HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon’bIeShriRajeshwarlalJhanwar,J. Criminal Appeal No. 2480 of 99 State of Madhya Pradesh (now Chhattisgarh) Vel'SUS Rajeshwar JUDGMENT Post for pronouncement of Judgment \o -03-2010 Sd/- R.L. Jhanwar My, ,,, W HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH: HON’BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Appeal No.2480/ 19$ Applicant : State of Madhya Pradesh through S.H.O. P.S. Appellant Arjuni, Tah. 85 Distt. Dhamtari - Versus Rajeshwar, S/o Asad Gond, aged about 4O years, R/ o Village —Kumhada, P.S. Arjuri, Tah. 85 Distt. Dhamtari. Non-applicant APPLICATION FOR GRANT OF LEAVE TO APPEAL U/S 378 (iii) CRIMINAL PROCEDURE/APPEAL U/S 378 (i) CR.P.C. Present: — Shri M.P.S.Bhatia, Dy. Government Advocate for the State. Shri Vishnu Koshta, counsel for the respondent. J U D G M E N T (Delivered on ’Q /03/ 2010) This is State appeal directed against the judgment dated 18. 1 1.1998 acquitting the respondent of the charges under Section 456 and 354 of the I.P.C. passed in Criminal Case No. 280/ 1998 by the Judicial Magistrate First Class, Dhamtari. 2. Case of the prosecution in brief is that on 10.02.1996 when the prosecutrix was sleeping in her house in village Kumhada along with younger brother, the respondent, in order to outrage the modesty of the prosecutrix, committed lurking house-trespass at‘ about 2.00 at night in the house of the prosecutrix and thereafter using criminal force upon the prosecutrix he started pressing her chest whereupon the prosecutrix suddenly woke up, pushed him and cried for help. On this, the accused/respondent fled away from the spot. F.I.R. EX.P.1 was lodged under Sections 456 and 354 of the I.P.C. promptly by the prosecutrix. '3. After completion of investigation, charge sheet under Section .457 and 354 of the I.P.C. was filed against the respondent, before m f 1 rt”? u$/ the Court of Judicial Magistrate First Class, Dhamtari. Charge was read over and explained to the respondent. 4. The case was tried before the Court of Judicial Magistrate First Class, Dharntari who after evaluating the evidence adduced by the prosecution has acquitted the respondent of the charge under Section 456 and 354 of the I.P.C. It is this judgment against which the State has come in appeal. 5. So as to hold the respondent/accused guilty, the prosecution examined as many as 6 witnesses. The statement of the accused/respondent was also recorded under Section 313 of the Cr.P.C. in which he denied the charge levelled against him and pleaded his innocence and false implication. 5. Counsel for the appellant/State submits that there was ample evidence available on record including the evidence of the prosecutrix to convict the respondent/accused for the offence under Section 456 and 354 of the I.P.C. but the Court below ignoring the statement of the prosecutrix and other witnesses acquitted the respondent of the charge under Sections as above. On the other hand, counsel for the respondent supported the impugned judgment of acquittal. 6. I have heard learned counsel for the parties, perused the impugned judgment including the record of the Court below. 7. In her statement, prosecutrix P.W.1 has deposed that she had slept in her house along with her younger brother and her father had slept in another room. At about 2.00 in the night the respondent/accused came there and caught hold of her and pressed her breast. She woke up, pushed him and cried for help. 0n this, the accused/respondent fled away. She has further deposed that she narrated the incident to her father and lodged a report vide EX.P.1 at Police Station Arjuni. In cross-examination, she has stated that when she was inside she bolted the room from inside. She has further stated that there was darkness and while » @ pushing the respondent aside cried for help the respondent t16d away whereupon she also chased him upto courtyard but as soon as she reached there the accused had already run away and at that time his father also came out from his room and chased but was not able to get him. According to her evidence, it is clear that how the prosecutrix could identify the accused especially when there was darkness prevailed and who told her the name of the accused. P.W.2 Baniram, father of the prosecutrix/complainant, has stated that after hearing cries of her daughter, he woke up and saw that one thief was coming out from her daughter’s room. His daughter told him that accused caught hold of her hand and breast. In his cross-examination, he has deposed that when he woke up after hearing cries of her daughter he chased the thief and as soon as he reached the courtyard he fled away by jumping the boundary wall. This witness has further deposed that he saw that thief was going towards the house of Rajeshwar. It was also deposed that he did not raise any alarm nor intimate to any body about the incident. Therefore, it is clear from his evidence that this witness could also not identify the person who entered into his house. P.W.3 Bhauram has deposed that he also woke up after hearing the cries of the prosecutrix and saw accused was coming out from the house of the prosecutrix and was running away whereupon he did nothing. It was deposed that he did not ask anything to the prosecutrix about the incident, though he was uncle of the prosecutrix. The conduct of this witness is abnormal because he should have asked about the incident but he did not do so. Therefore, it is evident from his testimony that he neither saw the person who was running away nor 'he told the same to anybody. P.W.4 Mangli Bai has deposed that she did not witness the incident but was informed through the prosecutrix about the incident. Her husband Bhauram has also not informed about the incident. v P.W.5 Bhagbati, mother of the prosecutrix, has deposed that she also woke up after hearing the cries of her daughter. According to her statement, she also woke up and found the accused was coming out and running away towards the road. She has deposed that she has identified the respondent and a Panchayat meeting was called in which respondent had accepted his guilt but this version does not flnd place in testimony of any other witnesses, Therefore, her evidence is not reliable and does not inspire confidence and trustworthy. 8. Having considered the evidence led by the prosecution, it is clear that the incident occurred at night and there was darkness prevailed upon and it was not possible for the witnesses to identify the respondent in the darkness. From perusal of the statements of these witnesses it is also clear that there are material omissions and contradictions in their testimony because on the one hand they said that they identified the accused/respondent whereas on the other hand in cross—examination it was not speciiically stated by them that they identified the accused. It is also clear that there was no independent witness. It is also apparent on the face of record that at the time of incident only family members of the prosecutrix heard her cries and woke up and nobody heard her cries. Thus, if all these points considered together, a serious dent arose in the prosecution story. Moreover, the learned lower Court after perusal of evidence minutely and after scrutinizing the same found that contradictions and omissions had taken place in the prosecution evidence, therefore, the Court below acquitted the respondent of all the charges under Section 456 and 354 of the I.P.C. 9. In the facts and circumstances of the case and after considering the material available on record as well as the elaborate judgment impugned passed by the Court below, I am of the View that in an appeal against acquittal if two Views on the prosecution evidence are possible and the trial Court has taken one View favourable to the accused persons, then it will not be permissible for the appellate Court to reverse the finding of acquittal by taking the other possible view on the prosecution evidence. 10. In the result, I do not find any such infirmity in the impugned judgment of acquittal which may warrant interference in V , g