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2017 DIGILAW 631 (HP)

State of Himachal Pradesh v. Ramesh Kumar

2017-06-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present criminal appeal, under Section 378 of the Code of Criminal Procedure has been maintained by the State of Himachal Pradesh, against the judgment of acquittal, dated 17.09.2008, passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Sundernagar, District Mandi, H.P., in Police challan No. 522-1/2004. 2. The key facts, giving rise to the present appeal as per the prosecution story are that on 21.07.2004, at about 2.00 p.m., at village Bari, when complainant was returning to home after answering the call of nature from the nearby fields, suddenly, Ramesh Kumar/accused (hereinafter to be called as “the accused”), appeared from behind the bushes and caught hold the complainant from shoulders and gagged her mouth to prevent her from raising alarm and physically assaulted the complainant, with intention to outrage her modesty and caused injuries to her. Somehow, the complainant managed to rescue and on raising alarm, Narain Singh and Umawati came to the spot and on seeing them, the accused fled away from the spot. Thereafter, the complainant, at about 4.00 p.m., reported the matter to the Police Station, Sundernagar, on the basis of which, FIR No. 231/04, dated 21.07.2004, under Sections 354 and 323 of IPC, was registered against the accused. The complainant was sent to medical examination at Civil Hospital, Sundernagar, where she was medically examined by Dr. R.K. Gupta and he opined that the injuries sustained by the complainant are simple and issued MLC. During the course of investigation, I.O. prepared the spot map, he also recorded the statements of the witnesses under Section 161 Cr.P.C. and after completion of investigation challan was presented in the Court. 3. Prosecution, in order to prove its case, examined as many as 7 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 17.09.2008, acquitted the accused for the commission of offences punishable under Sections 354 and 323 IPC, hence the present appeal. 4. I have heard the learned counsel for the parties and gone the record carefully. 5. Accused did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 17.09.2008, acquitted the accused for the commission of offences punishable under Sections 354 and 323 IPC, hence the present appeal. 4. I have heard the learned counsel for the parties and gone the record carefully. 5. Learned Additional Advocate General has argued that the findings of the learned Court below are against the record, as the learned Court below has on the basis of surmises and conjectures, acquitted the accused and so the judgment of acquittal, passed by the learned Court below be set aside and accused be convicted, as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. On the other hand, learned defence counsel has argued that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt, so the well reasoned judgment of the learned Court below needs no interference. 6. To appreciate the arguments of learned Additional Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. PW-1, complainant, while appearing in the witness box, has testified the involvement of the accused at the place of occurrence alongwith the presence of Narain Dass, PW-2 and Umawati, PW-3, being eye-witnesses of the occurrence. The complainant deposed that she was assaulted and beaten up by the accused, when she was returning home after answering the call of the nature from the nearby fields. She further deposed that the accused caught hold her from shoulders and gagged her mouth, which led to the bleeding from her nose. She further stated that thereafter she raised alarm, on which Narain Dass (PW-2) and Umawati (PW-3) came on the spot and the accused, who was holding the complainant fled away. 8. In order to establish the aforementioned facts, as has come on record, the statements of Narain Dass, PW-2 and Umawati, PW-3, are significant, as they are stated to be the eye-witnesses of the said occurrence. 9. Both these witnesses in their statements, have denied the fact, with regard to the involvement of the accused in the said incident. It has nowhere come in the statements of both these witnesses that on complainant’s raising alarm, they found the accused present at the place of occurrence, holding the complainant from her shoulders. 9. Both these witnesses in their statements, have denied the fact, with regard to the involvement of the accused in the said incident. It has nowhere come in the statements of both these witnesses that on complainant’s raising alarm, they found the accused present at the place of occurrence, holding the complainant from her shoulders. In his statement, PW-2, Narain Dass, has deposed that on the date of incident, people told him that daughter-in-law of Sh. Dass is crying, however he feigned ignorance as to why she was crying. Similarly, PW-3, Umawati, in her statement has deposed that she met with the complainant outside her house and the complainant narrated the whole incident to her of being molested by the accused in the fields. 10. To prove their case, prosecution has also examined other witnesses, i.e., Saroj Thakur, PW-4 and Mast Ram, PW-5, however the evidence of both these witnesses is also of hear say in nature, as they met the complainant afterward. 11. The eye-witnesses of the present case, have not supported the case of the prosecution and denied their presence on the spot of occurrence, in these circumstance, the whole testimony of the complainant becomes vulnerable, when the other witnesses has not supported the prosecution case. So, this Court finds that, the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. 12. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. 13. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 14. In view of the aforesaid decisions of the Hon’ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending applications, if any, shall also stands disposed of.