HIGH COURT OF CHHATTISGARH AT BILASPUR "y SINGLE BENCH: HON'BLE SHRI RAJESHWAR LAL JHANWAR. J. Criminal Appeal No.3093/1999 Appellant : State of Madhya Pradesh Through, P.s. Arjuni, Distt. Dhamtari, (Raipur) versus Respondent Motiram, S/o. Atmaram Sahu, aged 23 years, R/o. Village Navagaon, P.S. Arjuni, Tahsil& Distt. Dhamtari, (Raipur) ApDlication for leave to Appeal u/s. 378(3) Cr.P.C. and Criminal Appeal u/s. 37891) Cr.P.C. aaainst acauittal Present: Shri Vinay Harit, Dy. A.G. with Shri S.K. Mishra, Panel Lawyer for the State/appellant. Shri Vishnu Koshta, counsel for the respondent. JUDGMENT (Delivered on this Tf day of March, 2010) 'This criminal appeal is preferred by the State against the order dated 13.01.1999 passed by Judicial Magistrate, First Class, Dhamtari in Criminal Case No.847/98 by which he has acquitted the respondent under Section 354 and 323 of Indian Penal Code. 2. Case of the prosecution in brief is that on 25031995, early morning at about 5 O'clock, the complainant was going to attend natural call towards the tank, the respondent followed her. After reaching near the pond, the complainant was standing there thinking that the respondent will go ahead then she will sit for natural call. The respondent caught hold of her hands and tried to outrage her modesty and took her to nearby field and thrown her into ground and then she cried for help. After hearing her cry Sonuram and Paramanand reached there. Seeing Sonuram, the respondent fled away from the spot. She narrated the incident to the witnesses and returned to her home and reported the matter to Police Station Arjuni, Distt. Dhamtari. 3. After recording statements of the witnesses under Section 161 ofthe Cr.P.C. and after completion of investigation charge sheet was filed before Judicial Magistrate First Class, Dhamtari under Section 354 and 323 of Indian Penal Code against the respondent. The charge was explained to the respondent who abjured the guilt and pleaded his innocence and false implication. After taking evidence and hearing both the parties and after appreciation of the evidence, the learned lower Court has acquitted the respondenVaccused of charge under Section 354 and 323 of Indian Penal Code. Against this judgment, the State has preferred this appeal. 4. Learned Dy. Advocate General for the State has argued that there are ample evidence against the respondent, Jamuna Bai (PW/2) has stated the incident and was supported by the evidence of Paramanand (PW/3), Sonuram (PW/4) and Rewaram (PW/7), the Court below disbelieving the evidence of above witnesses, acquitted .3 ^^ the respondent of the charge under Section 354 and 323 of Indian Penal Code. On the other hand, learned counsel for the respondent supported the imp.ugned judgment of acquittal. 5. I have heard learned counsel for the parties and perused the record of the Court below. 6. tt is evident from the statement of the Jamuna Bai (prosecutrix) that on the day of the incident, she was going to attend natural call, at that time the respondent caught hold of her hands and tried out outrage her modesty and after holding her hand she was dragged towards the field, at that time she cried for help and on hearing her cry Paramanand (PW/3) and Sonuram (PW/4) came there. She has also stated that the respondent hac^ put mud on her mouth so that she could not cry. She has also stated that the respondent sat over her body and throttled her neck and also threatening her to kill. She further stated that after hearing her cry, Paramanand (PW/3) and Sonuram (PW/4) came there and the accused fled away from there and when she tried to get up from the field to go back her house, again she fell down on the field. After reaching home, she narrated theincident to her family members and reported the matter to police (Ex.P/2). In cross examination she has denied that she was brushing her teeth with Manjan and she thought that the respondent is asking for Manjan, but this statement was not given by her to the police statement. She was also contradicted by ^€:^! f?^ ^^F' ^y ^^y .4 ^ the police evidence about that she was dragged towards the field by the respondent and was put mud on her mouth by the respondent. This statement find no place in her police statement. In this way, there were so many contradictions in her statements and the statement given in the Court. 7. Paramanand (PW/3) has stated that onthe date of incident, early morning at 5 O'clock, he was taking his buffalos, at that time he heard cry of the prosecutrix and went towards the tank. According to him, at that time, the respondent was putting mud on the mouth of the prosecutrix and also throttling her neck. As soon as he reached the spot, the respondent ran away from the spot. fn cross examination, he stated that when he reached thespot after hearing the cry of the prosecutrix, the respondent was not there and only the prosecutrix was there. He also stated that the incident was taken place in the month of January or February and at that time there was darkness. Sonuram (PW/4) has stated that early morning at about 5 O'clock, he went towards the tank and heard the cry of the prosecutrix for help and when he and Paramanand went towards the place of incident, Paramanand reached first and he reached after that. At that time Jamuna Bai was crying and told them that respondent had put mud on her mouth and also caught hold of her hands and was trying to outrage her modesty. He has also stated in his cross examination that at the time of the incident, there was darkness and also stated that at the place of incident so many ^ li \^ Y ^^i: ^j ^ J •fs"Qass^''' persons were present. According to him, when he reached the spot, the respondent was not there. He has also witnessed the seizure of bangles. Rewaram (PW/7) also stated that on that day at about 5 O'clock in the morning he went to attend the nature's call. At that time he heard a cry of somebody for help. Paramanand and Sonuram reached there and some village people were also there. On the way he met Jamuna Bai, Paramanand and Sonuram. Jamuna Bai stated that Motiram was trying to outrage her modesty and some how she escaped from him and due to scuffle, her bangles were broken. In cross examination he has stated that he had not given any statement to police. 8. Learned lower Court has acquitted the respondent on the ground that there were so many contradictions in the statement of the complainant and also in the statement of other witnesses. It is clear from the statement of Rewaram that he has not given any statement to police. The statement given by Jamuna Bai, Paramanand and Sonuram have also recorded under Section 161 of the Code of Criminal Procedure though it is not exhibited as there is contradictions and omissions in that. It is a simple mistake that exhibit was not marked. After perusal of the cross examination of the witnesses it is clear that there are so many contradictions and omissions and prosecution has also stated that when she tried to raise up from the field she fell down. It may be possible that she may have injury due to falling. According to Dr. Kadir (PW/7), Ex.P/1 he has stated that injury caused by herself. Paramanand (PW/3), Sonuram (PW/4) and Rewarak (PW/7) have not seen the accused on the spot. According to them at the time of the incident, there were darkness, then how they saw the incident, is doubtful. Paramanand (PW/3) has stated that Motiram had put mud in the mouth of the complainant and other witnesses have also stated the same. But according to them, they reached there when the respondent fled away from the spot then how they can say that the respondent had put mud on the mouth of the complainant and also there was darkness, according to them to see the incident become doubtful. This version is also suspicious. Therefore, their evidences are not reliable. It is clear from the evidence of all the witnesses that there are so many contradictions and omissions in the evidence of witnesses. Paramanand (PW/3), Sonuram (PW/2) and Rewaram (PW/7) had not supported the evidence of Jamuna Bai Though the lower Court had disbelieved the evidence produced by the prosecution and rightly acquitted the respondent under Section 354 and 323 of Indian Penal Code. 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, 1 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. Thus, the judgment ofthe learned lower Court is not perverse or illegal. 10. In the result, the appeal filed by the appellanVState against the acquittal of respondenVaccused person is liable to be and is accordingly dismissed. Sd/- R.L. Jhanwar Judge ^03.2009