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Himachal Pradesh High Court · body

2001 DIGILAW 159 (HP)

STATE OF H. P. v. DILWAR SINGH

2001-07-24

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—This appeal is directed against the judgment of acquittal dated September 24, 1996, recorded by learned Sessions Judge, Bilaspur, in Criminal Appeal No. 10 of 1994. 2. In order to appreciate the controversy, few facts may be noticed: 3. Nisha Devi, hereinafter referred to as the victim, was resident of village Samlohal within Police Station Talai of District Bilaspur. Her husband at the relevant time was employed in the army and was on duty outside the State. She was living with her father-in-law, mother-in-law and younger brother of the husband. On 1st December, 1992, her father-in-law left the village for Kangra/Hamirpur to visit relations. On 2nd December, 1992, at about 8 a.m. victim left her house to fields carrying dung. It is the case of the prosecution that after dumping dung in her fields victim starts back home with a bundle of fire wood on her head. On her way back Dilawar Singh, hereinafter referred to as accused accosted her. He caught hold the victim from her wrist and started pressing her breasts. He offered Rs. 100 apparently for sexual submission. She resisted the attempt. A scuffle ensued in which her bangles were broken. Accused also tore the shirt which the victim was wearing. Accused threatened the victim that if she disclosed this incident to any person, he would kill her. She raised commotion which was heard by Lekh Ram (PW-2) who was working in the Nallah about 150 yards from that place. Lekh Ram raised his voice and said that she should not get scare and he is coming. On seeing Lekh Ram coming to the place of occurrence, accused fled away. 4. The victim narrated the incident to Lekh Ram (PW-2). She returned back home and disclosed the incident to her mother-in-law, Indri Devi (PW-3). Message was sent to call the father-in-law of the victim who came on the third day and thereafter the First Information Report was lodged with Police Station, Talai on 9th December, 1992. 5. The accused was tried and convicted for offences punishable under Sections 354 and 506 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six months and pay a fine of Rs. 1000 for the offence punishable under Section 354 of the Indian Penal Code. 5. The accused was tried and convicted for offences punishable under Sections 354 and 506 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for six months and pay a fine of Rs. 1000 for the offence punishable under Section 354 of the Indian Penal Code. In case of default in the payment of the fine, the accused was to suffer further imprisonment for one month. The accused was sentenced to suffer rigorous imprisonment for three months for the offence punishable under Section 506 of the Indian Penal Code. Both the sentences were directed to run concurrently 6. Dis-satisfied, accused carried an appeal before the learned Sessions Judge, Bilaspur, who by the impugned judgment acquitted the accused. 7. The State is in appeal against the acquittal. 8. Learned Sessions Judge acquitted the accused on the grounds: (a) delay in lodging of the First Information Report, (b) discrepancies in the evidence of the victim, (c) non-production of the written complaint which was lodged by the victim with the Tehsildar, Ghumarwin, (d) non-examination of Karam Singh, the father-in-law of the victim as witness, and (e) contradiction regarding the place where Karam Singh had gone when the occurrence took place. 9. According to the learned Sessions Judge, "the non-examination of the material witnesses and unexplained delay in lodging the First Information Report are the two important factors which go to the root of the case of the prosecution and thus make the case of the prosecution doubtful." 10. I have heard Mr. R.M. Bisht, learned Assistant Advocate General and Mr. Y. Paul, learned Counsel for the respondent-accused and gone through the record with their help. 11. Mr. Bisht submits that the delay has properly been explained by the prosecutrix and in the facts of the case there is no delay in lodging of the First Information Report. On the other hand, Mr. Y. Paul, learned Counsel for the accused, submits that the occurrence took place on 2nd December, 1992, whereas First Information Report was lodged on 9th December, 1992 and delay of seven days in lodging First Information Report is not explained at all. This, according to Mr. Paul, goes to the root of the case and the accused is entitled to acquittal on this ground alone. 12. This, according to Mr. Paul, goes to the root of the case and the accused is entitled to acquittal on this ground alone. 12. There is no dispute that the occurrence took place on 2nd December, 1992 and the First Information Report was lodged on 9th December, 1992. It is the case of the prosecution that as husband of the victim was employed in the army and was away on duty at the relevant time, father-in-law was also not in the village having gone to Hamirpur/Kangra, therefore, the family waited for his arrival. It was only after consultation with the father-in-law that it was decided to lodge a report with the police. It is the evidence of Nisha Devi (PW-1) that her father-in-law had gone to the relatives towards Hamirpur. A message was sent to him. He returned back on the second day of the message sent to him. It was on the third day after his arrival that she alongwith her father-in-law went to the Police Station. She further explained in her cross-examination that they first came to Ghumarwin and lodged a written report with the Tehsildar who directed them to go to the Police Station. They stayed at night at Ghumarwin and next day went to the Police Station, Talai and lodged the report. She is corroborated by her mother-in-law Indri Devi (PW-3) on this aspect. The delay, submits Mr. Bisht, is satisfactorily explained and even if there is a delay in lodging the First Information Report, such a delay has to be viewed in the context of the rural background of the victim and the offence to which she was subjected to. Mr. Bisht submits that the victims. of sexual offences are generally hesitant to lodge report with the police as it scandalise the victim and her family. Mr. Bisht, for support, refers to State of Punjab v. Gurmit Singh and others, AIR 1996 SC 1393. 