IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 234 of 2008
.
Reserved on: 27.12.2017
Decided on: 12.01.2018
State of Himachal Pradesh …Appellant.
Versus
Kehar Chand r …Respondent.
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the appellant: Mr. Pankaj Negi, Deputy Advocate
General.
For the respondent: Mr. R.P. Singh, Advocate.
Vivek Singh Thakur, Judge.
Instant appeal has been preferred by State
against the acquittal of respondentKehar Chand vide
judgment, dated 15th February, 2008 passed by the learned
Sessions Judge, Shimla in Criminal Appeal No. 25S/10 of
2007, whereby the conviction and sentence imposed upon
12/01/2018 23:17:20 :::HCHP
2
respondentKehar Chand vide judgment, dated 14 th March,
2007 passed by Judicial Magistrate 1st Class, Court No. 3,
.
Shimla in Criminal Case No. 82/2 of 2001, convicting and
sentencing respondentKehar Chand for commission of
offence under Sections 354, 325 and 341 of the Indian Penal
Code (hereinafter referred to as “IPC”), has been reversed.
2.
Prosecution case, in brief, is that on 10th August,
2001, at about 8.00 a.m., respondentKehar Chand assaulted
and used criminal force to PW1 Sheetal Devi, wife of
complainant PW2 Suraj Kumar with intention to outrage
her modesty and on objection raised by PW2 Suraj Kumar,
caused grievous hurt to him with fist blow.
3. As per prosecution story, PW1 Sheetal Devi and
PW2 Suraj Kumar had a night stay on 9 th August, 2001 in
New Sidharth Hotel, Ram Bazar, Shimla and checked out on
10th August, 2001 at about 8.00 a.m. When they were
leaving the hotel, respondentKehar Chand pulled the shirt
of PW1 Sheetal Devi from back side which was objected by
PW1 Sheetal Devi and PW2 Suraj Kumar, whereupon
12/01/2018 23:17:20 :::HCHP
3
respondent hit PW2 Suraj Kumar with fist blow on his nose
causing injury and bleeding in his nostrils and also pushed
.
PW1 Sheetal Devi. PW1 and PW2 approached Police
Station Sadar at 8.20 a.m. whereafter, in pursuance to FIR
recorded, PW2 Suraj Kumar was medically examined at
IGMC Shimla at 8.50 a.m. by PW5 Dr. R.P. Chauhan and
on his advice, PW3 Dr. Usha Sharma, Radiologist, got the
xray of nose of PW2 Suraj Kumar conducted in her
supervision, which discovered fracture in nasal bone of PW2
Suraj Kumar. Thereafter, investigation was completed by
receiving MLC Ex. PW5/B and opinion of Doctors,
preparing the spot map Ex. PW7/A, recording statements of
witnesses and taking into possession extract of register Ex.
PW4/A and checkin slip Ex. PW7/B vide seizure memo Ex.
PW2/B. On completion of investigation, finding prima facie
complicity of respondentKehar Chand in commission of
offence, challan was presented in the Court by PW8 SHO
Jagdish Sharma.
12/01/2018 23:17:20 :::HCHP
4
4. Prosecution has examined nine witnesses to
prove its case. After recording statement under Section 313
.
of the Code of Criminal Procedure (for short “CrPC”),
respondent had chosen not to lead any evidence in his
defence. On conclusion of trial, respondent was held guilty
for commission of offence under Sections 354, 325 and 341
IPC. In appeal preferred by respondentKehar Chand,
learned Sessions Judge has acquitted him. Hence, present
appeal by the State.
5. I have heard learned counsel for the parties and
have gone through the record.
6. PW1 Sheetal Devi and PW2 Suraj Kumar, in
their deposition in Court, have corroborated their version
with regard to the incident reported to the police in FIR Ex.
PW2/A by reiterating that after checking out, when the
couple was coming out of the hotel and PW1 Sheetal Devi
(wife) was following her husband PW2 Suraj Kumar,
respondentKehar Chand pulled her shirt from behind,
which was objected by the couple, whereupon respondent
12/01/2018 23:17:20 :::HCHP
5
Kehar Chand physically assaulted PW1 Sheetal Devi and
PW2 Suraj Kumar in a manner which, besides causing
.
injury to PW2 Suraj Kumar, amounted to outraging the
modesty of PW1 Sheetal Devi and she was also pushed from
her chest by respondentKehar Chand.
7. PW1 Sheetal Devi in her statement fairly stated
that she was not able to identify respondentKehar Chand in
the Court at the time of her deposition as the incident had
taken place about four years ago. She also stated that in
case accused was shown to her in the Court, perhaps, she
might be identifying him. Thereafter, she was declared
hostile on this point whereafter, on crossexamining by
learned Assistant Public Prosecutor, she stated that the
accused present in Court shown to her was perhaps the
same Manager but she was not sure.
