JUDGMENT : Vivek Singh Thakur, J. Instant appeal has been preferred by State against the acquittal of respondent-Kehar Chand vide judgment, dated 15th February, 2008 passed by the learned Sessions Judge, Shimla in Criminal Appeal No. 25-S/10 of 2007, whereby the conviction and sentence imposed upon respondent-Kehar Chand vide judgment, dated 14th March, 2007 passed by Judicial Magistrate 1st Class, Court No. 3, Shimla in Criminal Case No. 82/2 of 2001, convicting and sentencing respondent-Kehar Chand for commission of offence under Sections 354, 325 and 341 of the Indian Penal Code (hereinafter referred to as “IPC”), has been reversed. 2. Prosecution case, in brief, is that on 10th August, 2001, at about 8.00 a.m., respondent-Kehar Chand assaulted and used criminal force to PW-1 Sheetal Devi, wife of complainant PW-2 Suraj Kumar with intention to outrage her modesty and on objection raised by PW-2 Suraj Kumar, caused grievous hurt to him with fist blow. 3. As per prosecution story, PW-1 Sheetal Devi and PW-2 Suraj Kumar had a night stay on 9th August, 2001 in New Sidharth Hotel, Ram Bazar, Shimla and checked out on 10th August, 2001 at about 8.00 a.m. When they were leaving the hotel, respondent-Kehar Chand pulled the shirt of PW-1 Sheetal Devi from back side which was objected by PW-1 Sheetal Devi and PW-2 Suraj Kumar, whereupon respondent hit PW-2 Suraj Kumar with fist blow on his nose causing injury and bleeding in his nostrils and also pushed PW-1 Sheetal Devi. PW-1 and PW-2 approached Police Station Sadar at 8.20 a.m. whereafter, in pursuance to FIR recorded, PW-2 Suraj Kumar was medically examined at IGMC Shimla at 8.50 a.m. by PW-5 Dr. R.P. Chauhan and on his advice, PW-3 Dr. Usha Sharma, Radiologist, got the x-ray of nose of PW-2 Suraj Kumar conducted in her supervision, which discovered fracture in nasal bone of PW-2 Suraj Kumar. Thereafter, investigation was completed by receiving MLC Ex. PW-5/B and opinion of Doctors, preparing the spot map Ex. PW-7/A, recording statements of witnesses and taking into possession extract of register Ex. PW-4/A and check-in slip Ex. PW-7/B vide seizure memo Ex. PW-2/B. On completion of investigation, finding prima facie complicity of respondent-Kehar Chand in commission of offence, challan was presented in the Court by PW-8 SHO Jagdish Sharma. 4. Prosecution has examined nine witnesses to prove its case. PW-7/A, recording statements of witnesses and taking into possession extract of register Ex. PW-4/A and check-in slip Ex. PW-7/B vide seizure memo Ex. PW-2/B. On completion of investigation, finding prima facie complicity of respondent-Kehar Chand in commission of offence, challan was presented in the Court by PW-8 SHO Jagdish Sharma. 4. Prosecution has examined nine witnesses to prove its case. After recording statement under Section 313 of the Code of Criminal Procedure (for short “CrPC”), respondent had chosen not to lead any evidence in his defence. On conclusion of trial, respondent was held guilty for commission of offence under Sections 354, 325 and 341 IPC. In appeal preferred by respondent-Kehar Chand, learned Sessions Judge has acquitted him. Hence, present appeal by the State. 5. I have heard learned counsel for the parties and have gone through the record. 6. PW-1 Sheetal Devi and PW-2 Suraj Kumar, in their deposition in Court, have corroborated their version with regard to the incident reported to the police in FIR Ex. PW-2/A by reiterating that after checking out, when the couple was coming out of the hotel and PW-1 Sheetal Devi (wife) was following her husband PW-2 Suraj Kumar, respondent-Kehar Chand pulled her shirt from behind, which was objected by the couple, whereupon respondent::: Kehar Chand physically assaulted PW-1 Sheetal Devi and PW-2 Suraj Kumar in a manner which, besides causing injury to PW-2 Suraj Kumar, amounted to outraging the modesty of PW-1 Sheetal Devi and she was also pushed from her chest by respondent-Kehar Chand. 7. PW-1 Sheetal Devi in her statement fairly stated that she was not able to identify respondent-Kehar Chand in the Court at the time of her deposition as the incident had taken place about four years ago. She also stated that in case accused was shown to her in the Court, perhaps, she might be identifying him. Thereafter, she was declared hostile on this point whereafter, on cross-examining by learned Assistant Public Prosecutor, she stated that the accused present in Court shown to her was perhaps the same Manager but she was not sure. 8. PW-2 Suraj Kumar was also declared hostile for resiling from his statement to the extent of the act of respondent pushing PW-1 Sheetal Devi from chest and he was cross-examined by learned Assistant Public Prosecutor, wherein he admitted that accused present in Court had pushed his wife from her chest. 