State Of Chhattisgarh vs Devendra Kumar

This acquittal appeal has been preferred by the appellant/State against the judgment dated 05.07.2002 passed by the Judicial Magistrate First Class, Bemetara District Durg (C.G.) in Criminal Case No.199 of 99 whereby respondents have been acquitted of the charge punishable under Sections 354 and 323 of the Indian Penal Code, 1860 (in short “IPC”).

Brief facts for disposal of this appeal, are that, on 10.10.1999, at about 10:15 PM, prosecutrix was standing in front of her house, at that relevant time, Devendra Kumar and Taranlal came there and caught hold of her and kept behind her house. Both the accused persons kissed her and pressed her breast, when she shouted, they slapped her on cheek. Prosecutrix came to the house of her uncle, i.e. Namdas (PW-2) and narrated the incident to him and then, she came to her house and narrated the incident to her parents alleging that accused have kissed her as also pressed her breast with an intention to outrage her modesty. Thereafter, prosecutrix lodged report to the concerned Police Station. After completion of investigation, charge-sheet was filed against the accused persons.

So as to hold the accused/respondents guilty, the prosecution has examined as many as 5 witnesses. The statement of the accused/respondents were also recorded under Section 313 of Code of Criminal Procedure, 1973, in which, they denied the charges levelled against them and pleaded innocence and false implication in the case. The respondents have adduced one witness in their defence.

After appreciating the oral as well as documentary evidence on record, learned trial Court found that prosecution has failed to prove its case beyond reasonable doubt and by the impugned judgment dated 05.07.2002, acquitted the accused/respondents for the aforesaid charges. Hence, this appeal has been filed by the State.

The learned State counsel submits that impugned judgment of acquittal is contrary to the law facts and circumstances of the case and thus, liable to be set aside and the respondents deserves to be convicted and sentenced to the full term provided. He next submits that learned trial Court failed to appreciate the evidence recorded in the case from a true and correct perspective. The learned trial Court has failed to appreciate the fact that prosecution has proved its story beyond all reasonable doubt. It is contended that all the prosecution witnesses stated against the respondents but trial Court on minor contradictions and omissions disbelieved the statement of witnesses. It is further contended that learned trial Court while passing impugned judgment, overlooked the material produced by prosecution and wrongly acquitted the respondents/accused persons. He argued that trial Court has misappropriated the evidence on record and arrived at an erroneous findings. He further argued that learned trial Court did not evaluate the evidence, which were available on record for convicting the respondents under the aforesaid offences, therefore, findings of acquittal is totally perverse and is liable to be set-aside.

Per contra, learned counsel for the respondents supported the impugned judgment of acquittal and submits that prosecution witnesses utterly failed to prove its case beyond reasonable doubt. Hence, after evaluating the entire evidence, has rightly acquitted the respondents for aforementioned charges levelled against them.

Heard learned counsel for the parties and perused the material on record including the impugned judgment.

The prosecution has examined prosecutrix herself (PW-1), her uncle Namdas (PW-2), mother Rajkumari (PW-3) and grandfather Milan (PW-4), who are all close relatives. Thus, there is a lack of independent evidence in the case.

Dr. Satish Kumar Sharma (PW-5) has conducted medical examination of prosecutrix and submitted its report vide Ex.P/3, according to which, there was abrasion of 1" x 1/8" below outer corner of left eye. Regarding the said injury, Dr. Sharma has stated in his cross-examination that it cannot be caused by slapping, but can be caused spontaneously. Thus, no injury stated to have been caused by slap to prosecutrix and as per prosecution case, she was slapped. Thus, version of prosecutrix is not corroborated by medical evidence.

In the Court statement, prosecutrix (PW-1) has stated that after the incident, when grip of accused's hand loosed, she disentangled herself, ran away and called out to uncle Namdas. When he came, accused beat her in front of him. But, her uncle Namdas (PW-2) has stated that prosecutrix had come and told him about the incident. The prosecutrix has not stated in her Court statement that her mother Rajkumari (PW-3) and grandfather Milan (PW-4) were present in the home at the time of incident. She went home and told them about the incident. Whereas mother Rajkumari (PW-3) has stated that she was living at home and asked the prosecutrix to give information about the incident. Grandfather Milan (PW-4) was in the business of selling fruits in a stall, who stated that when his son Namdas came to home only then, he came to know about the incident.

The defence of accused is that Lakhanlal father of Taranlal has a grocery shop and Namdas (PW-2) has a grocery shop opposite to him. There is rivalry between them and due to the said rivalry, accused have been falsely implicated in the offence in question.

As a defence witness, Fattelal has proved that shops of Lakhanlal and Namdas are opposite to each other and there is no communication between them. The statement of prosecutrix herself and her relative witnesses also corroborated the fact that there is no communication between accused Taranlal and family of prosecutrix.

What was the sequence of incident, where were uncle Namdas (PW-2), mother Rajkumari (PW-3) and grandfather Milan (PW-4) at the time of incident and when did they know about the incident? Regarding this point, there is a lot of contradictions between their Court statements and Police statements. In the above facts and circumstances of the case, learned trial Court has acquitted the respondents of the aforesaid charges levelled against them.

The Hon’ble Supreme Court in case of Muralidhar alias Gidda and Another v. State of Karnataka, (2014) 5 SCC 730, has held that if two views are possible, the appellate Court should not interfere with the judgment of acquittal, even otherwise, the prosecution, thus utterly failed in proving its case beyond reasonable doubt.

Applying the aforesaid legal proposition in the present case as well, it is quite vivid that the prosecution had to prove the case against the respondents beyond all reasonable doubt, but the prosecution has failed to do so. The statement of prosecutrix (PW-1) herself is not corroborated by medical evidence, the incident has not been told to anyone in neighbourhood, there has been no communication between the families of both the parties in past and it is stated that they have a rivalry. Furthermore, there is no independent witness in the case and there is serious contradictions in their Court statement and Police statement; prosecutrix herself stated that she was not injured. As such, the finding recorded by the learned trial Court acquitting the respondents of the aforesaid charges is based on the material available on record, which is neither perverse nor contrary to the record. Hence, this Court finds no illegality in the impugned judgment acquitting the respondents of the aforesaid charges levelled against them, particularly when there is a settled legal position that if on the basis of record, two conclusions can be arrived at, the one favouring the accused has to be preferred. Even otherwise, the prosecution has utterly failed to prove its case beyond reasonable doubt and the trial Court is fully justified in recording the finding of acquittal, which is based on proper appreciation of evidence available on record. However, no such illegality is noticed in the impugned judgment warranting interference by this Court. Being so, instant appeal is without any substance and is liable to be dismissed.

In the result, the acquittal appeal is hereby dismissed.