IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No.303 of 2001 Judgment reserved on: 1.3.2008 Date of Decision : April 7, 2008 State of H.P. …Appellant. Versus: Kartar Singh & Others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Vivek Thakur, Additional A. G. with Ms. Shubh Mahajan, Dy. A.G.. For the respondents : Mr. K. S. Pathania, Advocate. Sanjay Karol, J. The present appeal arises out of the judgment dated 8.3.2001 passed by the Chief Judicial Magistrate, Bilaspur, H. P. in Cr. case No. 78-I of 1999, acquitting the accused of the charged offences under Sections 354, 451 and 506 read with Section 34 IPC. As per the case of the prosecution Shri Jaimal, husband of Smt. Nirmla Devi was the tenant in the premises owned by Shri Jai Singh, father of the accused persons. On 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 30.1.1999, in the absence of the tenant, the accused persons started throwing out the house hold articles from the premises which was resisted by Smt. Nirmla Devi. The accused persons assaulted her and tore off her clothes. On hearing her cries, S/Shri Prem Singh, Sukh Ram and Joginder Singh came to her rescue. On his return from Bilaspur, Shri Jaimal lodged a complaint Ext.PX dated 31.1.1999 with HC Rattan Lal, at Police Post Sri Naina Devi Ji, based on which FIR Ext.PW-5/A bearing No. 21/99 dated 31.1.1999 under Sections 354 & 506 read with Section 34 IPC was registered with Police Station, Kot-Kehloor, District Bilaspur, H.P. The police machinery was immediately put into motion and during the course of investigation, the torn clothes of Smt. Nirmla Devi were taken into possession vide memo Ext.PA. . . With the completion of the investigation, the challan was presented in the Court for trial. The accused were charged for the offences under Sections 451, 354 & 506 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined five witnesses and the statements of the accused under Section 313 Cr.PC were also recorded. The accused pleaded the defence of falsely implication on the asking of witness Shri Prem Singh with whom they had a land dispute. After considering the material on record, the Court below acquitted the accused of the charged offences. The only 3 reasons and findings given by the trial Court are reproduced herein in its entirety:- “5. Both these points are proposed to be taken up and decided together for the sake of convenience and just decision of the case. On a scrutiny of the evidence, it is amply clear that Smt. Nirmla Devi had come out of the house. So, the accused had no occasion to make any entry inside her rented accommodation which fact belies the commission of the offence of house trespass by the accused. 6. The room from which articles are alleged to be thrown was already in possession of the accused. Because, the said room is stated to have been locked by the accused on 29.1.1999 on account of dispute. So, it is also clear that it cannot be held that any such trespass was committed. 7. Admittedly, the complainant did not nurse any injury. So, it appears highly impossible that she was given fist and kick blows by the accused which fact belies the evidence of PW-4 Smt. Nirmla Devi, PW-2 Shri Prem Singh and PW-3 Shri Sukh Ram. Moreover, different accounts given about tearing of clothes and scuffle also twist the case. So, the tearing of clothes in the scuffle is also not sufficient to fasten liability on the accused and it was doubtful to hold that the accused assaulted the complainant. 8. On appraisal of the facts, it is evident that no danger or alarm was caused to the complainant which also reveals that no such criminal intimidation was caused to her. Thus, it is rendered doubtful that the accused committed trespass, assaulted the complainant and caused criminal intimidation to her 4 on the day in question. Both these points are answered in negative.” I have heard the learned counsel for the parties and gone through the record. HC Rattan Lal (PW-5) carried out the investigation. As per his version, statement of the complainant Ext.PX under Section 154 Cr.PC. was recorded and FIR Ext.PW-5/A was registered. He prepared site plan Ext.PW-5/B and took into possession the torn clothes (Ext.P-1 & P-2) of the complainant vide seizure memo Ext.PA. He carried out the investigation in totality and filed the challan in the Court. He categorically denied the suggestion put by the accused, that during investigation he found that no fight had taken place between the parties. He deposed that in a prior pending complaint as per the investigation carried out by SHO Kashmiru Ram, it was found that on 29.1.1999 the accused persons had also thrown some of the belongings of the complainant party and some of the articles were