8. PW2 Suraj Kumar was also declared hostile for
resiling from his statement to the extent of the act of
respondent pushing PW1 Sheetal Devi from chest and he
was crossexamined by learned Assistant Public Prosecutor,
12/01/2018 23:17:20 :::HCHP
6
wherein he admitted that accused present in Court had
pushed his wife from her chest. In his statement, he had
.
identified respondentKehar Chand as the person who had
assaulted him and his wife.
9. The incident had taken place on 10th August,
2001 and the statements of PW1 and PW2 in the Court
were recorded on 2nd November, 2006. The capability and
capacity of reception, attention and narration always differ
from person to person and it is but natural to have some
discrepancies in the statements recorded in the Court after
about five years of the incident. The statements of PW1
Sheetal Devi and PW2 Suraj Kumar, in its totality, are
indicating that these witnesses were not tutored one but had
deposed in natural manner in the Court. Whatever they
remembered they deposed and what they did not remember
was not deposed. There is no parrot like narration on their
part so as to ensure the conviction of respondent at the
instance of prosecution. Their statements in the Court are
natural statement.
12/01/2018 23:17:20 :::HCHP
7
10. PW1 Sheetal Devi had expressed her hesitation
to identify respondent with surety for gap of four years,
.
however, PW2 Suraj Kumar had identified the respondent
in clear terms by stating that it was respondent who had
assaulted him and his wife. Further, PW4 Gurcharan
Kukreja, owner of the hotel, also identified respondent as
the person serving in the hotel on the day of incident. He
also proved staying of couple in his hotel by proving
photocopy of the relevant page of Entry Register Ex. PW4/A
and Entry Form of hotel Ex. PW7/B. In his cross
examination, a specific question was put to PW4 Gurcharan
Kukreja, which was admitted by him, that respondent
Kehar Chand was waiter in his hotel, which corroborated
that respondent was an employee of the hotel at relevant
point of time.
11. By putting a positive suggestion to PW2 Suraj
Kumar in his crossexamination that it was correct when the
couple was coming out of the hotel, PW1 Sheetal Devi was
following PW2 Suraj Kumar, presence of couple at the
12/01/2018 23:17:20 :::HCHP
8
relevant time was admitted. Further, it is case of the
prosecution that wife (PW1) was following her husband
.
(PW2) when her shirt was pulled by respondentKehar
Chand, which stood duly corroborated by the suggestion put
to PW2 Suraj Kumar by respondentKehar Chand himself.
12. PW1 and PW2 were strangers in the city who
had come to attend ailing mother of PW2 admitted in the
hospital. They were not having any enmity or proximity
with respondent and there was no reason for them to
implicate the respondent in a false case as they had no
scores to settle with him for any reason. Neither any such
suggestion was put to them nor any evidence to this effect
was brought on record. The defence under Section 313 CrPC
was denial simpliciter.
13. As per extract of Entry Register Ex. PW4/A, the
couple had checked out from the hotel at about 8.15 a.m.,
FIR Ex. PW2/A was lodged at 8.20 a.m. stating therein that
incident had taken place at 8.00 a.m. PW2 Suraj Kumar
was medically examined immediately thereafter and as per
12/01/2018 23:17:20 :::HCHP
9
MLC Ex. PW5/A, he was examined at 8.50 a.m. These
timings indicate that immediately after the incident, the
.
couple while leaving the hotel for hospital, had visited the
police station and after lodging the FIR, PW2 Suraj Kumar
was medically examined at 8.50 a.m., i.e. within one hour of
the incident. As per medical examination, injuries caused to
him were corroborated by the medical evidence. There is no
delay in the action of the victims and the police, rather there
is promptness. Had there been no incident, there was no
occasion for the couple to suffer the harassment of visiting
the police station, getting PW2 Suraj Kumar medically
examined and to engage themselves in the police
investigation, particularly, when mother of PW2 Suraj
Kumar was admitted in the hospital and moreover, they
were not even residents of the same town having any grudge
against respondent.
14. Plea of respondent that statements of PW1 and
PW2 cannot be relied upon for conviction of respondent for
the reason that both of them were declared hostile is not
12/01/2018 23:17:20 :::HCHP
10
tenable. It is settled law that testimony of a witness, which
has been declared hostile, is not to be discarded only on the
.
ground that the said witness has been declared hostile, but
the same can be considered in favour of either of the parties
on finding corroboration by other evidence on record with
any reliable portion thereof.
15.
In present case, PW1 was declared hostile on
her failure to identify the accused with certainty but the
said failure stands duly explained in her statement wherein
she clarified that for long gap between the incident and her
deposition in the Court, she was unable to identify the
respondent with certainty. Rest of her statement finds due
corroboration with other evidence on record and inspires
confidence.
