IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 95 of 2002 Date of decision: 11.12.2008 State of H.P. …. Appellant. Vs. Jeet Singh ... Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellant-State: Mr. Rajesh Mandhotra, Dy.Advocate General. For the respondent: Sh. S.D.Gill, Advocate. Per Deepak Gupta, J.(Oral) This appeal is directed against the judgement dated 28.9.2001 delivered by the learned Chief Judicial Magistrate, Sirmaur District at Nahan, whereby he has acquitted the accused for having committed offences punishable under Section 354 and 201 IPC. The prosecution version is that the prosecutrix (name withheld) was a student of 4th class at the relevant time. According to the prosecution, on 1st January, 2001 the prosecutrix had gone to school. The school ended at 2.00 p.m. Thereafter, the accused after closing the school asked the prosecutrix to collect and keep some articles in the store. When the prosecutrix went to the store to keep the articles inside the store, the accused came inside, shut the door from inside and made indecent advances towards this young girl with intention to outrage her modesty. The prosecutrix immediately raised an alarm and thereafter the accused let her go. The prosecutrix after leaving her school went to her house. Though the incident is alleged to have taken place on 1st Jaunary, 2001 but report in this regard was made with the Police Station Sangrah vide report Ext.PW-1/A on 20th January, 2001 at about 5.00 p.m. in the evening. On this day, the mother of the prosecutrix accompanied by the prosecutrix 1 Whether the reporters of the local papers may be allowed to see the Judgment . yes. went to the police station alongwith Shri Amar Singh, who is married to the sister of the father of the prosecutrix. In this report, it is mentioned that at 2 O’clock the school was closed and all the children were allowed to go home but the prosecutrix was deputed to keep certain articles of the school in the store. Then the accused came inside the store, bolted the door from inside, and made indecent overtures and advances towards the prosecutrix. The reason given for not filing the report earlier is that the youngest daughter of the mother, who was about one month old, expired during this period. The case of the accused was of denial and he claimed that he has been falsely roped in because of political rivalry. It is not disputed that the accused is the son-in-law of Dr. Prem Singh, the then sitting M.L.A. whereas the mother of the prosecutrix is the sister of Shri Roop Singh, the previous MLA. It is also not disputed that Roop Singh and Prem Singh had contested the elections to the Legislative Assembly against each other on a number of occasions. The statement of the mother of the prosecutrix while appearing in the Court as PW-1 is on the lines of the complaint. According to her, on the day following the incident i.e. 2nd January, 2001 the prosecutrix was reluctant to go to school and when she asked the prosecutrix why she was not willing to go to school, the prosecutrix informed her mother that the accused had made sexual advances towards her and pressed her breasts. She further states that about 5-6 days later she lost her youngest child and therefore could not lodge the report earlier. She has admitted that her village is well connected by bus to Renuka and Sangrah. She also admits that her husband came home on 1st January, 2001 in the evening and she had informed him of the incident. She has failed to produce any death certificate of the daughter, who is alleged to have died. According to her, she had neither got the factum of birth nor of the death of the said child recorded in the Panchayat. She has not disputed her relationship with the former MLA Roop Singh. As far as the statement of the prosecutrix (PW-2) is concerned, one has to keep in mind that she is a girl of tender age. At the time of the incident she was barely 10 years old. The law is well settled that the evidence of a child witness has to be scrutinized with great care and caution. Child witness may tell the truth but there is also the possibility that a child witness can be tutored by persons who have influence on the child to make a statement according to their desire. According to the prosecutrix, she had gone to school on 1st January, 2001. The school closed at 2.00 p.m. when she deputed by the accused to keep the articles in the store and the incident took place. She has repeated verbatim what has been stated by the mother and is stated in the report. In cross-examination she admits that it was raining on that day and all the children were studying inside the school. She also admits that normally the school timing is from 10.00 a.m to 3.30 p.m. She further states that on that date the school was closed at 2.00 p.m. She has stated in no uncertain terms that on the date of the incident only the accused Jeet Ram was present in school and the head teacher Sunehari Lal was not present in school. She states that on the day the incident took place i.e. 1.1.2001 her father had come home but she had not reported the incident to her father. She also states that her father did not want to lodge any report and was not willing to accompany them to the police station. PW-3 is a class mate of the prosecutrix. According to her