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2003 DIGILAW 69 (HP)

LAL SINGH v. STATE OF H. P.

2003-04-01

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This appeal is directed against the judgment of learned Additional Sessions Judge, Sirmaur, dated 18.7.1998, whereby the learned Judge convicted the appellant Lal Singh, hereinafter referred to as the "accused", for offences punishable under Sections 363 and 342 of the Indian Penal Code. The accused was sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 2,000 for the offence punishable under Section 363 of the Penal Code. The accused was also sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 342 of the Code. 2. Prosecution case : "R" (PW-1), aged about 16 years, was student of Class-X in the Government High School, at Paonta Sahib. She was living with her parents at village Bhup Pur near Paonta Sahib. On 20.1.1996, at about 9.15 a.m. "R" along with her friend "U" (PW-2) aged about 14 years was on her way to the school. A truck driven by the accused stopped near them. Accused offered lift to both the girls. The girls accepted the offer and boarded the truck. Accused instead of driving the truck towards the school turned the truck towards Bagyan road. The girls were given something to smell and they became unconscious. Accused, thereafter committed sexual intercourse with both the girls without their consent. U was left near the school on the same evening with a threat to her life if she disclosed anything to any person. R was dropped by the accused on the following day at Bus Stand, Nahan in an unconscious state. When she regained consciousness, she rang up her friend Monika and informed her that she was at Nahan and will soon return to Paonta Sahib. She came to Paonta Sahib at about 8 p.m. Father of her friend Anita dropped her at her house on the Scooter. R or U did not disclose anything about the incident to their respective parents. 3. On 26.1.1996, R disclosed about her having been kidnapped and subjected to rape to her Mausi. On 30.1.1996, R lodged a report Ex. PA with the Police Station, Paonta Sahib. A formal FIR was registered on the basis of this complaint. 4. Accused was tried for offences punishable under Sections 363, 328, 342 and 376 of the Indian Penal Code. On 26.1.1996, R disclosed about her having been kidnapped and subjected to rape to her Mausi. On 30.1.1996, R lodged a report Ex. PA with the Police Station, Paonta Sahib. A formal FIR was registered on the basis of this complaint. 4. Accused was tried for offences punishable under Sections 363, 328, 342 and 376 of the Indian Penal Code. After the trial, accused was acquitted by the learned trial Court, for offences punishable under Sections 328 and 376 of the Indian Penal Code and convicted for the offences punishable under Sections 363 and 342 of the Code for having kidnapped R and IT and thereafter wrongfully confined them. 5. Dis-satisfied, the accused is in appeal. 6. It may be noticed at the outset that the State did not file any appeal against the acquittal of the accused for offences punishable under Sections 328 and 376 of the Indian Penal Code. 7. I have heard Mr. Anup Chitkara, learned Counsel for the accused and Mr. Ashok Chaudhary, learned Additional Advocate General for the respondent-State. I was also taken through the evidence and relevant record. Mr. Chitkara, learned Counsel urges: (a) the version given by R and U (PWs 1 and 2) of the incident does not inspire confidence and is improbable; (b) the evidence of mother and father of R (PWs 3 and 5 respectively) is incredible and lead to the inference that the true facts were not disclosed to the court; (c) there is an inordinate, unexplained, delay in the lodging of the First Information Report, which is fatal to the prosecution case; (d) Sant Lal, who was named as an accused by the two victims R and U, was not prosecuted. Whereas, on the basis of same set of evidence, accused was prosecuted and convicted which renders the prosecution story doubtful; (e) the material witness Monika to whom the entire incident was narrated by R was not examined, which renders the prosecution story doubtful; (f) the prosecution failed to examine the parents of U, which would have unfolded the true prosecution case; (g) prosecution has failed to establish that R and U were less than 18 years of age at the time of the alleged occurrence and therefore, in any event no offence punishable under Section 363 was made out or proved against the accused. 8. 