still left inside and there was a lock on the door. From his statement, it is clear that a prior complaint was pending against the accused persons in relation to the incident whereby some of the articles of the complainant were thrown out by them on 29.1.1999. There is no cross–examination on this point. Shri Jaimal (PW-1) has deposed that on 30.1.1999, he had gone to Bilaspur and when he returned back on 31.1.1999 he was informed by his wife that the accused persons 5 had thrown their belongings and when she objected to the same, they tore off her clothes and abused her. Out of fear, his wife had to stay in the house of Shri Joginder Singh. He has further deposed that the police came the following day and took into possession her torn clothes. He, however, admitted that between witness Prem Singh and the accused there is a dispute. The police had visited his house on 29.1.1999 as the accused persons had thrown the articles. He specifically denied the suggestion of the accused that the possession of the premises had been handed over to the accused. In cross-examination, he clarified that prior to the incident he had taken a new accommodation and shifted only some of his belongings and had not started residing therein. It was suggested to this witness that some of the articles had been deliberately kept by him in the premises. From the suggestion put to the witness, it is clear that even the accused have admitted that some of the complainant’s articles were lying in the premises and also the possession was with him. As per the version of Shri Prem Singh (PW-2), on 29.1.1999 at about 7.30 p.m., the accused were quarrelling with Jaimal (PW-1). Accused Kartar Singh had asked Jaimal to vacate the premises. The next day, all the three accused persons threw the complainant’s belongings and also used criminal force against PW-4 and tore off her clothes. In his cross-examination, he has, however, admitted that he is not in good terms with the accused as there has been litigation between them. He had 6 objected to the construction of house being raised by the accused persons which however, stood completed. He denied the suggestion that PW-1 had vacated the room on 15.1.1999 and the keys were with the accused and has clarified that the same was vacated only on 6.2.1999. As per the version of Smt. Nirmla Devi (PW-4), during the year 1999 PW-1 was posted as Patwari at Nainadeviji and had taken a house on rent from Jai Singh. On 29.1.1999 some of their belongings were thrown out from the room by the accused and their driver. On 30.1.1999, the accused persons again threw her belongings and when she objected, the accused gave her beatings and misbehaved with her by tearing off her clothes. Her husband was not present at home on that day as he had gone to Bilaspur for some work. The accused persons also threatened to kill her. Out of fear, she had to take shelter in the house of Shri Prem Singh and sleep there along with her children. The matter was reported to the police vide complaint Ext.PX and the police arrived at the spot and took into possession her shirt Ext.P-1 and salwar Ext.P-2 vide seizure memo Ext.PA. In her cross- examination, she is categorical that as on the date of incident they had not changed their house. Even on 29.1.1999, the police had come and prepared the list and kept the belongings in the Court-yard. She denied the suggestions that her husband was at home on the date of incident. According to her, she was not aware of any litigation between Prem Singh (PW-2) and accused Kartar Singh. 7 As per the version of Shri Sukh Ram (PW-3), on 30.1.1999 while he was on his way back from his fields and crossing the house of Smt. Nirmla Devi, he saw the accused persons throwing the belongings from her house and when Nirmla Devi objected to the same, all the accused persons attacked her and tore off her clothes. The accused also threatened Nirmla Devi of dire consequences. He corroborated the version of PW-1 & PW-2 that even on 29.1.1999, the accused had quarreled with Shri Jaimal . He identified the clothes of Nirmla Devi which were taken into possession by the police vide seizure memo which bore his signatures which he identified. According to this witness, the accused had intended to insult Nirmla Devi. There is a positive suggestion put to this witness by the accused that the quarrel had taken place on 29.1.1999, to which the witness has answered in positive. From the aforesaid discussion, it is thus clear that on 30.1.1999 the accused persons had not only thrown the belongings of the complainant but had also misbehaved with PW- 4. No suggestion has been put to PW-1, PW-3 and PW-4 with regard to prior enmity or quarrel. It is not that PW-1, PW-3 and PW-4 