8. PW-2 Suraj Kumar was also declared hostile for resiling from his statement to the extent of the act of respondent pushing PW-1 Sheetal Devi from chest and he was cross-examined by learned Assistant Public Prosecutor, wherein he admitted that accused present in Court had pushed his wife from her chest. In his statement, he had identified respondent-Kehar Chand as the person who had assaulted him and his wife. 9. The incident had taken place on 10th August, 2001 and the statements of PW-1 and PW-2 in the Court were recorded on 2nd November, 2006. The capability and capacity of reception, attention and narration always differ from person to person and it is but natural to have some discrepancies in the statements recorded in the Court after about five years of the incident. The statements of PW-1 Sheetal Devi and PW-2 Suraj Kumar, in its totality, are indicating that these witnesses were not tutored one but had deposed in natural manner in the Court. Whatever they remembered they deposed and what they did not remember was not deposed. There is no parrot like narration on their part so as to ensure the conviction of respondent at the instance of prosecution. Their statements in the Court are natural statement. 10. PW-1 Sheetal Devi had expressed her hesitation to identify respondent with surety for gap of four years, however, PW-2 Suraj Kumar had identified the respondent in clear terms by stating that it was respondent who had assaulted him and his wife. Further, PW-4 Gurcharan Kukreja, owner of the hotel, also identified respondent as the person serving in the hotel on the day of incident. He also proved staying of couple in his hotel by proving photocopy of the relevant page of Entry Register Ex. PW-4/A and Entry Form of hotel Ex. PW-7/B. In his cross-examination, a specific question was put to PW-4 Gurcharan Kukreja, which was admitted by him, that respondent-Kehar Chand was waiter in his hotel, which corroborated that respondent was an employee of the hotel at relevant point of time. 11. By putting a positive suggestion to PW-2 Suraj Kumar in his cross-examination that it was correct when the couple was coming out of the hotel, PW-1 Sheetal Devi was following PW-2 Suraj Kumar, presence of couple at the relevant time was admitted. 11. By putting a positive suggestion to PW-2 Suraj Kumar in his cross-examination that it was correct when the couple was coming out of the hotel, PW-1 Sheetal Devi was following PW-2 Suraj Kumar, presence of couple at the relevant time was admitted. Further, it is case of the prosecution that wife (PW-1) was following her husband (PW-2) when her shirt was pulled by respondent-Kehar Chand, which stood duly corroborated by the suggestion put to PW-2 Suraj Kumar by respondent-Kehar Chand himself. 12. PW-1 and PW-2 were strangers in the city who had come to attend ailing mother of PW-2 admitted in the hospital. They were not having any enmity or proximity with respondent and there was no reason for them to implicate the respondent in a false case as they had no scores to settle with him for any reason. Neither any such suggestion was put to them nor any evidence to this effect was brought on record. The defence under Section 313 CrPC was denial simpliciter. 13. As per extract of Entry Register Ex. PW-4/A, the couple had checked out from the hotel at about 8.15 a.m., FIR Ex. PW-2/A was lodged at 8.20 a.m. stating therein that incident had taken place at 8.00 a.m. PW-2 Suraj Kumar was medically examined immediately thereafter and as per MLC Ex. PW-5/A, he was examined at 8.50 a.m. These timings indicate that immediately after the incident, the couple while leaving the hotel for hospital, had visited the police station and after lodging the FIR, PW-2 Suraj Kumar was medically examined at 8.50 a.m., i.e. within one hour of the incident. As per medical examination, injuries caused to him were corroborated by the medical evidence. There is no delay in the action of the victims and the police, rather there is promptness. Had there been no incident, there was no occasion for the couple to suffer the harassment of visiting the police station, getting PW-2 Suraj Kumar medically examined and to engage themselves in the police investigation, particularly, when mother of PW-2 Suraj Kumar was admitted in the hospital and moreover, they were not even residents of the same town having any grudge against respondent. 14. Plea of respondent that statements of PW-1 and PW-2 cannot be relied upon for conviction of respondent for the reason that both of them were declared hostile is not tenable. 14. Plea of respondent that statements of PW-1 and PW-2 cannot be relied upon for conviction of respondent for the reason that both of them were declared hostile is not tenable. It is settled law that testimony of a witness, which has been declared hostile, is not to be discarded only on the ground that the said witness has been declared hostile, but the same can be considered in favour of either of the parties on finding corroboration by other evidence on record with any reliable portion thereof. 