,,^^^ ^^, ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR kpNN^ Single Bench : Hon'ble Shri Rajeshwar Lal Jhanwar, J- Criminal Appeal No. 102/2002 State ofChhattisgarh versus Nepal Singh JUDGMENT Post for pronouncement of Judgment ^-03-2010 Sd/- R.L. Jhanwar Judge (^) HIGH COURT OF CHHATTISGARH: BILASPUR SINGLE BENCH: HON»BLESHRI RAJESHWAR LAL JHANWAR, J. Applicant Appellant Respondent Criminal Appeal No. 102/2002 State of Chhattisgarh. Versus Nepal Singh Kewat, S/o Sukhuram Kewat, aged about 28 years, R/o village : Pandari Panni, Police Station : Basna, Distt. : Mahasamund, Chhattisgarh. APPLICATION FOR GRANT OF LEAVE TO APPEAL U/S 378 (3) AND MEMO OF APPEAL U/S 378 (11 OF THE CR.P.C. Present:- Shri Suryakant Mishra, PL for the State. Shri Sarfaraj Khan, counsel for the respondent. JUDGMENT (Deliveredon }\ /03/2010] The State has preferred this appeal against the judgment dated 13.10.2001 passed by the Judicial Magistrate First Class, Raipur in Criminal Case No. 928 of 1999 by which the learned lower Court has acquitted the respondent under Section 354 of the I.P.C. 2. Brief facts of the prosecution case are that on 01.10.1997 at about 6.00 a.m. the complainant P.W.6 was going to attend natural call, the respondent/accused followed her and at Pandripani Dongri, the place of incident, the respondent caught hold of her hands and thrown her on the ground and tried to outrage her modesty and pressed her breast whereupon the complainant resisted the same and cried for help and on hearing her cries persons nearby gathered there and accused fled from the spot. The complainant received injury during the resistance. She reported the matter to police station Basna where F.I.R. was registered vide Ex.P.1. Thereafter, she was sent for medical examination. After recording statements of the witnesses under Section 161 of the Cr.P.C. and after completion of investigation, ,,y** \ @ charge sheet was filed before the Judicial Magistrate First Class, Raipur, under Section 354 of the I.P.C. against the respondent. The charge was read over and explained to the respondent who abjured the guilt and pleaded his innocence and false implication and also led evidence in defence by examining three witnesses namely Goverdhan D.W.l, Radheshyam D.W.2 and Chakradhar D.W.3. 3. After affording an opportunity to the parties and after hearing the learned counsel for respective parties, the learned lower Court has acquitted the respondent/accused of charge under Section 354 of the I.P.C. Against this judgment, the State has preferred this appeal. 4. Learned Panel Lawyer for the State/appellant argued that despite there was ample evidence available on record including the evidence of the complainant to convict the respondent/accused for the offence under Section 354 of the I.P.C. the Court below ignoring the statement of the complainant and other witnesses acquitted the respondent of the charge under Section as above. On the other hand, counsel for the respondent supported the impugned judgment of acquittal. 5. I have heard learned counsel for the parties and perused the record ofthe court below including judgment impugned. 6. P.W.l Jagdish and P.W.2 Karan Singh have stated nothing. It is evident from the statement of the complainant (prosecutrbc) P.W.6 that at the time of incident she was going to attend natural call holding bucket of water and for that purpose she was standing. In the meanwhile, the accused/respondent came there and caught hold of her hands and thrown her on the ground and upturning her blouse pressed her breast and also abused her. Due to fall on the ground being done by the accused, she received injury on her knees and cried for help. She has also stated thaf accused told her that if she will not fell in love with him, then he would stop her to solemnize marriage. She has further stated that p -5" on hearing her cries, Kirthilal P.W.7 and Vishnu P.W.8 came there. According to her, she came back to her home and informed about the incident to her parents and uncle and on the date itself she went to police station along with Kotwar and lodged a report vide Ex.P.l. In her cross-examination, she has deposed that earlier one report has also been lodged against the respondent, in which the respondent was acquitted. Kirthilal P.W.7 has stated that after hearing cries of a girl he reached there but this witness did not see anybody present there and according to this witness incident took place at Tikra. This witness was stated to be as eye witness by the complainant but this witness did not support the evidence of prosecutrbc. Vishnu P.W.8 has stated that he found the complainant (prosecutrbc) coming from Dogri by weeping. On being asked she replied that respondent - Nepal Singh caught hold of her hands but did not inform him about the fall on the ground and pressing of breast by the accused. In cross-examination, has also deposed that after hearing her noise he sent his son Kirthilal P.W,7 to see the incident whereas Kirthilal has stated nothing and Vishnu P.W.8 also did not see the accused at the place of incident. He admitted that the prosecutrbc reported thrice against the respondent /accused. In this view of the matter, since these witnesses have also not supported what prosecutrix has stated in her statement, therefore, her evidence is not reliable. 7. As regards Bahadur Singh P.W.3 and Padmabai P.W.4, they are relative witnesses. According to Bahadur Singh P.W.3, respondent ~ Nepal Singh took the prosecutrte: in his tractor. When the prosecutrbc shouted, he was at present in his house. After hearing her noise, he came out and saw that respondent was dragging the prosecutrbc by holding her hands. Upon this, Padama and Rustam saved her. He has further stated that Nepal Singh was hurling filthy abuses on the prosecutrK and threatened to kill her if she discloses and then the respondent returned by his tractor. Thus, according to this witness, the incident took place near the house of the prosecutrbc and respondent was only dragging her. Padmabai, mother of the prosecutrbc, has stated that -^- when her daughter went for attending natural call, the accused/respondent caught hold of her and gagged her mouth and also threatened her to outrage her modesty and not to attend any Court and if she will do so, then he will kill her. It was further stated that on the evening of the same day, the respondent came to their house and dragged her by holding her hands and also abused her. In this way, she has stated about the incident took place in the morning and evening. But this piece of evidence does not find place in the statement of the prosecutrbc nor in her husband, Therefore, the evidence of this witness also does not inspire confidence. Mansingh P.W.5 has deposed that early morning at 6.00 a.m. on the date of incident when her daughter (prosecutrbc) went to attend natural call then the accused assaulted her and pressed her breast, as told by her daughter to him whereas in the evidence of Padmabai this piece of evidence does not fine anywrhere. In this view of the matter, there are material contradictions in the evidence of the prosecutrix P.W.6, Padmabai P.W.4 Mansingh P.W.5 and Bahadur Singh P.W.3 about the place of incident because according to the prosecutrbc the incident took place when she was going to attend natural call whereas according to Kirthilal P.W.7 and Vishnu P.W.8 the place of incident was Tikra and according to Padmabai P.W.4 and Mansingh P.W.5, the incident took place at their house. In this way, the prosecution has utterly failed to prove the place of incident and what was actually happened with the prosecutrix. On perusal of all the evidence, it is also clear that the prosecutrbc is in the habit of lodging complaints against the accused/respondent because of enmity between the prosecutrbc and the respondent. Thus, it may also be possible that she may falsely implicate the accused, therefore, the contradiction finds place in the evidence of above witnesses. The prosecution has also failed to prove its case beyond reasonable doubt. 8. Having thus considered the above evidence, I am of the view that the prosecution has not been able to prove its case beyond c \Cf^ F& -r- reasonable doubt. Therefore, the learned lower Court has acquitted the respondent of the charge under Section 354 of the I.P.C. 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, I 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 of the learned lower Court is not perverse or illegal. 10. In the result, the appeal filed by the appellant/State against the acquittal of respondent/accused person is liable to be and is accordingly dismissed. I Sd/- R.L. Jhanwar Judge