8. According to R (PW-1), when she and U were on way to school, truck with a registration No. HIN-9122 stopped near them and accused offered lift upto the school. Both of them boarded the truck. The accused turned the truck towards Bagyan. They were made to smell something and thereafter they became unconscious. According to her, she is not aware where she was taken. It is her evidence that accused committed sexual intercourse with her without her consent. She further goes on to state that it was only on the next day i.e. 21.1.1996 she regained consciousness and Was left by the accused at the Bus Stand, Nahan. It is her evidence that accused threatened her with life, if she disclosed the incident to any person. She thereafter, rang up her friend Monika at Paonta Sahib and narrated whatever happened with her. Thereafter, she left for her home by bus. She did not disclose anything to her parents, as she was under fear. On 26.1.1996, when her Mausi (mothers sister) came to her house, she narrated the entire incident to her. It is her evidence that she had known the accused, who frequently visits the shop adjacent to their house. She then emphasise that sexual intercourse was committed with her by the accused in the "Jungle" on the Rajban road. 9. Normally, the version given by the victim, should be believed and conviction can be based on the sole evidence of a victim, provided it inspires confidence. However, if the evidence seems to be of doubtful nature, then the court must look for assurance, if not corroboration. In the present case, it is difficult to believe that witness R was given something to smell, which she smelled and then became unconscious and regained consciousness only on the next day, when she was left at the Bus Stand Nahan. If she is to be believed, then she would not know where actually sexual intercourse was committed with her, though it is her own version in the examination-in-chief that she was subjected to sexual intercourse, against her will, in the Jungle on Rajban road. It is her evidence that she repeatedly asked the accused to take "us to the school" but he diverted the truck to Bagyan road and made them smell something.. She does not say that any force was used by the accused to make them smell "something". It is her evidence that she repeatedly asked the accused to take "us to the school" but he diverted the truck to Bagyan road and made them smell something.. She does not say that any force was used by the accused to make them smell "something". She admits that there were several shops from where the truck was diverted to Bagyan road. If these girls were being taken against their wishes, then they would4iave raised alarm at the place, which was admittedly inhabitiated and had number of shops. Three wheelers were also parked at that place. In the words of "R", "Lot of crowd" remains at that spot. She emphasise that within one or two minutes, she became unconscious and regained consciousness only on the next day when she was left by the accused at the Bus Stand, Nahan. In her own words "I gained consciousness at bus stand, Nahan, before that I had no knowledge of anything". As already pointed out, it is not possible to take the statement at its face value. Now, if she was really unconscious, till she was left at the bus stand, Nahan, as she would have us believe, then she would not have known that she was subjected to sexual intercourse or was sexually abused by the accused in the "Jungle of Bagyan road". 10. To similar effect is the evidence of U (PW-2). It is her evidence that when they boarded the truck and reached Bagyan road, accused made them smell something and both of them became unconscious. In the words of PW-2 "we do not know where we were taken. At about 4 p.m., on the day, accused left me at my school. Accused committed sexual intercourse with me without my consent and also threatened me with dire consequences to kill me if I will disclose this incident to any one." If she was unconscious, she would not have known that sexual intercourse was committed with her by the accused. In fact, in the cross-examination itself, she states "I cannot say what act was committed with us and by whom. I regained consciousness little before 4 p.m. When I was dropped from the truck at about 4 p.m., I had regained consciousness but I was not completely alright. In fact, in the cross-examination itself, she states "I cannot say what act was committed with us and by whom. I regained consciousness little before 4 p.m. When I was dropped from the truck at about 4 p.m., I had regained consciousness but I was not completely alright. "She stressed even at the end of her cross-examination :" I do not know anything as to what happened between the period we were made to smell and I was dropped from the truck. 11. In the face of this evidence neither R nor U would know that they were subjected to sexual intercourse or sexually abused and even if they came to know, after regaining consciousness by their physical condition, they would not know who committed the act. It is significant to note that according to R the truck was driven by accused whereas U is categorical that "when we both reached near Shameshpur, a truck No. HIN 9122 reached there which was being driven by someone and accused was seated in the truck". It is the case of the prosecution that the other person sitting in the truck or driving the truck was none else than Sant Lai. 12. Evidence of victim R and U, in the circumstances, does not inspire confidence. Accused, in my view, cannot be convicted on the sole testimony of these two