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2001 DIGILAW 83 (HP)

PREM SINGH v. STATE OF H. P.

2001-05-10

M.R.VERMA, R.L.KHURANA

body2001
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the appellant/ convict/accused (hereafter referred to as the accused) against the judgment and order dated 15.9.1998 passed by the learned Additional Sessions Judge, Mandi, in Sessions Trial No. 21 of 1997, whereby the accused has been convicted under Sections 376, 354 and 506 IPC and has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000 and in default of payment of fine to undergo simple imprisonment for six months under Section 376 IPC, rigorous imprisonment for six months under Section 354 IPC and rigorous imprisonment for six months under Section 506 IPC. 2. Briefly stated, the case of the prosecution against the accused is that he had been posted head teacher in Government Primary School, Dabrog (Sarkaghat) in the year 1989. There was another JBT teacher also posted in the said school. The prosecutrix, Kiran Devi (PW 1), was one of the students studying in the said school and was studying in 5th standard in the beginning of the year 1997. When PW-1 was a student of 4th class, in the absence of the class teacher during the recess, the accused used to call her to his room, after driving away the other students, threatening to beat them up if they would come there. Thus, by taking PW-1 to his room, he used to fondle her breasts, kiss her lips, bite into her cheeks in touch her vagina. In the event of PW-1 resisting the advances of the accused, he would threaten her that he would beat her and ensure that she fail in the examination. The accused repeated such acts on various occasions. In the year 1995, before the commencement of two months vacation, in the absence of the other teacher, accused took PW-1 to his room and after intimidating the other students drove them away and closed the door. Thereafter, he started fondling and kissing PW-1 and then untied the string of her Salwar and made her to stand on a raised cemented platform meant for keeping the water tank. After opening the zip of his pant, he started inserting his penis in the vagina of PW-1 in standing posture. PW-1 felt pain but clinched her teeth because she was under threat not to make any noise. Accused remained engaged in the act for some time. After opening the zip of his pant, he started inserting his penis in the vagina of PW-1 in standing posture. PW-1 felt pain but clinched her teeth because she was under threat not to make any noise. Accused remained engaged in the act for some time. Thereafter, he made PW-1 to wear the Salwar and sent her out, threatening her that in case she disclosed the occurrence to anyone, he would kill her and ensure that she is failed in the examination. On arrival of the other teacher, namely, Shanti, to the school, PW- 1 disclosed the occurrence to her and after reaching her home, she narrated the incident to her mother. Out of fear, PW-1 did not attend the school for 4-5 days but thereafter she was persuaded by her mother to go to the school. Even thereafter, the accused continued to molest the modesty of PW-1. The accused had been taking other girl students of the school also into his room and had been molesting their modesty by fondling their breasts and kissing them. The girl students so molested by the accused, after coming out of the room, used to tell about the occurrence. Shailja, Seema, Sarla, Pawna and Savitri are the other girl students who had stated about the molestation of their modesty by the accused. The aforesaid acts of the accused were reported by PW-1 to the police and as a consequence FIR Ex. PA was recorded at Police Station, Sarkaghat on 10.2.1997 and the investigation in the matter commenced. PW- 1 was got medically examined and as per MLC Ex. PC, was found used to sexual inter-course. Her radiological age as on 25.2.1997, was opined between 15 and half years to 17 years and dental age between 14 to 16 years as on 1.3.1997. The police took in possession a copy of the entries in the School Register Ex. PW-15/A according to which date of birth of PW-1 is 4.2.1984. Extract from Attendance Register for the month of June, 1995 Ex. PW-15/B showing that PW-1 absented for three days from the school prior to the commencement of vacation with effect from 4.7.1995 was also taken in possession. The accused, after his arrest, was got medically examined and on such examination, was found capable of performing sexual inter-course. Extract from Attendance Register for the month of June, 1995 Ex. PW-15/B showing that PW-1 absented for three days from the school prior to the commencement of vacation with effect from 4.7.1995 was also taken in possession. The accused, after his arrest, was got medically examined and on such examination, was found capable of performing sexual inter-course. Statements of the other girls, allegedly molested by the accused, were also recorded by the police under Section 161 Cr.P.C. and on being satisfied of the commission of offences alleged to have been committed by the accused, the officer incharge of the concerned police station submitted a charge sheet against him and the accused came to be tried by the learned Additional Sessions Judge, Mandi on a charge under Sections 376, 354 and 506 IPC. 3. To prove the charge against the accused, prosecution examined as many as 20 witnesses. 