JUDGMENT :

Sumeet Goel, J.(Oral)

1. Present appeal has been filed against the judgment of acquittal dated 15.03.2017, passed by Additional Sessions Judge, Jind in criminal appeal No. 70 (RBT) bearing CIS No.330 of 2013.

2. Facts germane to the adjudication of the present appeal are that FIR No.163 dated 16.05.2010 was registered against respondents No.2 and 3 alongwith one Shyam Sunder son of Baru Ram resident of village Roopgarh, Teshil and District Jind, under Sections 323, 354, 452, 506 read with Section 34 of the IPC at Police Station Sadar, Jind. The trial of the said case was concluded by the Court of Judicial Magistrate, 1st Class, Jind, vide judgment of conviction, dated 20.03.2013. It is pertinent that the trial in the case was conducted against three accused persons, namely, Purshotam (respondent No.2 herein), Suraj Mal (respondent No.3 herein) and Shyam Sunder and all of them were convicted under Sections 354 and 452 of the IPC and were sentenced to 1 year rigorous imprisonment under Section 354 IPC; and 3 years rigorous imprisonment and a fine of Rs.5000/- each under Section 452 of IPC, whereby both the substantive sentences were ordered to run concurrently.

3. All the three convicts preferred an appeal against their order of conviction, recorded vide judgment dated 20.03.2013 passed by the Judicial Magistrate, 1st Class, Jind. However, during the pendency of said appeal one of the convicts, (appellants therein) namely Shyam Sunder, died on 09.09.2013 and the appeal qua him was ordered to have been abated by the Additional Sessions Judge, vide order dated 19.11.2013. The learned Additional Sessions Judge, Jind vide the impugned judgment dated 15.03.2017, allowed the said appeal and respondents No. 2 and 3 (herein) were acquitted and the judgment of conviction dated 20.03.2013 passed by the Judicial Magistrate was set aside.

4. Feeling dissatisfied by the acquittal of the accused persons by the 1st Appellate Court, the complainant (appellant herein) has filed the present appeal challenging their acquittal. It is pertinent to mention here that during the pendency of the present appeal, respondent No.2 - Purshotam, has also expired on 10.05.2021. The factum of death of respondent No.2 - Purshotam on 10.05.2021, has been verified by the State through a status report dated 16.09.2024, submitted in this court on 17.09.2024 at the time of the final arguments. As mentioned in the order dated 06.04.2022, despite service upon respondents No.2 and 3, none had appeared on their behalf in the case. Even today none has appeared on behalf of the surviving respondent No.3.

5. Briefly, the case of the prosecution as set up in the FIR is that the complainant, was a 26 years old married lady, having two children. On 15.05.2010, she was sleeping on the rooftop along with her son aged V/2 years. At about 11.30 PM, accused Purshotam (respondent No.2 herein-since deceased) came to the rooftop and pressed her mouth, due to which she raised a loud alarm. He grappled with her due to which her bangles broke, he tried to press her neck and tear her clothes, and she suffered scratches on her hand and neck. The accused attempted to commit rape upon her and he was holding a knife as well. Upon hearing her screams, her sister-in-law, namely, Santosh wife of Baljeet (examined as PW-5) came to the place of occurrence and witnessed accused Purshotam running away by jumping from the roof, and threatened her not to disclose the incident to anybody. She disclosed the incident to her father-in-law, Rishi Ram son of Sheoni Ram (examined as PW-2) who thereafter went to the house of the accused Purshotam to lodge his protest, whereafter the accused persons, namely Purshotam, Shyam Sunder and Suraj Mal came to their house armed with lathi, gandasi, jailly and abused all of them.

6. It is argued on behalf of the appellant that a well-reasoned judgment of conviction, passed by the trial Court, has been illegally and erroneously interfered with by the Additional Sess