1 Neutral Citation No. ( 2025:HHC:33221 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 4017 of 2013 Reserved on: 29.08.2025 Decided on: 24.09.2025 State of Himachal Pradesh ...…..Appellant Versus Suresh Kumar …..Respondent Coram The Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Appellant: Mr Lokender Kutlehria, Additional Advocate General. For the Respondent: Mr Rajesh Mandhotra, Advocate. Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 8.3.2013 passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, District Kangra, H.P. (learned Appellate Court) vide which the judgment of conviction dated 19.09.2008 and order of sentence dated 20.09.2008 passed by learned Judicial Magistrate First Class, Baijnath, District Kangra (learned Trial Court) were set aside. (Parties shall hereinafter 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 Neutral Citation No. ( 2025:HHC:33221 ) be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 354 of the Indian Penal Code (IPC). It was asserted that the victim (name withheld to protect her identity) was taking tuition from the accused. The accused told her to visit him in the morning session because number of students in the class evening session was quite high, and he was unable to pay individual attention to each child. The victim started taking tuition from 8:00 A.M to 9:30 A.M. The accused sent a message to the victim through Buti Devi (PW5) to come early for tuition. The informant went early. She returned crying at about 8:20 A.M. Her mother (PW2) inquired about the reason for her cries. She revealed that the accused had touched her cheeks, kissed her and told her that he found her cute. The matter was reported to the police. F.I.R. (Ex.PW2/A) was registered. HC Jeet Kumar (PW4) investigated the matter. He visited the spot and prepared a site plan (Ex.PW4/A). He recorded the statements of prosecution witnesses as per their 3 Neutral Citation No. ( 2025:HHC:33221 ) version. After completion of the investigation, a challan was prepared and presented before the learned Trial Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, notice of accusation was put to him for the commission of an offence punishable under Section 354 of IPC, to which, he pleaded not guilty and claimed to be tried. 4. The prosecution examined five witnesses to prove its case. The victim (PW1) narrated the incident. Her mother (PW2) reported the matter to the police. Mehar Deen (PW3) signed the F.I.R. HC Jeet Kumar (PW4) conducted the investigation. Buti Devi (PW5) did not support the prosecution's case. 5. The accused admitted in his statement recorded under Section 313 of the Criminal Procedure Code (CrPC) that the victim used to take tuition from him. He admitted that her tuition timings were shifted from evening to morning. He denied the rest of the prosecution's case. He stated that he had scolded the victim for not studying properly in the presence of seven or eight children. Her parents quarrelled with him and made a false complaint. Statements of student (DW1) and Parma Ram (DW2) were recorded in defence. 4 Neutral Citation No. ( 2025:HHC:33221 ) 6. Learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other. The statements of defence witnesses were not reliable. It was duly proved on record that the accused had kissed the victim on her cheek, which constitutes an offence punishable under Section 354 of the IPC. Consequently, the accused was convicted of the commission of an offence punishable under Section 354 of the IPC and was sentenced to undergo simple imprisonment of one year, pay a fine of ₹2,000/- and, in default of payment of fine, to undergo further simple imprisonment for three months. 7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal which was decided by the learned Additional Sessions Judge-II, Kangra, at Dharamshala (learned Appellate Court). Learned Appellate Court held that the statements of defence witnesses cannot be discarded without any reason. Their testimonies made the prosecution's case highly doubtful that the accused had kissed the victim. Buti Devi (PW5) did not support the prosecution's case that the accused had sent a message through her for an early class. It was proved by the defence evidence that the victim’s parents had given beatings to the accused, and the matter was reported to the police, but no action was taken. The 5 Neutral Citation No. ( 2025:HHC:33221 ) prosecution's case was not proved beyond a reasonable doubt that the accused had outraged the victim’s modesty. Hence, the judgment and order passed by the learned Trial Court were set aside, and the accused was acquitted of the commission of an offence charged against him. 8. Being aggrieved by the judgment passed by the learned Appellate Court, the State has filed the present appeal asserting that the learned Appellate Court erred in acquitting the accused. The testimony of the victim was satisfactory. The matter was reported to the police on the same day at 2:00 P.M. The statements of defence witnesses were not sufficient to discard the victim’s testimony. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 9. I have heard Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State and Mr Rajesh Mandhotra, learned counsel for the respondent/accused. 10. Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State, submitted that the learned Appellate Court erred in acquitting the accused. The victim’s testimony inspired confidence and was corroborated by the 6 Neutral Citation No. ( 2025:HHC:33221 ) statement of her mother. The testimonies of the defence witnesses were full of contradictions, and the learned Appellate Court erred in relying upon them to record the acquittal. Learned Trial Court had taken a reasonable view while acquitting the accused, and learned Appellate Court failed to dislodge the reasons assigned by learned Trial Court. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 11. Mr Rajesh Mandhotra, learned counsel for the respondent/accused, submitted that the learned Appellate Court had rightly held that the testimonies of defence witnesses cannot be discarded without any plausible reasons. DW1 was present with the victim on the date of the incident, and she had not witnessed any incident of outraging the victim’s modesty. Statement of DW2 shows that the parents of the victim had beaten the accused, and this fact was denied by the prosecution witnesses, which made their testimonies doubtful. Therefore, he prayed that the present appeal be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7 Neutral Citation No. ( 2025:HHC:33221 ) 13. The present appeal has been filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176: (2025) 5 SCC 433 that the Court can interfere with a judgment of acquittal if it is patently perverse, is based on misreading/omission to consider the material evidence and reached at a conclusion which no reasonable person could have reached. It was observed at page 440: “23. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka 2024 SCC OnLine SC 4035, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging the acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below: (SCC pp. 482-83, para 29) “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa 8 Neutral Citation No. ( 2025:HHC:33221 ) case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973, puts no limitation, restriction or condition on the exercise of such power and an appellate court, on the evidence before it, may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with an acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in the case of acquittal, there is a double presumption in favour of the 9 Neutral Citation No. ( 2025:HHC:33221 ) accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused, having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748], this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows: (SCC p. 584, para 8) 8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence. 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence. 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of 10 Neutral Citation No. ( 2025:HHC:33221 ) acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity. 41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 24. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 14. The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11 Neutral Citation No. ( 2025:HHC:33221 ) 15. The victim’s mother (PW2) admitted in her cross- examination that her house was located opposite the school building where the accused was taking a tuition and it was visible from her house. It is highly doubtful that the accused would have outraged the modesty of the victim when the school was visible from the victim’s house, and he ran the risk of being seen by the victim’s family members. 16. The victim admitted in her cross-examination that DW1 was studying with her. DW1 stated that she used to take tuition from the accused. She went to take tuition on 21.02.2007 at 8:00 A.M. Ratni Devi and the victim had reached before her. The accused came after her arrival. 10-12 children were taking tuition. The accused asked the victim to solve a question, but she could not solve it. The accused scolded and slapped her. She cried and went to her home. She brought her parents, who gave beatings to the accused. The accused sustained bleeding injuries. The accused did not outrage the victim’s modesty in her presence. 17. Her version is corroborated by Parma Ram (DW2), who stated that he was Pradhan of the Gram Panchayat. The accused came to him on 21.02.2007 in the morning. He 12 Neutral Citation No. ( 2025:HHC:33221 ) complained that the victim’s parents had beaten him. Parma Ram went to the spot and found 03-04 girls present. He called the victim’s father, but the victim replied that he (victim’s father) had gone to his home. He inquired from the girls, who revealed that the victim’s parents had beaten the accused. He accompanied the accused to the police station to report the matter. The S.H.O. assured to take action, and he returned. He admitted in his cross-examination that the complaint was made orally and not in writing. He was assured by the police that action would be taken, and thereafter he went to his home. 18. There is nothing in the cross-examination of these witnesses to show that they were making false statements. Learned Appellate Court had rightly held that the testimony of the defence witness cannot be discarded simply because he had appeared on behalf of the accused. It was laid down by the Hon’ble Supreme Court in Adambhai Sulemanbhai Ajmeri v. State of Gujarat, (2014) 7 SCC 716: (2014) 5 SCC (Cri) 312: 2014 SCC OnLine SC 465 that equal weightage must be given to the defence witnesses. It was observed at page 829: “219. It has been held by this Court in a catena of cases that while examining the witnesses on record, equal weightage shall be given to the defence witnesses as that of the prosecution witnesses. In Munshi Prasad v. State 13 Neutral Citation No. ( 2025:HHC:33221 ) of Bihar [(2002) 1 SCC 351: 2002 SCC (Cri) 175], this Court held as under: (SCC p. 356, para 3) “3. … Before drawing the curtain on this score, however, we wish to clarify that the evidence tendered by the defence witnesses cannot al- ways be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution — a lapse on the part of the de- fence witnesses cannot be differentiated and be treated differently from that of the prosecutors' witnesses.”