IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 154 of 2002 Date of decision: 12 .5. 2009 State of H. P. …..Petitioners Versus Beer Singh ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the petitioner: Mr. J. S. Guleria, Assistant Advocate General. For the respondent : Mr. Amar Deep, Advocate. Surinder Singh, J. (Oral). The respondent was tried for the offences under Sections 452 and 354 of the Indian Penal Code, allegedly trespassing into the house of the complainant and molesting her. The respondent was acquitted for the offence punishable under Section 452 of the Indian Penal code by the learned trial court but convicted and sentenced under Section 354 of the Indian Penal Code to undergo simple imprisonment for a period of three months with a default clause. The respondent assailed his conviction under the aforesaid Section before the Court of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - Sessions in appeal No. 48/2 of 2000, which came to be decided by the learned Additional Sessions Judge and the respondent was acquitted vide his detailed judgment dated 22.11.2001 noticing the material contradictions suspecting the prosecution case. Feeling aggrieved and dissatisfied by the judgment of acquittal, the State has filed the instant appeal. Shri J.S. Guleria, learned Assistant Advocate General for the State argued with vehemence that the learned Appellate Court failed to view the prosecution evidence in its proper perspective and at the same time has set unrealistic standards to evaluate the direct and cogent evidence of the prosecutrix. Shri Guleria also took me through the evidence on record and argued that the learned appellate Court has wrongly brushed-aside the cogent material on record, which concludes that the statement of the prosecutrix was worth inspiring confidence. I have given my thoughtful consideration to the rival contention of the parties and have carefully examined the record. In short, the case of the prosecution has been that during the intervening night of 11th and 12th February, 2000 at about 11.30. p. m. when husband of the prosecutrix was away to the house - 3 - of his brother, she was asleep with her children in one of the room in her house. The respondent was allegedly in a drunken condition and broke open the door and made indecent advances towards the prosecutrix. She offered resistance but the respondent tried to outrage her modesty. All this happened for about half an hour. The prosecutrix and her children kept on raising cries and shrieks but nobody came to their rescue from the vicinity. Thereafter she is alleged to have picked up “Kashla” (agricultural instrument). Seeing this, respondent decamped from the spot. Next morning, the prosecutrix approached PW-3 Sunita Devi, Pradhan of Mahila Mandal. She sent Chander Mohan to call the respondent but he was not found at his place. On 14.2.2000, prosecutrix made a written complaint to the police on the basis of which FIR was registered and the case was investigated. On the conclusion of the investigation, challan against the respondent was presented under the aforesaid Sections. The respondent was accordingly charge sheeted for the aforesaid offences. He pleaded not guilty and claimed trial. The prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. He raised the - 4 - defence that Ram Lal, brother-in-law of the prosecutrix was having enmity with him and in collusion with the complainant, the present case was foisted upon him. On examining the evidence of the prosecution, learned trial court found material discrepancies in the statement of the prosecutrix and her witnesses with respect to the house trespass as such respondent was acquitted under Section 452 of the Indian Penal Code but while relying upon the statement of the prosecutrix qua molesting her by embracing, he was convicted and sentenced under Section 354 of the Indian Penal Code, for outraging her modesty. In appeal, learned Additional Sessions Judge minutely examined the statement of the prosecutrix viz-a-viz the statement of her daughter PW-2 Kumari Anjana in the light of the complaint finding material discrepancies therein and also the fact that her version qua the offence under Section 452 of the Indian Penal Code was found false, she was not believed to conclude the offence under Section 354 I.P.C. and her statement was held to be not worth relying confidence. I have reappraised the evidence on record. In FIR Ext. PW-1/A there is not even a fleeting reference with respect to the scuffle and molestation in the manner she described in her - 5 - statement in the court. Further as PW-1 she testified on oath that in the scuffle, her bangles were also broken when respondent was fondling her breast and offered resistance. This fact does not find mention in the FIR yet further when the police visited the spot and prepared the site plan even broken bangles were not found on the spot. Significantly, the daughter of the prosecutrix also did not support her version to this extent that the bangles of her mother were broken in the alleged scuffle. The prosecutrix has also stated that she stated all these facts to the police officer while making the report. But PW-6 S.I. Balak Ram and PW-5 Chander Mohan have not corroborated her version. There were also no injuries on the person of the prosecutrix. Thus, the version of prosecutrix that she had suffered contusion and abrasions on her breast and arm is also found incorrect and such injuries were neither reported to the police nor she was medically examined to lend strength to her version. Even the Investigating officer has stated that no such contusion and abrasion were ever shown or reported to him. It is also important to note that while entering into the house, the respondent is stated to have broken the “Kundi” (bolt) of the door from inside but this fact has not been corroborated by - 6 - her daughter and also the Investigating Officer nor the bolt of the door was found broken by the police on its visit to the spot. Chander Mohan PW- 5 stated that the door of the house of the prosecutrix was functional. It stands proved on record that her brother-in-law Ram Lal and Babu Ram were residing in the vicinity where Ram Gopal B.D.C. member also resides along with his family. According to the prosecutrix, she made a hue and cry seeking help whereas according to PW-5 if anybody raises the noise or shouts, it could be heard in the vicinity which means no such thing had happened lest it could be heard by the neighbours. Further the prosecutrix is stated to have brandished “kashla” to protect her and on seeing this, the respondent is stated to have made from the spot but according to her daughter PW-2, the respondent ran away from the spot when they raised screams and shouts. In the aforesaid circumstances, when the story to entering into the house by the respondent is disbelieved by the learned trial court which remained un-assailed, then other part of the story qua the offence under Section 354 of the Indian Penal Code gets a serious set back in view of the above contradictions, which assumes importance in the above back-ground of the case. Thus there is no guarantee that the statement of the prosecutrix implicating the respondent bears a ring of truth. - 7 - Therefore, in my opinion on re- examination of the evidence, the learned appellate Court had taken note of all these circumstances and rightly disbelieved the testimony of the prosecutrix and recorded the judgment of acquittal, which, in my opinion suffers from no infirmity as such, the present appeal lacks merit. It is accordingly dismissed. Send down the record. May 12, 2009 (Surinder Singh),J. (cm)