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Madhya Pradesh High Court · body

2009 DIGILAW 1147 (MP)

PAVINDER AHLUWALIA v. STATE OF M P

2009-09-23

K.S.CHAUHAN, RAKESH SAKSENA

body2009
Judgment ( 1. ) SINCE both the appeals arise out of a common judgment passed by the Court below, they are being disposed of by this common judgment. ( 2. ) CRIMINAL Appeal No. 1854/2008 has been filed by the State against the impugned judgment dated 6. 2. 2008, passed by the Additional Judge to the court of i Additional Sessions Judge, Tikamgarh, in Sessions Trial No. 278/01, acquitting the respondent/accused Pavinder Ahluwalia of the offence under Section 376 of the Indian Penal Code. ( 3. ) CRIMINAL Appeal No. 401/2008 has been filed by accused Pavinder Ahluwalia against the same judgment whereby the trial Court convicted him under Section 354 of the Indian Penal Code and sentenced him to rigorous imprisonment for two years with fine of Rs. 25,000/ -. In default, of payment of fine, further rigorous imprisonment for six months. ( 4. ) IN short, the facts of the case are that the prosecutrix (PW-1) resided at delhi. She was working as a Personal Assistant in the Civil Aviation at Palam airport, Delhi. In November 1998, she consulted accused, who was an army officer, about getting her brother Suresh employed in some Government job. According to her,for that purpose she paid Rs. 60,000/- to him at Delhi, but he did not procure any job for her brother. She, therefore, demanded her money back. Accused assured her that he would get a job for her brother at Jhansi, else he would take the money back from the person to whom he had paid. He asked her to come to Jhansi. On 12. 3. 1999, she boarded Mangla Express Train from Delhi and reached Jhansi on the same day at about 4. 00 p. m. . She stayed at Raj Palace hotel. On 13. 3. 1999, at about 10. 30 a. m. , accused also reached Jhansi by Shatabdi express Train. Prosecutrix met accused at railway station. It is said that at about 4. 45 p. m. accused made a telephone call to prosecutrix calling her at Elite Square at about 5. 00 p. m. . At the appointed place, accused came in a Maruti Van and asked her to accompany him for meeting the person to whom he had paid the money, who, according to him, resided about 10-15 Kms. away from the township. He told to her that the said person would be available at about 7. 00 p. m. . At the appointed place, accused came in a Maruti Van and asked her to accompany him for meeting the person to whom he had paid the money, who, according to him, resided about 10-15 Kms. away from the township. He told to her that the said person would be available at about 7. 30 p. m. , therefore, they could have a trip to Orchha to see lighting. They reached Orchha and went to the other side of the river. Accused parked the Maruti Van by the side of the road in the forest and took her inside a place which was surrounded by fencing and grappled with her, as a result of which her shirt got torn. He threw her to the ground and after removing her salwar and Panty committed rape on her. She shouted, but nobody heard. After committing the offence, accused made her to smell something whereby she felt giddiness and he ran away. She, then went to police Station, Orchha and lodged the first information report (Ex. P/1) at 20. 30 hours and also handed over to police a railway ticket of Shatabdi Express from new Delhi to Jhansi and a bill of Bank, which, according to her, had fallen from the pocket of accused at the spot. Police registered the offence against the accused under Section 376 of the Indian Penal Code. Prosecutrix was sent for medical examination where doctor seized her cloths and prepared a slide of her vaginal swab. ( 5. ) AFTER recording the statements of witnesses, police came to conclusion that it was a case of false implication and there was no sufficient evidence to prosecute the accused, and filed the final report before the Court of Magistrate. Since police did not take any action against the accused, prosecutrix filed the complaint before the Court of Judicial Magistrate First Class, Orchha. Learned Magistrate, after recording the statement of prosecutrix under Section 200 of the Code of Criminal procedure took cognizance and committed the case to the Court of Session. ( 6. ) DURING trial, accused abjured his guilt and pleaded false implication by the prosecutrix in connivance with Ashok Bhadoriya and Brijendra Singh. According to him, on the date of incident he was at Delhi as his maternal grand mother had died and that he was present there on his duty also. ( 6. ) DURING trial, accused abjured his guilt and pleaded false implication by the prosecutrix in connivance with Ashok Bhadoriya and Brijendra Singh. According to him, on the date