STATE OF HIMACHAL PRADESH v.

PREM SINGH (Criminal Appeal No. 44 of 2002)

NOVEMBER 11, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

The Judgment of the Court was delivered by

DR.  ARIJIT  PASAYAT,  J. 1.  Heard  learned  counsel  for  the appellant- State and learned counsel for the respondent (hereinafter referred as to as the `accused').

2.  On the allegation that the respondent had sexually ravished PW- 1 and had outraged the modesty of  not  only P W- 1,  but  of several other girl students of the school where the respondent was a teacher, law was set in motion. The respondent was further charged for  commission  of  offences  relating  to  threatening  the  prosecutrix with  dire  consequences  in  case  she  disclosed  the  incident  to somebody  else.  The  accused  faced  trial  for  offences  punishable under Sections 37 6 , 35 4 and 50 6 of the Indian Pen al Code, 18 6 0 (in short 'the I PC').  

3. The learned Addl. Sessions Judge, Mandi, Himachal Pradesh found  the  accused  guilty  of  all  the  offences,  sentenced  him  to undergo rigorous imprisonment  for  ten years',  six  months'  and six months'  respectively.  In  appeal,  the  High  Court  set  aside  the judgment  of  conviction  and sentence and directed  acquittal  of  the respondent.

4.  In support  of  the appeal,  learned counsel  for  the appellant- State  submitted  that  the  reasons  indicated  by the High Court  are indefensible. The High Court has treated delay in lodging the FIR in a case involving rape,  to  be similar  to  that  involving other  offences. Additionally,  it  was  submitted  that  the  evidence  of  P  W-  1,  the prosecutrix has been lightly brushed aside.

5.  In  response,  learned  counsel  for  the  respondent-  accused submitted that not only there was inordinate delay in lodging the FIR,

but also, the fact that the prosecutrix claimed to have told her mother and a teacher  about the alleged incident  at the first  instance and, thereafter, there was total silence of nearly two years, casts doubt on the  authenticity  of  the  prosecution  version.  In  any  event,  it  is submitted, that the offence punishable under Section 3 7 6 I PC is not made out.

6. So far as the delay in lodging the FIR question is concerned, the delay in a case of sexual assault,  cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent  in India,  more particularly,  rural  areas,  it  would be quite unsafe to throw out the prosecution case merely on the ground that there  is  some  delay  in  lodging  the  FI  R  .  In  that  score,  learned counsel for the appellant is right that the High Court has lost sight of this  vital  distinction.  Additionally,  we find  that  the  prosecution  has clearly established commission of offence punishable under Sections 35 4 and 5 0 6 I PC. So far as the offence punishable under Section 3 7 6 I PC is concerned, the basic ingredients are set out in Section 37 5 I PC. On a reading of the evidence of the prosecutrix, we find that  a  case  of  rape  has  not  been  established  so  far  as  the respondent is concerned.  

7. That being the position, we allow the appeal of the State to the extent that the respondent is convicted for offences punishable under Sections 3 5 4 and 5 0 6 I PC. The sentences are two years' and six months'  rigorous  imprison  ment  respectively.  It  is  stated  that  the appellant has suffered more than that period of custody. If that being so, he need not surrender to custody,. The appeal is allowed to the aforesaid extent.