State of Haryana vs Dilawar

Sham Sunder, J.—This appeal is directed against the judgment dated 2.6.2000, rendered by the Court of Additional Sessions Judge, Panipat, vide which, it acquitted the accused (now respondent).

The facts, in brief, are that the prosecutrix (name not being disclosed) aged about 25 years and wife of Satbir, was married to him about 10 years earlier to 22.09.98. The husband of the prosecutrix was plying a tractor at Panipat, on hire basis. On 22.09.98, at about 1.30 PM, the prosecutrix was returning to her house, with fodder, having been brought by her from the fields, and when she reached near the tube-well of the accused at about 4.00 PM, he was found taking bath there. The accused asked the prosecutrix to oblige him. Upon this, the prosecutrix asked Dilawar, as to what he wanted from her. Dilawar, asked her to satisfy him. The prosecutrix then showed her slipper to Dilawar, accused. Dilawar, accused, then removed the bundle of fodder, from the head of the prosecutrix, and gagged her mouth. He dragged her to the tube-well room and tried to commit rape with her. In that process, the jumper of the prosecutrix was torn. Even string of her salwar, was opened by the accused. The prosecutrix did not allow the accused to commit rape with her. Thereafter, accused Dilawar, closed the door of the room, and bolted the same from outside. After sometime Dilawar, accused, again opened the door of the tube-well and entered the tube-well room. He again tried to commit rape with the prosecutrix. The prosecutrix raised alarm, but since no person was there, none came to her rescue. The prosecutrix begged pardon from the accused, with folded hands, and assured him, that she will not disclose the incident to anybody. Thereafter, she was allowed to go alongwith the bundle of fodder. The accused threatened the prosecutrix that she would be killed, in case, the incident was disclosed by her to anybody.

The husband of the prosecutrix came to the house. She narrated the whole incident to him. The prosecutrix alongwith her husband Satbir, and his father Rameshwar, came to the Police Station, to narrate the whole incident to the Police. On the basis of such narration, the statement of the prosecutrix was recorded, which formed the basis of first information report.

Rajinder Singh, Assistant Sub Inspector of Police Station Israna, went to spot. However, due to darkness, the investigation could not be carried out. On that date, the accused was not available in his house. The Investigating Officer went to the house of the prosecutrix. The torn clothes were handed over by the prosecutrix, to the Investigating Officer, which was taken into possession, vide memo PE, in the presence of Satbir, and Rameshwar. On 23.09.98, the Investigating Officer, alongwith the prosecutrix, her husband, and father-in-law inspected the spot. From the spot, the broken bangles were recovered. These were converted into a parcel, duly sealed, with the seal, and taken into possession, vide recovery memo PH. The rough site plan P1, with regard to the place of incident, was prepared. On 25.09.98, Dilawar, accused, was produced by his relatives. He was taken into custody. He was got medico-legally examined. Scaled site plan PC, was also got prepared. After the completion of investigation, the accused was challaned.

On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received, by commitment, in the Court of Sessions, charge under Sections 366 and 376 read with Section 511, u/s 342 and 506 of the Indian Penal Code, was framed, against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial.

The prosecution, in support of its case, examined Dr. Pankaj Aggarwal (PW1), who medico-legally examined Dilawar, accused, Ram Grander, Sub Inspector (PW2), a formal witness, Takdeer Singh, Patwari (PW3), who prepared the scaled site plan PC, Constable Pratap Singh (PW4), a formal witness, in whose presence, the accused was arrested, the prosecutrix (PW5), who deposed, in terms of the prosecution version, as stated above, Zile Singh (PW6), an alleged eye-witness, who did not support the case of the prosecution, Satbir (PW7), husband of the prosecutrix, and Rajinder Singh (PW8), the Investigating Officer. Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence.

The statement of the accused u/s 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was stated by him that, at the instance of Dharam Pal, Ex-Sarpanch, who was inimically disposed towards him, the present case had been registered against him. It was further stated by him, that Dharam Pal, belonged to Brahmin community, and the prosecutrix also belonged to Brahmin community. The father-in-law of the prosecutrix was uncle of Dharam Pal. He also produced Shanti Devi, his neighbourer and Sarpanch of the village, as DW1, who deposed that no such incident took place in the village. Thereafter, he closed the defence evidence.

After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.

Feeling aggrieved, the instant appeal, was filed by the appellant.

We have heard the Counsel for the parties, and have gone through and carefully perused the evidence and record of the case.

The Counsel for the appellant, submitted that the statement of the prosecutrix was sufficient to prove that she was forcibly taken to the tube-well room by the accused in order to make an attempt to perform rape with her. He further submitted that the mere fact that the prosecutrix was not medico-legally examined, in itself, was not sufficient to disbelieve the case of the prosecution. It was further submitted by hint that the prosecutrix being a married lady had no reason, whatsoever, to falsely implicate the accused. He further submitted that the trial Court, was thus, wrong in acquitting the accused.

