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2021 DIGILAW 338 (JK)

State of Jammu and Kashmir v. Banarsi Lal

2021-07-15

VINOD CHATTERJI KOUL

body2021
JUDGMENT : VINOD CHATTERJI KOUL, J. 1. This appeal has been filed by the State against the judgment dated 16.09.2009 passed by the learned Principal Sessions Judge, Kathua in case File No. 12/Appeal (hereinafter referred to as the ‘Appellate Court’) whereby the conviction and sentence recorded by the learned Judicial Magistrate First Class, Kathua (hereinafter referred to as the ‘trial Court’) against the respondent, has been set aside. 2. Briefly stated the facts are that on 25.05.2005, the complainant Kamlesh Devi lodged a written report in the Police Station, Kathua stating therein that on 21.05.2008 at about 9.30 PM, she came out of her house to urinate. The respondent was already sitting there and he caught hold of her breast nipples and tried to outrage her modesty. She raised an alarm and brother of her husband namely Raj Kumar and his wife Kamli came on the spot and on seeing them, the respondent ran away. On the said report, FIR No. 122/2005 for the commission of offence punishable under Section 354 RPC came to be registered and after investigation, the final report was submitted in the Court of learned CJM, Kathua, who transferred the same to the Court of learned trial Court for disposal under law. The respondent was charged for the commission of offence punishable under Section 354 RPC to which he pleaded not guilty and claimed to be tried. 3. The trial court, after appreciating the evidence, came to the conclusion that the charge has been framed against the respondent/accused beyond doubt and, accordingly, convicted him for having committed offence punishable under Section 354 RPC and sentenced him to undergo simple imprisonment for a period of two years and to pay a fine of Rs. 500/-. The said order of conviction and sentence was challenged before the Appellate Court and the said Court, after appreciating the evidence, found that the prosecution has failed to prove the charge against the accused and, accordingly, set aside the conviction and sentenced recorded by the trial Court and acquitted the respondent/accused. 4. Against the said order of acquittal passed by the appellate Court, this appeal has been filed by the State on the ground that the Appellate Court i.e. the Court of learned Principal Sessions Judge, Kathua, while setting aside the order of conviction and sentence recorded by the trial Court, has not properly appreciated the evidence. 5. Heard and considered. 6. Against the said order of acquittal passed by the appellate Court, this appeal has been filed by the State on the ground that the Appellate Court i.e. the Court of learned Principal Sessions Judge, Kathua, while setting aside the order of conviction and sentence recorded by the trial Court, has not properly appreciated the evidence. 5. Heard and considered. 6. Mr. Aseem Sawhney, learned AAG appearing for the appellant-State submits that the learned Appellate Court has not properly appreciated the prosecution evidence and there is no ground to disbelieve the statement of prosecutrix Kamlesh Devi which has been corroborated by PW Raj Kumar who is also an eye witness of the alleged occurrence. According to him, the respondent has been rightly convicted and sentenced by the trial Court. 7. The allegation against the respondent/accused was that he caught hold of breast of the prosecutrix and tried to outrage her modesty when she came out of her house to urinate. She raised an alarm and PW Raj Kumar and his wife PW Kamli came on the spot and on seeing them, the respondent/accused ran away from the spot. In order to prove this allegation against the respondent, the prosecution has relied upon the statements of the prosecutrix Kamlesh Devi and PW Raj Kumar who is an eye witness of the alleged occurrence. PW Kamli has not been examined in this case. 8. I have carefully examined the evidence on record. The prosecutrix in her statement has categorically stated that the respondent/accused only assaulted her. She has nowhere stated that the respondent/accused had caught hold of her breast with an intention to outrage her modesty. From the statement of the prosecutrix, it emerges that the respondent/accused did not outrage her modesty but he had a scuffle with her. So far as the evidence of PW Raj Kumar is concerned, he has deposed that he heard a noise from the house of prosecutrix and went there along with his wife. They saw that the accused/respondent has caught hold of breast of the prosecutrix and was kissing on her chin. On seeing them, the respondent/accused away from the spot. What has been stated by PW Raj Kumar has not been stated by the prosecutrix. When the statement of this witness is examined carefully, the same has been found quite contradictory as to what has been stated by the prosecutrix. On seeing them, the respondent/accused away from the spot. What has been stated by PW Raj Kumar has not been stated by the prosecutrix. When the statement of this witness is examined carefully, the same has been found quite contradictory as to what has been stated by the prosecutrix. She has no where stated regarding pressing of her breast and kissing. PW Raj Kumar has given a quite different story. There is yet another material contradiction in the statements of the prosecution witnesses. Kamlesh Devi the prosecutrix has categorically stated that Raj Kumar and his wife came on the spot and the accused ran away from the spot. However, PW Raj Kumar has stated that he did not follow the accused in order to apprehend him because he was armed with a gun. Arming of the respondent/accused with a gun has not been proved during investigation and the prosecutrix has stated nothing about the same. This material contradiction makes the prosecution story doubtful. 9. From the perusal of judgment impugned, I find that the Appellate Court, after appreciating the evidence properly, has rightly held that there are major contradictions in the statements of prosecutrix and PW Raj Kumar, which make the prosecution story doubtful. The learned Appellate Court, therefore, correctly came to the conclusion that the prosecution has miserably failed to prove the guilt of respondent beyond any doubt. The Appellate court, after properly appreciating the evidence, has acquitted accused. 10. In view of above, it is held that there is no illegality in the order passed by the Appellate Court, as such, while upholding the order of acquittal passed by the Appellate Court, this appeal is dismissed. Bail bonds and personal bonds shall stand discharged. Trial Court record, if summoned/received, be sent down along with copy of this judgment.