(emphasis supplied) 220. Further, it has been held in State of Haryana v. Ram Singh (2002) 2 SCC 426: 2002 SCC (Cri) 350 as under: (SCC p. 439, para 19) “19. … Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one — the defence wit- nesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence ten- dered by the defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution witnesses, in par- ticular PW 10 Dholu Ram that his father Man- phool was missing for about 2/3 days prior to the day of the occurrence itself—what more is expected of the defence case: a doubt or a cer- tainty—jurisprudentially a doubt would be enough: when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejec- 14 Neutral Citation No. ( 2025:HHC:33221 ) tion of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet — it is the prosecutor's duty to prove beyond all reasonable doubts and not the defence to prove its innocence — this itself is a circumstance, which cannot but be termed to be suspicious in nature.” 221. Also, in State of U.P. v. Babu Ram (2000) 4 SCC 515: 2000 SCC (Cri) 845, this Court held as under: (SCC pp. 524-25, paras 21-23) “21. Shri N.P. Midha, learned counsel for the re- spondent, submitted written submissions over and above the oral arguments addressed by him. One of the contentions adverted to by the learned counsel is pertaining to the evidence of the defence witness (DW 1 Moharam Ali). The counsel contended that if the evidence of DW 1 Moharam Ali can be believed, it is sufficient to shake the basic structure of the prosecution’s evidence. Shri N.P. Midha invited our attention to the following observations contained in the decision of this Court in Dudh Nath Pandey v. State of U.P. [(1981) 2 SCC 166: 1981 SCC (Cri) 379] : (SCC p. 173, para 19) ‘19. … Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their tradi- tional, instinctive disbelief in defence wit- nesses.’ 22. We may quote the succeeding sentence also from the said decision for the sake of comple- tion of the observations of Their Lordships on that score. It is this: ‘Quite often they tell lies, but so do the prosecution witnesses.’ 23. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case, and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution 15 Neutral Citation No. ( 2025:HHC:33221 ) witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.” (emphasis supplied) 19. The victim claimed that she was told by Buti Devi that tuition would start early on the date of the incident. However, Buti Devi (PW5) did not support the prosecution’s case. She was permitted to be cross-examined. She denied that she had told the victim that tuition would be early on the day of the incident. She admitted that the accused was her nephew. She denied that she used to supply milk to the victim. She stated in her cross-examination by learned counsel for the defence that the accused had slapped the victim, who started crying and rushed to her home. She admitted that 10-12 girls were present. 20. It is apparent from her statement that she has not supported the prosecution’s case regarding the fact that the tuition would start early. 21. It was asserted in the F.I.R. that the normal time of the tuition was 8:00 A.M to 9:30 A.M. The accused sent a message through Buti Devi that the class would start early on the day of the incident. Hence, the victim went early. However, the victim came to her home while crying at 8:20 A.M. and revealed that the accused had outraged her modesty. The 16 Neutral Citation No. ( 2025:HHC:33221 ) victim’s house was located opposite the school, which means that the distance can be covered within a short time. The fact that the victim went to her home at 8:20 A.M. makes the testimony of DW1 highly probable that a class was going on. The victim stated that she had gone to take tuition at 8:00 A.M and she was alone. She has not given any explanation as to why the other students were not present when it was a normal time of the tuition. The fact that the incident had taken place during the normal tuition hours also creates a doubt that the incident had occurred in the manner suggested by the prosecution. 22. The victim’s mother also stated in her examination- in-chief that Buti Devi told the victim that class would be early, and the victim went at 8:00 A.M. She returned after 15-20 minutes, and she was crying. This statement also shows that the victim had attended the tuition class at the normal time and not early, as claimed in the F.I.R. 23. It is apparent from the evidence led before the learned Trial Court that two versions were presented before the Court- one propounded by the victim that the accused had outraged her modesty, and the other propounded by the victim’s friend (DW1) that no such incident had taken place. The 17 Neutral Citation No. ( 2025:HHC:33221 ) version of the victim’s friend is also probable by the fact that the class was held during the normal time and not earlier than projected. It is trite to say that when two versions are appearing on the record, the version in favour of the defence is to be preferred to the version which is in favour of the prosecution. Thus, the learned Appellate Court cannot be faulted for accepting the defence version and discarding the prosecution version. This was a reasonable view which could have been taken on record, and no interference is required with it while deciding the appeal against acquittal. 24. No other point was urged. 25. In view of the above, the present appeal fails and the same is dismissed. Pending applications, if any, also stand disposed of. 26. A copy of this judgment, along with records of the learned Courts below, be sent back forthwith. (Rakesh Kainthla) Judge 24 September, 2025 (Yogesh)