13., In this case learned Judges took note of sexual offence and delay in lodging of the FIR. It was observed that such delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix and her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It was observed that such delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix and her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. Their Lordships observed : "It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural, such delay would not matter". 14. He also refers to State of Rajasthan v. N.K., (2000) 5 SCC 30. In that case there was a delay of five days in lodging the FIR by the victim of rape. In this context, Their Lordships held that a mere delay in lodging FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The court, it was observed, must satisfy itself about the truthfulness and plausibility of the explanation given for delay on registration of First Information Report. If the delay is explained to the satisfaction of the Court, it should not be held against the prosecution. 15. Mr. Paul, learned Counsel for the respondent, on the other hand, refers to Chand Awasthi v. State of H.R, Latest HLJ 2001 (HP) (DB) 138. In this case the First Information Report about a murder was lodged after considerable unexplained delay. Such delay, in the facts and circumstances of the case, was held to cast a shadow of doubt on the truthfulness of the prosecution story. An inference was drawn that the First Information Report was the result of deliberations and consultations and had been anti-dated and anti-timed. 16. Mr. Paul, then refers to State of H.R v. Jaspal Singh, Latest, HLJ 2000 (HP) (DB) 416. In that case there was inordinate delay in lodging First Information Report. No satisfactory reason for such delay was given, therefore, it was held to be fatal to the prosecution. 17. In our society, victims of sexual offences are looked down upon such victims carry stigma throughout their life for no fault of theirs. The victim and the parents, therefore, are hesitant to lodge complaint with the police. No satisfactory reason for such delay was given, therefore, it was held to be fatal to the prosecution. 17. In our society, victims of sexual offences are looked down upon such victims carry stigma throughout their life for no fault of theirs. The victim and the parents, therefore, are hesitant to lodge complaint with the police. It is only after consulting various relatives and leaders of the society that such reports, to the law enforcing agency, are made. In State of Rajasthan v. Shri Narayan, AIR 1992 SC 2004, Their Lordships observed: "True it is that the complaint was lodged two days later but as stated earlier Indian Society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police." 18. Similar observations were made in Karenel Singh v. State of M.R, (1995) 5 SCC 518, repelling the defence contention based on delay in lodging the First Information Report. 19. In the present case, I am of the view, the delay has satisfactorily been explained by the victim and her mother-in-law. Even if, there is any unexplained delay, that will not be itself sufficient to dismiss the prosecution case. 20. Next contention of Mr. Paul is that victim received some injuries, but was not examined by the doctor. There is no evidence on record that victim received any injury in the scuffle with the accused. However, victim did state in her cross-examination that blood came from her wrist due to the breaking of the bangles and was injured due to this. This was not such an injury for which she was required to be examined by a doctor. In any event, as stated by the Investigating Officer, there was no injury mark, due to the passage of time when the First Information Report was lodged. 21. The next contention of the learned Counsel for the accused is that it is the case of the victim that written complaint was lodged with the Tehsildar at Ghumarwin, but that complaint was not produced in the Court. Had this report been produced, submits Mr. Paul, it would have given true and correct version of the incident. 22. 21. The next contention of the learned Counsel for the accused is that it is the case of the victim that written complaint was lodged with the Tehsildar at Ghumarwin, but that complaint was not produced in the Court. Had this report been produced, submits Mr. Paul, it would have given true and correct version of the incident. 22. It is no doubt true that the victim in her statement stated that she alongwith her father-in-law and brother of father-in-law first came to Ghumarwin to lodge the report. They got a complaint scribed from a petition writer, went to the Tehsildar. But Tehsildar directed them to go to the Police Station to lodge the report. It is her evidence that they came to Police Station, Talai and handed over the complaint to the police. This report somehow or the other was not made basis of the First Information Report. The police officer in his wisdom recorded statement of the victim under Section 154 of the Code of Criminal Procedure and made it the basis for the First Information Report. The prosecution case cannot be dis-believed and thrown out simply because the Investigating Officer, for no plausible reason, omitted to take the written complaint, on record. This is not a circumstance which may raise doubt on the prosecution case. 23. Mr. Paul then refers to certain discrepancies in the evidence on record. He submits that the victim has stated that Lekh Ram was about half kilometer away from the place of occurrence. She raised alarm and then Lekh Ram shouted in reply that he is coming and she should not get scare. On the other hand, Lekh Ram appearing as PW-2 states that he was at a distance of about 150 yards and on hearing the commotion and alarm raised by the victim, he ran towards the spot and when he was at a distance of about 10 yards, he saw the accused running away from that place. The victim is a simpleton lady having a rural background and therefore she is not expected to know the exact distance in terms of yards or kilometers. She gave the distance at her own estimation. 