of incident he was at Delhi as his maternal grand mother had died and that he was present there on his duty also. In his defence, he examined dw-1 O. P. Popli, DW-2 Mani Kandan, DW-3 Ved Prakash, DW-4 Sardar Manjeet Pal Singh and DW-5 Mohanlal Pandey. He also exhibited documents from Exhibits D/1 to D/25. ( 7. ) PROSECUTION, to substantiate; its case, examined 8 witnesses viz PW-1 prosecutrix (complainant), PW-2 Surendra Kumar Tiwari, PW-3 Jaihind Singh, pw-4 Rajesh Kumar, PW-5 lady constable Madhuri, PW-6 Head Constable Ram prasad Shukla, PW-7 J. P. Uikey, Investigating Officer and PW-8 Dr. Madhu Jain. ( 8. ) TRIAL Court, though held the prosecution story about rape false, yet held that the accused had outraged the modesty of the prosecutrix and was, therefore, liable to be convicted under Section 354 of the Indian Penal Code and accordingly acquitted him of the offence under Section 376 of the Indian Penal Code, but convicted and sentenced him under Section 354 of the Indian Penal Code, as mentioned above. ( 9. ) LEARNED counsel for the accused submitted that the evidence of prosecutrix (PW-1) was wholly unreliable. She was inimically disposed towards the accused therefore she levelled false allegation of rape against him at the behest of Ashok bhadoriya and Brijendra Singh, who were on inimical terms with him. He submitted that the evidence of prsoecutrix was totally belied by the medical evidence, as it was established by the evidence of Dr. Madhu Jain (PW-8) and FSL report (Ex. P/11) that she was not subjected to sexual intercourse. In convicting the accused under Section 354 of the Indian Penal Code, while rinding the accusation of rape false, trial Court acted on surmises and conjectures. From the evidence of prosecutrix itself, it was established that she entertained grudge against the accused. Therefore, in the circumstances of the case, no reliance could have been placed on her uncorroborated sole testimony. He submitted that the trial Court committed serious error in holding that the railway ticket (Ex. P/2), handed over by the prosecutrix to police, belonged to accused, in the absence of reservation record of the railway. Therefore, in the circumstances of the case, no reliance could have been placed on her uncorroborated sole testimony. He submitted that the trial Court committed serious error in holding that the railway ticket (Ex. P/2), handed over by the prosecutrix to police, belonged to accused, in the absence of reservation record of the railway. Merely by the production of the said railway ticket and the document ex. P/3 by the prosecutrix, it could not have been presumed that the accused was present at the place of alleged incident, since these documents were not seized from the spot. Learned counsel further submitted that the trial Court wrongly disbelieved the evidence of defence witnesses and the documents produced by the accused in defence, which clearly established that the accused, at the relevant time, was present in Delhi. Placing reliance on the ratio of Jayantibhai Bhenkarbhai vs. State of Gujrat 2002 8 SCC 165, he submitted that in the facts and circumstances of the case, by the evidence adduced by the accused in support of his plea of alibi, at least a reasonable doubt was created about the truthfulness of the prosecution case. Therefore, accused was entitled to be acquitted. ( 10. ) ON the other hand, learned counsel for the State and the learned counsel for the complainant contended that the evidence of PW-1 prosecutrix was reliable. Even if her evidence was not corroborated by the medical evidence, it could not have been discarded altogether. There was no reason for her to have put her prestige at stake by making false allegation of rape against the accused. Presence of accused at Orchha was established by the documents Ex. P/2 and Ex. P/3, which were handed over by the prosecutrix to police immediately after the incident. Counsel submitted that the documents produced by the accused in his defence were not legally admissible and reliable, as no witness, who himself had seen the accused at Delhi was examined in the court. By mere production of certificates and documents, the plea of alibi taken by the accused was not established. They placed reliance on Binay Kumar Singh Vs. State of Bihar- AIR 1997 SC 322 and submitted that strict proof is required for establishing the plea of alibi. They submitted that the trial Court committed error in acquitting the accused of the offence under Section 376 of the Indian Penal Code. ( 11. They placed reliance on Binay Kumar Singh Vs. State of Bihar- AIR 1997 SC 322 and submitted that strict proof is required for establishing the plea of alibi. They submitted that the trial Court committed error in acquitting the accused of the offence under Section 376 of the Indian Penal Code. ( 11. ) WE have heard learned counsel of both the sides and perused the oral and the documentary evidence on record carefully. ( 12. ) THIS case rests on the solitary testimony of the prosecutrix (PW-1 ). According to her, in the year 1998, accused assured her for securing a job in army for her brother and for that purpose he obtained Rs. 60,000/- from her. For one year he did not arrange for the job. On asking in the year 1999, he told her that they would have to go to Jhansi. Therefore, on 12. 