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2019 DIGILAW 1062 (CHH)

VIJAY LAXMI TIWARI v. DWARKA TARAK

2019-12-05

VIMLA SINGH KAPOOR

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JUDGMENT Vimla Singh Kapoor, J. - Fir (Ex.P-1) lodged by Vijay Laxmi Tiwari (PW-4) alleges that on 13.06.2001 the accused/respondents entered her house and thereby committed house-trespass with an intention to use criminal force with intent to outrage her modesty, and also hurled filthy abuses at her. Based on this, offences under Sections 341, 294, 323, 506/34 IPC were registered against the accused/respondents. Since the complainant has alleged that the respondents/accused had also caused injuries to her with the help of club, she was sent for medical examination and after completion of investigation charge sheet was filed against the accused/respondents under Sections 294, 323, 506, 452, 354/34 IPC followed by framing of charge accordingly. 2. Learned Magistrate vide judgment dated 24.11.2004 passed in Criminal Case No.252/2004 convicted the accused/respondents under Sections 452, 354, 323 IPC and sentenced them to undergo RI for 3 years with fine of Rs.300 under Section 452, RI for one year under Section 354 and 323 IPC each. The view taken by learned Magistrate however has been dislodged by judgment impugned dated 07.12.2005 passed by Additional Sessions Judge, Dhamtari, Sessions Division Raipur in Criminal Appeals No.336/2004 and 342/2004 and acquitted the accused/respondents of the charges levelled against them. 3. Counsel for the applicant/complainant submits that the acquittal awarded by the lower appellate Court to the accused/respondents being contrary to the material on record is liable to be set aside and the conviction of the accused/respondents may be ensured. None appears for the respondents/accused. State counsel however assisted the Court. 4. From the evidence of the witnesses including the complainant (PW-4) it is apparent that on account of accumulation of water in their house, the accused/respondents had gone to her house where some verbal dispute took place between them. None of the witnesses has however stated that the act of any of the accused was with an intention to outrage her modesty. Thus the acquittal of the accused/respondents of the charge under Section 354 IPC is fully justified. None of the witnesses has however stated that the act of any of the accused was with an intention to outrage her modesty. Thus the acquittal of the accused/respondents of the charge under Section 354 IPC is fully justified. Similarly, there is no evidence to show that the accused/respondents had gone to the house of the complainant (PW-4) after preparing themselves to assault or commit wrongful restraint, rather the evidence shows that they had gone there just to apprise her of their problem of water-logging in their house on account of the outlet opening in her house being plugged and therefore, the accused/respondents cannot be held guilty under Section 452 IPC also and the acquittal by the lower Appellate Court of the said charge is also fully justified. Similar is the position of the acquittal of the accused/respondents under Section 323 IPC. As per the allegation made by the complainant, the accused/respondents had come to her house carrying club in their hands and both of them opened an assault on her. However, according to the medical report (Ex.P-2) given by Dr. YK Singh (PW-5) there was only one injury on her left hand. Being this, if the evidence of the complainant that each of the accused/respondents inflicted club blows to her, she at least must have sustained two injuries but the report of the doctor demonstrates only one injury on her hand. Therefore, the acquittal of the accused/respondents under Section 323 IPC is also not erroneous. The evidence of Raghunandan Sharma (PW-1) cannot be given much credence because he at the relevant time was not present on the spot but was apprised of the incident by the complainant (PW-4) after he was woken up by her son. As regards the allegation made against the accused/respondents that they dragged on the rough surface and also threw her down also gets falsified in the light of the evidence of the doctor who did not opine any abrasion etc. on her body. Had she really been thrown by the accused/ respondents on the ground at least she must have sustained abrasions or scratches on various parts of her body which unfortunately is missing in this case. 5. on her body. Had she really been thrown by the accused/ respondents on the ground at least she must have sustained abrasions or scratches on various parts of her body which unfortunately is missing in this case. 5. Thus the approach of learned lower appellate Court acquitting the accused/respondents of all the charges described above is based on the proper appreciation of the evidence on record and no illegality or infirmity is noticeable in the judgment impugned. Even otherwise it is a settled legal position that if the material on record speaks of two possible and plausible views, the one favouring the accused has to be preferred. This is what the lower appellate Court has done in this case. 6. In aforesaid view of the matter the revision being unmerited is liable to be and is hereby dismissed.