State Of Himachal Pradesh vs Sunil Kumar
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    IN    THE     HIGH     COURT OF       HIMACHAL         PRADESH, SHIMLA

                    ON THE 20TH DAY OF OCTOBER,2021

                               BEFORE




                                                                    .
                 HON'BLE MR. JUSTICE SANDEEP SHARMA





                     CRIMINAL APPEAL No. 230 of 2010

    Between:





    STATE OF HIMACHAL PRADESH
                                                                   ....APPELLANT
    (BY SH.DESH RAJ THAKUR,
    ADDITIONAL ADVOCATE GENERAL





    WITH SH. KAMAL KISHORE
    SHARMA, DEPUTY ADVOCATE
    GENERAL).

    AND


    SUNIL KUMAR,
    SON OF LATE SH. JASBIR SINGH,
    R/O VILLAGE TIAL, POST OFFICE
    CHAK SARAI, TEHSIL AMB,
    DISTRICT UNA, H.P.


                                                                ....RESPONDENT
    (BY MS. ABHILASHA KAUNDAL, ADVOCATE)

    Whether approved for reporting? No.






    This appeal coming on for hearing this day, the Court passed the following:

                        JUDGMENT

Instant Criminal Appeal filed under Section 378 of

the Code of Criminal Procedure, lays challenge to judgment

dated 30.10.2009, passed by learned Additional Sessions

Judge, Una, District Una, Himachal Pradesh, in Criminal Appeal

No.37 of 2008, setting aside the judgment of conviction dated

28.8.2008 and order of sentence dated 9.9.2008, passed by

learned Judicial Magistrate, 1st Class, Court No.1, Amb, District

Una, H.P., in Police Challan No.189-I-2004, titled as State of

.

H.P. Versus Sunil Kumar, inasmuch as respondent-accused

was acquitted for having committed offence punishable under

Section 354 of IPC.

2. Precisely, the facts of the case as emerge from the

record are that on 24.4.2004, at around 2.30 PM, accused

obstructed the passage of complainant Smt. Darshana Devi

(PW-5), who at that relevant time was going towards her house

in Gondpur Jattan after the closure of Swami Vivekanand

Private School, Chack Sarai where she was working as a

teacher. The accused, who was drunk at that time obstructed

the passage of the complainant and also caught hold of her from

the arm and sought to have sexual intercourse with her. As per

prosecution case, accused also molested her by pressing her

breast, but she managed to escape and went back running to

her school. Subsequently, complainant met the peon namely,

Nirmala Devi (PW-3), to whom she disclosed the whole

occurrence and thereafter said Nirmala Devi dropped the

complainant at her home. Complainant after having reached her

home disclosed the occurrence to her sister-in-law Sunita Devi,

who in turn informed her husband Ravinder Kumar, whereafter

they all approached the Pradhan of Village, who expressed his

helplessness as the matter was beyond his competence and

.

jurisdiction. On 2.5.2004, complainant got her statement

recorded under Section 154 Cr.P.C before SHO, Diwan Chand

(PW-6) while he was on patrolling duty near Chack Sarai. After

completion of the investigation, police presented the challan in

the competent court of law.

3. Learned trial Court being satisfied that a prima-facie

case exist against the accused, framed charge against him for

the commission of offence punishable under sections 341 and

354 IPC, to which he pleaded not guilty and claimed trial.

4. Subsequently, learned trial Court on the basis of the

material adduced before it by the prosecution, held accused

guilty of having committed offence punishable under Sections

354 and 341 of IPC and accordingly convicted and sentenced

him to pay fine of Rs.500/- under Section 341 IPC and in

default of payment of fine to undergo simple imprisonment for

seven days and to further undergo rigour imprisonment for one

year under section 354 IPC and to pay fine of Rs. 3000/- and in

default of payment of fine to further undergo simple

imprisonment for one month.

5. Feeling aggrieved and dissatisfied with the aforesaid

judgment of conviction and order of sentence dated 28.8.2008/

9.9.2008, passed by learned trial Court, accused preferred an

.

appeal in the Court of learned Additional Sessions Judge, Una,

which came to be partly allowed vide judgment dated

30.10.2009, whereby learned Additional Sessions Judge, Una

though acquitted the accused under Section 354 of IPC, but

maintained the conviction under Section 341 of IPC. In the

aforesaid background, present appellant-State approached this

Court by way of instant criminal appeal, praying therein for

restoration of the judgment of conviction and order of sentence

passed by learned trial Court after setting aside the judgment

passed by learned Additional Sessions Judge, Una, District Una,

H.P.

6. Mr. Desh Raj Thakur, learned Additional Advocate

General, while making this Court to peruse the judgment passed

by learned Additional Sessions Judge, Una, vehemently argued

that same is not sustainable in the eye of law as the same is not

based upon the correction appreciation of evidence and as such,

same deserves to be quashed and set-aside being totally

contrary to the record as well as law. However, having carefully

perused the prosecution evidence led on record, this Court finds

no illegality and infirmity in the judgment of acquittal passed by

learned Additional Sessions Judge, Una.

7. With a view to prove her allegation, complainant Smt.

.

Darshana Devi appeared in the witness box as PW-5 and stated

that on 26.4.2004, at about 2.30 PM when she was returning

back from School, she had noticed that accused Sunil Kumar

standing by the passage where she was going. She deposed that

accused immediately came in front of her and obstructed her

passage and he was under the influence of the liquor. She

deposed that accused tried to touch her breast and sought to

have sexual intercourse with her, but before he could touch her,

she pushed him and ran towards the school. Aforesaid version

put forth by PW-5, if perused juxtaposing her initial statement

recorded under Section 154 Cr.P.C, on the basis of which,

formal FIR Ex.PW6/B came to be recorded, compels this Court

to agree with the submission of Ms. Abhilasha Kaundal, learned

counsel representing the respondent-accused that there are

major contradictions and inconsistencies in the statements of

the prosecution witnesses.

