State of Himachal Pradesh vs Subhash Chand

Sanjay Karol, J.—Assailing the judgment dated 16.2.2006, passed by learned Judicial Magistrate, 1st Class, Court No. III, Hamirpur, H.P., in Police Challan No. 20-I of 2000 (RBT No. 13-II-05), titled as State of H.P. vs. Subhash Chand, whereby respondent-accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. On the basis of complaint (Ext. PW-1/A), F.I.R. No. 44/2000 (Ext. PW-6/A), dated 1.4.2000 was registered at Police Station Bhoranj, Distt. Hamirpur, H.P. against the accused under the provisions of Sections 354 and 506 of the Indian Penal Code. According to the prosecutrix (PW-1), on 29.3.2000 at about 2.00 p.m. while she was taking water from the tap near her house, accused called her to the fields. When she went there, accused tied her hands, pressed her chest and gagged her mouth. In effect accused tried to outrage her modesty. Prosecutrix rescued herself from the clutches of accused by giving a tooth bite on his thumb. Accused threatened her not to disclose the incident to anyone least she be defamed. On way back home she met Smt. Narendra Kumari (PW-3) (her sister-in-law -bhabhi) to whom she narrated the entire incident. Police conducted investigation and with its completion, challan was presented in the Court for trial.

Notice of accusation was put to the accused for having committed offences punishable under the provisions of Sections 354 and 506 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined eight witnesses and statement of the accused u/s 313 Cr. P.C. was also recorded, in which he pleaded false implication. No defence evidence was led by the accused.

The Court below acquitted the accused for the reason that prosecution could not prove its case. Hence the present appeal.

Having heard learned counsel for the parties and perused the record, I am of the considered view that in the instant case no ground for interference is made out.

To establish the fact that accused assaulted and used criminal force with an intent of outraging the modesty of the prosecutrix and also criminally intimidated her, prosecution heavily relies upon the testimony of prosecutrix (PW-1), her mother Smt. Biyasa Devi (PW-2) and �bhabhi� Smt. Narendra Kumari (PW-3).

It has come on record, through the testimony of PW-3 that there was prior animosity between the family of the complainant and the accused. Animosity is a double edged sword. Simply because complainant had been harbouring animosity against the accused, itself cannot be a reason to disbelieve the prosecution witnesses or acquit the accused. However, in the instant case, it appears that accused stands falsely implicated.

The alleged incident took place on 29.3.2000 at about 2.00 p.m. in brought day light. In Court prosecutrix states that she did not reveal the incident to her parents till the time report was lodged with the police, which was on 1.4.2000 and that too at about 4.30 p.m. The delay in reporting the matter, to my mind has not been sufficiently explained. Prosecutrix conveniently forgets that she had already disclosed the incident to her �bhabhi� (PW-3). A heinous crime, affecting her reputation took place two days prior to lodging of the F.I.R. There is no explanation on record as to why both PW-1 and PW-3 did not immediately take any action of reporting the matter either to the parents, panchayat or the police. Accused is not a hardened criminal or a man of influence and resource.

According to PW-1, accused called her and she voluntarily went to the fields. Why is it that she accompanied him? She does not disclose the exact conversation which took place at that time. She simply states that in the fields accused tied her hands, gagged her mouth and molested her. But this version is totally uninspiring in confidence. Conduct of her �bhabhi� (PW-3), in the given facts and circumstances is abnormal. Her testimony in Court, apart from the fact that she contradicts the version of prosecutrix, does not inspire confidence. Prosecutrix was threatened and not her �bhabhi� (PW-3). Why is it that she remained quite and not report the matter to anyone.

In Court, PW-3 has given a version which is totally different than what prosecutrix allegedly disclosed to her. She states prosecutrix told her that accused had teased her. She specifically does not narrate the incident, as the prosecutrix wants the Court to believe. Neither there is any reference of disclosure of alleged acts of molestation/outraging of modesty nor of any threats given by the accused. In Court PW-3 states that prosecutrix herself told her not to disclose the incident to anybody. Why is it that prosecutrix did not want the incident to be known to anyone has not been sufficiently explained by her. Her statement that she was under threat or fear, does not inspire confidence at all.

Having perused the testimony of the prosecution witnesses on record, it cannot be said that prosecution has been able to conclusively establish the fact by leading clear, cogent, convincing material piece of evidence that the accused assaulted and used criminal force with an intent of outraging the modesty of the prosecutrix and also criminally intimidated her. It cannot be said that the findings returned by the court below are not borne out from record, perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence. The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., it cannot be said that the Court below incorrectly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice. No ground for interference is called for.

As such, the present appeal is dismissed, so also the pending applications, if any. Bail bonds, if any, furnished by the accused are discharged.