liable to be reversed. The learned Deputy Advocate General has supported the impugned judgment for the reasons recorded therein. 4 On appraisal of the record of the case, it is very much clear that the allegations made by the complainant were that the petitioner caught hold of her from her nipples meaning thereby that he had touched or pressed both the nipples of the complainant, which was not possible with one hand. It has to be considered as to whether the petitioner could have attempted to outrage the modesty of the complainant in a common path during day time when there are houses nearby and persons were also present nearby. Moreover, she alleged that she raised an alarm, Narata Ram and others came there and in their presence, the petitioner gave her fist and slap blows and in that process her shirt was torn not that the petitioner intentionally had torn her shirt. The complainant appeared in the witness box as PW-2, proved the report Ext. PW2/A and stated that a quarrel took place for about one hour but none from the village came to rescue her. The occurrence in question had taken place in the fields near the common path and according to the statement of the complainant herself as PW-2, there are 15-20 houses and her own house also is adjoining the field in which the occurrence took place. She has admitted that her clothes were stained with blood. The blood had also fallen out on the stones but neither the said blood stained stones or clothes were taken in possession by the police nor they were proved having any blood stains. She stated in the Court that her medical was done at Ramshehar but no such medical report saw the light of the day, since the Investigating Officer PW-6 Dilbag Singh has stated that she was not medically examined. In case she had suffered injuries and the blood had also fallen out, it was necessary that the medical report should have been 5 proved and the complainant states that she got herself medically examined, but no such report was proved. Apart from the above, she has specifically stated that Narata Ram and Parvati had seen her being given beatings and 5-7 persons from the village were also there. Out of these persons, Narata Ram has been examined as PW-3, who states that on hearing the noise, he saw that the complainant and petitioner were quarreling and the complainant told him that the petitioner was giving her beatings and had also torn her clothes, though she herself stated that the clothes were not torn by the petitioner but in the process of quarrel these were torn. He further stated that not only he saw the occurrence but it was seen by Parvati and other villagers but none have supported the complainant. He stated that when he went to the spot, the complainant was weeping and the petitioner was giving abuses, which statement was never made by the complainant that the petitioner also gave her abuses. He stated that in his presence the petitioner was pulling the complainant from her arm which was never stated by the complainant. The other eye witness named by the complainant, namely, PW-4 Parvati has only stated about some exchange of words going on in between the complainant and petitioner. She was declared as hostile, since she did not support the statement of the complainant. None of the other villagers was examined by the prosecution. Apart from the above, the statement of the complainant as PW-2 shows that earlier also the complainant had been attempting to defame her but she never filed any written complainant to the Panchayat. She had told the facts to her 6 brother-in-law after the occurrence, who has been examined as PW-1 Nikku Ram, who stated that the complainant was his real Sali. He stated that the complainant had told him that the petitioner abused her and gave a threat to give beatings. He no where stated that the complainant ever complained to him of any indescent assault or beatings given by the petitioner. He was told of the facts and was present with her at the time of lodging of the report and, therefore, in case, facts had been told to him, these should have been stated by him, which is not so in the present case. He stated that he has no knowledge in case the petitioner has been taking food in the house of the complainant which suggests of cordial relations in between the two prior to the occurrence. From the above discussion, it is clear that the ocular version given by the complainant has not been corroborated by other witnesses. It is not a case in which the complainant herself was only present and none had seen the occurrence but it is a case in which two persons named and others had seen the occurrence but none supported the complainant including her real brother-in-law to whom she narrated the facts after the occurrence. The ocular version does not stand corroborated by any medical evidence, which was not produced on record. Therefore, I am inclined to hold that the findings of the trial Court affirmed by the learned Appellate Court holding the petitioner guilt under Section 354 I.P.C., are not sustainable in the eyes of law. I am not giving any opinion that the complaint lodged was false but some scuffle may have taken place and the simple injury if any has not been corroborated by any medical evidence, therefore, the petitioner is not being held guilty 7 under Section 323 I.P.C. Suffice it to say that the findings of the learned Courts below holding the petitioner guilty under Section 354 I.P.C. are not sustainable in the eyes of law, since the offence was not proved beyond any reasonable doubt. In view of the above, I accordingly, hold that the petition filed by the petitioner is liable to be allowed and the same is allowed and the findings of the learned Sessions Judge holding the petitioner guilty and convicting and sentencing him under Section 354 I.P.C. are accordingly set aside. A copy of the judgment alongwith record be sent to learned Appellate Court and learned trial Court. ( V.K. Ahuja ), July 02, 2009 Judge (BSS)