8. Apart from above, alleged incident occurred on

26.4.2004, but matter came to be reported to the police on

2.5.2004 i.e. after five days of the occurrence and there is no

plausible explanation rendered on record qua the delay in

lodging the FIR.

9. As per prosecution case, complainant after the

.

alleged incident firstly reported the mater to her sister-in-law

Sunita Devi, who in turn informed her husband Ravinder Kumar

and thereafter they all went to their maternal Uncle Amar Singh

(PW-1), but name of Amar Singh (PW-1) is totally missing in the

statement of the complainant recorded under Section 154

Cr.P.C., in which it is stated that she after having disclosed the

alleged incident to her sister-in-law Sunita Devi went to Pradhan

of Gram Panchayat alongwith Ravinder Kumar, but he

expressed his helplessness as the matter was beyond his

jurisdiction.

10. Besides above, this court finds that as per

prosecutrix she had not gone to school with effect from

26.4.2004 till 1st May, 2004, which fact has been further

corroborated by PW-2, Ravinder Kumar. However, such fact is

totally contrary to the statement made by defence witness

Kushal Chand (DW-1). DW-1,categorically stated that

prosecutrix has been marked as present in the school with effect

from 24.4.2004 to 1.5.2004. The version put forth by DW-1 has

rendered the story of the prosecution to be totally unreliable

because in case complainant had not gone to school with effect

from 24.4.2004 till 1.5.2004, version put forth by her that on

26.4.2004 while she was returning back to school from her

.

residence accused not only obstructed her passage, but also

caught hold of her from arm becomes highly doubtful. Moreover,

it is not understood that once Pradhan of Gram Panchayat

expressed his inability to take action on the complaint, if any,

filed by the complainant, what prevented complainant and other

family members to report the matter to the police immediately.

11. The visit to the Gram Panchayat is corroborated

with the version of PW-1, Amar Singh and PW-2, Ravinder

Kumar, but it cannot be believed that after refusal on the part of

the Pradhan of Gram Panchayat to intervene in the matter,

complainant and her family members could wait for five days to

lodge FIR, especially in the light of allegations levelled by the

complainant against the accused. Though, there is no plausible

explanation rendered on record qua the delay in lodging the FIR,

but even, if it is presumed that victim/prosecutrix was in a

dilemma whether to report the matter or not, even then version

put forth by the complainant that respondent-accused while

obstructing her passage, also made an attempt to outrage her

modesty is highly doubtful on account of the fact that she had

not gone to school w.e.f. 24.4.2004 till 1.5.2004, as has been

stated by DW-1, Kushal Chand. Though, prosecutrix in her

statement given to police as well as to the Court stated that she

.

had not gone to school with effect from 24.4.2004 till 1.5.2004,

but DW-1, Kushal Chand categorically deposed before the Court

that presence of victim/prosecutrix stands marked in the school

with effect from 24.4.2004 to 1.5.2004.

12. Besides above, complainant deposed that accused

obstructed her way and thereafter tried to touch her breast and

sought to have sexual intercourse with her.

13. However, PW-4, Nirmala Devi deposed that the

prosecutrix told her that the accused had met her on the way

and teased her. She also deposed that while she was going to

leave her home, accused met them and sought forgiveness from

the prosecutrix. PW-1, Amar Singh also deposed that Ravinder

Kumar (PW-2) told him that prosecutrix was coming back from

the school and accused Sunil Kumar had trailed her but she

had managed to reach the school.

14. Careful perusal of entire evidence led on record by

the prosecution though suggest that on the date of alleged

incident, accused obstructed the passage of the complainant,

but there is no evidence that he also made an attempt to outrage

the modesty of the prosecutrix. Otherwise also, if statement of

complainant PW-5 is read in its entirety, it suggests that the

accused while obstructing the passage of the complainant also

.

tried to caught hold of her, but victim/prosecutrix managed to

escape. However, aforesaid version put forth by the prosecutrix

has been not corroborated by PW-4, Nirmala Devi, who was first

to meet her after the alleged incident. Besides above, PW-4 in

her testimony given to the Court has nowhere stated that the

prosecutrix told her that accused obstructed her passage and

tried to touch her breast, rather she deposed that accused met

her on the way and teased her.

15. Similarly, statement of PW-1, Amar Singh, clearly

reveals that Ravinder Kumar (PW-2) told him that the passage of

the complainant was obstructed by the accused Sunil Kumar,

but she managed to reach the school alongwith peon Nirmala

Devi, PW-4. In the aforesaid background, this Court sees

reasons to agree with the submission of learned counsel

representing the accused that allegation with regard to

outraging the modesty of the complainant is an afterthought and

same can be one of the reason of delay in lodging the FIR. Since,

there is no positive and concrete evidence with regard to

attempt, if any, made by the accused to outrage the modesty of

the prosecutrix, no fault, if any, can be found with the judgment

passed by learned Additional Sessions Judge inasmuch as it

proceeded to acquit the accused under Section 354 of IPC.

.

16. Consequently, in view of the aforesaid discussion

made hereinabove as well as law laid down by the Hon' Apex

Court, this court sees no illegality and infirmity in the impugned

judgment passed by learned Additional Sessions Judge, which

appears to be based upon the correct appreciation of the

evidence adduced on record and as such, same deserve to be

upheld.

17. Accordingly, the present appeal is dismissed

alongwith pending application(s), if any.

(Sandeep Sharma), Judge 20th October, 2021 (shankar)