STATE OF HIMACHAL PRADESH Vs. VIRENDER KUMAR

JUDGEMENT

(1.) Complaint is that learned Judicial Magistrate, 1st Class, Barsar, District Hamirpur, has erroneously acquitted the respondent, hereinafter referred to as "the accused", of the charge under Sections 354 and 323 of the Indian Penal Code, vide judgment dated 31.7.2007, passed in Criminal Case No. 52-1-2006/34-II-2006. The impugned judgment, therefore, has been sought to be quashed and set aside on the grounds, inter alia, that the same is based on hypothesis, surmises and conjectures and passed in a slip-shod and perfunctory manner, without appreciating the evidence on record in its right perspective. Neither the statement of the complainant is appreciated properly nor the alleged contradictions in the statements of the witnesses mentioned in the impugned judgment explained as to how the same were fatal to the prosecution case. The Court below allegedly erred in disbelieving the recovery of shirt Ext. P1 and erroneously concluded that non-examination of PW Rita Devi, mother of the complainant and PW Sanjiv Kumar is fatal to the prosecution case. Complainant Priyanka (PW2) is the daughter of PW-4 Vikram Singh. PW-3 Sunita Devi is her younger sister and PW-5 Onkar Singh, her real uncle. PW6 Rakesh Chand being the first cousin of PW-4 is also uncle of the complainant, in relation.

(2.) FIR Ext. PW2/A has been lodged at the instance of PW-2 Priyanka. The same bears her signatures and also that of her father Vikram Singh and uncle Onkar Singh. She claims that on 16.3.2006 around 8/8.15 p.m., when she was washing her hands and feet in the courtyard of the house, Bunty (accused Virender Kumar) came there from behind, gagged her mouth with her Dupatta and dragged her towards the road and made her lie down there. He pressed her neck and caught hold of her breasts, with a view to outrage her modesty and started behaving with her in an obscene manner. On raising alarm by her, Vikram Singh, Onkar Singh and Rita Devi, her father, uncle and mother respectively, came to the spot and on seeing them, the accused fled away. Subsequently, when her father and uncle went to the house of the accused to bring such incriminating behaviour on the part of the accused to the notice of his parents, he thrashed them with kicks and fisticuffs and thereby caused injuries to her father on his nose, face, teeth, elbow and stomach, whereas to her uncle Onkar Singh on his face and nose.

(3.) The FIR in this case was registered on the day of occurrence itself, however, the police seems to have conducted investigation on 18.3.2006, i.e. a day after the occurrence. During the course of investigation, besides associating the witnesses, named hereinabove and recording their statements, the police prepared the site plan Ext. PW9/A and also took into possession shirt Ext. P1 of PW-2 Priyanka, vide seizure memo Ext. PW2/A. On receipt of MLCs Ext. PW1/A and PW1/B with respect to the medical examination of PW-4 Vikram Singh and PW-5 Onkar Singh, report under Section 173 Cr.P.C. was filed against the accused in the Court.