Himachal Pradesh High Court
Ram Dittu vs State Of Himachal Pradesh on 27 June, 1989
Equivalent citations: 1989CRILJ2557
JUDGMENT Bhawani Singh, J.
1. This case arises out of the judgment of Sessions Judge, Solan, in Case No. 21/N/7 of 1986 decided on 9-1-1987, By this judgment, the appellant has been convicted for an offence under Section 376/511 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-. In default of payment of fine the accused has been ordered to undergo further imprisonment for three months. The accused has a grievance against this judgment, therefore, by this appeal, he assails the same in this Court.
2. The facts, in brief, are that the prosecutrix Kumari Meena Devi (13) is the daughter of the Shri Kaila Ram (deceased) and she is living with her mother and younger brothers in village Chaksar. On 2-6-1986, the prosecutrix had gone to Gamber Gharat of the accused for grinding wheat grains. She reached there at about 10.00 a.m. and after giving the wheat to the accused she got 12 K.Gs of flour. While coming back with the bag of wheat flour on her head, the accused followed her, caught her near a Baoli and threw the flour bag on the ground. Thereafter he broke the string of her Shalwar, opened his trousers, made her lie on the ground and in the meanwhile on hearing the cries of the prosecutrix, Kanhaiya(P.W. 2) and Lekh Raj (P.W. 7) reached the spot. The accused released the prosecutrix and caught hold Lekh Raj by his hair and asked him as to why he had come there. The prosecutrix went with them to the village where she narrated the occurrence to her mother who approached the villagers. She wrote Ex.P.B. to the Chief Minister and Ex.P.C. to the Deputy Commissioner.
3. This incident took place on 2-6-1986 and the Station House Officer went to the village on 6-6-1986 in connection with routine patrol duty and it was during this time that the prosecutrix made a statement (Ex. P-A) under Section 154, Cr. P.C. to him on the basis of which an F.I.R. was registered. A copy of the F.I.R. was received by the Sub-Divisional Judicial Magistrate, Nalagarh on 7-6-1986 at 3.50 p.m. It was sent by the Police after the registration of the case on 6-6-1986 at 7.30 p.m. at Ram Shahar Police Station which is at a short distance and is connected by road.
4. The Police took into possession the Shalwar of the prosecutrix which she was wearing on the day of occurrence, school leaving certificate and medical examination certificate of the accused. After investigation, the matter was initiated in the Court The prosecution examined a number of witnesses in support of the charge whereas the accused denied the commission of the offence and stated that the whole case was false, concocted and initiated due to inimical relations. He is innocent. He further states that, "Kanhaya Ram witness is inimical to me as about 10 years back he had wrongly involved me in a criminal case pertaining to his wife that I had taken away his wife. This case was not at all presented before the Court as wife of Kanhaya Ram was traceable from Chandigarh. The father of Lekh Raj witness on account of some purchases from his shop is inimical towards me." The trial ended in the aforesaid conviction of the appellant.
5. Sh. Dharam Chand Chaudhary, learned Counsel appearing for the accused, has raised a number of points. It is submitted that the case is an outcome of business rivalry as well as due to bad relations between the accused on the one hand and Kanhaya (P.W. 2) and Lekh Raj (P.W. 7), on the other. Reference to the statements of these witnesses has been made.
6. Kanhaya Ram (P.W. 2) states that his Gharat is adjacent to the Gharat of the accused. On the day of occurrence while going to his village from the Gharat he as well as Lekh Raj (P.W. 7) heard the cries of a girl. They went there and saw the prosecutrix lying on the ground with naked legs. The accused was also there with his trousers put off. The accused got up and he caught hold of the girl and tied his trousers. The accused caught Lekh Raj (P.W. 7) from his hair. The prosecutrix went to her house and he went to his own village. In cross-examination, he states that Lekh Raj (P.W. 7) generally takes flour from his Gharat. The prosecutrix generally takes flour from the Gharat of the accused. The prosecutrix went to the Gharat of the accused at about 10.00 in the morning. The accused knew that he was in his Gharat that day. The path to the Gharat remains busy with persons going to the Gharats. He did not see the accused throwing the flour bag from the head of the prosecutrix. He did not leave the prosecutrix at her house nor did he go to the house of the prosecutrix in order to narrate the occurrence to her mother. He did not disclose the occurrence to anybody else.