witnesses without assurance from other source. More so when the Investigating Officer, in his wisdom, did not prosecute Sant Lai, the other person in the truck, on the same set of evidence. According to the Investigating Officer, (PW-15) he arrested Sant Lai, who was conductor of the truck No. HIN 9122. He did not make him accused, fpr no plausible reason. It is the evidence of the Investigating Officer, that he arrested Sant Lai, on the basis of the statement of Usha Devi and Ranjana and as their evidence was not found to be correct, therefore, he let off Sant Lai. This is incredible. Set of evidence which was not correct enough against one of the accused could possibly be not good or convincing against other accused when case of both of these witnesses was that they were unconscious till they were left at the school or Bus Stand, Nahan. It might have been Sant Lai, who according to U was driving the truck, who committed sexual intercourse with the victims. It might have been Sant Lai, who according to U was driving the truck, who committed sexual intercourse with the victims. In these circumstances, the story given by R and V becomes doubtful, particularly when there is no corroborative evidence available on record. 13. Mr. Chitkara, learned Counsel for the accused-appellant draws my attention to the fact that according to R, she informed her friend Monika on telephone from Nahan, about the entire incident and told her to inform her parents about it. It is the evidence of R (PW-1) that her parents were informed by Monika about the incident. In her words "I had told my friend Monika to inform my parents about what happened with me. Monika had accordingly informed my parents." Thus, the parents came to know about the incident and the fact that R was subjected to sexual intercourse on 21.1.1996 itself, yet the report was not lodged with the police till 30.1.1996, the prosecution has not explained this delay in lodging the FIR. Mr. Chaudhary, learned Additional Advocate General urges that in such cases victim and parents are always reluctant to go to the police and lodge a report. He refers to State of Punjab v. Gurmit Singh and others, (1996) 2 SCC 384, and submits that in the present case, parents of the victim(s) might have been hesitant to go to the police and complain about the incident as it would adversely affect the reputation of the victim and honour of the family. 14. This is not the case of the prosecution. Case of the prosecution is that the parents of R were unware of the incident till 26.1.1996. Smt. Kailash Rani (PW-3) is the mother of R. It is her evidence that on 21.1.1996, friend of R informed them that their daughter was at Nahan. They went to Nahan but could not find R. However, R returned back on the same evening. It is further evidence of the witness that R did not disclose anything about the incident and it was only on 25.1.1996 that R narrated the incident to her Mausi who had come to visit their house and it is thereafter that she took R to the Police Station to lodge the report. 15. It is difficult to believe this witness. 15. It is difficult to believe this witness. No mother in normal human nature would be satisfied, without any explanation, about the absence of her daughter from the house for a day and night. According to her, when R did not return back from the school, she went to the police and lodged a report that her daughter was missing. Such report is not placed on record. It is difficult to believe that for six days the parents did nothing to know where their daughter was for day and night. It is admitted position that the incident was disclosed to the Mausi of R on 25.1.1996 but the FIR was not lodged with the Police till 30.1.1996. There is no explanation for this delay. The apex Court, time and again, emphasized the importance of prompt lodging of the FIR in criminal cases. Delay in lodging of the FIR, observed the apex Court, in Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501, results in embellishment which is a creature of afterthought. "On account of delay, the report not only get 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." There is unexplained delay in the lodging of the First Information Report in the present case, of not merely few hours but about a week. The possibility, particularly in view of the incredible evidence of R and U, of coloured version having crept in after consultation, cannot be ruled out, more so when Sant Lai the other person named co-accused was let off without satisfactory explanation. 16. It may be noticed at the cost of repetition that it is the evidence of Kailash Rani (PW-3), mother of R, that when on the evening of 20.1.1996 her daughter did not return from the school, she went to the police station where she lodged a report. In the cross-examination she stated that she made the report in writing. The report lodged by Smt. Kailash Rani was withheld by the prosecution which dents the prosecution case. The report would have given information as to what the mother of victim R suspected. 