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2013 DIGILAW 605 (HP)

State of Himachal Pradesh v. Prakash Chand

2013-06-26

DHARAM CHAND CHAUDHARY, SURINDER SINGH

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JUDGMENT Surinder Singh, J (Oral). The respondent was charge-sheeted, tried and acquitted for the offences punishable under Sections 452 and 376 read with Section 511 of the Indian Penal Code. The State felt aggrieved, hence the present appeal. 2. Admittedly, the prosecutrix (41) in the year 2003 was running a shop in her village and besides the shop she had a living room. At that time, her husband was employed at Shimla. The respondent, hereinafter to be referred as ‘the accused’, was a co-villager of the prosecutrix, owning a truck. It is alleged that on 4.2.2003 at about 10.45 p.m., her shop was open. She alongwith her daughter Jyoti (PW3), both were present in the shop. It is alleged that the accused entered the room and attempted rape. The prosecutrix resisted his attempt and in that process her shirt was torn. She caught hold the respondent from his hair and managed to save herself. The prosecutrix as well as her daughter raised alarm. On this, PW4 Roop Lal, her brother-in-law, Sheela Devi, sister-in-law and PW5 Prem Lal, nephew of the prosecutrix came to the spot. However, the accused managed to escape. 3. The prosecutrix also alleged that her ear-rings in the scuffle got lost. Thereafter next day, at about 11.00 a.m. the prosecutrix as well as PW5 Prem Lal went to Police Station and lodged the FIR. Police visited the spot, prepared the site plan of the place of alleged occurrence. The prosecutrix also produced parcel Ext.P.1 (shirt), which was taken into possession vide memo Ext.PW2/A. 4. After recording the statements of the witnesses, police prepared the Challan for the trial of the accused. The accused was accordingly charge-sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined its witnesses, besides examining the prosecutrix and her daughter, PW4 Roop Lal and PW5 Prem Lal were also examined. They did not support the case of the prosecution. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. He pleaded innocence and alleged false implication in the case. When called upon to enter into his defence, no evidence in defence was led by the accused. 6. The accused was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. He pleaded innocence and alleged false implication in the case. When called upon to enter into his defence, no evidence in defence was led by the accused. 6. Precisely, the version as put to the prosecution witnesses in defence has been that the accused had been purchasing the grocery items from the shop of the prosecutrix, seeing her shop opened at about 10.45 p.m. he went there to make some purchases, but the prosecutrix insisted upon to make some earlier payment of the articles already purchased by him earlier, which led to the exchange of hot words. Hearing some commotion PW4 and PW5 aforesaid alongwith Sheela Devi also reached the spot and the prosecutrix told him to teach a lesson. 7. As per findings of the learned trial Court, the material witnesses PWs 4 and 5 aforesaid have not supported the case of the prosecution, rather toed the line of defence and the statements of the prosecutrix as well as her daughter were not found worth inspiring confidence, as such acquitted the accused. 8. Shri M.A. Khan, learned Additional Advocate General submitted that the learned trial Court did not properly appreciate the evidence on record. He led us through the statements of the prosecutrix and her daughter and submitted that their statements itself are sufficient to convert the acquittal into conviction. 9. Shri Surinder Verma, learned Counsel for the accused supported the impugned judgment of acquittal. 10. We have examined the above submissions made by Shri Khan and have carefully gone through the evidence on record. 11. The prosecutrix though stated that the accused had tried to molest her, but she resisted, caught-hold of him with his hair and raised alarm on which PW4 Roop Lal and PW5 Prem Lal alongwith Sheela Devi (not examined) reached the spot and made the complaint to them. In cross-examination the defence aforesaid was put to her to which, she denied, but admitted that the aforesaid witnesses had arrived the spot when the accused was present there and denied the false implication of the accused in the present case. PW3 Kumari Jyoti had also tried to support the version of her mother. In cross-examination the defence aforesaid was put to her to which, she denied, but admitted that the aforesaid witnesses had arrived the spot when the accused was present there and denied the false implication of the accused in the present case. PW3 Kumari Jyoti had also tried to support the version of her mother. According to her, the accused came to their shop and tried to take liberties with her mother and in resistance her shirt got torn. In cross-examination she admitted that when the accused came to their shop, he had demanded some articles to which her mother took up from the shop and gave to him, but denied that she had demanded previous balance and also the money of those articles purchased by the accused which resulted into exchange of hot words, but however she admitted that when the arguments were going on between them, her Taya PW4 Roop Lal, Tai Sheela Devi and another person had arrived at the spot. 12. Though, the prosecutrix denied that her shop was open and the accused had purchased some articles from her shop, which were supplied by the prosecutrix, but this fact stands admitted by her daughter PW3 Kumari Jyoti and this is the case of the accused that he had purchased certain articles from the prosecutrix, but she insisted upon of making the balance payments which caused exchange of hot words between them and in the meantime Roop Lal and others had also reached the spot. Therefore, in the above circumstances, the statements of the said witnesses who reached the spot assume importance. 13. PW4 Roop Lal did not support the case of the prosecution at all about the molestation, but stated that when he alongwith other witnesses reached the spot the accused was holding some of the articles/goods in his hands and there was some exchange of hot words. He further stated that the prosecutrix was insisting upon the accused to make the payment of the previous articles purchased by him and only then she would hand over the goods to him to which he intended to purchase. Thereafter the accused left the goods in her shop without making any payment and the prosecutrix warned him that she would teach him a lesson. Thereafter the accused left the goods in her shop without making any payment and the prosecutrix warned him that she would teach him a lesson. But, the prosecutrix told him that the accused had taken those articles/goods without making payment and for that reason he accompanied the prosecutrix to the Police Station to lodge the report. He stated that he being illiterate, did not know as to what version was given by the complainant in the FIR as he was sitting outside. He also stated that when he alongwith his wife reached the spot, he did not see that the shirt of the prosecutrix was torn and neither the prosecutrix nor her daughter told them about the alleged unfavourable advances made by the accused. Another witness PW5 Prem Lal had also made the similar version to that of PW4 Roop Lal. During the trial of the case the prosecutrix did not say anything about the loss of ear-rings nor there is any explanation as to where her ear-rings had gone or in fact were missing. 14. On critical examination of the evidence, we find that the defence version stands probablised by the prosecution witnesses itself thereby giving rise to doubt the probity of the prosecution case. 15. The learned trial Court had already noted the above contradictions and relied upon the defence which the accused was able to probablise and on these findings the accused was acquitted. We also do not find any perversity in the impugned judgment which could impel us to convert the acquittal into conviction as the findings of the learned trial Court are reasonable and borne out from the material on record. Therefore, the appeal filed by the State is without any merit, hence dismissed. 16. The accused is hereby discharged of his bail bonds entered upon by him at any stage during the proceedings of the case. 17. Send down the records.