DHARAM PAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) This revision petition is filed against the judgment of the Sessions Judge, Sonepat in Criminal Appeal No. 15 of 1986, dated 5.1.1987. The petitioner was prosecuted before the Judicial Magistrate 1st Class, Sonepat for the offence under Seetions 35A and 326 of the Indian Penal Code. According to the prosecution, on 24-7-1981 Smt. Maya alongwith her daughter Sumitra had gone to the outskirts of the village to fetch grass. When she was going on the Dola of the field of Hoshiar Singh, the accused-petitioner came from behind and pushed her as a result of which Smt. Maya fell down on the ground, the petitioner sat down on her body, fondled her breasts, tried to unstring her trousers and made an attempt to molest her. On the alarm raised by Smt. Maya and her daughter, Smt. Mayas husband and one Bhima reached there. The husband of Maya namely Jai Karan and Bhima were armed with Lathis. The accused on seeing the villagers took out a knife and threatened the people that he would aitack if anyone came near him. One Jai Parkash took the risk and went near the accused to apprehend him. Thereupon, the accused caused a stab injury to Jai Parkash. The villagers beat the accused-petitioner with Lathis and he suffered injuries. Thereafter, on a report given by Smt. Maya, ASI Parkash Lal registered a case in FIR No. 135 of 1981 of Police Station Rai under Sections 354 and 326 IPC against the accusedpetitioner. After completion of the investigation, the police filed a charge-sheet against the accused in the Court of Judicial Magistrate 1st Class, Sonepat who took the case in file as Cr1. Case No. 32/2 of 1981, after following the procedure, framed proper charge against the accused under Sections 354 and 326 of the Indian Penal Code. The accused found not guilty to both the charges. In order to prove the guilt of the accused the prosecution examined ten witnesses. Thereafter, the accused was examined under Sectiorl3l3 Cr. P.C. On a consideration of the material on record, the learned Magistrate acquitted the accused under Section 354 of the IPC but convicted him for the offence under Section 326 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/-. Aggrieved by the same, the accused petitioner preferred an appeal to Sessions Judge, Sonepat who confirmed the conviction and sentence imposed by the learned Magistrate. Aggrieved by the same, the petitioner preferred the above referred revision petition.

(2.) The learned counsel for the petitioner argued that the evidence cannot be relied upon for convicting the accused-petitioner under Section 326 IPC especially when the charge under Section 354 IPC was thrown out. On the other hand, the learned State Counsel argued that the evidence on record clearly shows that the accused inflicted a stab injury to one Jai Parkash and according to the doctor, it is a grievous injury. Therefore, the lower courts below rightly convicted the accused for the offence under Section 326 IPC. It is to be seen whether the conviction and sentence imposed upon the accused-petitioner for the offence under Section 326 IPC can not be sustained.

(3.) It is the case of the prosecution that when Smt. Maya alongwith her daughter Sumitra was going near the field of Hoshiar Singh, the accused went there in order to molest her and when she fell on the ground he tried to unstring her trousers. On an alarm raised by Smt. Maya and her daughter her husband namely Jai Karan and one Bhima reached there armed with Ia this. The villagers including Jai Parkash also arrived at the scene. On seeing them, the accused-petitioner entered in the sugarcane field and he took out a knife and threatened everyone who came near him. Jai Parkash, the injured, took the risk and tried to apprehend the accused. Thereupon, the revision-petitioner gave a stab injury to Jai Prakash. Thus according to the case of the prosecution, the main allegation against the accused is about the attempt made by him to outrage the modesty of Smt. Maya but both the Courts below disbelieved the version of Smt. Maya that the accused came to her to molest her. When the case of the prosecution in regard to molestation and the attempt of molestation made by the petitioner is disbelieved then it is to be seen what credence is to be attached to the evidence of the prosecution witnesses in regard to the offence under Section 326 IPC. It is in evidence that the accused also sustained six injuries. The evidence on record also shows that the husband of Maya and one Bhima and other villagers were armed with lathis. But when the case of molestation is not established, then it is difficult to believe that the accused-petitioner and Jai Parkash sustained injuries in the course of same transaction. The fact remains that both the accused and Jai Prakash sustained injuries. When the case of the attempt of molestation of Maya is no longer available, there is nothing on record to show that under what circumstances both Jai Prakash and the accused petitioner sustained injuries. The knife which is said to have been used by the accused petitioner, is not recovered. In these circumstances, I am of the opinion that it is difficult to maintain the conviction of the petitioner for, the offence under Section 326 IPC also. Accordingly, the revision petition is allowed and the conviction and sentence imposed on the petitioner are hereby setaside and the amount of fine, if paid, is directed to be refunded to the petitioner. Petition allowed. Accused acquitted of charge u/s. 326 IPC.