3. 1999, she went to Jhansi and. stayed there in Hotel Raj Palace. Next day, accused also reached there. She met him at railway station at about 10. 30 a. m. . At about 4. 00 p. m. , when she was at hotel, she received a call from the accused. He called her at Elite Square. When she met him there, he told that it would take some time to meet that person. He suggested that in the meantime, they may visit Orchha. In the car, they went to orchha. After crossing the river, accused stopped the car near the forest and took her in a hut. While they were sitting in the hut, suddenly accused grappled with her and threw her on the ground and after pulling out her Salwar and underwear, committed rape on her. She shouted, but nobody heard. Accused made her to smell something in his handkerchief, due to which she felt reeling and he went away. When prosecutrix came out of the hut, she found a railway ticket and a bill, which belonged to accused; She picked them up and went to police station and lodged: the report (Ex. P/1) and handed over the railway ticket (Ex. P/2) and the bill (Ex. P/3) to police which were seized. Next day, she was sent to Government Hospital for medical examination. After lodging the report with the police, she also filed a complaint in the Court. ( 13. P/1) and handed over the railway ticket (Ex. P/2) and the bill (Ex. P/3) to police which were seized. Next day, she was sent to Government Hospital for medical examination. After lodging the report with the police, she also filed a complaint in the Court. ( 13. ) LEARNED counsel for the accused pointed out that the evidence of prosecutrix was belied by the medical evidence of Dr. Madhu Jain (PW-8), as absolutely no mark of any external or internal injury was found on the person of prosecutrix and further that the fact of rape was not confirmed by the FSL report (Ex. P/11 ). ( 14. ) DR. Madhu Jain (PW-8), who was posted in District Hospital, Tikamgarh, deposed that on 14. 3. 1999 she conducted medical examination of prosecutrix, who was brought by Police Constable Madhuri. According to her, prosecutrix told to her that she had not taken bath and had not changed her cloths. Dr. Madhu Jain (PW-8 )stated that she did not find any injury on the body of prosecutrix. There was no injury on her private parts also. Her hymen was old torn. She could not give any definite opinion about rape because prosecutrix was habitual to sexual intercourse. She did not find any sign of discharge on the private parts of the prosecutrix. She prepared slides of her vaginal smear and also seized her clothes and handed over to the constable. Prosecutrix, as revealed from the first information report, was a woman of about 37 years of age. Had there been grappling or had she been thrown to the ground and her clothes removed, certainly some telltale marks would have been found on her body. If she would have resisted the aggression made by accused, she would have naturally received some marks of injuries on her body as it would not have been easy for the accused to remove her clothes and commit the rape on her. According to prosecutrix, after commission of rape, when she attempted to cry, accused made her to smell something in a handkerchief, which made her feel giddy. It sounds quite unnatural. If accused wanted to commit sexual intercourse with the prosecutrix against her wish, he could have used that thing, which made her giddy, before committing the offence. According to prosecutrix, after commission of rape, when she attempted to cry, accused made her to smell something in a handkerchief, which made her feel giddy. It sounds quite unnatural. If accused wanted to commit sexual intercourse with the prosecutrix against her wish, he could have used that thing, which made her giddy, before committing the offence. Besides that, prosecutrix stated that after the sexual intercourse by the accused, the discharge from her vagina had come on her clothes and also on the pubic hair. But, no seminal stains and spermatozoa were detected on her clothes or in the slides prepared of her vaginal swab in the chemical examination/fsl report (Ex. P/4 ). In these circumstances, the story of rape given by the prosecutrix clearly appeared