State Of Jammu And Kashmir vs Banarsi Lal
2021 Latest Caselaw 732 j&K

              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                             ....
                       CRAA No. 27/2010
                                                     Reserved on:12.07.2021
                                                 Pronounced on: 15.07.2021


State of Jammu and Kashmir
                                                    ............... /appellant(s)
                                  Through: Mr. Aseem Sawhney AAG
                         Versus
Banarsi Lal
                                                          ......Respondent(s)
                                   Through: Mr. Sachin Gupta Advocate
CORAM:
     HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                                  JUDGEMENT

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

CRAA No.27/2010

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     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

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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. She has no where stated regarding pressing of her breast and

CRAA No.27/2010

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 judgement.

(Vinod ChatterjiKoul) Judge Jammu 15.07.2021 (Sanjeev PS) Whether approved for reporting? Yes/No