IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 257 of 2002. Decided on: May 18, 2009. _____________________________________________________ State of H.P. ……..Appellant. Versus Om Parkash. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. J.S. Guleria, Assistant Advocate General. For the respondent : Mr. B.C. Negi, Advocate. ____________________________________________________________ SURINDER SINGH, J (oral): The State has challenged the acquittal of the respondent, for the offences punishable under Sections 354, 323, 506 read with Section 34 of the Indian Penal Code, passed in Criminal Case No.70-2 of 99/98, decided by the learned Judicial Magistrate on 9.11.2001. Heard and gone through the record. In short, the facts giving rise to the present appeal are that the respondent herein and Omveer co-accused (now dead) both were real brothers and were tenants of PW2 Bhagat Ram. Said Shri Bhagat Ram had filed the eviction Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - proceedings against them. After the registration of this case Omveer was murdered and PW2 Bhagat Ram father of the prosecutrix was arrested and he remained in police custody for 21 days. It is alleged that the prosecutrix the daughter of Bhagat Ram, after taking the meals on 5.11.97 at about 8.05 p.m. was going with her younger brother PW3 Deepak to their new house for sleeping. When they reached near the house of Uday Ram, the respondent along with Omveer met them. Omveer is alleged to have pressed her breast to outrage her modesty and respondent caught hold of her from her back. She raised hue and cry, by which her father Bhagat Ram got attracted and came to the spot. Accused Omveer assaulted him with a ‘danda’ with the result Bhagat Ram sustained injuries on his head. Om Parkash respondent gave kick and fist blows to him. The aforesaid injured raised alarm. On hearing his cries, Ram Dass, Bali Ram, Rajinder, Babu Ram and Bakshi Ram also reached the spot and rescued Bhagat Ram from the clutches of the accused persons. The prosecutrix lodged the FIR, wherein inter-alia it was mentioned that she did not know how the accused persons sustained the injures, however, the police investigated the case and - 3 - recorded the statements of the witnesses and torn shirt of the prosecutrix was taken into possession. She as well as her father Bhagat Ram were medically examined. After recording the statements of the witnesses and finalizing the challan, it was presented in the court for the trial of the accused. Since Omveer had died, thus finding a case against the respondent under the aforesaid sections, he was charge-sheeted. He pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was denial and false implication. At the end of the trial, the respondent was acquitted, on the ground that the evidence of the prosecution, more specifically the complainant, her father and brother were contradictory and there were material improvements in the prosecution case thereby making it highly doubtful. I have reappraised the evidence on record. Of course, in the FIR, the prosecutrix has alleged that the respondent herein had caught hold of her from behind when Omveer had embraced her breast, but when examined in the court, she - 4 - did not utter even a single word against the respondent. She mainly focused on Omveer, the deceased accused, who is alleged to have not only embraced her, but also torn her shirt, on which she cried and called her father. When her father reached the spot, the respondent had given the danda blows on the head of her father. She admitted the fact that Omveer was murdered and her father remained in police custody for 21 days. PW2 Bhagat Ram her father, had made a contrary statement to the prosecutrix. He stated that when he was attracted by the cries of his daughter, he went outside and saw that the accused persons had caught hold of his daughter. When he reached the spot, the accused Omveer caught hold of him. Om Parkash respondent assaulted him with danda. PW3 Deepak has denied the fact that her sister was caught hold by respondent Om Parkash, as alleged in the FIR. PW4 Ram Dass was cited as an eye witness. He gave a contrary version. According to him, it was Omveer who had assaulted Bhagat Ram with danda and not the respondent, which fact has been further corroborated by PW5 Rajinder. The statement of PW7 Bali Ram, who is also one of the - 5 - eye witness has given altogether different story. According to him, the respondent as well as his brother Omveer had caught hold of the prosecutrix and pelted stones on Deepak (PW3), which fact has not been spoken out by any other witness including Deepak and the Prosecutrix. The above contradictions assume importance in view of the facts that PW2 Bhagat Ram had filed the eviction proceedings against the respondent and his brother. He was an accused in the murder case of Omveer and was taken into custody. Further it has come in the evidence that about 200 people had gathered on the spot, but the police selected only the interested witnesses from the group of complainant and no independent witness was examined. Thus, the case of the prosecution lacks probity and the learned trial court had taken note of all the above facts and rightly acquitted the respondent for the offences charged. Therefore, the appeal sans merits, accordingly it is dismissed. The respondent is discharged of his bail bonds entered upon by him during the proceedings of the case. Send down the records. (Surinder Singh), Judge. May 18, 2009. (Pds)