1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 495 of 2001. Reserved on 29-7-2008. Date of Decision: 31-7-2007. ____________________________________________________________ State of H P. Appellant. Versus Badri Dass. Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?No. For the appellant : Sh.J.S. Guleria, Law officer. For respondent : Shri Lovnesh Kanwar, Advocate. ____________________________________________________________ Surinder Singh, J . Respondent was tried and acquitted of the offence under Section 354 of the Indian Penal Code. His acquittal has been assailed by the State in this appeal. In short, the prosecution story is that on 6.2.1998 at about 8.00 a.m in village Fir, the prosecutrix was present in her house. She was suffering from backache. The respondent aged about 65 years, is alleged to have come to her house and the prosecutrix offered him a cup of tea. She complained about her backache and the respondent pretended that he was expert in curing the backaches, thus he invited the prosecutrix to visit his place and take medicines. Around 11.00 a.m. on the same day, the prosecutrix visited his house where his daughter was present and told her that the respondent was near the cow shed. When the prosecutrix went to him, the respondent was found smocking and Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 she demanded the medicine to cure her backache. On this, the respondent went some where to fetch the ‘Herb’ and applied it on the back of the prosecutrix. While doing so, he disclosed that even the women between the age of twenty one and twenty-two visit him for seeking medicine for abortion. In that process, while applying the medicine on the back of the prosecutrix, he pressed her breast. She raised hue and cry. On this PW1 Dhanna and PW2 Govind Ram along with Sanjay reached the spot. On seeing them, the respondent ran away. After about a weak of the alleged incident, the complainant moved an application for registration of the case under Section 156 (3) of the Code of Criminal Procedure. The Police visited the spot and prepared the site plan of the place of incident. The respondent was arrested and later granted bail. After completing the investigation, the challan was present in the Court under Section 354 of the Indian Penal Code. Notice of accusation was put to the accused under the aforesaid section. He pleaded not guilty and claimed trial. Prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances put against him. According to him, the complainant and her family members are inimically disposed of towards him and many cases were pending in the Courts. He alleged his false implication in the case. At the end of the trial, the respondent was acquitted by the learned trial Court on the ground that there was un-explained delay in registering the F.I.R., the parties were in litigation with each other and are not in speaking terms for the last so many years, therefore, there was no question of offering any medicine as alleged and the 3 witnesses examined to support the prosecution version were interested and had contradicted on material particulars. Shri J.S. Guleria, learned Law Officer for the State has forcefully argued that in the instant case, the sole testimony of the prosecutrix was enough to sustain the conviction of the respondent which otherwise inspires confidence. Contra, learned counsel for the respondent has supported the impugned judgment of acquittal and countered the arguments on the ground that the testimony of the prosecutrix is shrouded by suspicious circumstances and is contradicted by the alleged eye witnesses and further, that both the parties were daggers drawn for the last so many years because of litigation and there was no question of visiting by the respondent in the house of the prosecutrix and then to offer treatment for her backache. I have considered the rival contentions of the parties. It is pertinent to note that in her complaint, the prosecutrix has stated that Krishan Chand and Govind Ram and her father in law were present in the house when the respondent visited her house and pretended that he could provide medicines for the backache and there is also a mention in the complaint regarding the incident that when the respondent started feed ling her breast, she raised hue and cry, her brother-in-law Govind Ram ran towards the place and the respondent ran away. As PW1 she had tried to substantiate this version. According to her, she visited the house of respondent for curing her backache by herbal medicine. When she demanded the medicines, the respondent told that he felt ashamed to give medicine to the ladies, However, he informed that herb was to be brought from the Ghasni. Thereafter, he brought the herb and stated embracing her and she raised hue and cry. In the mean time 4 her brother-in-law Govind Ram on hearing her cries came there along with her father-in-law Panju Ram and the respondent ran away. In her cross-examination, she admitted that the house of the respondent is about one and half km from her house. She also admitted that Govind Ram Pw had filed a case against the respondent along with thirteen others and for the last about 13 years, both the parties were not in visiting terms in the house of each other because of inimical relations. Against the above background, where was the question of visiting the house of prosecutrix, then providing him tea and in turn curing her by herbal treatment by the respondent. Badri and Krishan who were already present at that time were also not examined to lend strength to her case. Further, PW2 Govind Ram has stated that on hearing the cries, he saw that the respondent had caught hold of the arm of the prosecutrix and had put her hand at her back and the prosecutrix was crying but in cross-examination, he has admitted that this was the process for curing the backache. He also admitted that he had filed the case against the respondent earlier and he also appeared as witness against him in one of the case. Respondent has examined Dw Dhanna. He has stated that there were many cases pending inter-se the parties for the last fifteen years and they are not in visiting terms. DW2 Param Dev has also made the similar statement. The house of the respondent is at a distance of about one and half km. Prosecutrix has stated that Govind Ram and Panju Ram had reached on the spot on hearing her cries but Govind Ram had not stated about the presence of Panju Ram with him. According to him, the incident had taken place at about 9.30 a.m. 5 whereas, prosecutrix stated that she had visited the house of the respondent at 11.00 a.m. Thus these contradictions go to the very root of the case. The prosecutrix also could not explain the inordinate delay of six days in reporting the matter to the police. The defense witnesses have testified the old litigation inter-se the parties and further stated that none of the parties were in visiting terms in the houses of each other. Otherwise also, her testimony does not inspire confidence in view of the material contradictions and it is in conflict with the other attending circumstances stated above. Therefore, in these circumstances, the version given by the prosecutrix is not free from doubt therefore, cannot be acted upon. I find that the view taken by the learned trial Court for not believing the testimony of the prosecutrix and her witnesses is reasonable and is also borne out from the record. Thus there is no reason for me to take a different view. Accordingly, I find no infirmity or perversity in the impugned judgment of acquittal recorded by the learned trial Court. As such the appeal is dismissed. (Surinder Singh) Judge. July 31 , 2008. (bm)