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Himachal Pradesh High Court · body

2013 DIGILAW 1059 (HP)

STATE OF HIMACHAL PRADESH v. VINAY KUMAR

2013-12-26

SANJAY KAROL

body2013
JUDGEMENT SANJAY KAROL, J.- 1. ASSAILING the judgment dated 15.12.2005, passed by learned Addl. Sessions Judge, Fast Track Court, Kangra at Dharamsala, H.P., in Criminal Appeal No. 51-P/05/03, titled as Vinay Kumar vs. State of H.P., whereby appeal filed by the respondent-accused against judgment dated 1.7.2003 in Cr. Case No. 185-II/1997, titled as State vs. Vinay Kumar, stands allowed and order of conviction and sentence set aside, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. COMPLAINT (Ext. PW 1/A) was lodged by the prosecutrix (PW-1) with the police on the basis of which F.I.R. No. 174/96 (Ext. PW-7/A), dated 1.6.1996, was lodged against the accused at Police Station Palampur, under the provisions of Sections 452, 354, 323 and 506 of the Indian Penal Code. Prosecutrix alleged that the accused tres-passed into her house and molested her, which incident was noticed by her family members. Prosecutrix was got medically examined from Dr. Uttra Kashyap (PW-6) who issued M.L.C. (Ext. PW-6/A). With the completion of investigation, challan was presented in the Court for trial. Accused was charged for having committed offences punishable under the provisions of Sections 452, 354, 323 and 506(II) of the Indian Penal Code, to which he did not plead guilty and claimed trial. 3. IN order to prove its case, in all, prosecution examined eight witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took the following defence:- "PWs have deposed falsely against me as a matter of fact in the December, 1995, I had repaired the T.V. belonging to PW-1 Sudershna Devi and repairing charges were Rs. 750/-, but she did not pay the same. Two days before the occurrence I had demanded the Rs. 750/-, but she refused and asked me to do as I wish. Out of that enmity she has implicated me in this case." 4. TRIAL Court convicted the accused and sentenced him as under:- In appeal filed by the accused, lower appellate Court set aside the findings and judgment of conviction and sentence and acquitted the accused. Hence the present appeal. 5. FROM the testimony of Dr. Uttra Kashyap (PW-6) who has proved MLC (Ext. PW-6/A), it is evident that on the body of the prosecutrix, medically examined on 1.6.1996, following injuries were found:- "1. Hence the present appeal. 5. FROM the testimony of Dr. Uttra Kashyap (PW-6) who has proved MLC (Ext. PW-6/A), it is evident that on the body of the prosecutrix, medically examined on 1.6.1996, following injuries were found:- "1. There was bruise 4 inches X 2¾ inch, mid-right forearm on the dorsal surface. Bluish reddish colouration. Pain on touch. Movements of joints normal. 2. There was bruise 2¼ inch X 1 1/2 inch on lower dorsal surface of left upper arm, Bluish-violet discolouration, Movement of joint normal." 6. IN order to establish the fact that accused committed an offence of house tres-pass with preparation of assaulting the complainant and further assaulted her with an intent of outraging her modesty and also voluntarily caused hurt to her, prosecution has heavily relied upon the testimony of prosecutrix (PW-1), her sister- in-law Smt. Desh Devi (PW-3) and Smt. Kanta Devi (PW-4). It is the case of prosecutrix (PW-1) that accused forcibly entered her house, caught her from the breast and gagged her mouth. This incident was witnessed by her sister-in-law (PW-3). 7. NOW this version stands materially contradicted by PW-3 who simply states that she heard the voice of prosecutrix. When she went there, she did not notice anyone present on the spot. This witness was declared hostile but nothing fruitful could be elicited from her testimony despite extensive cross examination by the Public Prosecutor. To the same effect is the statement of Smt. Kanta Devi (PW-4). Even she was declared hostile and nothing fruitful could be elicited from her testimony. 8. TESTIMONY of Sh. Surjit Singh (PW-5) is hearsay. Even this witness, in court, has given a version which is totally contradictory to the version of PW-1. He simply states that prosecutrix informed him that at about 10.30 p.m. accused entered her house. He abused and misbehaved with her. Witness admits that at that time, other persons were also present. In Court, prosecutrix has given a version which is totally contradictory to her statement recorded by the police. The lower appellate Court has taken note thereof, after correctly and completely appreciating the material on record. In the complaint (Ext. PW-1/A) prosecutrix states that the accused gagged her mouth, whereas, in court she states that the accused had pressed her throat. In Court she states that as a result of the assault, she fell unconscious. But this fact is missing in the complaint. In the complaint (Ext. PW-1/A) prosecutrix states that the accused gagged her mouth, whereas, in court she states that the accused had pressed her throat. In Court she states that as a result of the assault, she fell unconscious. But this fact is missing in the complaint. She admits that at the time of occurrence of offence, there was no light in the house. She could only identify the accused when the light was switched on and her sister-in-law (PW-3) also noticed the accused. I find this version of hers not to be true and statement un- inspiring in confidence. Prosecutrix admits that the door of her house was bolted from inside. It is nobody's case that it was broken open by the accused. Now if the door was bolted from inside and someone knocked from outside, the first thing a person would do, before opening the door, and that too in the middle of the night, is to ask identity of that person. Normally one would first switch on the light and only then open the door. 9. IN view of the contradictions which are glaring and material and also the fact that version of the prosecutrix is not supported by her immediate relatives who reside in the same house, her version cannot be said to be believable and inspiring in confidence. The lower appellate court, in my considered view, has correctly and completely appreciated the prosecution evidence. 10. 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 committed an offence of house trespass with preparation of assaulting the complainant and assaulted the prosecutrix with intention of outraging her modesty and voluntarily caused hurt to her. 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 Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 , 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. 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. Appeal is dismissed.