to be false, Trial Court, therefore disbelieved the evidence of prosecutrix about commission of rape and acquitted the accused of the charge under Section 376 of the Indian Penal Code. ( 15. ) SINCE, except the evidence of prosecutrix there was no other evidence on record about the accusation of rape against the accused, in the opinion of this court, trial Court was justified in acquitting him of the charge of rape. In State of Rajasthan v. Raja Ram 2003 8 SCC 180 , Apex Court held: "the principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 2 SCC 793 , Ramesh Babulal Doshi v. State of Gujrat 1996 9 SCC 225 and Jaswant Singh v. State of Haryana 2000 4 SCC 484 . " ( 16. ) FOR the aforesaid reasons, Criminal Appeal No. 1854/2008 filed by the State against the order of acquittal of accused under Section 376 of the Indian Penal code is dismissed. ( 17. ) NOW the question before this Court is whether the conviction of accused under Section 354 of the Indian Penal Code was justified. The arguments advanced by the learned counsel of the accused are (1) at the relevant time accused was at delhi, he had not gone to Jhansi or Orchha. ( 17. ) NOW the question before this Court is whether the conviction of accused under Section 354 of the Indian Penal Code was justified. The arguments advanced by the learned counsel of the accused are (1) at the relevant time accused was at delhi, he had not gone to Jhansi or Orchha. Therefore, the allegation of commission of any offence against him is false; and (2) that the evidence of prosecutrix, who was the solitary witness of the incident, was not reliable because it was belied by the medical and expert evidence. ( 18. ) IN Jayantibhai Bhenkarbhai v. State of Gujrat 20028 SCC 165=2002 cri. L. J. 4734, the Apex Court held: "the plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from section 103 of the evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. The burden of the accused is undoubtedly heavy. This flows from section 103 of the evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. How every while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the Court. " ( 19. ) ACCUSED; in his defences under Section 313 of the Code of Criminal Procedure stated that on the date of incident he was at Delhi as his maternal grand mother had died: Besides that while cross examining the prosecutrix, he also suggested that on 13 th March 1999 he was present at his military residence in kashmir House area. To substantiate, his defence, he examined number of witnesses and produced documents. ( 20. ) SARDAR Manjeet Pal Singh (DW-4), who was posted as Subedar in E-in-C core-6 in the year 2005, deposed that accused was posted in the army as a lieutenant Colonel. He produced some documents in a sealed cover. One of the documents was a certificate (Ex. D-16), issued by Brig. T. P. S. Chowdhury on 24th September 1999. According to this document, it was certified that as per the documents available in the headquarter, Lt. Col. Pavinder Ahluwalia, posted in E-in-Cs Branch, Army HQ, had reported to the E-in-C Branch, Army Headquarter, new-Delhi, on 13th March 1999. It was also certified that the officials permanent resident address was D-4 (Second Floor), Defence, Colony, New Delhi. This certificate was further authorized by Brig. T. P. S. Chowdhury by his certificate dated 1. 10. 1999 (Ex. D/15 ). Though these documents were not executed before dw-4 Manjeet Pal Singh, yet, according to him, since Brig. T. P. S. Chowdhury was posted in the same office where he was posted, and he had seen him signing, he knew his signatures. ( 21. ) A similar certificate (Ex. D/20) was also collected by the police during the investigation and was produced before the Court alongwith the final report submitted by the police before the learned Magistrate. T. P. S. Chowdhury was posted in the same office where he was posted, and he had seen him signing, he knew his signatures. ( 21. ) A similar certificate (Ex. D/20) was also collected by the police during the investigation and was produced before the Court alongwith the final report submitted by the police before the learned Magistrate. It was proved by Mohan lal Pandey (DW-5), who was the Station Officer of Police Station, Orchha between october 2000 to 31. 12. 