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2013 DIGILAW 426 (HP)

State of Himachal Pradesh v. Kartar Chand

2013-05-14

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. State has come in appeal against the judgment of the learned Additional Chief Judicial Magistrate, Dehra in criminal case No. 122-II/2001 dated 22.6.2005, whereby the respondent, who was charged with and tried for offences punishable, under sections 452, 354, 323 and 506 of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 30.4.2001 in the morning around 6.45 A.M. while PW2 Kanta Devi was extracting stones etc. from her field and stacking the same on the boundary, in the meantime, accused came and asked her that why she was stacking the stones on the boundary. The complainant asserted that she has been extracting the stones from her field and stacking the same on her boundary. She told the accused that he has no right to raise any objection. The accused caught hold of the complainant from her breast and also torn her clothes and also kissed on mouth with intention to outrage her modesty. The complainant raised hue and cry. Smt. Rukmani Devi on hearing screams, who had come there to fetch the water from hand pump, reached the spot. Nirmala Devi and Jogindera Devi also came running to rescue the complainant. The complainant also received injuries. She was also taken to Hospital for medical examination. Simple injuries were found on the person of the complainant. Site plan was prepared. Clothes of the complainant were taken into possession. Investigation was completed and after completing all the codal formalities, challan was put in the court. 3. Prosecution examined number of witnesses to prove its case. Statement of the accused was also recorded under section 313 of the Code of Criminal Procedure. He denied the prosecution case. He did not lead any evidence. Learned trial court acquitted the accused on 22.6.2005. Hence, the present appeal. 4. Mr. Neeraj Sharma, learned Deputy Advocate General has vehemently argued that the prosecution has proved its case against the accused. He has contended that the prosecution case has been supported by PW-2, PW-3 and PW-4 to the hilt. 5. Mr. Narender Sharma has supported the judgment of the trial court. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. PW-1 is Dr. Sanjay Bajaj. He has noticed simple injuries on the person of complainant. He issued MLC Ex.PW-1/A. 8. 5. Mr. Narender Sharma has supported the judgment of the trial court. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. PW-1 is Dr. Sanjay Bajaj. He has noticed simple injuries on the person of complainant. He issued MLC Ex.PW-1/A. 8. PW-2 Kanta Devi has deposed that on 29.4.2001, her husband had gone to visit their daughter. She went to her field in the morning of 30.4.2001. She was stacking stones on the boundary of her field. Accused came on the spot and asked her why she was stacking the stones. He also started fighting with her. He caught hold of her from her arms. He bit her. He also started fondling with her breasts in order to outrage her modesty. He also tore her clothes. He gave fist blows to her. She started crying. Smt. Rukmani, Nirmala Devi and Jogindera Devi came on the spot. Accused ran away from the spot. In her cross-examination, she has deposed that the land of her husband is joint with the accused. She has also admitted that lot of litigation is going on between her husband and accused. She has also admitted that the accused has filed a case against her and her husband. It was decided in favour of the accused. She has also admitted that son of the accused has also filed civil cases against her husband in the year 2000. She has further admitted that there is a lot of tension due to this property dispute. PW-3 Nirmala Devi and PW-4 Jogindera Devi are her neighbours. She has admitted that the accused has filed an appeal against the order of Judicial Magistrate (2) against the decision of the Panchayat. She did not know about the out come of the appeal. She has admitted that the accused has filed complaint against them under section 500 of the Indian Penal Code. She has also admitted in her cross-examination that houses of Chuni Lal, Jagdev and Shankar are near the place of incident. 9. PW-3 Nirmala Devi has deposed that at about 6.30 A.M; she, Rukmani and Jogindera had gone to hand pump for fetching water. The complainant was stacking stones. They heard the screams. She alongwith Rukmani and Jogindera went to the spot. Accused had thrown the complainant and was kissing her after tearing her shirt. We saved her. 9. PW-3 Nirmala Devi has deposed that at about 6.30 A.M; she, Rukmani and Jogindera had gone to hand pump for fetching water. The complainant was stacking stones. They heard the screams. She alongwith Rukmani and Jogindera went to the spot. Accused had thrown the complainant and was kissing her after tearing her shirt. We saved her. In her cross-examination she has admitted that litigation is going on between her and the accused. One case was listed yesterday. She alongwith PW-2 Kanta Devi and Rukmani Devi also sent the complaint to the Prime Minister, Chief Minister, Punjab, Senior Superintendent of Police, Ropar and others in the year 1998 against the accused. They have also filed complaint against the accused in Bilaspur Panchayat. 10. PW-4 Jogindera Devi has deposed that at 6.15 A.M. she alongwith PW-3 Nirmala Devi had gone to fetch the water. The complainant was stacking stones. The accused started abusing her from his courtyard. When they were filling up the water, they heard the screams of Kanta Devi. Accused had thrown Kanta Devi and was kissing her and was fondling with her breasts. We reached the spot and thereafter the accused ran away. In her cross-examination, she has admitted that the case has been filed by the accused against her under section 500 of the Indian Penal Code. She has also admitted that Kanta Devi was her daughter-in-law. 11. Clothes were taken into possession in the presence of PW-5 Trilok Chand vide memo Ex.PW-2/B. He is Pradhan of Gram Panchayat. In his cross-examination, he has admitted that he did not know what happened before 1.5.2001. 12. PW-6 Chuni Lal was the Ward Member. He met Vice President Prem Chand. The complainant PW-2 told him about the incident. 13. Statements of PW-2 Kanta Devi PW-3 Nirmala Devi and PW-4 Jogindera Devi do not inspire confidence. It has come on record that litigation is going on between the complainant and accused. Accused has also filed complaint against PW-2, PW-3 and PW-4 under section 500 of the Indian Penal Code. PW-2 and PW-3 have also admitted that they have sent the complaint against the accused to Chief Minister and other senior officers. According to PW-2 Kanta Devi, Kartar Singh reached the spot and asked why she was stacking the stones. She explained that she was taking stones from her filed. Thereafter, accused pounced upon her and started fighting with her. PW-2 and PW-3 have also admitted that they have sent the complaint against the accused to Chief Minister and other senior officers. According to PW-2 Kanta Devi, Kartar Singh reached the spot and asked why she was stacking the stones. She explained that she was taking stones from her filed. Thereafter, accused pounced upon her and started fighting with her. However, PW-3 has deposed that accused was abusing the complainant from his courtyard and thereafter he reached the spot. There were many houses near the hand pump, but no independent witness has been cited. It has come in the statement of PW-2 that PW-3 and PW-4 are her neighbours. It has also come on record that the complainant’s witnesses are closely related. In view of this, their statements cannot be given any credence since they are interested witnesses. The relations between PW-3, PW-4 and accused are inimical. Though PW-2 has stated that blood started oozing out from her mouth and nose, however, it is not mentioned in Ex.PW-2/A. There is variance in the statements of PW3 and PW-4 the manner in which the incident has happened. PW-3 has not deposed that the accused was fondling the breast of PW-2 Kanta Devi. PW-3 Nirmala Devi has also not deposed that she has seen the accused abusing from courtyard. Even the complainant has not testified that before the occurrence, accused was abusing from his courtyard. It is a settled law that the statements of the closely related witnesses can be relied upon but it needs close scrutiny. In the present case, independent witnesses were present where the incident has taken place. Houses of Jagdev and Shankar were near the vicinity of the incident but they have not been cited as witnesses. All the witnesses produced by the prosecution are closely related and interested in the success of case being inimical towards accused. The court below has correctly appreciated the prosecution evidence and there is no need to interfere with the judgment of the trial court. 14. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are cancelled.