17. This apart, the prosecution, in its wisdom, did not examine Monika. In the cross-examination she stated that she made the report in writing. The report lodged by Smt. Kailash Rani was withheld by the prosecution which dents the prosecution case. The report would have given information as to what the mother of victim R suspected. 17. This apart, the prosecution, in its wisdom, did not examine Monika. Monika was an important witness, to whom earliest version of the incident was disclosed by R. This again raises doubt on the prosecution case. This witness would have disclosed whether or not she informed mother of R about R having been kidnapped and subjected to rape. The prosecution case is rendered suspect. 18. The next contention raised by Mr. Chitkara, learned Counsel is that the prosecution failed to prove that R and U were below 18 years of age and therefore no offence can be said to have been committed by the accused punishable under Section 363 of the Code. Mr. Chitkara refers to the testimony of PW-8 (Darshan Singh), who was examined to prove the age of R from Parivar register. According to this witness, date of birth of R was 18.8.1980. In the cross-examination he admits that the certificate Ex. PJ regarding the age was not given from the Death and Birth Register, entires in which register carry presumption of truth. He also admitted that the name of Ranjana Devi is not recorded in the Parivar Register. He also admitted that name of R was in blue ink whereas other particulars were in green ink. In these circumstances, urges Mr. Chitkara, that the possibility of entry having been inserted, during the investigation of the case, cannot be ruled out. 19. Mr. Chitkara, learned Counsel refers to Ajay Kumar v. State of H.P., 1994(2) Sim. L.C. 471. In that case, the age of the prosecutrix was sought to be proved from the Parivar register. The court found that the date of birth of the prosecutrix recorded in the Parivar register was 4.8.1970 and figure O was tampered with. In these circumstances, such an entry was held to be unreliable. It was held that no reliance can be placed on such entry to ascertain the age of the prosecutrix. 20. In the present case, apart from the certificate Ex. In these circumstances, such an entry was held to be unreliable. It was held that no reliance can be placed on such entry to ascertain the age of the prosecutrix. 20. In the present case, apart from the certificate Ex. PJ, which, as already observed, is of doubtful nature, the other evidence regarding the age of R is the evidence of PW-7 Sangat Singh, Principal, Government Boys Senior Secondary School, Taruwala, Paonta Sahib. It is his evidence that the age of the victim, according to the admission register, was as per Ex. PG and PH which gives the date of birth of R as 18.7.1980 and that of U as 7.5.1981. However, Sangat Singh in his cross-examination admits that certificate was issued on the basis of the entry, which was made at the time of the admission of the victim in the Primary School. The record was of the Primary School was not available. This apart date of birth of R is shown as 18.7.1980 in the certificate Ex. PG, whereas according to Parivar register it was 18.8.1980. Therefore, it cannot be said with certainty that R was less than 18 years of age on the date of occurrence particularly when Dr. G. Narang (PW-9), who was Radiologist at District Hospital, Nahan, in his evidence has given the age of R between 14 to 17 years with the, margin of two years on either side. In view of this evidence, possibility of R being more than 18 years of age at the time of occurrence cannot be entirely ruled out. 21. So far age of U is concerned, there is no evidence regarding her age, save and except the certificate issued by PW-7 Darshan Singh. This certificate in the absence of original record cannot be said to be proved. 22. Wrongful confinement is not made out even from the evidence of R and U. Both of them had stated that they became unconscious and did not regain consciousness till one was left at school and the other at Bus Stand, Nahan. 23. The prosecution, thus failed to prove, beyond reasonable doubt, the commission of offences punishable under Sections 363 and 342 of the Indian Penal Code against the accused. The learned trial Court in the circumstances erred in convicting the accused for the offences stated above. 24. No other point is urged. 25. In result, the appeal is allowed. 23. The prosecution, thus failed to prove, beyond reasonable doubt, the commission of offences punishable under Sections 363 and 342 of the Indian Penal Code against the accused. The learned trial Court in the circumstances erred in convicting the accused for the offences stated above. 24. No other point is urged. 25. In result, the appeal is allowed. Conviction of the appellant as recorded by the learned trial Court, is set aside. The accused is acquitted. 26. The bail bonds furnished by the accused shall stand discharged. Fine, if deposited, shall be returned to the accused-appellant. Appeal allowed.