4. The accused was examined under Section 313 Cr.P.C. wherein he denied the prosecution case as a whole and claimed to be innocent. It was further claimed by the accused that a false case has been registered against him at the behest of Brahmu with whom he was not pulling on well, as he was propagating casteism and that the case reported by him was not investigated and was registered too late. The accused led defence and examined six witnesses in defence. Finally, the accused was convicted and sentenced by the learned Additional Sessions Judge as aforesaid. Hence the present appeal. 5. We have heard the learned Counsel for the accused and the learned Assistant Advocate General for the respondent State and have also gone through the records. 6. The learned Counsel for the accused had assailed the impugned conviction and sentence on the following grounds: (i) That the present case is a counter blast to the case registered against Brahma Dass (PW-4) and others at the instance of the accused. (ii) That there is unexplained inordinate delay of more than one and half years in lodging the FIR which is fatal to the prosecution case. (iii) That all the material witnesses are children and admittedly tutored before making statements in the Court, therefore, their statements could not have been acted upon to hold the charge against the accused proved. (iv) That PW-1 has made material improvements in her evidence on the initial version of rape as contained in the FIR. (iii) That all the material witnesses are children and admittedly tutored before making statements in the Court, therefore, their statements could not have been acted upon to hold the charge against the accused proved. (iv) That PW-1 has made material improvements in her evidence on the initial version of rape as contained in the FIR. (v) That the age of the prosecutrix (PW-1) is not ascertainable on the basis of the material on record. 7. It was contended by the learned Counsel that the accused was beaten up and humiliated by PW-4 and others because he was opposed to fomenting of casteism by PW-4 and the matter was reported by the accused to the police. The present case was thus manipulated by PW-4 and others as a counter blast to the case reported by the accused. In this regard, PW-19 Ram Swarup, ASI, Investigating Officer, has stated as follows : "It might be that the accused person might have been be laboured by Brahm Dass and other and there might be FIR from his side. Again said the accused person had got the FIR registered against Brahm Dass and others. I cannot say if the FIR of the accused person had been wrongly registered after registration of FIR No. 30/97 of Kirna Devi. I had investigated the FIR got registered by the accused person and the same was not found correct. I had not sent for the cancellation of the said case. I do not know the fate of the case got registered b} the accused person. I had recorded the statements of the witnesses cited by the accused person in the FIR got registered by him. I had sent the file of the FIR of the accused person to the SHO Sher Singh. I do not remember as to when I had started the investigation of the FIR got registered by the accused person." 8. In view of the above version though reluctantly, PW-19 has admitted registration of a case against Brahm Dass (PW-4) and others on the report of the accused. It is admitted by PW-5, PW-9 and PW-11 that PW-4 had accompanied them to the police station and according to PW-11, it was PW-4 who had taken PW-1 to the police station at the time of lodging of the FIR. It is admitted by PW-5, PW-9 and PW-11 that PW-4 had accompanied them to the police station and according to PW-11, it was PW-4 who had taken PW-1 to the police station at the time of lodging of the FIR. PW-10 has admitted that when the complainant party reached the police station to lodge report, the accused was already present there from which it can be inferred that accused had reached the police station to lodge his report prior in time. However, this circumstance, by itself, is of no help to the accused except that while appreciating the prosecution evidence, this may have to be kept in mind, particularly in view of the delay in lodging the FIR, if not reasonably explained. 9. It was next contended for the accused that there is unexplained inordinate delay of more than one and half years in lodging the FIR and the case is outcome of due deliberations and cooked up version to counter the case of the accused. Not only this, the delay had prejudiced the accused in his defence inasmuch as the exculpatory evidence had been rendered non-existent with the passage of time. Therefore, the impugned conviction and sentences cannot be sustained. 10. Per contra, the learned Assistant Advocate General has contended that this is a case of molestation of young immature girl students and molestation and rape of a similarly situate girl, who, due to fear and threats were deterred from complaining against the accused who was their teacher. It was further contended-that PW-2 who had come to know of the accused having molested and raped PW-1 at the relevant time, had explained that because of poverty she did not make any complaint in the matter. Therefore, the delay in lodging the FIR stands fully explained. 