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.