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2021 DIGILAW 528 (HP)

State Of H P v. Sanjeev Kumar

2021-08-06

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The learned Judicial Magistrate 1st Class, Kasauli, District Solan, H.P., through, its verdict drawn upon Criminal Case No. 82/2 of 2006, made a verdict of conviction against the accused, for, charges drawn under Section 354, and, under Section 341 of the IPC, and, he also proceeded to impose consequent therewith sentences of imprisonment and of fine, upon, the accused. 2. The convict/accused, upon, becoming aggrieved, proceeded to prefer Criminal Appeal No. 11-S/10 of 2008, before the learned First Appellate Court, and, the latter made thereon a verdict of acquittal. 3. The state of Himachal Pradesh becomes aggrieved, and, has proceed to strive, to, annul the verdict of acquittal recorded by the learned First Appellate Court, through its casting the extant appeal before this Court. 4. Briefly stated the facts giving rise to the extant appeal are that the mother of the prosecutrix one Mangla Devi lodged a complaint with the police on 11.7.2006 to the effect, that on 4.7.2006 when her daughters were returning home from school, the accused near Radhodhar teased her daughters and tried to out rage their modesty. The matter was reported to the police. The police during the course of investigation found that the accused had sexually abused and out raged the modesty of the prosecutrix, i.e. daughter of the complainant. This incident took place on 4.7.2006, when the prosecutrix along with her sisters namely, Poonam, Chanderkanta, and, Pooja were returning home at about 4.30 p.m., and, were near Radhodhar. As per the complainant, the accused made the prosecutrix sit in the jungle, and, indulged in sexual activity, thereby out raging the modesty of the prosecutrix. On seeing the sisters of the prosecutrix, the accused fled away from the spot. 5. The genesis of the prosecution case, is carried in Ex.PW6/A, exhibit whereof, is the FIR, recorded with respect to the prosecution case. It has been recorded at the instance of one Mangla Devi. The date of reporting of the incident is echoed therein to be 11.07.2006. The informant, Mangla Devi, stepped into the witness box as PW-1, and, proved the contents of Ex.PW1/A. However, PW-1 was not available at the site of occurrence. She has reported the matter to the police through a writing drawn in Ex.PW1/A, in pursuance whereof, FIR, borne in Ex.PW6/A was registered on 11.07.2006 in the Police Station concerned. The informant, Mangla Devi, stepped into the witness box as PW-1, and, proved the contents of Ex.PW1/A. However, PW-1 was not available at the site of occurrence. She has reported the matter to the police through a writing drawn in Ex.PW1/A, in pursuance whereof, FIR, borne in Ex.PW6/A was registered on 11.07.2006 in the Police Station concerned. Consequently, this Court would not assign much credibility to the testification of PW-1, given hers receiving information from PW-2, the victim of the charged offences. Obviously, hence this Court is bound to analyse the deposition of the victim, and, also the deposition of her sisters, who at the relevant time, were accompanying her, and, who are stated to be walking behind the accused, and, the victim. 6. Though, PW-2, the victim, as also one amongst her sisters, one Poonam Thakur, who at the relevant time was accompanying her, after school hours, in the evening of the day concerned,, for theirs hence together proceeding home, both testified, that when she had walked for some distance ahead of her sisters, rather the accused, on seizing an opportunity, perpetrated the charged penal misdemeanors, upon her. However, neither PW-2, the victim, nor amongst one of her sisters, who were accompanying her at the relevant time, inasmuch, as, one Poonam Thakur, and, who stepped into the witness box, as PW-3, has deposed with specificity the inter se distance, inter se the victim and her sisters, from the site of occurrence, whereat she was nabbed by the accused. For lack of afore articulations respectively by PW-2, and, by PW-3, with respect to the afore, this Court draws a conclusion that the distance inter se PW-2, and, her sisters, one of whom stepped into the witness box as PW-3, was not immense, and, that the victim through raising shrieks and outcries, for therethroughs evincing her unwillingness, to the perpetration of the charged misdemeanors, upon, her, and, also for ensuring hers being rescued from the clutches of the accused, by her sisters, rather obviously could bringforth firm evidence personficatory of her apt resistance. However, neither PW-2, nor PW-3 hence deposed with any firmness that PW-2, the victim had raised any shrieks and out cries, rather personificatory of her resistance(s) to the perpetration of the charged penal misdemeanors, upon her, by the accused. However, neither PW-2, nor PW-3 hence deposed with any firmness that PW-2, the victim had raised any shrieks and out cries, rather personificatory of her resistance(s) to the perpetration of the charged penal misdemeanors, upon her, by the accused. The effect of the afore want of resistances, by PW-2, does enable this Court, to draw a conclusion that the entire prosecution case is concocted, and, invented, especially, vis-a-vis, any purported corroboration(s) meted by PW-3, to the testification of the victim. Therefore, the penal misdemeanors, if any, perpetrated, by the accused, upon, the person of the prosecutrix, were entirely consensual, significantly given the prosecutrix, at the relevant time being aged more than 16 years, and, further given that on the date of occurrence, she had acquired the age to mete her valid consent to the accused. 