11. In Thulia Kali v. The State of Tamil Nadu, 1972 Cri. L.J. 1296, the Honble Supreme Court, emphasising the necessity of explaining the delay in lodging FIR, has held as follows : ".....First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained......” 12. There is a long chain of judgments of the Honble Apex Court consistent with the above view and by now it is settled that in the event of delay in reporting a crime, such delay has to be explained by the prosecution and failure to do so will render its case doubtful, benefit whereof will have to be given to the accused. It may be pointed out here that it is for the person causing the delay in lodging the FIR or the person who knows the reasons for such delay to explain it. 13. PW-1, in her examination-in-chief has stated that the first occurrence of rape was disclosed by her to her mother and a teacher Shanti Devi but she did not disclose the subsequent acts of the accused to anyone except to the police at the time of lodging the FIR because of fear. Prosecution has not examined said Shanti Devi. The mother of the prosecutrix (PW-2) has stated that PW-1 had informed her that she was molested and raped by the accused and she examined her clothes but being poor she did not inform anyone about it. Be it stated that poverty may deter a person from launching a litigation which involves expenses like Court fee, lawyers fee, expenses of witnesses etc., but this cannot deter an aggrieved party from reporting the matter to the police which does not involve incurring of expenses. Be it stated that poverty may deter a person from launching a litigation which involves expenses like Court fee, lawyers fee, expenses of witnesses etc., but this cannot deter an aggrieved party from reporting the matter to the police which does not involve incurring of expenses. The financial position of PW-2 had admittedly not been improved when the occurrence was reported to the police after lapse of a period of more than one and a half year. It is not her case that at the material time, she was prevented by prevalent social conditions from reporting the matter to the police. In the ordinary course of conduct, she would have at least informed her husband about such a grave situation. However, she did not even inform her husband about it. In case the occurrence was to be kept a guarded secret, she could at least take steps to ensure that her daughter was not made to face the ordeal again. PW-2, however, did not do anything to ensure it. This conduct of PW-2 renders her statement improbable and unreliable. Be it stated that PW-6 Raj Kumar, PW-5 Jot Kiran and PW-3 Sushila Sharma, Pradhan of Gram Panchayat had admittedly come to know of the alleged molestation and rape on 7.2.1997 but the matter was still not reported to the police immediately thereafter but was reported on 10.2.1997 at 2.40 p.m. They have not given any satisfactory explanation as to why the matter was not reported by them or any of them immediately after coming to know about it. It is evident from the statement of PW-4 that a public meeting was held on 10.2.1997 and the matter was reported to the police thereafter. Thus, it is not only a case of delayed report but also a case of due deliberations and consultations having been made before lodging the FIR. As a result, the delay in lodging the FIR renders the case of the prosecution suspicious and unreliable. 14. Be it stated here that the delay in reporting a crime can be called a double edged weapon which may cut at the root of prosecution as well as the defence for the obvious reasons that deiay may result in disappearance of such evidence which could have been relied either by the prosecution to substantiate the charge or by the accused to defend himself. Therefore, answer to the question whether delay in reporting the crime has prejudiced the accused in his defence will depend on the facts and circumstances of each case. Broadly speaking, when the delay has not been satisfactorily explained, the case of the prosecution will be rendered suspicious and its benefit will go to the accused. In case the delay is satisfactorily explained only then the question of prejudice to the accused will arise and will have to be examined in view of the facts and circumstances of the case. Therefore, in view of the above conclusion, the question of prejudice caused to the accused by delay in reporting the matter does not survive for determination. 15. It was further contended by the learned Counsel for the accused that all the material witnesses in the case are child witnesses and had admittedly been tutored to make their statements, therefore, their statements are unworthy of any credence. 16. On the other hand, the learned Assistant Advocate General, has argued that a child is a competent witness and his/her testimony cannot be brushed aside particularly in a case of molestation and rape simply because he/she is a child and that the statements of the PWs are trustworthy and material, therefore, have rightly been believed by the learned trial Judge. 