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2012 DIGILAW 112 (HP)

State of Himachal Pradesh v. Avtar Singh

2012-03-21

DEEPAK GUPTA

body2012
JUDGEMENT Justice Deepak Gupta, J.(Oral) This appeal by the State is directed against the judgment dated 01.04.2005, delivered by the learned Chief Judicial Magistrate, Mandi, whereby he acquitted the accused of having committed offences punishable under Sections 341, 354 and 323 IPC. 2. The prosecution case is based on the complaint made by the prosecutrix (name withheld). According to the prosecutrix, who is a married lady, on 12th October, 2001, she had taken her cattle for grazing and when she reached near a nallah, the accused,who had also taken his bullocks for grazing, hold caught hold of her by her arm. He pressed her chest and indecently fondled her breasts. She raised an alarm and on hearing her alarm, PW-3, Rajeshwari Devi, came on the spot. On seeing Rajeshwari Devi, the accused ran away. Thereafter, the prosecutrix went home and told her mother-in-law, PW-2, Bhupi Devi, about the incident. Then, the prosecutrix and her mother-in-law went to the police station to lodge the report and on the basis of this complaint, FIR, Ex. PW-1/A, was lodged. The police swung into action and the prosecutrix was medically examined from Dr. Jyoti (PW-6), who issued the MLC, Ex. PW-1/B. Thereafter, the accused was charged for having committed the offences aforesaid and after trial, he has been acquitted. Hence, this appeal by the State. 3. Before dealing with the appeal on merits, I would like to comment on the approach of the learned trial Judge while deciding the case. 4. After referring to the provisions of Section 354 IPC and its essential ingredients, the learned Judge observed as follows: “The charge in this section is one which is very easy to make and very difficult to rebut and when such a charge is made it is necessary to see whether it is supported by independent evidence beside that a woman herself or is corroborated by her conduct and surrounding circumstances and is consistent with ordinary proposition.” 5. To say the least, these observations are totally against the well settled principles of law laid down by the Apex Court and this Court in a large number of cases. In case, the modesty of a woman is outraged when she is alone, there is nothing which prevents the Court from believing the prosecutrix. To say the least, these observations are totally against the well settled principles of law laid down by the Apex Court and this Court in a large number of cases. In case, the modesty of a woman is outraged when she is alone, there is nothing which prevents the Court from believing the prosecutrix. A woman is the victim of the crime and is not to be treated like an accused or an accomplice of the accused. Why should it be necessary that the testimony of the woman must be corroborated in each and every case? No doubt, while deciding the question whether the woman is telling the truth or not, the Court is not bound to accept the statement of the woman at its face value, but if the statement inspires confidence, no independent corroboration is required. In the case of outraging the modesty of a woman, there may not be any injury and to look for corroborative evidence in each and every case is totally imprudent. Each case has to be decided on its own merits. In case, it is alleged that the occurrence took place in a crowded place or where people were present, then the Court may ask for independent witnesses or corroborative evidence, but, if the occurrence takes place in a lonely place, then the statement of the prosecutrix should not be disbelieved only on the ground that there are no independent witnesses or that there is no corroboration to her statement. 6. In my view, the mindset of the Magistrates must change and they must realize that with changing times, they have to be more gender sensitive and should appreciate the problems which the women face in our society. If they fail to do so, then half of the humanity, i.e. women, will lose faith in the judicial system. 7. I am also constrained to observe that one of the findings recorded by the learned trial Judge that even PW-6, Dr. Jyoti, has specifically stated that no external injury was seen on the body of Radha when she was medically examined by her is not entirely correct. If the statement of PW-6, Dr. Jyoti, is seen, she has noticed tenderness on the chest, breast and the neck of the prosecutrix and this has been duly recorded in the MLC. Jyoti, has specifically stated that no external injury was seen on the body of Radha when she was medically examined by her is not entirely correct. If the statement of PW-6, Dr. Jyoti, is seen, she has noticed tenderness on the chest, breast and the neck of the prosecutrix and this has been duly recorded in the MLC. In fact, in para 10 of the very same judgment, the learned Magistrate himself has noticed that PW-6 found three injuries on the person of the prosecutrix. But, while discussing the evidence on merits, he has glossed over this fact. This shows that the Magistrate did not consider this offence to be serious in nature. 8. Coming to the case on merits, in this case, as per the prosecutrix, the accused caught hold of her arm and then pressed her breasts in an indecent manner. An important aspect of this case is that she admits that she is not in talking terms with the accused. A suggestion had been put to her in the cross- examination that there is some dispute with regard to boundary between her and the accused. She has denied the suggestion that she has wrongly involved the accused in such a case, but she has not clearly stated that no such dispute exists. In such an eventuality, her evidence has to be scrutinized with care and caution. According to this witness, PW-3, Rajeshwari Devi, was cutting grass and was standing only about 20 feet away. She has also stated that as soon as she was caught hold of by the accused, she raised an alarm. If that is true, it is not explained why PW-3 reached there after ten minutes if she was only at a distance of 20 feet. 9. Another material contradiction is that the case of the prosecutrix is that the accused caught hold of her by her arm and indecently pressed her breasts. But, according to PW-3, when she reacher the spot, the prosecutrix was lying on the ground and the accused was sitting on the top. This is a material contradiction between the two statements, which casts a great doubt on the prosecution story. 10. Another material contradiction is that according to the prosecutrix, she grappled with the accused for 10 to 15 minutes. This is a material contradiction between the two statements, which casts a great doubt on the prosecution story. 10. Another material contradiction is that according to the prosecutrix, she grappled with the accused for 10 to 15 minutes. If that was correct, then there would have been some more serious injuries than these marks of tenderness on her body. 11. It is in these circumstances that one can say that the prosecutrix is hiding the truth and is not telling the truth. Therefore, her statement does not inspire confidence and the appeal is rejected though on grounds totally different from those which weighed with the learned trial Court. Bail bonds discharged.