16. PW2 was declared hostile when he failed to
depose the sequence of incident, but thereafter, he had duly
corroborated the prosecution story in consonance with his
earlier statement on material particulars. He also identified
the respondent and his testimony, as a whole, is duly
12/01/2018 23:17:20 :::HCHP
11
corroborated by the other evidence available on record and is
sufficient to rely upon to convict the respondent.
.
17. Contention of respondent, that pushing a female
by touching her chest during scuffle may not amount to
outraging the modesty of a woman in all cases and it may
have happened in natural manner without any intention to
outrage the modesty of PW1 Sheetal Devi, may be
acceptable and such an act in isolation may not be construed
as commission of offence under Section 354 IPC, but, in
present case, it is not only this act of respondent which has
invited to charge him under Section 354 IPC, but the
initiation of the incident started from pulling the shirt of
PW1 Sheetal Devi, which definitely, as has happened in
present case, amounts to commission of offence under
Section 354 IPC.
18. For determining as to whether respondent has
committed an offence under Section 354 IPC, it would be
relevant to have a glance at Section 354 IPC, which reads as
under:
12/01/2018 23:17:20 :::HCHP
12
“354. Assault or criminal force to
woman with intent to outrage her
modesty. Whoever assaults or uses.
criminal force to any woman, intending
to outrage or knowing it to be likely that
he will thereby outrage her modesty, shall
be punished with imprisonment of eitherdescription for a term which shall not be
less than one year but which may extend
to five years, and shall also be liable to
fine.”
19. Section 354 IPC provides punishment for assault
or use of criminal to a woman with intent to outrage her
modesty. Criminal force and assault have been defined in
Sections 349, 350 and 351 IPC, which read as under:
“349. Force. A person is said to use force
to another if he causes motion, change of
motion, or cessation of motion to that other,or if he causes to any substance such
motion, or change of motion, or cessation ofmotion as brings that substance into contact
with any part of that other’s body, or with
anything which that other is wearing orcarrying, or with anything so situated that
such contact affects that other’s sense of
feeling: Provided that the person causing
the motion, or change of motion, or
cessation of motion, causes that motion,
change of motion, or cessation of motion in
one of the three ways hereinafter described.
First. By his own bodily power.
12/01/2018 23:17:20 :::HCHP
13
Secondly. By disposing any substance in
such a manner that the motion
or change or cessation of.
motion takes place without any
further act on his part, or on
the part of any other person.
Thirdly. By inducing any animal to
move, to change its motion, or
to cease to move.
350. Criminal force. Whoever
intentionally uses force to any person,
without that person’s consent, in order to
the committing of any offence, or intending
by the use of such force to cause, or knowingit to be likely that by the use of such force he
will cause injury, fear or annoyance to the
person to whom the force is used, is said to
use criminal force to that other.
351. Assault. Whoever makes any gesture,
or any preparation intending or knowing it
to be likely that such gesture or preparationwill cause any person present to apprehend
that he who makes that gesture orpreparation is about to use criminal force to
that person, is said to commit an assault.
Explanation. Mere words do not amount to
an assault. But the words which a person
uses may give to his gestures or preparation
such a meaning as may make those gestures
or preparations amount to an assault.”
20. PW1 Sheetal Devi, in her statement, has
deposed that respondentKehar Chand had pulled up her
shirt, which was objected by her whereupon her husband
12/01/2018 23:17:20 :::HCHP
14
had also objected the same. PW2 Suraj Kumar has duly
corroborated this statement and the FIR Ex. PW2/A was
.
also recorded by stating the same version immediately after
the incident.
21. As per Section 350 IPC, intentional use of force
to any person without that person’s consent, intending by
the use of such force to cause or knowing it to be likely that
by the use of such force, he will cause not only injury but,
even only fear or annoyance to the said person, is said to be
use of criminal force to that other. Every prudent person
understands that pulling up shirt of a woman is definitely
an act, which will likely to cause annoyance to the woman.
22. As per Section 349 IPC, a person is said to use
force to another by causing motion, changing motion or
cessation of motion. Section 351 IPC provides that any
gesture or any preparation, intending or knowing it to be
likely that such gesture or preparation will cause any person
present to apprehend that he, who makes that gesture or
preparation, is amount to use criminal force to that person
12/01/2018 23:17:20 :::HCHP
15
will be said to be committing an assault. Causing
annoyance to a person amount to use of criminal force. In
.
present case, by pulling up the shirt of PW1 Sheetal Devi,
respondentKehar Chand has used criminal force to her and
has definitely committed an assault to outrage her modesty.
Therefore, he is liable to be convicted under Section 354 IPC.
23.