7. Lekh Raj (P.W. 7) admits that he had gone to the Gharat of Kanhaya (P.W. 2). He saw the prosecutrix in the Gharat of the accused and the accused was also there. They noticed a bag of Atta and heard the cries of a girl. On reaching there, they saw the prosecutrix with naked legs in the grip of the accused. The trousers of the accused were also open. The prosecutrix accompanied them and all of them went to their respective houses. The Shalwar of the prosecutrix was found in her naked legs. He did not visit the house of the prosecutrix in the evening.
8. These statements do not inspire confidence. It appears that they had inimical relations with the accused as explained by the accused in his statement under Section 313, Cr. P.C. Besides, there appears to be business rivalry between Kanhaya (P.W. 2) and the accused. In case they witnessed the incident, naturally and reasonably, they should have taken the prosecutrix right up to her house and narrated the incident to her mother but instead of doing so they went to their respective houses. They did not narrate the incident to anyone else. Such a conduct assails their version and renders it unworthy of credence. It appears that the whole mischief for initiating the present case has been created by these witnesses to serve their own purpose of involving the accused and an echo of this conduct is reflected clearly and unmistakably in Ex. P-B and Ex. P-C which appear to have been dictated by them and Bimla Devi (P.W. 3) and Kumari Meena (P.W. 1) have been used by them just to involve the accused 'in the present case.
9. The prosecutrix (P.W. 1) states that she had gone to the Gharat on the day of the occurrence and the accused was present in the Gharat. While she was coming back, the accused followed her and caught her from the arm. The accused broke the string of her Shalwar and laid her on the ground. The accused opened his Pajama and tried to commit sexual intercourse. She raised cries and Kahhaya(P.W. 2) and Lekh Raj (P.W. 7) reached there. The accused left that place and she accompanied Lekh Raj to her house. She admits in cross-examination that she had gone to the Gharat alone and nobody met her on the way and that the Gharats of Kanhaya (P.W. 2) and the accused are situate adjacent to each other. Prior to the occurrence she had been visiting the Gharat of the accused for grinding grains. There was nobody else in the ghrat of the accused when she brought flour from the gharat. The accused did not do anything with her in the Gharat. When the accused caught her from the arms, she started crying. When she raised cries, Kanhaya (P.W. 2) came from his Gharat. Lekh Raj (P.W. 7) also reached at that time. The accused left her after seeing those two persons. The path leading to the Gharat of the accused is always open and is used by the public. She admits further that Kanhaya and the accused were not having cordial relations on account of their Gharats. Many time, she used to take flour from the accused all alone. Kanhaya and Lekh Raj went to their own houses while she went to her own house. She narrated the occurrence to her mother and that very day her mother informed the Panchayat and the villagers. She did not go to the Police Station, Her statement was recorded by the Police on the fourth day. She and her mother wrote letters to Shimla also. They had written that previously also the accused used to harass and threaten them.
10. Smt. Bimla Devi (P.W. 3) states that the prosecutrix told her that she was caught by the arm by the accused, taken away from the path and the string of her Shalwar broken by the accused. She further states that the prosecutrix told her that the accused laid her on the ground after putting off his trousers and that he wanted to have sexual intercourse with her but in the meanwhile on hearing her cries, Kanhaya and Lekh Raj P. Ws. came on the spot and the accused left her. She went to the house of the Pardhan who was not at his house. Thereafter she consulted the villagers and wrote letters Ex. P-B and Ex. P-C to the Chief Minister and the Deputy Commissioner. Police Station Ram Shaher is at a distance of 6/7 K.Ms. from her house.
11. In cross-examination she admits that the prosecutrix had been visiting the Gharat of the accused previously also and brought Atta from there. She also had been bringing Atta from the Gharat of the accused. When the prosecutrix came home, she saw her Shalwar partly torn and the string broken. The prosecutrix told her that the accused also threatened her. There was no injury on the body of the prosecutrix. Kanhaya and Lekh Ram P.Ws. did not come to her house along with the prosecutrix. She collected the people of the village. Those persons did not advise her to report the matter to the Police. They also did not volunteer themselves to make a report to the Police. Bus also plies from Ram Shahar to her village, she also wrote in the letter that the accused had also previously committed such offences. She also wrote that nobody took action against the accused. She did not go to the Police Station and the Police came to know about the occurrence itself. She told the Police that she had disclosed the occurrence to the Lambardar and Pardhan Gram Panchayat of the village which fact is not disclosed in Ex. P-A. She did not give anything in writing to the Police when they came to the village.