15. In present case, PW-1 was declared hostile on her failure to identify the accused with certainty but the said failure stands duly explained in her statement wherein she clarified that for long gap between the incident and her deposition in the Court, she was unable to identify the respondent with certainty. Rest of her statement finds due corroboration with other evidence on record and inspires confidence. 16. PW-2 was declared hostile when he failed to depose the sequence of incident, but thereafter, he had duly corroborated the prosecution story in consonance with his earlier statement on material particulars. He also identified the respondent and his testimony, as a whole, is duly corroborated by the other evidence available on record and is sufficient to rely upon to convict the respondent. 17. Contention of respondent, that pushing a female by touching her chest during scuffle may not amount to outraging the modesty of a woman in all cases and it may have happened in natural manner without any intention to outrage the modesty of PW-1 Sheetal Devi, may be acceptable and such an act in isolation may not be construed as commission of offence under Section 354 IPC, but, in present case, it is not only this act of respondent which has invited to charge him under Section 354 IPC, but the initiation of the incident started from pulling the shirt of PW-1 Sheetal Devi, which definitely, as has happened in present case, amounts to commission of offence under Section 354 IPC. 18. For determining as to whether respondent has committed an offence under Section 354 IPC, it would be relevant to have a glance at Section 354 IPC, which reads as under: “354. Assault or criminal force to woman with intent to outrage her modesty. 18. For determining as to whether respondent has committed an offence under Section 354 IPC, it would be relevant to have a glance at Section 354 IPC, which reads as under: “354. Assault or criminal force to woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.” 19. Section 354 IPC provides punishment for assault or use of criminal to a woman with intent to outrage her modesty. Criminal force and assault have been defined in Sections 349, 350 and 351 IPC, which read as under: “349. Force. A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described. First.- By his own bodily power. Secondly.- By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person. Thirdly.- By inducing any animal to move, to change its motion, or to cease to move. 350. Criminal force.- Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. 351. 351. Assault.- Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation.- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.” 20. PW-1 Sheetal Devi, in her statement, has deposed that respondent-Kehar Chand had pulled up her shirt, which was objected by her whereupon her husband had also objected the same. PW-2 Suraj Kumar has duly corroborated this statement and the FIR Ex. PW-2/A was also recorded by stating the same version immediately after the incident. 21. As per Section 350 IPC, intentional use of force to any person without that person's consent, intending by the use of such force to cause or knowing it to be likely that by the use of such force, he will cause not only injury but, even only fear or annoyance to the said person, is said to be use of criminal force to that other. Every prudent person understands that pulling up shirt of a woman is definitely an act, which will likely to cause annoyance to the woman. 22. As per Section 349 IPC, a person is said to use force to another by causing motion, changing motion or cessation of motion. Section 351 IPC provides that any gesture or any preparation, intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he, who makes that gesture or preparation, is amount to use criminal force to that person will be said to be committing an assault. Causing annoyance to a person amount to use of criminal force. In present case, by pulling up the shirt of PW-1 Sheetal Devi, respondent-Kehar Chand has used criminal force to her and has definitely committed an assault to outrage her modesty. Therefore, he is liable to be convicted under Section 354 IPC. 23. It has come in evidence that respondent had stopped the couple outside the hotel and assaulted PW-2 Suraj Kumar as well as PW-1 Sheetal Devi. Therefore, he is liable to be convicted under Section 354 IPC. 23. It has come in evidence that respondent had stopped the couple outside the hotel and assaulted PW-2 Suraj Kumar as well as PW-1 Sheetal Devi. The complainant couple was proceeding to the hospital and respondent, by his act, had caused obstruction in their movement, which has resulted restraining the couple from free movement, which amounts to wrongful restrain resulting into commission of offence under Section 341 IPC. 24. Commission of offence by respondent under Section 325 IPC stands proved in statements of PW-1 Sheetal Devi and PW-2 Suraj Kumar, which finds corroboration in FIR Ex. PW-2/A, medical evidence, i.e. MLC Ex. PW-5/B and testimony of PW-3 Dr. Usha Sharma and PW-5 Dr. R.P. Chauhan. 