1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 420 of 2001. Reserved on : 28-5-2008. Date of Decision: June 5th,2008. ____________________________________________________________ State of H P. Appellant. Versus Padam Singh and another. . Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Sh.P.M. Negi, Deputy Advocate General . For respondents. : Shri Sharawan Dogra, Advocate. _________________________________________________________ Surinder Singh, J . State has assailed the acquittal of the respondents passed by learned Judicial Magistrate in Criminal case No. 84-1 of 2000 dated 7-4-2001 under Sections 354 and 506 read with Section 34, I.P.C. In brief, the facts giving rise to the instant appeal are that on 7.7.2000 in the evening, the prosecutrix had gone to cut the grass around 5 P.M. in the Ghasni alongwith her husband PW4 Narain Singh. While returning with a load of grass, she noticed some cattle were grazing in the same Ghasni. Her husband was cutting the grass down below in the Nallah in the same Ghasni. On this, she loudly asked as to whom those cattle belonged. It is alleged that the respondents, who were hiding themselves, suddenly appeared and molested her. When she tried to wriggle out from their clutches, her shirt was torn and the string of her salwar to which the respondents wanted to open, got broken. It was also Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 alleged that the complainant was made to lie on the ground but on hearing her screams, her husband Narain Singh and one Bhupinder Singh came running to the spot and rescued her. Her shirt was torn, her husband Narain Singh gave his own shirt to her. It is also alleged that Sham Singh, her brother-in-law and Raksha Devi, his wife, were also attracted by the noise. They reached the spot. Prosecutrix narrated the entire story to them. Next day, the FIR was lodged against the respondents under Section 354 of the Indian Penal Code. During the investigation of the case, the police prepared the site plan Exhibit PW6/A and on 12.7.2000 took into possession the Ex.P1 shirt and Ext. P2 salwar of the prosecutrix vide memo Exhibit PW5/.A. After completing the investigation, the challan was presented against the respondents in the court for trial. The trial Court acquitted the respondents on the grounds of some contradictions appearing in the statements of the witnesses and disbelieved prosecutrix and other witnesses. Shri P.M. Negi, learned Deputy Advocate General has submitted that the contradictions which have been noticed by the learned trial Court are very minor in nature and the testimony of the prosecutrix stands corroborated in its material particulars. If the evidence of the prosecution is re-appraised in its right perspective, which otherwise finds corroboration, the impugned judgment can be converted into conviction. Shri Shrawan Dogra, learned counsel for the respondents has vehemently argued that leaving apart whatever the learned trial Court has given the reasoning for acquittal of the respondents but otherwise also, if the evidence is looked into minutely, the evidence of the prosecution raises a substantial doubt regarding the authenticity of the prosecution case and the net result remains the same as the two views are possible 3 from the evidence on record, the view in favour of the accused has to be accepted. I have given my thoughtful considerations to the rival contentions of the parties and have gone through the evidence on record. As a matter of fact, by now, it is well settled that in the case like the present one, the evidence of the prosecutrix can be acted upon if it inspires confidence. No corroboration is required from any other evidence. The prosecutrix in this case is the wife of Narain Singh PW2 Sham Singh is the real brother of Narain Singh (PW4). It is an admitted case of the parties that a civil litigation is going on interse the parties qua the Ghasni claiming possession by each of them and this fact is clearly admitted by the prosecutrix in her statement before the trial Court. As per the case of the prosecutrix, she had cut the grass from the disputed Ghasni and her husband Narain Singh was also cutting the grass in its lower portion in the Nallah. The respondents were also grazing the cattle on the same land which was objected to by the prosecutrix and this appears to be the apple of contention inter-se parties. Contra it was the case set up by the respondents before the learned trial court that on the same day they were grazing their cattle in their Ghasni, suddenly the prosecutrix, her husband Narain Singh, Sham Singh and his wife Raksha came armed with Darat and Dandas. They pelted stones and drove away their cattle. On seeing them the respondents ran away. On 11.7.2000, they filed the complaint in the Court of S.D.M Chopal which was forwarded to the Police. The Head Constable Kishan Chand (PW6) had found the allegations of the respondents correct and filed the Kalandra Exhibit PD/6 in the court of S.D.M., Chopal, under Section 107/150 Cr.P.C. against the complainant