17. A child of tender years is though not by reason of youth, as a matter of law absolutely disqualified as a witness but the evidence of children is notoriously dangerous except when given immediately after the occurrence and before any possibility of tutoring. But for this exception, children are the most untrustworthy class of witnesses because, they can be easily made to believe what they have not seen and are greatly influenced by fear of punishment, affectionate persuasions, allurements and hoped of reward. Therefore, their evidence has to be appreciated with great care and caution. If it is found that a child witness has made a statement on being tutored to make it, it will be unsafe to rely on it in the absence of other unimpeachable corroborative evidence. 18. To prove the charge against the accused, the direct evidence led by the prosecution consists of the statements of PW-1, the prosecutrix, PW-9 Savita Kaushal, PW-10, Seema, PW-11, Jamuna and PW-12 Shelja. 18. To prove the charge against the accused, the direct evidence led by the prosecution consists of the statements of PW-1, the prosecutrix, PW-9 Savita Kaushal, PW-10, Seema, PW-11, Jamuna and PW-12 Shelja. Out of these witnesses, PW-1, who according to the prosecution was about 13 and a half years of age at the time of recording of her statement in the Court, has been examined on oath and others, being of tender age, ranging from 8 to 12 years, were examined without oath. At the time of the alleged molestation they were younger by about one and a half year. It is admitted by PW-9, PW-10, PW-11 and PW-12 that on the day they came to the Court to make their statements, first they were taken to the room of the public prosecutor. PW.-9 Savita has further stated that other girl students of her school namely, Sarla, Atti, Shelja, Seema, Ravita and Pawna were also present there. PW-11 Jamuna has also stated that girl witnesses were present in the room of the public prosecutor. PW-11 Jamuna who is admittedly the eldest among them has admitted that when they were in the said room, the Public Prosecutor had read over the statement to her and other girl students and were got memorised from them. PW-12 while expressing her inability to state what she had stated in her statement under Section 161 Cr.P.C. had stated that her statement was got recorded by her mother. It is thus evident that all the student witnesses have been tutored to make, incriminating statements against the accused and whatever they have stated in their examinations-in-chief is nothing but a tutored version. It is also doubtful that their versions as in their statements under Section 161 Cr.P.C. is in fact their version and not the version of anyone else accompanying them to the police station. Thus, the statements of these material child witnesses are not voluntarily made and, therefore, highly unreliable. Whatever has been stated by PW-2 to PW-8 is entirely based on what they were allegedly told by PW-1 and PW-8 to PW-12, therefore, the statements of PW-2 to PW-8 are also rendered unreliable, if not concocted. 19. There is yet another aspect of the matter. The accused is alleged to have molested and criminally intimidated PW-1 Kiran Devi, Savita (PW-9), Seema (PW-10), Jamuna (PW-11), Shelja (PW-12), Pawna, Sarla and Atti. 19. There is yet another aspect of the matter. The accused is alleged to have molested and criminally intimidated PW-1 Kiran Devi, Savita (PW-9), Seema (PW-10), Jamuna (PW-11), Shelja (PW-12), Pawna, Sarla and Atti. There is no evidence to prove that Pawna, Sarla and Atti were molested and intimidated by the accused. The prosecution has failed to examine said Pawna, Sarla and Atti despite opportunity, on the pretext that they were the witnesses of the "same sequence and hence unnecessary/ In fact they were witnesses of the offences allegedly committed by the accused against them individually, therefore, they were material witnesses to state about the offence individually committed against each of them. Therefore, because of their non production inference adverse to the prosecution qua the case regarding molesting and intimidating them has to be drawn. 20. To prove the head of charge against the accused under Section 376 IPC, the most material witness examined by the prosecution is the prosecutrix (PW-1). Her version as contained in the FIR Ex. PA is that she was molested by the accused numerous times by fondling her breats, kissing her lips, biting her cheeks and touching her vagina. In the year 1995, immediately before two months vacation accused took her to a room and committed rape on her in standing posture. She narrated the occurrence to the lady teacher and on arrival to her house, to her mother in the evening. She did not attend the school for a few days and then on the asking of her mother started going to the school. The accused even thereafter had been molesting her by kissing, fondling her breasts and other parts of the body. It is her further version that she learnt from other girls that accused had been violating the modesty of Shelja, Seema, Sarla, Pawna and Savitri. Thus as per the contents of FIR Ex. PA, the accused raped the prosecutrix only once. This FIR is dated 10.2.1997. The