are relatives of PW-2. The statements of PW-2 and PW-3 are consistent and both have deposed that accused persons not only attacked PW-4 but also torn off her clothes and threatened her of dire consequences. At the time of occurrence of the incident PW-4 a lady and house-wife was alone at home. The accused persons three 8 in number had attacked her and out of fear, to protect her children and her life had to seek shelter in the house of PW-2. There was no occasion or provocation for the accused to misbehave and assault her. The intention of the accused persons is clearly evident from the attending circumstances as they together assaulted a helpless lady who was alone at the time of occurrence. In Rupan Deol Bajaj and another v. Kanwar Pal Singh Gill and another (1995(6) SCC 194), the apex Court has held as under:- “14. Since the word ‘modesty’ has not been defined in the Indian Penal Code we may profitably look into its dictionary meaning. According to Shorter Oxford English Dictionary (3rd Edn.) modesty is the quality of being modest and in relation to woman means “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct”. The word ‘modest’ in relation to woman is defined in the above dictionary as “decorous in manner and conduct; not forward or lewd; shamefast”. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency; a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1993 Edn.) the meaning of the word ‘modesty’ is given as ‘womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.” 15. In State of Punjab v. Major Singh (1994(4) SCC 602), a question arose whether a female child of 9 seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question Mudholkar, J. who along with Bachawat, J. spoke for the majority, held that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat, J.), observed that the essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh case supra it appears to us that the ultimate test for ascertaining whether modesty has been outraged is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to :outraging of her modesty” for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady ____ “sexual overtones” or not, notwithstanding.” 10 In State of Haryana v. Surender & Others etc. (2007(3) AICLR), the Apex Court has held as under:- “The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.” The finding returned by the Court below that the accused did not enter the house of the complainant, in my view, is not borne out from the record. The witnesses have clearly stated that the accused persons had thrown the articles belonging to the complainant. The belongings were thrown out from the house, therefore, it cannot be said that the accused did not enter the premises. That the complainant had handed over the possession of the house to the accused before 29.1.1999 is also not borne out from the record. The witnesses have deposed to the contrary. There is no evidence oral or documentary to the said effect. PW-5 has only stated that during investigation of the prior complaint, the SHO had found that on 29.1.1999 the accused persons had also thrown some of the belongings of the complainant and remaining articles were still left inside the house and there is a lock on the door. From 11 this, it cannot be inferred that the lock had been put by the accused persons or that the possession was with the accused persons. The Court below has also held that tearing off cloth in the scuffle is not sufficient to fasten the liability on the accused. As has been noticed above, PW-4 was alone at her house when the accused persons started throwing out her belongings and when she objected to the same they attacked her, tore off her cloth, insulted and also threatened her of dire consequences. Therefore, the reasoning given by the Court below not being borne out from the record is perverse and needs to be reversed. According to the learned counsel for the respondents the version of the witnesses is contradictory to the record. According to him, in her statement Ext.PX, recorded u/s 154 Cr.PC, Smt. Nirmla Devi has stated that in the night of the incident, she took shelter in the house of Shri Prem Singh whereas according to PW-1 she had actually stayed in the house of Shri Joginder Singh. The contention needs to be rejected for the reason; (1) that no suggestion was put to Smt. Nirmla Devi (PW-4) in this regard; (2) S/Shri Prem Singh and Joginder Singh live in the same house. Thus, it cannot be said that there is any contradiction on record. Learned counsel for the respondents has submitted that the case set out by the prosecution is improbable as without registration of FIR, the police could not have visited the spot on 12 29.1.1999. It has come on record, through