On the other hand, the Counsel for the respondent submitted that the accused was falsely implicated, in the instant case, at the instance of Dharam Pal, Ex-Sarpanch. He further submitted that the prosecution failed to prove that any injury was suffered by the prosecutrix, at the time of alleged attempt of rape having been made upon her by the accused. He further submitted that there was unexplained delay, in lodging the first information report, which was not explained. He further submitted that the entire case of the prosecution was concocted one. He further submitted that the trial Court, was, thus, right in recording acquittal.

It is, no doubt, true that in an appeal against acquittal, the Appellate Court, has the power to reappraise and reappreciate the entire evidence, produced by the prosecution, yet if it comes to the conclusion, that the view taken by the Court below, is a reasonably possible view, on the basis of the evidence produced, then it (Appellate Court) should be very slow, in interfering with judgment of acquittal. Keeping this principle of law, in view, the appeal has to be decided. The alleged occurrence took place at about 4.00 PM on 22.9.98, when the prosecutrix was returning to her house, and Dilawar, accused, allegedly took her forcibly to his tube-well room and tried to commit rape with her. The first information report, in this case, was lodged at about 11.30 PM and the special report was received by the Judicial Magistrate, at about 1.30 AM, on 23.09.98. The distance of village Dahar, where the alleged occurrence took place from the Police Station is 10 kms. There was a delay of six and a half hours in lodging the first information report. No doubt, the prosecutrix stated that after the incident, she returned to her house. She further stated that when her husband returned to the house, at about 8.00 PM, she narrated the entire story to him and thereafter the first information report, was lodged. She also stated that her father-in-law, aged about 50 years, was in the house, when she returned to the same. She could very well narrate the alleged incident to her father-in-law especially when the prosecutrix allegedly returned to her house in torn clothes. Not only this, even her father-in-law could enquire of her, as to how, her clothes were torn and what had happened to her. Even, according to the statement exhibit DA, made by the prosecutrix, Zile Singh son of Chatter Singh, PW6, had reached the spot, and had seen Dilawar, accused, escaping. She also stated in exhibit DA, that she disclosed the incident to Zile Singh. No doubt, when she appeared in the Court, as her own witness, she denied having made statement DA, but stated that Zile Singh, had come to her house, and had told that he heard her cries. She also stated that she told about Zile Singh, to her husband and father-in-law. Thus, Zile Singh, had knowledge about the incident. So when Zile Singh, had knowledge about the incident, there was no reason for the prosecutrix, not to inform about the incident, to her father-in-law. Even there was no reason, on the part of Zile Singh, not to narrate the incident to the father-in-law of the prosecutrix, when he had come to the house, after the incident. When the father-in-law of the prosecutrix was in the house, and it could not be imagined, that she did not disclose the incident to him, why she did not immediately go to lodge the report is not known. Had there been no other male member, in the house, the matter would have been different. This shows that, in fact, no incident took place. It also appears that the time was utilized to concoct the story, introduce false witnesses, and falsely implicate the accused, in the instant case. Had any satisfactory explanation, been furnished by the prosecutrix, as to what prevented her from immediately lodging the report, the matter would have been different. No doubt, in some of the cases, of this nature, delay in reporting the matter can hardly be of any consequence. Every case is to be decided on its own facts and circumstances. In the instant case, the statement of the prosecutrix, as would be discussed hereinafter, is also not reliable. Under these circumstances, the delay in lodging the first information report, certainly assumes importance and significance. It was held in Thulia Kali Vs. The State of Tamil Nadu, , that the FIR 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 report, can hardly be over-estimated, from the standpoint of the accused. The object of insisting upon prompt lodging of the report, with 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 names of the 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 after-thought. 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 of the prosecution story, as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging the first information report, should be satisfactorily explained. In that case, there was some delay, in lodging the F.I.R., though the Police Station was only at a distance of two miles. Hence this circumstance was taken, as the one, to raise considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction. In this case, no explanation, what to speak of satisfactory was furnished by the prosecutrix. The trial Court, was, thus, right in coming to the conclusion, that unexplained delay in lodging the first information report, in the instant case, was fatal to the case of the prosecution.

