1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.72 of 2003. Decided on: March 8,2010. State of H.P. …Appellant. VERSUS Ram Lal Thakur ….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. For the Appellant: Mr J.K. Verma, Dy. AG For the respondent: Mr. Rakesh Jaswal, Advocate. R.B.Misra, Judge (Oral): Heard Mr.J.K. Verma, learned Deputy Advocate General for the appellant/State and Mr. Rakesh Jaswal, learned counsel for respondent. 2. The present Criminal appeal has been preferred under section 378 of the Code of Criminal Procedure against the impugned order dated 5.12.2002 passed by learned Chief Judcial Magistrate, Bilaspur, District Bilaspur, HP in case No.205-1 of 1998 and 63-2 of 1999, whereby one Ram Lal Thakur, alleged accused, is said to have been involved for the offences under sections 354 and 451 of IPC, and whereby Chief Judicial Magistrate, Bilaspur, District Bilapsur has given the benefit of doubt to the alleged accused. 2 3. In order to deal with the present appeal preferred by the State, it is necessary to give a brief facts to the prosecution case. 4. It appears that complainant Smt. Sadhna Gupta, Journalist of ‘Srishti Magazine’ of Delhi had come with one Sh. Harminder Singh @ Harry, a photographer by profession, to Bilaspur to cover the Adventure sports activities, scheduled to take place from 16.11.1997 to 19.11.1997. Both were accommodated in Room Nos. 105 and 106 at Sagar View Hotel, Bilaspur. It appears at about 10.20 PM on 16.11.1997, the alleged accused, namely, Ram Lal Thakur came to the hotel room of Smt. Sadhna Gupta and made some deliberations with Smt. Sadhna Gupta. During conversation, she got up and started moving towards the door, alleged accused followed her and put his hand on the right shoulder of the complainant and started sliding his hand on her back and tried to grab her. By that time, she had come out of the room by opening the door. However, she came to the room taking U-turn and bolted the room lateron, exchanged with another room No. 106, occupied by Sh. Harminder Singh @ Harry. It appears Smt. Sadhna Gupta, the complainant had accompanied the alleged accused next day i.e. on 17.11.1997 in his car. On 17.11.1997, also the same alleged accused came to the room of Smt. Sadhna Gupta despite her willingness and instructions to the hotel management not to allow anyone to visit to her room. On 17.11.1997 she was 3 allegedly tried to be grabbed in her room by the said alleged accused. 5. According to the prosecution story, Sadhna Gupta was taken to the house of one Madan Bhardwaj and on 18.11.1997 she informed her husband on telephone and sought advise. Accordingly, she reported the matter to the District Magistrate on 18.11.1997 and wanted police protection of Bilaspur District. A letter dated 18.11.1997 was addressed to Deputy Commissioner, Bilaspur, informing him that on 16.11.19978 she was physically molded and touched inappropriately and harassed by Ram Lal Thakur in her room of Sagar View Hotel at about 10.20 PM where she was staying and again on 17.11.1997 the same alleged accused visited her room against her wishes and instructions, to the hotel management and the alleged accused had tried to grab her alone in her room. For safety reason, she left the hotel premises and took shelter elsewhere. As such, she made complaint that she was being harassed and being persuaded and afraid of her physical safety on 16.11.1997, she had left the place. 6. Trial was conducted where the alleged accused, in a statement under section 313 Cr.P.C, had denied prosecution allegations, on the ground that the present case was out of political cause where he was being implicated. 7. Prosecution has examined PW-1, Smt. Sadhna Gupta and Harminder Singh as PW-2. On the basis of material 4 on record, learned Chief Judicial Magistrate noted in reference to the contentions made by and on behalf of the defence that the complainant did not report the matter directly to the police and there was sufficient delay in lodging the FIR and the prosecution storey became doubtful because on the next date i.e. 17.11.1997, complainant herself travelled to Mela ground with the accused in his car and had he assaulted her physically on 16.11.1997 during night, in that case she would not have accompanied in his car to attend the function. It has also been noted that the complainant did not inform any person about the alleged occurrence including Harminder Singh on 16.11.1997 or any of the hotel management official. On the basis of the analysis of prosecution witnesses, including witness PW-1, learned Chief Judicial Magistrate has arrived at a conclusion that the statement of complainant is unnatural as a prudent and reasonable person she should have raised an alarm in case her modesty was outraged by the accused on 16.11.1997 and she should have reported the matter to the hotel management and even to the police. An apparent contradiction was noted by the Chief Judicial Magistrate in the testimony of PW-2 Sh. Harminder Singh @ Harry, who indicated a different story by deposing on that that after reaching Sagar View Hotel on 16.11.1997, he was allotted room No. 106 and when he slept after taking his dinner, there was knock at the door of his room after about 30-45 minutes and when he opened the door, he noticed that the 5 complainant in a shocked and frightened state told him that the alleged accused came to her room and tried to misbehave with her and therefore, he exchanged his room with her. All the depositions of PW-2 are in contradiction to the depositions made by the complainant PW-1 who has specifically deposed that she has never told anybody about the occurrences of 16.11.1997 and 17.11.1997. She has specifically deposed that she has not even told Harminder Singh PW-2, about the first occurrence when she was exchanging her room occupied by PW-2. As such, an apparent material contradictions were noticed. 