State Of H.P vs Sanjeev Kumar
2021 Latest Caselaw 3685 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 328 of 2009.

Reserved on: 30th July, 2021.

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                    Date of Decision:     6th August, 2021.





    State of H.P.                         .....Appellant.

                         Versus





    Sanjeev Kumar                         ....Respondent.


    Coram


    The Hon'ble       Mr.   Justice   Sureshwar              Thakur,
    Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr. Hemant Vaid, Addl.A.G.

with Mr. Vikrant Chandel and

Mr. Gaurav Sharma, Dy. A.Gs.

For the Respondent: Ms. Poonam Gehlot, Advocate.

_______________________________________________________

Sureshwar Thakur, Judge.

The learned Judicial Magistrate 1 st 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. 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. 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. 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. r

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.

(Sureshwar Thakur) Judge 6th August, 2021.

(jai)