prosecutrix was medically examined on the same day and as per opinion vide MLR Ex. PC, she was found habitual of sexual inter-course by PW-13 who medically examined her. PW-13, however, referred the prosecutrix to Zonal Hospital, Mandi for further examination and second and final opinions. Then she was examined by PW-20 who vide opinion Ex. PW-20/ C concurred with the opiriion given by PW-13. This second and final opinion was given on 12.2.1997. PC, she was found habitual of sexual inter-course by PW-13 who medically examined her. PW-13, however, referred the prosecutrix to Zonal Hospital, Mandi for further examination and second and final opinions. Then she was examined by PW-20 who vide opinion Ex. PW-20/ C concurred with the opiriion given by PW-13. This second and final opinion was given on 12.2.1997. Thus as per the medical examination, the prosecutrix was found habitual of sexual intercourse whereas as per the contents of the FIR Ex. PA, she was subjected to rape only once in the year 1995. PW-1, in her evidence, has stated that she was raped by the accused twice after the rape in 1995. Evidently, this is a material improvement in her initial, version. It cannot be readily believed that a victim of repeated acts of rape will forget that she was raped more than once. The improvement in this regard is apparently to bring her version in conformity with the medical opinion. In any case, according to the prosecution, PW-1 was less than 12 years of age in the year 1995, and subjecting a girl of this tender age to sexual abuse thrice at different intervals will not, in our opinion, result in forming an opinion that she was habitual of sexual inter-course. As we could understand the expression "habitual” it means in the habit of. It implies that one is accustomed to the act, hence habitual of it. One can be said to be accustomed to or habitual of an act when he repeatedly and frequently indulges in the act. Thus, the said improvement and medical opinions belie the version of the prosecutrix. 21. On the basis of the material on record, even the age of the prosecutrix is not ascertainable. According to the prosecution, she was born on 4.2.1984. The only evidence on record to prove this date of birth of the prosecutrix is the abstract Ex. PW-15/A from the Admission and Withdrawal Register of the School where the prosecutrix was studying and PW-15 has been examined to prove this abstract. One of its columns Ex. PW-15/A mentions date of birth of PW-1 as 4.2.1984. It is, however, admitted by PW-15 that the original-register was not page marked nor it bore the certificate about total number of its leaves. PW-15 could not state as to who got PW-1 admitted to the school. One of its columns Ex. PW-15/A mentions date of birth of PW-1 as 4.2.1984. It is, however, admitted by PW-15 that the original-register was not page marked nor it bore the certificate about total number of its leaves. PW-15 could not state as to who got PW-1 admitted to the school. Application form for admission which contains the date of birth of the ward duly certified by the guardian has not been produced. The investigating officer admittedly did not make efforts to get the copy of birth entries of PW-1 from the concerned quarters. Her father who is admittedly an educated person has not been examined to state about the age of the prosecutrix. PW-2, Krishna Devi, mother of the prosecutrix has not stated about the age of the prosecutrix. As per the medical opinion as given by PW-13, the skeleton age of the prosecutrix at the time of her medical examination on 10.2.1997 was 15 and a half to 17 years. According to PW-14, the dental age of the prosecutrix was 14 to 16 years. These opinions are just opinions and with noticeable variations, therefore, cannot be relied upon in determining the age of PW-1. It is more so in view of the admission by PW-14 that on reading the X-ray, it was noticed that wisdom tooth of PW-1 had partially grown up and was on the verge of eruption which takes place between 17 to 25 years of age. The finding that wisdom tooth of PW-1 was at the verge of eruption suggests that in February 1997 the age of PW-1 could be even more than 17 years. If so, even if it is assumed that the accused had sex with PW-1, her act of not complaining about it will render it a case of consent. 22. For the reasons stated heretofore, we are of the view that the evidence led by the prosecution is not cogent, reliable and confidence inspiring and it is not safe to sustain the charge against the accused on such evidence. The impugned conviction and sentence, therefore, are liable to be set aside. 23. As a result, this appeal is accepted and the conviction of and sentences awarded to the accused are set aside and he is acquitted of the charge against him. 24. The impugned conviction and sentence, therefore, are liable to be set aside. 23. As a result, this appeal is accepted and the conviction of and sentences awarded to the accused are set aside and he is acquitted of the charge against him. 24. The accused who is presently undergoing sentence, shall be set at liberty forthwith, if not required to be detained in custody under any other process of law. Fine, if realised, be refunded to the accused. Appeal allowed.