7. Dehors the above, the most potent reason for proceeding to dismiss the appeal, is comprised, in the factum that Ex.PW6/A carries in its column of reporting, the date 11.07.2006. However, the incident occurred on 4.7.2006. If the afore delay, had been well explained, the defence would become disabled, to draw any capital from the afore delay, which had occurred from the date of happening of the incident, and, upto reporting thereof, by PW-1 to the police authorities concerned. For determining, whether there was any delay, and/or, whether the delay has been well explicated, and, further that whether, the Investigating Officer, had intentionally or deliberately delayed the holding of the investigations, and, hence, had conducted skewed and slanted investigation, into the relevant incident, it is imperative to bear in mind, that the mother of the victim, through a writing borne in Ex.PW1/A, reported the incident to the SHO of the police station concerned. Consequently, the FIR with respect to the incident was also required to, in its apposite column hence carry a narration that it became reported on 4.7.2006, whereas, Ex.PW6/A, in its apposite column carries the date of apposite reporting to be 11.07.2006. Consequently, a delay of about 7 days, has occurred since the happening of the incident, and, upto its reporting by PW-1 to the police authorities concerned. The afore delay has remained unexplicated. The afore want of a valid explication, being given by the prosecution for the occurrence of the afore delay, does make the prosecution case to rather get capsized. Consequently, a delay of about 7 days, has occurred since the happening of the incident, and, upto its reporting by PW-1 to the police authorities concerned. The afore delay has remained unexplicated. The afore want of a valid explication, being given by the prosecution for the occurrence of the afore delay, does make the prosecution case to rather get capsized. The factum of the victim making Ex.PW1/A, on 4.7.2006 is evident, on a perusal of Ex.PW1/A, inasmuch, as, in its third sentence, there occurs a narration that today on 4.7.2006, the incident had occurred. The import of the afore narration, in the third sentence of Ex.PW1/A, is that hence Ex.PW1/A became drawn, and, also became submitted to the SHO concerned by PW-7 on 4.7.2006, hence on the day when the incident is stated therein to occur. As aforestated, there is no explication for the afore delay, rather the Investigating Officer concerned, has despite, his receiving Ex.PW1/A, on 4.7.2006 from Mangla Devi, rather proceeded to delay the registration of FIR Ex.PW6/A, and, further in its apposite column appertaining to the date of reporting of the incident, reflected it to be 11.7.2006. The afore mis-match inter se the date of drawing of Ex.PW1/A, and, its submission to the SHO concerned by the complainant,vis-a-vis, the date of registration of FIR Ex.PW6/A, inasmuch, as, on 11.7.2006, does make, especially when the delay is unexplicated, rather Ex.PW6/A to become stained with the vices of concoction and invention, and, also the investigations concluded with respect thereto, are concluded to be slanted or skewed, as, the investigating officer, on receiving the information regarding an incident, is bound to, in prompt spontaneity thereto, record the statements of all the witnesses to the occurrence. However, the Investigating Officer, on the afore mismatch of timings of drawing(s) of Ex.PW1/A and, ExPW6/A, has obviously proceeded to record the apposite statements of the witnesses rather much belatedly, since a prompt intimation of the incident being purveyed by Mangla Devi to the SHO concerned, inasmuch, as, on 4.7.2006. Consequently, this court holds that the entire investigations carried in the extant case acquire the stain of slantedness and skewedness. 8. Furthermore, even the Investigating Officer while stepping into the witness box as PW-8, has during his cross-examination, been unable to give any specific and trite answer, as to when Mangla Devi intimated him about the happening of the incident. Consequently, this court holds that the entire investigations carried in the extant case acquire the stain of slantedness and skewedness. 8. Furthermore, even the Investigating Officer while stepping into the witness box as PW-8, has during his cross-examination, been unable to give any specific and trite answer, as to when Mangla Devi intimated him about the happening of the incident. The effect thereof, is that, the afore made conclusion by this Court, that Mangla Devi reported the incident to the police, on 4.7.2006, acquires immense strength, and, also when the delay in the registration of the FIR, in pursuance thereto, is one week therefrom, and, reiteratedly is not well explicated. Therefore, the investigations conducted thereon are concluded to be faulty, and, hence, benefit of doubt is to be given to the accused, as aptly given by the learned first appellate Court. 9. For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge concerned, has appraised the entire evidence, on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned Sessions Judge concerned, , hence, also does not suffer from any gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record. 10. Consequently, there is no merit in the extant appeal, and, it is dismissed accordingly. The judgment impugned before this Court is affirmed. All pending applications also stand disposed of. Records be sent back forthwith.