IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 385 of 2002. Reserved on : 20.3.2009. Date of Decision: 25.3. 2009. State of Himachal Pradesh …Appellant. Versus Surinderpal Singh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the respondent : Mr. Lovneesh Kanwar, Advocate. __________________________________________________________ Kuldip Singh, Judge The State has come in appeal against the judgment of acquittal dated 13.11.2001 passed by the learned Additional Chief Judicial Magistrate Sarkaghat, District Mandi in Police Challan No. 64-11/98 acquitting the respondent for the offence punishable under Section 354 I.P.C. 2. The facts in brief, are that PW-1 Nirmala Devi – complainant made a statement Ex.PW-1/A to PW-5 Shiv Singh that on 29.11.1997 she had gone to Hospital at Sandhol. She has also stated that about two months back, she had got fixed three upper teeth from a private doctor at Hatnala bazaar which developed mobility and for that purpose, she had gone to the ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 shop of the said doctor at 12 O’clock alone. The doctor asked her to sit inside on the chair, he started treatment of the teeth, in the meantime her husband Prem Singh also came in the clinic with her son. The doctor after treating her teeth, put his hand inside her jacket and pressed her breasts. She got up from the chair at once and slapped the doctor as well as pushed him away. The husband of the complainant asked her as to what had happened to which she replied that the doctor had pressed her breasts. The husband of the complainant thereafter went to ring up the police and the doctor also left the clinic. On the basis of statement Ex.PW-1/A, F.I.R. Ex.PW2/A came to be registered, site plan Ex.PW-5/A was prepared. On completion of investigation, the challan was presented, notice of accusation was put to the respondent for offence punishable under Section 354 IPC to which he pleaded not guilty and claimed trial. The prosecution has examined five witnesses and produced some documents. The statement of respondent was recorded under Section 313 Cr.P.C. and defence evidence was also led by examining two witnesses. The learned Additional Chief Judicial Magistrate, Sarkaghat, acquitted the respondent on 13.11.2001, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. Lovneesh Kanwar, Advocate learned counsel for the respondent and have gone through the record. On behalf of the State, it has been submitted that the learned Additional Chief Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondent, even though, the prosecution has proved the case against the respondent beyond reasonable doubt. The learned counsel for the respondent has supported the impugned judgment. 4. In Ex.PW-1/A, the complainant has stated that she went to the clinic of doctor alone at 12 O’clock. The doctor asked her to sit on the chair and he drew the curtains. The doctor started repairing her artificial teeth and 3 in the meantime, her husband and son reached there. The doctor after repairing her teeth put his hand inside her jacket and pressed her breast. She immediately got up from the chair and slapped the doctor as well as pushed him, her husband asked the doctor as well as her what had happened. She told her husband that doctor had pressed her breast. On this, her husband asked the doctor why he had done so. He went out to ring the police and in the meantime, the doctor went out the clinic and left the clinic open. 5. The complainant as PW-1 in her statement in the Court has stated that she removed her artificial teeth and handed over to the doctor to re-fit the teeth. The respondent came out side and applied some material on the teeth and came inside and had drawn the curtains. The doctor put one hand on her teeth and second hand in her jacket and pressed her breast. She slapped the doctor and raised an alarm. She caught the respondent from neck and pushed him. She came out and her husband was sitting outside. On the asking of her husband, she disclosed the incident to him. The respondent ran away from the spot and her husband caught him on the road. 6. PW-1 in her cross-examination has stated that she visited the respondent for fitting the teeth twice or thrice and she came there all alone but during those visits, the respondent did not misbehave with her. The clinic of the doctor is in the bazaar itself. There is verandah outside the clinic of the doctor. A bench was lying in the verandah. It took about half an hour for the treatment and the incident took place after half an hour. There was nobody in the clinic. The other shopkeepers had witnessed the incident. She has admitted that Arjun was his real brother who has died leaving behind six daughters and one son. She denied that she proposed the marriage of one daughter of Arjun to respondent through Hari Singh which respondent refused. She admitted that when the respondent was treating her teeth, her husband 4 came there and slapped the respondent. She denied that respondent reported the matter to the police. 7. PW-2 Shyam Lal, H.C. has proved the statement Ex.PW-1/A and FIR Ext.PW-2/A. PW-3 Prem Singh is the husband of the complainant and has stated that when he reached the clinic of the respondent at that time, the curtain was drawn and nothing was visible inside. He remained standing outside. He heard the sound of fall of chair and shriek of a woman and also sound of slap, her wife threw the respondent outside the curtain and respondent fell on the counter. The complainant on his asking disclosed that respondent put his one hand on her mouth and the second hand in her jacket and pressed her breast. In cross-examination, he has stated that he was not sitting in the verandah but was on the road. He has also stated that there is no verandah in the clinic of the respondent. PW-4 Kashmir Singh has stated that he does not know anything about the case. He was declared hostile. He was cross-examined by the prosecution but nothing favourable to the prosecution was extracted in his statement. PW-5 Shiv Singh is the Investigating Officer. He has stated that there is no verandah in the clinic of the respondent. There is no space outside the clinic for sitting. 8. In his statement under Section 313 Cr.P.C., the respondent has denied the prosecution case and has stated that the complainant was inimical towards him as he refused her proposal for marrying her niece. 9. DW-1 Ram Chand has stated that on 29.11.1997 at about 11 – 12, the complainant gave two – three slaps to the respondent. The respondent did not misbehave with the complainant. DW-2 Achhar Singh has stated that he was posted M.C. in Police Post Sandhol and he has proved Ex.D-1. 10. The complainant PW-1 in her statement in the Court has stated that earlier she visited alone the respondent for fitting her teeth twice or 5 thrice and during those visits the respondent did not misbehave with her. In her earlier version to the police vide Ex.PW-1/A, she has stated that the respondent after repairing her teeth put his hand inside her jacket and pressed her breast. In the Court in her statement, she has stated that doctor had put one hand on her teeth and second hand in her jacket and pressed her breast and contradicted her earlier version which she made to the police. In Ex.PW- 1/A she has not stated that she raised an alarm but again contradicted herself in the Court when she said that she raised an alarm and caught the respondent from neck and pushed him. She has stated that her husband was sitting outside but her husband PW-3 Prem Singh has stated that there is no verandah in the clinic of respondent and he was on the road. The complainant has also stated that other shop-keepers had witnessed the incident. In site plan Ex.PW-5/A, many shops have been shown near the clinic of respondent but no shopkeeper from those shops has been examined. The complainant has stated that after the incident respondent ran away from the spot and her husband caught him on the road. But in her statement Ex.PW-1/A made to the police, she has not stated that respondent had run away from the clinic and he was caught on the road by her husband. The defence of the respondent cannot be ruled out altogether when he has put up the case that complainant proposed the marriage of her niece with him to which he refused and in those circumstances he has been falsely implicated in the case. The complainant has contradicted herself in the statement made to the police and the statement made by her in the Court. No explanation has been given by the prosecution why the independent witnesses were not associated in the investigation and examined in the Court. The learned Additional Chief Judicial Magistrate has taken a possible view from the evidence which emerges from the record. The learned Additional Advocate General has failed to make out any perversity in 6 the impugned judgment. No case for interference has been made out, resultantly, the appeal is liable to be dismissed. 11. No other point was urged. 12. In view of the above discussion, the appeal fails and is accordingly dismissed. The bail bonds are discharged. ( Kuldip Singh ), March 25, 2009. Judge. (GR)