IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 154 of 2003 Date of Decision: 27.05.2010 __________________________________________________________ State of Himachal Pradesh. ….Petitioner. Versus Sonu alias Yoginder Singh. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes __________________________________________________________ For the Petitioner: Ms. Ruma Kaushik, Additional Advocate General, with Mr. R.P. Singh, Assistant Advocate General. For the Respondent: Mr. A.K. Vashista, Advocate. __________________________________________________________ Dev Darshan Sud, J. (Oral) The State has preferred this appeal against the judgment of acquittal passed by learned Judicial Magistrate, Ist Class, Baijnath, District Kangra. The petitioner was charged for offences under Section 451 and 354 of the Indian Penal Code. The prosecution case in brief was that in the intervening night of 16.7.2000 and 17.7.2000, complainant Raksha Devi alongwith her children were sleeping in her house at Village Rajot. Around about 12.30 A.M. in the night she felt that some body was pressing her breasts. When she woke up and switch on the light, she saw the accused present there, who had gained access 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 to the room by uprooting the iron bars of the window of the upper floor of the house with the sole intention to outrage the modesty of the complainant. The son of the complainant Rajesh Kumar, PW-3 who was sleeping on the same bed also woke up. On this the accused fled away from the spot, when the complainant tried to catch hold of him and raised an alarm and on hearing the cries, her Jeeth (brother-in-law) Jagdish came to the spot. 2. After investigation, the respondent herein was tried for offences under Sections 451 and 354 of the Indian Penal Code. The learned Judicial Magistrate, 1st Class, has taken the following circumstances to show and hold that the petitioner was not guilty of the offences as alleged. 3. Firstly, he notices that there is two days delay in lodging the First Information Report. Secondly, the prosecution has been unable to prove that the iron bars were infact removed by the respondent, thirdly, the evidence of PW 3 Sh. Rajesh Kumar, who says that he was unable to identify the accused, fourthly, the evidence of PW 5 Sh. Panjku Ram, President of Gram Panchyat, Rajot, who stated that a complaint had been made to him regarding the indecent assault on the complainant, but the name of the accused/respondent was not mentioned therein. Fifthly, one chappal of the accused was recovered from the spot, but the other chappal has not be recovered from him to link him with this evidence. The Court also notices another important circumstance that the accused would have to scale a wall of 12 feet high to reach the first floor, where he had to uproot the iron bars which according to PW 7 Head Constable, Milap Chand could not be done without the help of a ladder. 4. I have heard learned counsel appearing for the parties and have gone through the record. Learned Additional Advocate General urges that in offences of this nature i.e. under Section 354 of the Indian Penal Code, the best evidence is that of the person, who has been assaulted and whose modesty has 3 been outraged and does not require any corroboration. She submits that the testimony of PW 1, complainant Raksha Devi is clear and unequivocal corroborating each and every part of the allegations made by her. She submits that her statement is further corroborated by statement of PW 3 Sh. Rajesh Kumar, who is the son of the complainant. According to her no Indian lady would ordinarily put her reputation at stake to level a false allegation with respect to outraging her modesty, knowing fully well the social consequences which would ensue. 5. As a general proposition, this principle can not be faulted, but without considering the totality of the facts and circumstances of the case, it can not be accepted as a universal truth, more especially when the contemporary evidence does not support the allegations of the complainant. It is undisputed that the incident occurred at around mid night, when it was dark. The chain of events as narrated by the prosecution is that access to the room of the complainant was through the upper floor where the accused had uprooted three iron bars from the window. How he got in is a mystery, as it is the admitted case of the prosecution that this window is at a distance of 12 feet from the ground and it is impossible to reach this height without assistance of a ladder etc. The photographs Ex. PW 3/A to Ex. PW 3/C which were taken on the spot also confirm this fact. It is also undisputed and established on record by the evidence of PW 7 Head Constable Milap Chand that there are no stairs leading to the first floor. In other words the only approach to this storey is from inside the house. In his evidence, the Investigating Officer PW 7 Head Constable Milap Chand states that “yeh thik hai ki us khidki per agar chadhna ho to bina pouri key nahi chadha ja sakta ha”, meaning thereby that access to this window can not be had without a ladder. I also find from the evidence and as rightly held by the trial court that the iron rods are intact and did not show any signs of being pulled out from the window. 4 There is also no damage to the window sill as is evident and apparent from Ex. PW 3/A. PW 5 Sh. Panjku Ram is Pradhan of Gram Panchyat Rajot, has been declared hostile. But in answer to a specific question put to him in his cross- examination, he stated that the name of accused was never disclosed to him. The only thing which I can find from his statement is the fact that a complaint was made by Raksha Devi and this witness referred her to the police. The evidence of PW 3 Sh. Rajesh Kumar is important. In his cross-examination, he admitted that he was sleeping with his mother on the same bed, but he did not know what happened and could not identify the accused. One chappal purportedly belonging to the accused was recovered from the spot, but no effort has been made by the prosecution either to identify this as belonging to the accused and recover the second chappal. A combined reading of these circumstances leaves no doubt in my mind that the respondent can not be linked with the incident. One more fact requires to be taken note of and that is the brother-in-law of the complainant is residing at about a distance of two furlongs from the house of the complainant. He immediately reached the spot on hearing the cries of the complainant. It is a fact on record that there are 20/25 houses before his house and no independent witness has been examined by the prosecution from the locality. In these circumstances, I hold that the learned trial court has rightly acquitted the respondent. This appeal is accordingly disposed of. Bail bonds furnished by the respondent herein stand discharged. May 27, 2010 (Dev Darshan Sud), (KRS) Judge