25. Learned Sessions Judge has reversed the findings of the trial Court on the ground that the respondent was not duly identified on record and no independent witnesses were associated during investigation. As discussed above, though, PW-1 Sheetal Devi had expressed her hesitation to identify the respondent, but PW-2 Suraj Kumar identified the respondent, in unequivocal terms, as the same person, who had assaulted the couple. Further, it was the respondent who was on duty on the day of incident as has also been corroborated by statement of PW-4 Gurcharan Kukreja and the positive suggestion put to PW-2 Suraj Kumar also indicates that presence of respondent-Kehar Chand on the spot and his involvement in commission of offence. Therefore, respondent stands duly identified as offender and the findings of learned Sessions Judge on this count are contrary to the record. 26. Learned Sessions Judge has referred the admission of the witnesses in cross-examination that there were many shops on both sides near the hotel and large number of people remained present in the market, but he has failed to take note of the fact that the incident had taken place at about 8.00 a.m. and usually, the market opens at about 9.00 a.m. At 8.00 a.m., shopkeepers cannot be supposed to be present in front of or in their shops in the market. So far as other passersby present on the spot are concerned, they cannot be supposed to remain present there as the markets are having floating visitors, who normally are not available or identifiable even after a few seconds of the incident, what to say of the minutes. So far as other passersby present on the spot are concerned, they cannot be supposed to remain present there as the markets are having floating visitors, who normally are not available or identifiable even after a few seconds of the incident, what to say of the minutes. There is no convincing evidence or even suggestion in cross-examination to prove or to suggest that at the time of incident, large number of persons were present on spot. There is general suggestion that large number of people remain present in the market which cannot, at any stretch of imagination, be proof of presence and availability of independent witnesses on spot. Therefore, keeping in view the timing of incident, possibility of availability of independent witnesses moving in the market was least in the present case. PW-1 and PW-2 are natural witnesses of the spot. Therefore, learned Sessions Judge has committed an error in acquitting the respondent on this count also. 27. Scrutiny of evidence on record reveals that the trial Court had appreciated the evidence completely and correctly. There was no perversity in the findings of the trial Court and, thus, the respondent is held guilty for commission of offence under Sections 325, 341 and 354 IPC. Accordingly, impugned judgment, dated 15th February, 2008 passed by learned Sessions Judge Shimla in Criminal Appeal No. 25S/10 of 2007 is set aside and judgment, dated 14th March, 2007 passed by Judicial Magistrate 1st Class, Court No. 3, Shimla in Criminal Case No. 82/2 of 2001, convicting respondent-Kehar Chand under Sections 325, 341 and 354 IPC is affirmed. 28. Before directing respondent-convict to serve substantive sentence imposed upon him, it would be in the interest of justice to consider plea of learned counsel for the respondent, who has also argued in alternative that in case respondent is found guilty for commission of offence, then also, keeping in view the facts and circumstances of the case and also that the respondent has suffered trauma of facing criminal trial for seventeen years, that too, including trauma of being convict after suffering judgment of conviction by the trial Court, it is a fit case for extending benefit of Probation of Offenders Act to the respondent as he was a first offender and is not involved in any other case thereafter. 29. 29. Considering the submissions made by the learned counsel for the respondent and the fact that the incident had taken place in the year 2001, the respondent was convicted in the year 2007 and has faced the criminal proceedings for seventeen years and further that at the time of incident, he was a young boy of 22 years, instead of awarding substantive sentence, benefit of Probation of Offenders Act may be extended to respondent. But, prior to that, it would be appropriate to call for report of the Probation Officer. The respondent is permanent resident of Village Mashog, Tehsil Karsog, District Mandi. Therefore, Probation Officer, Karsog is directed to submit his report under Probation of Offenders Act on or before 9th March, 2018. 30. List on 16th March, 2018, on which date the respondent-convict shall remain present in the Court.