24. The fact remains that Lekh Ram was working near the place of occurrence (150 yards or so), he did hear the alaram raised by the victim and rushed to the spot. She gave the distance at her own estimation. 24. The fact remains that Lekh Ram was working near the place of occurrence (150 yards or so), he did hear the alaram raised by the victim and rushed to the spot. It is the evidence of Lekh Ram that he saw the accused running away from 10 yards of the place of occurrence. It is also the evidence of the victim that on seeing Lekh Ram, accused ran away from the spot. Thus, the substratum of the prosecution case remain intact. Discrepancy pointed out by the learned Counsel is triffle in nature and of no significance. 25. Mr. Paul then refers to the statement of the victim where she states that Lekh Ram visited the spot five minutes after the accused has left the place on seeing Lekh Ram. True it is. It is obvious that Lekh Ram reached the spot after the accused fled away. According to Lekh Ram himself, he saw the accused running away from a distance of about 10 yards or so. This does not help the accused. Fact remains that Lekh Ram could reach the spot only after the accused has fled away. 26. Mr. Paul draws my attention to the fact that there was fog at the place of occurrence at the relevant time and visibility was poor and therefore, it was not possible for Lekh Ram to have identified the accused. I am afraid that this plea is not available. Lekh Ram was never asked in his cross-examination that he could not have seen the accused due to fog. This part of the testimony of Lekh Ram has gone unchallenged. 27. Learned Sessions Judge has taken note that though, the father-in-law of the victim, Karam Singh had accompanied her to the Police Station at the time of lodging of the First Information Report, but Karam Singh was not examined as a witness. In my view, non-examination of Karam Singh is immaterial. Karam Singh was neither eye witness nor could he, by any streatch, have corroborated the prosecution case. He was not material witness. His non-examination does not impair the prosecution version. 28. In the end, Mr. Paul states that there was enmity between the family of the victim and the accused inasmuch as there was a dispute between the parties about the water tap and therefore, he has falsely been implicated. 29. He was not material witness. His non-examination does not impair the prosecution version. 28. In the end, Mr. Paul states that there was enmity between the family of the victim and the accused inasmuch as there was a dispute between the parties about the water tap and therefore, he has falsely been implicated. 29. It is true that victim in her statement stated that there is a common tap from which the family of the victim and accused draw water. She further stated that on one occasion accused had put his vessel under the tap. On her turn she removed and placed it nearby. She is categorical that there was no dispute regarding the drawing of the water or regarding this incident. She, however, admits that the family of the victim is not on visiting terms with the family of the accused after this occurrence (subject of this appeal). Simply because victim placed the vessel of the accused away from the water tap when she was to draw water from the tap would not mean that there was such enmity which would impel the victim to falsely implicate the accused in a case which carry stigma on her self. * 30. Mr. Paul, learned Counsel for the accused, submits ,that the uncorrborated evidence of the victim cannot be made foundation for the conviction of the accused. I am afraid that the submission is mis-placed and cannot be accepted. There is no rule of law which require the testimony of a victim of sexual offence cannot be acted upon without corroboration. Such a victim is not accomplice. The testimony of the victim of sexual offences is on the same footing as that of an injured. The testimony of such a witness has to be appreciated as such. Relying upon N.K. (supra) a Division Bench of this Court in Pinja Ram v. State of H.R, 2001 (2) Shim. L.C. 35, observed that testimony of a victim of sexual offence has to be appreciated on the principles of probabilities and conviction shall be based on the sole testimony of the victim if it inspires confidence. In N.K. (supra) Their Lordships of the Apex Court held/ that if for some reasons the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration. In N.K. (supra) Their Lordships of the Apex Court held/ that if for some reasons the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration. The trial Court, observed learned Judges, must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 31. Lastly, Mr. Paul submits that the accused has already suffered agony of trial for nine years and accused may be dealt with leniently. 32. In the present case, learned Sessions Judge has misread the evidence on record and tried to make out a case of acquittal where non existed. The judgment of the learned trial Court is well reasoned where the entire evidence of record has been considered. Learned Sessions Judge clearly erred in acquitting the accused. 33. As a result, the appeal is accepted. The judgment of acquittal passed by learned Sessions Judge is set aside and that of learned trial Judge is restored. However, taking into consideration the entirety of the circumstances, the fact that accused has suffered agony of trial for nine years, I feel the ends of justice would be met if sentence imposed is modified and accused is sentenced to pay a fine of Rs. 1,000 for the offence punishable under Section 354 of the Indian Penal Code and Rs. 1,500 for the offence punishable under Section 506 of the Indian Penal Code. In case of default in the payment of fine, the accused shall suffer imprisonment for three months for the offence punishable under Section 354 of the Indian Penal Code and another four months for the offence punishable under Section 506 of the Indian Penal Code. 34. The accused shall surrender to his bail bonds and pay the amount of fine within one month from today, failing which the appropriate steps in terms of the judgment shall be taken by the learned trial Magistrate. Criminal appeal dismissed.