State of Himachal Pradesh vs Rajesh Kumar alias Banti

Kuldip Singh, Judge

This appeal is directed against judgment dated 23.12.2004 passed by learned Additional Sessions Judge, Mandi in Criminal Appeal No. 24 of 2003 setting aside judgment dated 25.4.2003/21.5.2003 passed by learned Additional Chief Judicial Magistrate, Sundernagar in Police Challan No. 116-I/98 convicting the respondent for offences punishable under Sections 323, 354, 451 IPC and sentencing him to undergo simple imprisonment for a period of one month for offence u/s 323 IPC, simple imprisonment for a period of six months and to pay fine of Rs. 500/- for offence u/s 354 IPC, in default of payment of fine to further undergo simple imprisonment for a period of one month, simple imprisonment for six months and fine of Rs. 500/- for offence punishable u/s 451 IPC and in default of payment of fine to undergo simple imprisonment for one month. The prosecution case in brief is that PW-1 Sumitra Devi was the tenant of PW-2 Dhani Devi in a house situated at Chatrokhari. She was residing there with her husband PW-3 Parkash Chand and children. The adjoining room of the building was in possession of Dhani Devi. On 6.12.1997 at about 6.30 p.m. Parkash Chand was working in the house of Brij Lal, Patwari as beldar. Sumitra Devi was preparing meals and the door of the room was closed. The respondent came there, pushed the door and came inside the room. He caught PW-1 and molested her by pressing her breasts. He told the victim that in case she would raise alarm, she would be defamed. PW-1 raised alarm which attracted Dhani Devi and PW-3 Parkash Chand.

The respondent on seeing Dhani Devi and Parkash Chand tried to run away and in this process he hit Parkash Chand with some object and caused injuries to him. PW-1 lodged an FIR in Police Station, Sundernagar. The prosecutrix and Parkash Chand were medically examined. The statements of witnesses were recorded. The site plan was prepared. The respondent was arrested, he was medically examined, some injuries were found on his person.

On the conclusion of the investigation, challan was submitted. The respondent was charged for offences punishable under Sections 323, 354, 452, 506 IPC. The respondent pleaded not guilty. The prosecution has examined six PWs and produced some documents. The statement of respondent was recorded u/s 313 Cr.P.C. He denied the prosecution case. It has been submitted by him that his father had lodged a case against Dhani Devi for selling liquor and for this reason a false case has been made against him. In defence DW-1 K.C. Katoch was examined. On conclusion of trial, the respondent was convicted and sentenced by the trial Court as noticed above. In appeal, the learned Additional Sessions Judge on 23.12.2004 accepted the appeal and acquitted the respondent, hence appeal by the State.

Heard and perused the record. The learned Additional Advocate General has submitted that the learned Additional Sessions Judge has erred in acquitting the respondent. The learned Additional Sessions Judge has not discussed the oral testimonies of the prosecution witnesses. The well reasoned judgment of the trial Court has been wrongly set-aside. It is not necessary for the prosecution to examine all witnesses, the quality matters and not the quantity of witnesses. She has prayed for acceptance of the appeal.

The learned counsel for the respondent has supported the impugned judgment. He has submitted that the learned Sessions Judge has discussed the prosecution evidence. There is delay in reporting the matter to the police even though the Police Station was hardly at a distance of three four minutes walk. The prosecution has examined only interested witnesses. The alleged occurrence took place at about 6.30 p.m. on 6.12.1997 but surprisingly no independent witness from the locality was joined in the investigation or examined during the trial of the prosecution. The view taken by the learned Additional Sessions Judge is not perverse, in appeal the scope is very limited and unless the view taken in the impugned judgment is perverse, the High Court will not interfere in the judgment of the acquittal merely on the ground that other view is also possible. The learned counsel for the respondent has submitted that there is no merit in the appeal.

In view of the contentions raised on either side, it is necessary to refer to the evidence. PW-1 Sumitra Devi has stated that her eldest son is 12 years old. The occurrence took place on 7.12.1997 at 6.30 p.m. when she was cooking food in her room. She had closed the door from inside. The respondent broke open the door and came inside. He pressed her breasts. He said that he wanted to have sexual intercourse with her. He tore her clothes around her breasts. She raised cries. On hearing her cries, Dhani and her husband came there. The respondent on seeing them, ran away but in the process hit her husband on his finger with some object. They could not lodge the report on account of darkness and respondent had also threatened her. The report was lodged next day. The copy of FIR is Ex.PA. In cross-examination, she has stated that adjoining to her house, there is a house of Patwari and Mast Ram. Her husband was working in the house of Patwari, one Rupa beldar was also working with her husband. She had shown the torn shirt to the police which was not taken into possession. The name of Patwari is Brij Lal. The police did not examine her children. Parkash Chand came there after five minutes of Dhani Devi. It takes half an hour to reach the police station. She denied that respondent did not enter her house nor molested her.

PW-2 Dhani has stated that on 6.12.1997 at about 6.30 p.m. she was cooking food. She heard the call of Sumitra. She went to the room of Sumitra where respondent was present. He was molesting Sumitra. The husband of Sumitra was working in neighbourhood, he came. The respondent hit the finger of husband of Sumitra with some object and blood started oozing out from the finger. The respondent was abusing and he ran away. In cross-examination, she has stated that the nearest house is of Mast Ram and thereafter is the house of Patwari Brij Lal. The Mohalla is big but the houses are scattered. Dimple resides near the house of Brij Lal and runs a kiosk. It takes about 3-4 minutes to reach the Police Station from her house.