2001. By the letter Ex. D-17, Col. G. K. Swami deputed manjeet Pal Singh (DW-4) as an authorized representative of the army headquarter to produce the above documents pertaining to the confirmation of the attendance of Lt. Col. Pavinder Ahluwalia in the office on 13th March 1999 in E-in-Cs Branch, ihq of Mod (Army), Kashmir House, Rajaji Marg, before the court. According to Manjeet Pal Singh (DW-4), Col. G. K. Swami signed this letter before him. Col. G. K. Swami further sent a letter to the trial Court in response to the summons issued by the court stating that he had sent the certified copies of the documents, including the extract of In/out Register of Kashmir House of 13th March 1999 and also the certificate given by Brig. T. P. S. Chowdhury to the police authorities of Tikamgarh after checking all the records of attendance of Lt. Col. Pavinder ahluwalia (accused) in the office of E-in-C Branch on 13th March 1999. The trial-court disbelieved the aforesaid documents on the ground that none of the aforesaid documents were executed by witness Manjeet Pal Singh (DW-4) and no person who himself executed the aforesaid document was produced* before the court to prove the aforesaid documents, and that the copy of In/out Register, which was annexed with Ex. D/19, as a proof of attendance of accused on duty, could not have been believed, as the entry of his name was the last entry of the day, which was a holiday. ( 22. ) LEARNED counsel for the State contended that the aforesaid documents were not admissible in evidence as they were not proved by the persons, who executed them and even if they were exhibited before the Trial Court, the contents thereof could not be read in the evidence in the absence of evidence of the persons who executed them. ( 23. ) LEARNED counsel for the State contended that the aforesaid documents were not admissible in evidence as they were not proved by the persons, who executed them and even if they were exhibited before the Trial Court, the contents thereof could not be read in the evidence in the absence of evidence of the persons who executed them. ( 23. ) LEARNED counsel for the accused contended that since no objection was taken by the State or the complainant before the trial Court regarding the admissibility of the above documents, that question could not be raised now. He placed reliance on PC. Purushothama Reddiar v. S. Perumal 1972 1 SCC 9 . ( 24. ) IN P. C. Purushothama Reddiar (supra) certain police reports were admitted in evidence before the trial Court in the absence of the evidence of the Head constable, who covered the meeting, in regard of which the reports were made by him. Those reports were marked without any objection. The Apex Court held that since the reports were marked without any objection, hence, it was not open to respondent to object their admissibility. The contention of the respondent that even if the reports in questions were admissible, their contents could not be looked into, was again found unacceptable and it was held that once a document was properly admitted, the contents of that document were also admitted in evidence, though contents might not be conclusive evidence. The above proposition of law was approved by the Apex Court in R. V. E. Venketachala Gounder v. Arulmigu viswesaraswami and V. P. Temple and another 2003 8 SCC 752 holding : "since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced. " ( 25. ) IN the light of the above legal position, in our opinion, learned trial Court committed error in not accepting and considering the documents produced by the accused in his defence. The burden of establishing the plea of alibi is of course on the accused, but that stands discharged by showing preponderance of probability in favour of the plea on the basis of the material on record. The burden of establishing the plea of alibi is of course on the accused, but that stands discharged by showing preponderance of probability in favour of the plea on the basis of the material on record. In Binay kumar singh (supra) it was held that: "if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For, that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. " In the case in hand, the documentary, evidence adduced by the accused militates against the version of prosecutrix that he was at Orchha and had committed the offence. In Jayantibhai (supra) Apex Court held that: "an obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving the guilt of the accused and the evidence adduced by the. accused in proving his defence of alibi. If the evidence adduced by the accused is of such quality and of such a standards that the court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. . . . . . . . . . . . . . the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the mind of the court. " ( 26. ) THE evidence of prosecutrix that after the incident she had found a railway ticket (Ex. P/2) and a bill (Ex. P/3), which belonged to accused, cannot, in our opinion, be accepted to prove the presence of accused at the place of occurrence beyond doubt. The railway ticket (Ex. " ( 26. ) THE evidence of prosecutrix that after the incident she had found a railway ticket (Ex. P/2) and a bill (Ex. P/3), which belonged to accused, cannot, in