Conviction cannot be based solely on the statement made under Section 313 Cr. P. C.

JUDGMENT

Vivek Singh Thakur, J. - This appeal has been preferred by the State against acquittal of the respondent vide judgment dated 1. 7. 2008 passed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr H. P. in Cr. Appeal No. 5 of 2005 titled Chhotu Ram vs. State of H. P. , whereby conviction and sentence imposed upon respondent, vide judgment dated 30. 3. 2005 passed by learned Sub Divisional Judicial Magistrate, Ani in criminal case No. 75-2 of 2004 in case FIR No. 78/2004 dated 29. 8. 2004 registered under Sections 354, 294, 506, 290 and 510 IPC in P. S. Ani, has been reversed.

2. I have heard learned counsel for parties and have also gone through record of the case.

3. Prosecution case, in brief, is that on 29. 8. 2004 at about 12. 45 PM, respondent, under influence of liquor, came on shop of PW1 Shakuntla and asked her to join him and on her refusal, respondent molested and abused her. Complainant was rescued by PW2 Asha Devi and PW3 Kamla Devi from clutches of the respondent. Complainant rushed to the police station, lodged FIR Ext. PW1/A, whereafter investigation was carried on. Accused was got medically examined through PW4 Dr. Manjit Singh, who issued MLC Ext. PW4/A. Site map Ext. PW5/A was prepared.

Statements of witnesses were recorded. On completion of investigation, prima facie finding complicity of accused in commission of offence, challan was presented in Court.

4. On conclusion of trial, respondent was convicted under Section 290, 294, 354 and 506 IPC and was sentenced to pay fine of Rs. 200/- for offence punishable under Section 290 IPC, simple imprisonment for one month for offence punishable under Section 294 IPC and to pay fine of Rs. 500/-, simple imprisonment for three months and to pay fine of Rs. 500/- for offence punishable under Section 354 IPC and simple imprisonment for three months and pay fine of Rs. 500/- for offence punishable under Section 506 IPC and in default of payment of fine, to further undergo simple imprisonment for two months for all aforesaid offences.

5. In appeal, preferred by the respondent, learned Sessions Judge has acquitted him from the offences charged. Hence, the present appeal.

6. Prosecution has examined five witnesses. PW1 Shakuntla Devi is complainant, PW2 Asha Devi and PW3 Smt. Kamla Devi are spot witnesses. PW4 is Dr. Manjeet Singh who has medically examined the respondent. PW5 SHO Manohar Lal is Investigating Officer.

7. As per prosecution case, occurrence took place on 12. 45 PM. PW1 has lodged FIR Ext. PW1/A at 1 PM i. e. within fifteen minutes of occurrence stating therein that respondent under the influence of liquor came to her and asked her to join his company him and on her refusal started abusing which was objected by her. Thereupon, respondent started molesting her, whereupon she started crying. She was rescued by Kamla Devi and Asha Devi who were present on spot at that time. In her deposition in Court, PW1 corroborated her statement made in Ext. PW1/A with little negligible difference that respondent molested her and started abusing her on her refusal to accompany him. PW2 Asha Devi has fully corroborated the statement of PW1 complainant. PW3 in her deposition in Court has also stated that accused caught complainant from her breast and asked her to accompany him and on refusal of complainant, he started abusing her.

8. Respondent was medically examined at 3 PM within about two hours of incident. On examination, it was noticed by the doctor that patient was breathing of alcohol (smelling of alcohol), his conjuctiva of both eyes were congested, pupils were equal and showed sluggish reaction to light, pulse was full and bouncing, gait was disturbed and patient was unable to walk in a straight line, corrodination was impaired and patient was oxcited.

It was also noticed that there was swelling on left side of his lip, with complaint of pain on right thigh medial side and clotted blood was also present at nostrils. Finally, it was opined by th