12. The statement of the prosecutrix does not inspire confidence. It is thoroughly unbelievable. There was no reason for the accused to have committed the offence at the place narrated by her and other prosecution witnesses. It is admitted by the prosecutrix that in the past she used to go to the Gharat of the accused and on the day of occurrence also she went to the Gharat all alone and she was with the accused in the Gharat for sufficient long time. In these circumstances, the submission of Sh. Dharm Chand Chaudhary, learned Counsel appearing for the accused, has substance that in case the accused wanted to commit this offence, the same could have been easily done in the Gharat itself and not in an open place frequented by the general public. She has further admitted that the relations between the accused and Kanhaya (P.W. 2) are not cordial on account of business rivalry. In these circumstances her statement cannot be believed. Similarly, her mother Smt. Bimla (P.W. 3) cannot be relied upon. She admits that the prosecutrix had been visiting the Gharat of the accused previously also and used to bring Atta from there and the prosecutrix went to the Gharat of the accused all alone. It is not believable as to how she could see the string of the Shalwar of the prosecutrix in broken condition and absence of the injuries on the body of the prosecutrix. It cannot be further believed that the villagers in case this incident had been narrated to them, had advised against reporting the matter to the Police. Such a behaviour on their part cannot be reasonably inferred. Naturally, in case this incident had taken place, the matter would have been reported to the Police at least by the Lambardar or the Pardhan of the Gram Panchayat. The Police has neither included nor examined the Pardhan of the Gram Panchayat or the Lambardar of the area in this case. In all such cases, the inclusion of these persons is essential. They represent the village community and are responsible for reporting such matters to the Police. It appears that no such incident had taken place. It appears to be a mischief of Kanhaya (P.W. 2) and Lekh Raj (P.W. 7). Instead of reporting the matter to the Police at Ram Shahar Police Station, these ladies have been made to write Ex. P-B and Ex. P-C. They appear to have no intention to report the matter to the Police in future as well if the Station House Officer had not visited the village on June 6, 1986. Smt. Simla (P.W. 3) has made a number of improvements in her statement. She has complained against the past conduct of the accused, on what basis, and relating to what incident, it is not at all clear. However, in view of the fact that she herself as well the prosecutrix had been visiting the gharat of the accused previously also, it is clear that the facts in Ex. P-B and Ex. P-C have been written at the instance of some one else, and that cannot be other than Kanhaya (P.W. 2) and Lekh Raj (P.W. 7).
13. There is no evidence ocular or medical to indicate marks of violence on the body of the prosecutrix and now only the last submission of Sh. Dharam Chand needs to be discussed,
14. It is contended by Sh. Dharam Chand that the present case against his client is an afterthought and is purely a concoction. In case, the counsel urges, this incident had taken place, which is vehemently denied, the matter should have been reported to the Police immediately on the happening of the same. Referring to the delay in giving information to the Police, the learned Counsel, seeks assistance from Thulia Kali v. State of Tamil Nadu. In this judgment, the Court speaking through H.R. Khanna, J. observed in Para 12 as under ;
...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 over-estimated from the stand-point 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 name 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...
15. In the present case, the occurrence pertains to 2-6-1986. The matter is not reported to the Police. The police comes to know of it on 6-6-1986 and that too of its own. The question is whether the delay has been satisfactorily explained by the prosecution in the present case. In view of the aforesaid discussion and analysis of the evidence, it cannot at all be said that the delay in initiation of this case has been satisfactorily explained. It is a gross delay. Keeping in view the principles enunciated in the Thulia Kali's case (supra) it is not possible to accept the story of the prosecution as trust-worthy.
16. The reasons given and the conclusion arrived at; by the learned Sessions Judge an this aspect are thoroughly inapt and perverse.
17. In view of the aforesaid discussion, there is merit in this appeal. The same is accordingly allowed. The judgment of the trial Court and the sentence imposed upon the accused are set aside. The accused is acquitted of the charge. The accused is stated to be on bail. His surety bonds and bail bonds are hereby cancelled.