our opinion, be accepted to prove the presence of accused at the place of occurrence beyond doubt. The railway ticket (Ex. P/2) did not contain the name of the accused. Trial Court assumed it to be of accused on the basis that it belonged to a male person of about 40 years of age and was of Bhopal Shatabdi Express. Trial Court, in our opinion, committed error in presuming it to be of accused on the ground that the age of the accused was about 38 to 40 years in the year 1999. Trial Court further committed error in placing burden on the accused to disprove that the ticket did not belong to him. It was for the prosecution to prove beyond doubt that the seized ticket belonged to accused. In our opinion, production and seizure of the ticket and the bill (Ex. P/3) belonging to accused also does not prove the presence of accused at the spot for the simple reason that it was not seized from the place of incident by the police, rather it was handed over by the prosecutrix to police while lodging report at the police station. Had these documents been seized by the police at the place of occurrence, it would have been an important piece of evidence, but handing over of these documents by the prosecutrix cannot be treated one and the same thing. The document Ex. P/3 is a statement of. accounts of the bank of accused. This document bears the date 30. 9. 1997. According to prosecutrix she had many occasions to meet accused and that she had also visited the house of accused at Delhi. In these circumstances, the possibility that it could have been obtained by her sometime in the past, cannot be ruled out. ( 27. ) FROM the prosecution case itself it is apparent that prosecutrix had handed over Rs. 60,000/- to accused for securing a Government job for her younger brother, but accused did not do so. She demanded her money back, but instead of giving the money back, he asked her to go to Jhansi. ( 27. ) FROM the prosecution case itself it is apparent that prosecutrix had handed over Rs. 60,000/- to accused for securing a Government job for her younger brother, but accused did not do so. She demanded her money back, but instead of giving the money back, he asked her to go to Jhansi. It seems that prosecutrix entertained grudge against the accused, as he obtained money from her on the false assurance of securing job for her brother. Her evidence, with respect to the accusation of rape, was disbelieved by the trial Court holding that out of anger she had exaggerated. In these circumstances, in our opinion, the prosecutrix could not have been treated as a wholly reliable witness. In Hanuman vs. State of haryana- AIR 1977 SC 1614 the Apex Court disbelieved the prosecutrix when she made exaggeration in her evidence, and acquitted the accused of the charge under Section 354 of the Indian Penal Code. In Joseph vs. State of Kerala- AIR 2003 SC 507 the Apex Court held : "it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and intune with probability and inspire implicit confidence. By this standard when the prosecution case rests mainly on the sole testimony of an eyewitness it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial Court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable. " ( 28. ) SINCE it has been found that the prosecutrix was not a truthful witness and had gone to the extent of making a false accusation of rape against the accused, and that she entertained grudge against the accused, in our opinion, she cannot be termed a trustworthy and reliable witness, therefore, the plea advanced by the accused that at the relevant time he was at Delhi, to our mind, appears probable. In these circumstances, it would be unsafe to convict the accused on the sole testimony of the prosecutrix. ( 29. In these circumstances, it would be unsafe to convict the accused on the sole testimony of the prosecutrix. ( 29. ) FOR the reasons stated herein above we are of the view that the prosecution failed to establish beyond a reasonable doubt that the accused committed the offence under Section 354 of the Indian Penal Code by outraging modesty of the prosecutrix. The view taken by the trial Court in holding accused guilty under section 354 of the Indian Penal Code cannot be said to be reasonable one. ( 30. ) IN this view of the matter, the appeal (Criminal Appeal No. 401/2008) is allowed. The judgment of conviction and sentence passed by the trial Court against the appellant is set aside. He is acquitted. ( 31. ) FOR the reasons stated in Para-16 of this judgment, Criminal Appeal No. 1854/ 08, filed by the State, is dismissed. ( 32. ) ACCUSED is on bail. His bail bond and surety bond are discharged. ( 33. ) A copy of this judgment be placed in the record of Criminal Appeal No. 1854/2008. Appeal allowed. (Cri. A, 401/2008)