Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 667 (RAJ)

Om Prakash v. State of Rajasthan

2015-03-20

GOPAL KRISHAN VYAS

body2015
JUDGMENT 1. - The instant cr. appeal has been filed by the appellant Om prakash under Section 374(2) Cr.P.C. against the judgment dated 4.5.1995 whereby the accused appellant was convicted by the Special Judge, SC/ST (Prevention of Atrocities) Act Caes, Sri Ganganagar in Cr. Misc. Case No.112/1994 and the following punishments was awarded to him which reads as under: Under Section 453 IPC : Six months RI and a fine of Rs. 50.- in default of payment of find to further undergo seven days SI. Under Section 354 IPC : read with Section 3(1) (i) of SC/St (Prevention of Atrocities) Act: One year RI and a fine of Rs. 500/- in default of payment of fine to further undergo two months' SI. Under Section 32 IPC : One month's SI. All the sentences were ordered to run concurrently. 2. As per the facts of the case the complainant Vedpal S/o Moti Lal filed a complaint before the Police Station, Suratgarh on 24.2.1994 at about 4.30 p.m. stating therein that when his daughter Sunita, aged 13 years was alone in the house, the accused Om Prakash came and forcibly took her in the room and bite her cheek at that time his wife came in the house but the accused run away, at that time, his other 3 children also shouted and his wife tried to caught hold him but accused ran away from his home, therefore, action may be taken against him. Upon aforesaid complaint, police registered an FIR against the accused appellant for offence under Section 354 and 376, 511 IPC read with Section 3(1) (xi) of the SC/ST (Prevention of Atrocities) Act Cases. 3. After investigation, the police filed challan in the court of Addl. Chief Judicial Magistrate, Suratgarh. Thereafter, the case was transferred in the court of Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sri Ganganagar for trial. In the trial, statements of 6 prosecution witnesses were recorded so also the statement of accused appellant were recorded under Section 313 Cr.P.C. 4. The learned trial court after recording evidence finally heard the case and punished the appellant for the offences under Section 454 IPC and under Section 354 read with Section 3(1) (i) of the SC/ST (Prevention of Atrocities) Act and under Section 323 IPC and passed the sentence above mentioned. 5. The learned trial court after recording evidence finally heard the case and punished the appellant for the offences under Section 454 IPC and under Section 354 read with Section 3(1) (i) of the SC/ST (Prevention of Atrocities) Act and under Section 323 IPC and passed the sentence above mentioned. 5. The learned counsel for the appellant submitted that the judgment is totally erroneous because the prosecutrix herself did not recognise the accused appellant in the court and said that person standing in the court is not the person who has tried to outrage her modesty. Further, there are major contradictions in the statement of PW-3 Kusma Devi and PW-5 Sunita, therefore, the conviction of the appellant for the alleged offence is not sustainable in law. While inviting attention towards the statement of PW-5 Sunita (Prosecutrix) it is submitted that Sunita turned hostile and did not support the prosecution story, therefore, obviously, prosecution has failed to prove its case beyond reasonable doubt because the prosecutrix herself turned hostile and did not identify the accused in the court. In view of the above ground, it is submitted that the conviction of the appellant may kindly be set aside and the appellant may be acquitted from the charge levelled against him. 6. Per contra, the learned Public Prosecutor vehemently opposed the prayer and submit that although the prosecutrix PW-5 Sunita turned hostile but on the basis of other evidence of the mother PW-3 Kusma Devi of the prosecutrix, the learned trial court has rightly convicted the accused appellant for alleged offence, therefore, the appeal may kindly be dismissed. 7. After hearing the learned counsel for the parties, I have perused the statement of PW-2 Vedpal. Admittedly, the said witness was not present at the time of occurrence took place and his statement is based upon the evidence of hear say. 7. After hearing the learned counsel for the parties, I have perused the statement of PW-2 Vedpal. Admittedly, the said witness was not present at the time of occurrence took place and his statement is based upon the evidence of hear say. Similarly, PW-3 Kusma Devi wife of complainant, although stated in her statement that accused run away from her home after biting the cheek of her daughter Sunita but prosecutrix Sunita PW-5, turned hostile and gave following statement that " esjh eEeh vkus ij og yM+dk eq>s NksM+dj Hkkx x;k FkkA n;kyjkt o jktkjke gekjks iM+kSlh gSaA t;flag gekjs iM+kSl esa ugha jgrk gSA ml yM+dksa dks eSa vc ugha igpkurh gwaA eqyfte gkftj vnkyr yM+dk ugha gS ysfdu bldh lwjr tSlk gh yM+dk FkkA eSa esjh ekWa dks tks esjs lkFk ?kVuk ?kVh Fkh oksg lc crk nh FkhA esjh ekWa ds vkus ls igys gh yM+dk Hkkx x;k FkkA " 8. Upon perusal of the above statement it is abundantly clear that prosecutrix PW-5 Sunita did not identify the accused appellant and specifically said that when her mother came in the house the boy who bite her cheek run away from the house, meaning thereby, the mother PW-3 Kusma Devi was not present when occurrence took place in the house. Therefore, in my opinion, the prosecution has failed to prove its case beyond reasonable doubt against the accused appellant because the prosecutrix herself did not identify the accused appellant and said in the court that the person standing in the court is not the person who bite her cheek on the relevant date. In the cross-examination also, the prosecutrix did not support the prosecution story. Therefore, in my opinion, the prosecution has failed to prove its case beyond reasonable doubt, therefore, the judgment impugned is not sustainable in law. 9. In view of the above, this appeal is hereby allowed and the judgment dated 4.5.1995 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Act, Case, Sri Ganganagar in Cr. Misc. Case No.112/1994 convicting and sentencing the accused appellant for the offences under Sections 454 and 354 IPC read with Section 3(1)(i) of the SC/ST (Prevention of Atrocities) Act is hereby quashed and set aside.Appeal allowed. *******