It has come in evidence that respondent had
stopped the couple outside the hotel and assaulted PW2
Suraj Kumar as well as PW1 Sheetal Devi. The
complainant couple was proceeding to the hospital and
respondent, by his act, had caused obstruction in their
movement, which has resulted restraining the couple from
free movement, which amounts to wrongful restrain
resulting into commission of offence under Section 341 IPC.
24. Commission of offence by respondent under
Section 325 IPC stands proved in statements of PW1
Sheetal Devi and PW2 Suraj Kumar, which finds
corroboration in FIR Ex. PW2/A, medical evidence, i.e. MLC
12/01/2018 23:17:20 :::HCHP
16
Ex. PW5/B and testimony of PW3 Dr. Usha Sharma and
PW5 Dr. R.P. Chauhan.
.
25. Learned Sessions Judge has reversed the
findings of the trial Court on the ground that the respondent
was not duly identified on record and no independent
witnesses were associated during investigation. As
discussed above, though, PW1 Sheetal Devi had expressed
her hesitation to identify the respondent, but PW2 Suraj
Kumar identified the respondent, in unequivocal terms, as
the same person, who had assaulted the couple. Further, it
was the respondent who was on duty on the day of incident
as has also been corroborated by statement of PW4
Gurcharan Kukreja and the positive suggestion put to PW2
Suraj Kumar also indicates that presence of respondent
Kehar Chand on the spot and his involvement in
commission of offence. Therefore, respondent stands duly
identified as offender and the findings of learned Sessions
Judge on this count are contrary to the record.
12/01/2018 23:17:20 :::HCHP
17
26. Learned Sessions Judge has referred the
admission of the witnesses in crossexamination that there
.
were many shops on both sides near the hotel and large
number of people remained present in the market, but he
has failed to take note of the fact that the incident had taken
place at about 8.00 a.m. and usually, the market opens at
about 9.00 a.m. At 8.00 a.m., shopkeepers cannot be
supposed to be present in front of or in their shops in the
market. So far as other passersby present on the spot are
concerned, they cannot be supposed to remain present there
as the markets are having floating visitors, who normally
are not available or identifiable even after a few seconds of
the incident, what to say of the minutes. There is no
convincing evidence or even suggestion in crossexamination
to prove or to suggest that at the time of incident, large
number of persons were present on spot. There is general
suggestion that large number of people remain present in
the market which cannot, at any stretch of imagination, be
proof of presence and availability of independent witnesses
12/01/2018 23:17:20 :::HCHP
18
on spot. Therefore, keeping in view the timing of incident,
possibility of availability of independent witnesses moving
.
in the market was least in the present case. PW1 and PW2
are natural witnesses of the spot. Therefore, learned
Sessions Judge has committed an error in acquitting the
respondent on this count also.
27.
Scrutiny of evidence on record reveals that the
trial Court had appreciated the evidence completely and
correctly. There was no perversity in the findings of the
trial Court and, thus, the respondent is held guilty for
commission of offence under Sections 325, 341 and 354 IPC.
Accordingly, impugned judgment, dated 15th February, 2008
passed by learned Sessions Judge Shimla in Criminal
Appeal No. 25S/10 of 2007 is set aside and judgment, dated
14th March, 2007 passed by Judicial Magistrate 1st Class,
Court No. 3, Shimla in Criminal Case No. 82/2 of 2001,
convicting respondentKehar Chand under Sections 325, 341
and 354 IPC is affirmed.
12/01/2018 23:17:20 :::HCHP
19
28. Before directing respondentconvict to serve
substantive sentence imposed upon him, it would be in the
.
interest of justice to consider plea of learned counsel for the
respondent, who has also argued in alternative that in case
respondent is found guilty for commission of offence, then
also, keeping in view the facts and circumstances of the case
and also that the respondent has suffered trauma of facing
criminal trial for seventeen years, that too, including
trauma of being convict after suffering judgment of
conviction by the trial Court, it is a fit case for extending
benefit of Probation of Offenders Act to the respondent as he
was a first offender and is not involved in any other case
thereafter.
29. Considering the submissions made by the
learned counsel for the respondent and the fact that the
incident had taken place in the year 2001, the respondent
was convicted in the year 2007 and has faced the criminal
proceedings for seventeen years and further that at the time
of incident, he was a young boy of 22 years, instead of
12/01/2018 23:17:20 :::HCHP
20
awarding substantive sentence, benefit of Probation of
Offenders Act may be extended to respondent. But, prior to
.
that, it would be appropriate to call for report of the
Probation Officer. The respondent is permanent resident of
Village Mashog, Tehsil Karsog, District Mandi. Therefore,
Probation Officer, Karsog is directed to submit his report
2018.
r to
under Probation of Offenders Act on or before 9th March,
30. List on 16th March, 2018, on which date the
respondentconvict shall remain present in the Court.
(Vivek Singh Thakur)
Judge
January 12, 2018
( rajni )
12/01/2018 23:17:20 :::HCHP
