SIKKIM HIGH COURT
Meenakshi Madan Rai, J.
Shri Indra Kumar Pradhan —Appellant
versus
State of Sikkim —Respondent
Crl.A.No.17 of 2015
Decided on 23.6.2017

IMPORTANT POINT
Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same, solely on the ground of delay in lodging the first information report. That, delay has the effect of putting the Court on its guard, to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not.

Headnote:(i) Protection of Children from Sexual Offences Act, 2012—Section 10—Appeal against conviction for offence—Victim girl aged about 5 years went to shop of appellant to purchase some article, accused took her inside a room sexually molested her—Incident occurred on 14.9.2014 but FIR was lodged by father of victim on 21.10.2014—Victim evidence about the incident was consistent and unwavering despite her tender age—Minor inconsistency is to be ignored as a holistic appreciation of facts and evidence on record has to be taken—Delay in lodging FIR was satisfactorily explained and was found acceptable by court—Conviction and sentence of five years imprisonment was not to be interfered with.

       Held: While carefully analyzing the evidence on record, according to P.W.-1, the Child Protection Officer under the Social Justice, Empowerment of Women and Child Welfare Department, the Victim, P.W.-2, came with P.W.-8, her father, to their Office. P.W.-1 took P.W.-2 to a separate room, where on enquiry the child told her that the Appellant had rubbed his finger on her genital on two different occasions, when she had gone to his shop to purchase articles. She then accompanied the Victim P.W.-2, to the STNM Hospital where P.W.-2 was examined by P.W.-7, where during the course of her examination, the victim being traumatized cried throughout. The Victim’s (P.W.-2) statement with regard to sexual assault corroborated the deposition of P.W.-1, inasmuch as the Appellant had inserted his fingers into her genital and fondled it, then given her two sweets, which she refused to take. She complained of the incident to her parents. As per the Victim, the Appellant had on a previous occasion committed the same act on her but she had not reported it to P.W.-3 apprehending a beating. The evidence of the mother of the Victim, P.W.-3, establishes that P.W.-2 had indeed told her of the incident, that the Appellant had given her sweets and fondled her private part. That, he had committed such an act even in the past. The evidence of the said witnesses along with the evidence of P.W.-8 is consistent of the fact of sexual assault. Although, it had been raised in argument that the evidence of P.W.-8 was at variance with other witnesses as already stated, it is evident that P.W.-8 was told of the incident by P.W.-3, who herself had heard it from P.W.-2. There appears to have been some misunderstanding in the communication, nevertheless, it is a minor discrepancy, which does not demolish or whittle down the entire Prosecution Case of sexual assault, as the Victim?s evidence about the incident is consistent and unwavering despite her tender years. That apart, the argument that the wife of the Appellant was closeby and therefore, the incident could not have occurred, cannot be countenanced, as P.W.-2 has clearly said that she and the Appellant were inside the shop. There is no evidence to establish that the inside of the shop was visible to the Appellant?s wife. The denomination of the rupee notes, I find are not even relevant to the issue at hand and deserve no consideration. The argument that the Victim failed to recollect the date is a little farfetched, as the Victim was only 5 years old and would obviously not have learnt about dates or months or years. She has remembered the act of sexual assault and recapitulated it to her mother, that suffices as evidence. It had been vehemently argued for the Appellant that P.W.-4 and P.W.-5 had in fact instigated the Victim?s family to lodge a false FIR. However, on careful scrutiny of the evidence of P.W.-5, he has on a suggestion put to him, stated that he had no enmity with the Appellant or his family members. P.W.-4 also denied acrimony with the Appellant. Although, it is true that the evidence of P.W.-7, the Gynaecologist who examined the Victim, showed no signs of the reported sexual assault, however, it must be borne in mind that the incident took place on 14.9.2014, whereas Exhibit-2 was lodged on 21.10.2014 and the Victim examined only on 22.10.2014 at around 1:30 p.m. An argument was raised by learned Senior Counsel for the Appellant that P.W.-1 in her Report, Exhibit-1, had recorded that the second incident happened “two days ago” which would thereby mean 19.10.2014. This is obviously an error, but a holistic appreciation of the facts and evidence on record have to be taken. What is of prime consideration is the fact that the Victim, a mere child of 5 years has not dithered in her evidence while narrating the incident. There is no reason to doubt the veracity of her evidence or for the child to conjure up such an incident when she was obviously mortified by the disgusting act. (Para 10)

       (ii) Criminal Procedure Code, 1973—Section 154—Delay in lodging FIR—Delay cannot be used as a ritualistic formula for doubting prosecution case—Delay has effect of putting court on its guard to reach if any explanation has been offered and whether it is satisfactory.

       Held: We may also usefully refer to the decision in State of H.P. v. Gian Chand, (2001) 6 SCC 71, cited by learned Additional Public Prosecutor, wherein it was held that the delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same, solely on the ground of delay in lodging the first information report. That, delay has the effect of putting the Court on its guard, to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal but mere delay cannot be a ground for discarding the entire prosecution case. It is also held in State of Punjab v. Gurmit Singh and Others, (1996) 2 SCC 384 that if the evidence of the prosecutrix inspires confidence it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason, the court finds it difficult to place implicit reliance on her testimony, it must look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. (Para 12)

       Result: Appeal dismissed.