The prosecutrix is the star witness of the prosecution. No doubt, she deposed that the accused forcibly took her to his tube-well room and tried to commit rape with her. She further stated that he gagged her mouth with hands, at the time of taking her forcibly to the tube-well room. She further stated that she resisted and, in that process, her juniper was torn by the accused. She also stated that the accused opened the string of her trouser (salwar). It was also deposed to by her, that thereafter the accused left the room and bolted the same from outside. She also deposed that he again came back, and after opening the bolt from outside, tried to have sexual intercourse with her forcibly, but he was not allowed to do so. She also deposed that, thereafter, she begged pardon from the accused and told him that she would not disclose this incident to anybody, whereas he threatened to kill her, in case, she disclosed the incident. Whether, such an incident ever took place, is the question, that requires determination. Zile Singh, PW6, claimed that he heard noise of a lady, who was saying leave her, and then he went to the tube-well room of Dilawar, accused. He further stated that the accused escaped after pushing him, and the prosecutrix, and thereafter he returned to his fields. He, in clear-cut terms, stated that the prosecutrix did not disclose anything about the incident, to him. He also denied that he had brought the prosecutrix, to her house, after the incident. Why the prosecutrix did not disclose the incident, if at all, the same had taken place to Zile Singh, is a matter, which remains shrouded in mystery. Even, according to the prosecutrix, her clothes were torn, when she resisted the attempt of the accused, to commit rape with her. She did not produce the clothes, before the Investigating Officer, at the time of recording her statement, on the basis whereof, the first information report, was recorded. She must have received injuries, on her person, when she allegedly resisted the accused, in his attempt, to commit rape with her, but she did not submit her to the medical examination. Had she submitted herself to medical examination, it would have been proved, as to how many injuries were received by her, whether such like injuries, could be suffered by her, when she was putting up resistance and whether those injuries constituted the struggle marks, or not. Assistant Sub Inspector Rajinder Singh, PW8, stated that the prosecutrix refused to submit her to the medical-examination. Had any incident, as narrated by the prosecutrix, taken place, when the accused left the tube-well room, by bolting the door from outside, why she did not bolt the door from inside tightly to prevent the entry of the accused to that room again. Even she did not raise any alarm, when she was allegedly left alone, in the room, by the accused, when he went away, by bolting the same, from outside. Had such an incident taken place, with her, she would have certainly raised hue and cry, so as to attract the attention of the passers-by, or of the persons working in the nearby fields, at about 4.00 PM. No doubt, the prosecutrix stated that the accused opened the door second time, by pushing the same, though she had bolted the same from inside. Had she bolted the door tightly from inside, it would not have been possible, for the accused, to open the same by merely giving pushes. On the other hand, the Investigating Officer stated that, when he inspected the spot, the door was intact and was having iron chain, from inside, and iron bolt from outside. Had the door been opened by the accused, by giving the pushes, the bolt from inside must have been broken, and could be noticed by the Investigating Officer All these factors, clearly go to prove, that no such incident ever took place, but the same was concocted by the prosecutrix, just with a view to falsely implicate the accused, in the instant case. No doubt, generally a woman, in this Country, does not level such like allegations of attempt to rape, against an accused, until and unless such an incident had happened, yet there can be exceptional cases, in which, such like false allegations, can be raised. It is one of this exceptional cases, in which, this apparently happened. The statement of the prosecutrix, therefore, could not be taken, as a gospel truth, to come to the conclusion, that such incident took place. Had there been any corroboration to the statement of the prosecutrix, through medical evidence, or through other circumstantial evidence, the matter would have been different. The trial Court, was, thus, right in holding that the evidence of the prosecutrix, that the accused forcibly took her, to the tube-well room, and made an attempt to commit rape upon her, was not reliable. The trial Court, was, thus, right in discarding the statement of the prosecutrix and acquitting the accused.

Zile Singh, PW6, in his statement exhibit PF, recorded u/s 161 of the Code of Criminal Procedure, stated that he witnessed the incident. Even in DA, the statement made by the prosecutrix, she stated that Zile Singh, witnessed the incident. Zile Singh, PW6, when appeared in the witness box, did not support the prosecution case that he witnessed the incident. He deposed that he heard the noise of a lady, and thereafter went to the tube-well of Dilawar, accused, who escaped, after pushing him and the prosecutrix. He did not support the prosecution version that he witnessed the accused, attempting to commit rape upon the prosecutrix. He also did not support the case of the prosecution, that the prosecutrix, disclosed the incident immediately after the same had allegedly occurred. Even the presence of Zile Singh, PW6, at the time of the alleged occurrence, was highly doubtful, as the prosecutrix, in the first information report, did not disclose to the police, that he (Zile Singh), witnessed the incident, and she disclosed about the same to him. Had Zile Singh, actually witnessed the incident, and she had disclosed about the same to him, then his name would have certainly appeared, in the first information report, recorded, on the basis of the statement of the prosecutrix. In her examination-in-chief, the prosecutrix also did not state that Zile Singh, had reached the spot, and she disclosed him, about the incident. During the course of cross-examination, she stated that no such statement, as mentioned in DA, was made by her, to the Police, that Zile Singh son of Chattar Singh, had reached the spot, and on seeing him, the accused escaped. On the other hand, she in clear-cut terms, stated that she did not disclose any incident to Zile Singh. From all these circumstances, it, thus, stood proved that Zile Singh, did not witness the incident, nor the prosecutrix disclosed anything about the incident to him, but he was introduced later on, to ensure corroboration to the prosecution case, but he, ultimately, did not support the case of the prosecution. The statement of Zile Singh, was, therefore, of no help to the case of the prosecution. The trial Court, was also right, in holding so and discarding the statement of Zile Singh.

No other point was urged, by the Counsel for the parties.

In view of the above discussion, it is held that the judgment of acquittal, rendered by the trial Court, is based, on the correct appreciation of evidence, and law, on the point and need no interference. The view taken by the trial Court, on the basis of the evidence, produced by the prosecution, could be said to be a reasonably possible view, and, as such, its judgment does not warrant any interference, and deserves to be upheld.

From the reasons recorded above, the appeal, is dismissed. The judgment, dated 2.6.2000, rendered by the trial Court, acquitting the accused, is upheld.