PW-3 Parkash Chand has stated that on 6.12.1997 at about 6.00 p.m. he was working with Brij Lal, Patwari. He heard the cries of his wife, therefore, he immediately rushed to his home. He saw door of his room was broken and the respondent was coming out, Dhani was also there. He tried to catch the respondent but he hit him with some object on his finger and blood started oozing out. The report was made next day morning. The report Ex.PA bears his signatures. Sumitra had told her that respondent came inside and did mischief with her. He was medically examined. In cross-examination, he has stated that on that date Roop Lal, Sukh Ram and one more boy were working with him. The nearest house is of Mast Ram. The house of Ram Lal is also there, but he does not reside there. The house of Dimple is also nearby.

PW-4 Dr. Yogesh Sood has examined Sumitra Devi on 7.12.1997 and issued MLC Ex.PW-4/A. On that date, he also examined Parkash Chand and issued MLC Ex.PW-4/B. In cross-examination, he has stated that injuries recorded in MLCs Ex.PW-4/A and Ex.PW-4/B can be the result of self infliction.

PW-5 Dr. A.K.Mishra has stated that on 17.12.1997 he examined Rajesh and issued MLC Ex.PW-5/A. PW-6 S.I. Dola Ram is the Investigating Officer. He has stated that he prepared site plan Ex. PB. In cross-examination, he could not say that it takes 2-3 minutes to reach the spot from the Police Station but said that it takes about 20 to 30 minutes to reach the spot. He did not join any neighbour in the investigation.

The respondent in his statement u/s 313 Cr.P.C. has denied the prosecution case and has stated that he has been falsely implicated as his father had reported against Dhani for selling illicit liquor. DW-1 K.C.Katoch is the maternal uncle of the respondent. He has stated that on 6.12. 1997 Sumitra, Dhani and Mast Ram dragged the respondent, they forced him to drink and he was also given beatings. He was given injury with drat. He was medically examined. They after giving him beatings, dropped him in the house, mother of respondent was at that time in the house. The matter was reported on 7.12.1997 but the police did not register the case. On the contrary, the respondent has been implicated in the case. In cross-examination, he has stated about the beatings given to the respondent, he was told by his daughter. He himself had not seen the beatings.

Ex.PA is the FIR registered on 7.12.1997 at 8.30 a.m. As per prosecution story, the occurrence took place at about 6.30 p.m. on 6.12.1997. PW-1 and PW-3 have stated that they could not report the matter immediately after the occurrence as it was dark and they were threatened by the respondent. PW-2 Dhani Devi has stated that the Police Station is at a distance of 3 - 4 minutes from the place of occurrence. PW-6 Dola Ram, Investigating Officer has stated that the Police Station is at a distance of 20 to 30 minutes walk from the place of occurrence. It has come on record that there are other houses nearby. It is not believable that on account of darkness and fear PW-1 and PW-3 could not report the matter to the police within reasonable time of the occurrence. The FIR has been registered on 7.12.1997 at about 8.30 a.m. after about 14 hours of the occurrence. The delay has not been properly explained. In these circumstances, it is reasonable to infer that FIR has been registered after deliberations and it does not depict the true version.

PW-1 Sumitra Devi has stated that she was inside the room where she was cooking food. The door was closed. PW-1 has also stated that respondent broke open the door and came inside. The police during investigation did not collect evidence in the form of photographs to show that the door was broken. It has come in the evidence that there are other houses near the place of occurrence but no person from adjacent houses was joined during investigation or examined in the Court by the prosecution except PW-2 Dhani Devi, who is the landlady of PW-3 Parkash Chand husband of PW-1 Sumitra Devi. She is not an independent witness. The defence has taken the plea that father of respondent had reported against PW-2 for selling liquor. PW-1 has stated that her elder son aged about 12 years was also present in the house but surprisingly he was not associated by the police during investigation. PW-1 has stated that her shirt was torn by respondent near the breasts. It was very important piece of evidence but it was not taken into possession during investigation. PW-4 Dr. Yogesh Sood has examined PW-1 and PW-3 Parkash Chand and issued MLCs Ex.PW-4/A and Ex.PW-4/B, he has stated that injuries noticed by him in Ex.PW-4/A and Ex.PW-4/B can be self inflicted also. The occurrence took place at about 6.30 p.m. There are many houses adjacent to the place of occurrence but no person from those houses was examined, even though it is the case of the prosecution that when respondent misbehaved with PW-1 she cried for help.

The learned Additional Sessions Judge has considered all relevant aspects in the impugned judgment and thereafter recorded the judgment of acquittal. It cannot be said that the view taken by the learned Additional Sessions Judge is perverse. No doubt, the learned trial Court has convicted the respondent but the learned Appellate Court after appreciation of evidence has acquitted the respondent. The view taken by the learned Additional Sessions Judge emerges from the evidence on record. In appeal against acquittal the scope of interference is limited, merely other view is possible is no ground to convert the acquittal into conviction. The learned Additional Sessions Judge has given plausible reasons in accepting the appeal and setting -aside the conviction recorded by the learned trial Court. There is no merit in the appeal, hence dismissed. The bail bonds are discharged.