IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.396 of 2001 Judgment reserved on:16.5.2008. Decided on: May 19, 2008. State of H.P. …Appellant. VERSUS Roshan Lal ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr A.K.Bansal, Addl.A.G. For the respondent: Mr Lovneesh Kanwar, Advocate. Kuldip Singh, Judge: The judgment of acquittal under Section 354 I.P.C. recorded by learned Additional Chief Judicial Magistrate, Sarkaghat on 14.3.2001 in police challan No.136-II/98 has been assailed by State in the present appeal. 2. The prosecution case, in brief, is that PW-3 Balo Devi was working in her paddy field on 27.6.1998 at about 10.30 A.M., the respondent appeared on the spot, caught her from arm and dragged her towards his house and pressed her breasts also. The respondent had torn her shirt. PW-3 reported the matter to the police and F.I.R. Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Ext.PW-2/A was registered at Police Station, Sarkaghat on 27.6.1998. PW-6 Swaran Singh, ASI, conducted the investigation. He prepared site plan Ext.PW-6/A. He took into possession shirt Ext.P-1 and on completion of investigation, handed over the file to S.H.O. Sher Singh who prepared the challan, which was presented in the Court. The 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 six witnesses and also produced documentary evidence. The statement of respondent was recorded under Section 313 Cr.P.C. and he examined five witnesses in defence and produced Ext.D-1 copy of order dated 20.8.1999 of the Panchayat. The learned Additional Chief Judicial Magistrate acquitted the respondent on 14.3.2001 and, therefore, State has come in appeal. 3. I have heard learned Additional Advocate General for the appellant, Mr.Lovneesh Kanwar, learned counsel for the respondent and gone through the record. The learned Additional Advocate General has submitted that the learned Additional Chief Judicial Magistrate has erred in acquitting the respondent. The prosecution has proved case against the respondent by leading cogent evidence. The victim PW-3 Balo Devi has proved the case of the prosecution. The statement of Balo Devi on material particulars has been corroborated by other evidence on record and more particularly by her son PW-4 Virender Kumar. The learned counsel for the respondent has submitted that respondent has been falsely …3… implicated by PW-3 Balo Devi. There is long standing litigation between the parties. PW-3 was convicted by Panchayat for offence punishable under Section 323 IPC as per Ext.D-1. He has submitted that in fact on 27.6.1997 at the relevant time Balo Devi interfered in the construction of respondent which he was carrying out at his own land and hit him causing injury. The learned Additional Chief Judicial Magistrate has rightly appreciated the material on record in acquitting the respondent. He has supported the impugned judgment. 4. PW-3 Balo Devi has stated that she was working in her paddy field on the date of occurrence at about 10 A.M. The respondent came there, caught hold her from neck and breasts and torn her shirt. The respondent thereafter dragged her from the arm towards his house. She raised alarm but no one was there. Thereafter, her son Virdnder Kumar and sister Bholi Devi came and on seeing them the respondent ran away. The police came on the spot and took into possession shirt Ext.P-1. In cross examination, she has stated that respondent is her Jeth (brother-in-law). She has shown her ignorance that respondent had lodged a report in the police. She has also shown her ignorance that later on that case was sent to Panchayat and the Panchayat had fined her Rs.50. She has admitted her litigation with the respondent. PW-4 Virender Kumar has stated that he heard the cries of his mother from the paddy field, on this he and Bholi Devi went to the spot, they saw that respondent caught hold his mother from arm and was dragging her to his house. On seeing them, Roshan Lal ran away from the place. In cross …4… examination, he has stated that the field is adjacent to road and many people use that road. He has admitted that at a distance of 60 -70 meters from the place of incident, there are houses. He has stated that Roshan Lal is about 70 years of age and his mother about 55 years. PW-1 Brij Lal has stated that Balo Devi produced the shirt Ext.P-1 to the police. In cross examination, he has stated that Balo Devi brought the shirt from her house. He has stated that Balo Devi is his real sister-in-law. He is not an eye-witness. PW-2 Rajinder Kumar is the son of Balo Devi. He is also not an eye-witness. He has stated in his cross examination, that a case against his mother was sent to the Panchayat. He has also admitted other litigation between the parties. PW-5 Ram Singh, Sub Inspector, is a formal witness. PW-6 Swaran Singh is the Investigating Officer who has stated that many cases between the parties are pending. He has also stated that at the time of incident Balo Devi had injured the finger of respondent with the stone and respondent had lodged a complaint against Balo Devi of that incident. On the spot respondent was raising construction and dispute had arisen at that time. He has also stated that the witnesses of complainant are from her own family who are in litigation with respondent. In defence respondent has produced Rapat No.16 dated 27.6.1998 copy Ext.DW-1/A. The respondent has also brought on record decision of Panchayat copy Ext.D-1. 5. PW-3 has stated that when she raised the alarm her son PW-4 Virender Kumar and Bholi Devi came. It means PW-4 is not an eye-witness to the incident. PW-4 in his turn has stated that when he …5… heard the cries of his mother he and Bholi Devi came on the spot and he saw that respondent had caught hold of his mother with arm and he was dragging her to his home. PW-4 has not stated that respondent caught hold Balo Devi with neck and also pressed her breasts. He has, thus, not supported PW-3 Balo Devi on material particulars. The shirt Ext.P-1 was just produced by Balo Devi. The shirt was not recovered at the instance of respondent. In these circumstances not much reliance can be given to the shirt Ext.P-1. PW-6 Swaran Singh Investigating Officer has admitted that all the witnesses in the case are from the family of the complainant and are in litigation with respondent. PW-4 Virender Kumar has stated that there are houses at a distance of 60-70 meters from the place of incident but no person from these houses has been examined by the prosecution. It has come on record that the respondent was raising construction. The respondent had also lodged complaint to the police which was sent to Panchayat and the Panchayat ultimately imposed a fine of Rs.50 on Balo Devi for having committed offence under Section 323 I.P.C. vide Panchayat decision copy Ext.D-1. It has come on record that the parties are in litigation. The respondent at the time of incident was about 70 years and Balo Devi about 55 years. It is not safe to rely on the statement of PW-3 Balo Devi and PW-4 without corroboration from independent witnesses. The prosecution has miserably failed to prove the case against the respondent. The learned Additional Chief Judicial Magistrate has considered the evidence on record rightly. The conclusion drawn by the learned …6… Additional Chief Judicial Magistrate from the material on record does not suffer from any illegality. The prosecution has failed to make out any case for interference. Resultantly, the appeal fails and is accordingly dismissed. Bail bonds, furnished by the respondent, are discharged. May 19, 2008. ( Kuldip Singh ), J. (soni)