8. About the incidence of 17.11.1997, complainant PW-1 Smt. Sadhna Gupta had deposed that accused had come to the room when she was sitting and talking to Harry in her room. She has further deposed that the door was opened by Harminder Singh @ Harry and the accused was angry to see him in her room and he pushed him out from the room. On the contrary PW-2, Harminder Singh has deposed that he was not pushed by the accused out from the room, rather, he had nicely shaken hands with him and politely told him that he wanted to have a talk with him and both of them went out of the room. The complainant has further stated on oath that she called Sh. Harminder Singh, PW-2 again to her room and again the accused being furious pushed him out from the room and in between sensing trouble had herself escaped from the room. On this aspect also, 6 material contractions appeared from the testimony of PW-1 and PW-2 which were noticed by the learned Chief Judicial Magistrate. Even on 17.11.1997 when PW-1 wanted to escape from the hotel for her safety reason and she was provided lift by Sh. Manoj Kumar, a familiar and known person to her, even on that occasion, she had not told anything about the occurrence to Manoj Kumar or anybody. Mr. Manoj Kumar, PW-5 had given a different story indicating that when he had gone for the programme with the star television team in hotel Sagar View at about 9.15 PM, Smt. Sadhna Gupta met him and had requested him to drop her at bus stop. He had left her in the vehicle of the hotel management at bus stand, Bilaspur. As such, there is nothing in his statement that he had taken her to the house of one Pankaj and then taken to the house of Sh. Madan Bhardwaj. As such, the case of the prosecution was taken to be doubtful and full of major contradictions. 9. Learned Chief Judicial Magistrate has found that the unjustified and un-explained long delay had affected the investigation in view of the decision of Hon’ble Supreme Court in Balakrushna Swain V. The State of Orissa, AIR 1971 SC 804 10. Learned Chief Judicial Magistrate has rightly noted that in her examination-in-chief, Smt. Sadhna Gupta deposed that the accused had tried to kiss her, whereas, in her statement Ext PX under section 161 Cr.P.C she has 7 specifically stated that she had been kissed by the accused on the left side of the upper lip. After analyzing the material of the prosecution witnesses, it appears that Smt. Sadhna Gupta is an educated journalist. She did not report the matter of the alleged incidence of 16.11.1997 as well as of 17.11.1997 to any of the person of hotel management or the organizer about the events. She did not inform to Harminder Singh, PW- 2 for the reasons best known to her on the same day i.e. on 16.11.1997. She did not report the matter to Deputy Commissioner or any of the police officials even on telephone. Despite all these alleged mis-happenings, complainant had accompanied the accused in his car by sitting with him in the rear seat of the car and kept on talking to him and attended the Mela ground together. In the information dated 18.11.1997 to the Deputy Commissioner, was vague indicating that she was physically maulded and touched inappropriately and harassed by the alleged accused. Specific acts performed by the alleged accused were not indicated and even for the next event of 17.11.2010 also proper narration was not made that at what time alleged accused had come to the room and how the alleged accused had tried to grab her in her room. As such, very vague narration was given, which show that the conduct of the complainant was unnatural which belies the occurrence and the verdict of Hon’ble Supreme Court in Harbans Lal V State of Punjab (1996) 2 SCC 350 goes against the prosecution. 8 11. After analyzing the material on record and keeping in view the apparent contradictions in the material witnesses of PW-2 with depositions of PW-1, I am of the considered view that the learned Chief Judicial Magistrate has correctly arrived at a conclusion that the prosecution has failed to make out a case beyond reasonable doubt and the prosecution has not been able to bring home the guilty to the accused for the offences under sections 354 and 451 IPC beyond reasonable doubt, therefore, in my opinion, the alleged accused has rightly been acquitted after giving him benefit of doubt. As such, the impugned order dated 5.12.2002 is upheld and the appeal filed by the State is dismissed. March, 8,2010 ( R.B.Misra ) (sl) Judge