the testimony of PW-5 that investigation of complaint with regard to the incident of 29.1.1999 was done by the SHO Kashmiru Ram. All the other witnesses have clearly, cogently and consistently deposed with regard to the incident of 29.1.1999. The complaint was pending investigation and mere non-registration of the FIR by itself would not be a ground to arrive at conclusion that the prosecution story is false, concocted and improbable. The fact that altercation took place on 29.1.1999 has been specifically mentioned in Ext.PX. In fact, there is a positive suggestion put to PW-3 with regard to the incident of 29.1.1999 from which the incident appears to be an admitted position. It has also been argued that there is a delay in lodging of FIR and variation with regard to the timings which is fatal to the prosecution case. According to the learned counsel for the respondents, the alleged incident took place in the evening of 30.1.1999, the statement of Nirmla Devi Ext.PX was recorded on 311.1999 at 11.45 a.m., but the FIR was registered on 31.1.1999 only at about 1.30 p.m. The contention needs to be rejected for the reason that delay in lodging of the complaint has been specifically explained by PW-4 according to whom at the time of occurrence of the incident on 30.1.1999, her husband had gone to Bilaspur and on his return the complaint was lodged at the earliest in his presence. It is a matter of record that her statement Ext.PX was recorded at Police Post Srinainadevi Ji at about 11.45 a.m. and the FIR had to be 13 recorded at Police Station Kot Kehloor which is at a distance of about 15 kms. from Srinainadevi Ji. In my view, there is no delay in lodging the FIR or variation with regard to the timing and the contention is rejected. The variation with regard to the timing of the incident in the version of the witness is minor and cannot be stated to be fatal particularly when the statement of this witness was recorded after a period of ten months. It has been further argued that the presence of Sukh Ram (PW-3) at the time and place of the incident is doubtful as his house is at a distance of ½ kms. from the spot. As per the version of Sukh Ram, house of Kartar Chand fell on the way to his house from his fields. Therefore, his presence cannot be disputed and more so as there is no cross- examination on this point. The absence of evidence of injuries sustained by PW- 4 would not be enough to belie and disbelieve the prosecution story that the accused persons had assaulted the complainant. It is not the case of any of the witnesses that the lady received any injury. Further, even if the version of Shri Prem Singh, who had a dispute with the accused, is to be ignored, the testimonies of PW-1, PW-3 & PW-4 are clear, consistent, cogent and the witnesses are totally reliable and trustworthy prove the complicity of the accused with the commission of crime. There is nothing which would make their statements to be unreliable or 14 would impeach their credibility. In one voice they have narrated the incident of 29.1.1999 and 30.1.1999. It has come on record through the version of PW-2 that the articles belonging to PW-1 & PW-2 were thrown out by the accused from the house. It has been proved beyond reasonable doubt that the accused persons took the law in their hands and not only threw the articles belonging to the complainant from the tenanted premises but also tore off the clothes of the lady. The accused persons with criminal intent and in furtherance of the common intention assaulted and used criminal force on PW-4 with an intention of outraging her modesty. The accused persons threw the belonging of the complainant from her house without the authority of law and thus also committed an offence of house trespass. The accused persons abused the complainant and also threatened her of dire consequences. Thus, they have also committed an offence of criminal intimidation. The circumstance lead to only conclusion that the accused persons are guilty of the charged offence and there is no doubt or suspicion showing their innocence. The Court below, in my view, has committed the grave error which has resulted into miscarriage of justice and, therefore, the judgment of the Court below needs to be reversed and set aside. The findings are perverse and contrary to record. Thus, keeping in view the principles laid down by the Apex Court, I am of the considered view that the judgment 15 needs to be set-aside and is accordingly ordered. I hold the accused persons guilty and convict them for the charged offences under Sections 354, 451 and 506 read with Section 34 IPC which the prosecution has been able to prove beyond reasonable doubt. (Sanjay Karol), Judge. April 7, 2008 (rana).