IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.Appeal No. 375 of 2004. Decided on: 12.8.2011. ___________________________________________________________ State of H.P. … Appellant. Versus Jabar Hussain … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. P.K. Sharma, Addl. A.G. For the respondent : Ms. Vidushi Sharma, Advocate. ___________________________________________________________ Justice V.K. Sharma, Judge (Oral). The State is in appeal against acquittal of the respondent herein, who shall hereinafter be referred to as the accused, for the offences under Sections 332, 353 and 354 of the Indian Penal Code (IPC), vide judgment dated 3.5.2004 passed by the learned Chief Judicial Magistrate, Kinnaur at Reckong Peo (H.P.) in Criminal Case No. 108-2 of 1999, State versus Jabar Hussain. 2. Bereft of details facts of the case are that the complainant (PW-3) was at the relevant time serving as Lady Constable in Police Lines, Reckong Peo. On 1.11.1999 she along with some other officials was on patrol duty near the chowk at Reckong Peo. During those days Lavi fair was going on at Reckong Peo. At about 1.40 p.m., the accused allegedly came near the complainant and intentionally struck against her. When she raised objection, the accused slapped her. It was in such circumstances that the accused was over powered by the police personnel present there. On enquiry, he disclosed his name, parentage and address and stated that he was serving in Indian Tibet Border Police (ITBP) at Reckong Peo. Consequently, FIR Ext. PW3/A was registered against him at Police Station, Reckong Peo. The case was investigated into by the police. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 3. On completion of investigation, the accused was sent up to face trial. On being charged, he did not plead guilty and claimed trial. The prosecution evidence followed. It examined seven witnesses in all. 4. On close of the prosecution evidence, the accused was examined by the learned trial Court under Section 313 Cr.P.C. wherein his defence was that of denial simplicitor, innocence and false implication. 5. After hearing the parties, the learned trial Court proceeded to acquit the accused. 6. I have heard the learned Additional Advocate General for the appellant-State, the learned counsel for the accused and gone through the record. 7. The accused has been acquitted by the learned trial Court by extending benefit of doubt mainly on the grounds that despite availability of independent witnesses on the spot at the time of the alleged occurrence, no such witness was associated and instead official witnesses alone were joined, the evidence led by the prosecution during the trial is not up to the mark to pin-point the identity of the accused as the offender and there are material improvements and contradictions in the prosecution evidence which go to the very root of the case. 8. In FIR Ext. PW-3/A, the complainant had stated that at about 1.40 p.m., when she was on traffic duty, one person with a slight beard came there and intentionally struck against her and on being asked as to why he had struck against her, he slapped her. Thus, it is manifest that according to the complainant the accused had intentionally struck against her and on being confronted he slapped her. However, while appearing as PW-3, she has improved her version and has instead stated that that person (accused) struck his shoulder against her breast and on being objected, he 3 slapped her. It appears that this improvement has been made with a motive behind to bring the offence within the ambit of Section 354 IPC. 9. The complainant in her deposition as PW-3 has categorically admitted that there was a traffic jam owing to which there was rush on the spot. It is further admitted that owing to rush in the fair, people getting pushes etc. was common. 10. Indisputably, the occurrence had taken place in the midst of a fair with great rush. In such situation, it can be reasonably inferred that lot many people must be present on the spot at the time of the alleged occurrence. However, not even a single independent eye witness was joined by the police during investigation to lend credence to its case. Strangely enough only official witnesses were associated. This aspect of the matter can also not be lightly over looked in the peculiar facts and circumstances of the present case. 11. On re-appraisal of the evidence led by the prosecution, particularly, the eye witnesses including the complainant, namely, PW-2 Constable Atam Prakash, PW-3 L.C. Vijay Laxmi (complainant), PW-4 HC Dharam Sen and PW-6 Constable Vijay Kumari, I do not see any lawful cause or basis to differ with the inference drawn by the learned trial Judge that identity of the accused does not stand convincingly established to show that he was the offender. It is because the complainant (PW- 3) has endeavoured to fasten guilt against the accused solely on the basis that he was having a slight beard at the time of the alleged occurrence. Even other witnesses have not been able to state with certainty that it was the accused and accused alone, who was perpetrator of the alleged crime committed against the complainant. Above all, no test identification parade was conducted to connect the accused with the alleged occurrence. 4 12. PW-6 Constable Vijay Kumari has not corroborated the version stated by the complainant (PW-3) as regards the accused striking his shoulder against her breast. 13. In view of the above, I am satisfied that no lawful cause or basis is made out for any interference with the impugned judgment of acquittal dated 3.5.2004. The appeal is accordingly dismissed. (V.K. Sharma) Judge. August 12, 2011. (cr)