party with the recommendations to bind them down to keep peace. PW6 Kishan Chand aforesaid has 4 admitted this position to be correct and did not say that the complaint filed by the respondent Padam Singh in respect of the same incident which took place on 10.7.2000 was incorrect. Against the above back-ground, the statements of the prosecutrix, her husband Narain Singh (PW4), Sham Singh (PW2) the brother of Narain Singh and Surinder Singh (PW5) have been examined by me with due care and caution. On the close scrutiny of the statements of the above witnesses, I find the following glaring contradictions :- (1) In the FIR Ex.PW1/A, the prosecutrix has stated that while returning from the Ghasni she noticed the cattle were grazing and she shouted to whom those cattle belong, but as PW1 she stated that the respondents were grazing the cattle in the Ghasni and she told them to remove their cattle from the said land. (2) Prosecutrix in her statement before the Court has deposed that when she was being molested, she raised the alarm and on hearing it, Bhupinder (PW5) followed by her husband (PW4) reached the spot. When Bhupinder came there, the respondents ran away. According to Narain Singh (PW4), he alongwith Bhupinder Singh reached the spot together and both had noticed a scuffle between him and the respondent. (3) According to PW2 Sham Singh he was in his house with his wife, which is at a distance of about 500 mtrs from the spot. On hearing the cries he along with his wife Raksha Devi went running to the spot 5 and found the prosecutrix Narain Singh and Bhupinder on the spot. Prosecutrix was weeping and she was wearing a gent’s shirt, her own shirt was torn. The string of her salwar was broken which was repaired by her temporarily and she told him that it was torn in a scuffle with the respondent. He saw the respondents while running at a distance and were threatening them. Whereas PW4 Narain Singh stated he gave his shirt and also pajama to his wife to wear, but no other witness has stated that Narain Singh had provided his own pajama to her and he himself was without shirt and Pajama when they reached the spot. (4) The prosecutrix has stated that on the day of lodging the FIR she had handed over the shirt Ex.P1 and Salwar Ex.P2 to the police in the police station, but according to I.O., HC Krishan Dutt it was taken into possession on 12.7.2000 vide memo Ex.PW5/A in the presence of PW5 Bhupender Singh and Raksha Devi i.e. after about 6 days whereas PW5 has stated that police had visited the spot her clothes were taken into possession on the spot. (5) According to the prosecutrix Bhupinder Singh had died one year before her making the statement in the court. But PW5 Bhupender Singh was examined after her statement made before the Court. It is not clear on record who is that Bhupinder Singh who had seen the alleged occurrence, whereas PW5 Bhupinder Singh has a motive to depose against the 6 respondents. According to him, his brother Jagdish Kimta had died. He suspected it a case of murder. He had lodged the report with the police and the police suspicion fell on the brothers of Ramesh respondent and his other family members. They sought the bail form the High Court. Further his very presence on the spot is questionable as there is nothing on record to show that his land was abutting the disputed land and he was present there in connection with the grazing of his cattle as alleged. His bald statement to this effect cannot be believed. (6) Another fact which causes dent to the prosecution case is that the place of alleged occurrence is only 20 km form the Police Station. The incident took place around 4/500 P.M. on 7.7.2000. The FIR was lodged in the Police Station on 11.7.2000 at 12.15 P.M. There is no cogent explanation regarding the delay. The aforesaid contradictions, to my mind, appear to be serious in nature which causes a dent in the case of the prosecution and more particularly in the statement of the prosecutrix. On the close scrutiny of her statement, I find that neither the statement of the prosecutrix nor the testimonies of other witnesses are worth inspiring confidence. Both the parties were locked in litigation with each other that too with respect to the Ghasni in question where the alleged incident had taken place. The respondents had filed the complaint to the Police with respect to the same incident giving a different version. The present case against the respondents appears to be to square their vendetta by the complainant party. From the evidence on record two views are deducible, therefore, 7 one pointing out towards the innocence of the respondents has to be accepted. Therefore, in view of the above discussion, the respondents cannot be convicted for the offence charged, accordingly the acquittal of the respondents is upheld for the aforesaid reasons. Consequently, the appeal filed by the State is dismissed. The respondents are discharged of their bail bonds entered upon by them at any time during the trial of this case. (Surinder Singh) Judge. June 5th, 2008. (bm)