JUDGMENT (Surjit Singh, J.) (Oral) - This appeal by the State is directed against the judgment dated 13.2.2002, passed by the learned Chief Judicial Magistrate, Una, whereby respondent Ram Pal, who was tried for offences punishable, under Sections 354 and 323 IPC, has been acquitted. 2. Case of the prosecution, which led to the trial of the respondent, may be summed up thus. On 11.1.2000, PW2, a married woman, aged about 40 years, hereinafter referred to as ‘prosecutrix’ went to collect fuel wood in the vicinity of village Behdada, where she resides. She took with her a daughter named Sabnam, aged about five years. Around 5.00 p.m. when she was preparing a bundle of the collected wood, respondent appeared and caught hold of her from behind and started groping her breasts. Prosecutrix put up resistance and also cried for help. Her daughter Sabnam also started crying. Respondent got scared and fled from the scene. Prosecutrix went back home and informed her father-in-law about the incident. Her husband returned home late in the night around 10 or 11. He too was apprised of the incident. Next day, the prosecutrix went to the police station to lodge the report. Police registered the case and got the prosecutrix medically examined. Three superficial injuries were noticed on her thigh and knee. Respondent had allegedly torn her shirt and broken the string of her salwar while assaulting her. Those clothes were handed over to the police, during the course of investigation. 3. Prosecution examined the prosecutrix as PW2, her husband Ramesh Kumar as PW3 and the doctor, who conducted her medico legal examination, namely Dr. Aruna Mehta as PW1. Prosecutrix testified that she was assaulted at the site where she had gone to collect fuel wood around 5.00 p.m. when she was making the collected wood into a bundle and that her shirt and salwar were torn by the respondent. She also stated that the respondent caught her by her breasts, upon which she raised cries and her daughter Sabnam, aged about 5 years also started crying, which made the respondent panicky and he so ran away from the spot. Her husband examined as PW3 stated that when her returned home in the night around 9 or 10, the prosecutrix informed him about the assault. 4. Trial Court has disbelieved the prosecutrix version. Her husband examined as PW3 stated that when her returned home in the night around 9 or 10, the prosecutrix informed him about the assault. 4. Trial Court has disbelieved the prosecutrix version. Reasons given by the trial Court are; (a) Delay of 17 to 18 hours in lodging the report. (b) daughter of prosecutrix, who was an eye witness had not been examined. (c) possibility of the respondent having been falsely implicated, owing to objection by the respondent to the collection of fuel wood of the trees, standing on the land of DW Rakesh Dutt, which had been put under the guard of the respondent, cannot be ruled out. 5. I have heard the learned Assistant Advocate General as also Mr. Himat Negi, learned Counsel for the respondent. None of the aforesaid three reasons given by the trial Court justifies the acquittal of the respondent. Incident had taken place at 5.00 p.m. in the month of January and it is a geographical fact that it starts getting dark around 6.00 in the evening in the month of January, especially in the second week of the month, when the incident took place. There is no challenge to the testimony of the prosecutrix as also her husband PW3 Ramesh Kumar that Ramesh Kumar returned home very late in the night, i.e. around 9 or 10. That was the main reason for delay in lodging the FIR. And this is the explanation put forward by the prosecutrix and her husband for the delay. 6. No doubt, the father-in-law of the prosecutrix was at home and he was apprised of the incident immediately as per the testimony of prosecutrix, but he is an old man of 80 years, per unchallenged testimony of the prosecutrix. So he could not be expected to accompany the prosecutrix to the police station 7. Second reason recorded by the trial Court is also not a good one.Age of the daughter of the prosecutrix was only five years. A child of five years is normally unable to give evidence in a case of assault with an intent to outrage the modesty of a woman. 8. Third reason recorded by the trial Court is just imaginary. Second reason recorded by the trial Court is also not a good one.Age of the daughter of the prosecutrix was only five years. A child of five years is normally unable to give evidence in a case of assault with an intent to outrage the modesty of a woman. 8. Third reason recorded by the trial Court is just imaginary. No doubt, a suggestion was thrown to the prosecutrix that she had collected fuel wood from the field of DW1 Rakesh Dutt, which respondent used to guard, and that when the respondent threatened to lodge complaint with the police, she preempted the respondent move by falsely lodging the FIR against him, yet no such plea has been taken by the respondent in his statement,under Section 313 Cr.PC. As a matter of fact in his statement, under Section 313 Cr.P.C. he even denied that the prosecutrix had gone to collect the fuel wood on the fateful day. 9. learned Counsel representing the respondent has pointed out a contradiction in the testimony of prosecutrix and her husband PW3 Ramesh Kumar. The contradiction is that while the prosecutrix says that nobody accompanied her to the police station, Ramesh Chand her husband says that he and his father accompanied the prosecutrix.The contradiction is of no significance,it being minor in nature .Also, it appears from an overall reading of the testimony of the prosecutrix that she testified in the context that no person, other than his family members, accompanied her. 10. From the above stated position it is clear that the view taken by the learned trial court is perverse, being contrary to the evidence on record and hence unsustainable. Consequently, the appeal is accepted. Respondent is convicted of offence, under Sections 354 and 323 IPC. He be produced in person on 4.5.2009 for being heard on the quantum of sentence. M.R.B. ——————-