on 1.1.2001 both Sunehari Lal and accused Jeet Singh were present in the school but later Sunehari Lal went to collect his pay and only the accused was left in the school and he closed the school at 2.00 p.m. Thereafter, the prosecutrix did not come to the school for many days. When the prosecutrix came back, this witness inquired from her why she did not come and was informed that the accused had made indecent advances towards the prosecutrix. In cross- examination she states that at 2.30 p.m Sunehari Lal had gone to collect his pay. PW-7 Sunehari Lal states that he was present in the school on the said date and that in fact he had marked the presence of the children. According to him, the accused taught classes 1, 2 and 3 whereas he, the witness, taught classes 4 and 5. On that day, the prosecutrix had attended the school and he had marked her presence. According to him at 11.30 he left the school for his quarter and at 2.30 p.m. he returned to the school and the school was open at that time. He left soon thereafter and does not know what happened in the school thereafter. According to him, he had marked the presence of Raksha Devi in the school attendance register but somebody has made a cutting in the register. He admits that Rukmani Devi was working in the school on that day. He also admits that it is the duty of Rukmani Devi to open and close the school and keep the articles in their proper place. He has denied the suggestion put to him that on that day the prosecutrix had not attended the school. DW-1 Rukmani Devi states that she had opened the school at 9.30 a.m on 1.1.2001. Both Sunehari Lal – CHT as well as Jeet Singh accused were present on that day. According to this witness, the prosecutrix had not come to the school on the said date. According to her at about 2.30 p.m. CHT Sunehari Lal again left the school and at 3.30 p.m she had closed the school. She has denied that any incident took place during this time. DW-2 is the Block Primary Education Officer. It is his duty to verify the records. According to him on 31.1.2001 he had gone to the school and had checked the attendance register and had signed the same on the said date. He further states that on 1.1.2001 the prosecutrix was not present in school. He states that he has ticked the name of the prosecutrix with green ink. He states that over-writing and erasing which is now in the register was not there when he checked the register on 31.1.2001, otherwise, he would have noted this fact on the register. There is grave doubt whether the prosecutrix had infact attended the school on the said date. I have gone through the attendance register myself. On 1.1.2001 she is shown to be absent but it is obvious that there is erasing and over-writing on this date. The total attendance of the prosecutrix at the end of the month has been marked at 14. On counting the presence mark of other days the total comes to 14 only. If she had been present on 1st also the total presence would have been shown as 16, since presence was marked both in the forenoon and afternoon. If the cutting had been made from P to A for the forenoon and afternoon sessions on 1st January, 2001, the total at the end of the month would have been 16 and not 14. On this total there is no overwriting. It, therefore, appears that on 1st January, 2001 the prosecutrix was not present. The lodging of the F.I.R, 20 days after the incident has also not been explained. The version of PW-1 that she could not lodge the F.I.R because of the death of one month old daughter during this period is not supported by any material on record. Neither the birth certificate nor the death certificate of the said child have been produced on record. In fact, no witness has appeared in the witness box to support the version of the mother that she in fact had a small child who died during this period. Surprisingly, the father of the prosecutrix who admittedly lives with his family has not been examined in this case nor he even came to the police post to lodge the report. One cannot lose sight of the fact that the mother of the prosecutrix belongs to a well known family. Her brother is a former MLA and has been contesting the elections to the Legislative Assembly on a number of occasions. She cannot be equated with some poor destitute woman. Therefore, delay in filing the F.I.R has not been reasonably explained. Since the delay in filing the F.I.R. has not been explained, the evidence of the prosecutrix has to be viewed with great care and caution. As noticed above, there is all possibility that the prosecutrix could have been tutored to give a doctored version. 20 days is a long time to indoctrinate a small child of 10 years. The statement of the prosecutrix does not inspire confidence. Her version does not find support from the other evidence. According to her the head teacher Sunehari Lal was not present on 1.1.2001 whereas it is the case of the prosecution itself that Sunehari Lal marked the presence of the prosecutrix on that day. Her version that the school was shut at 2 O’clock is also not supported by the material on record. Both Sunehari Lal as well as school attendant DW-1 have stated that the school was shut after 2.30 p.m. Keeping in view all these great contradictions, the learned trial Court, in my opinion has rightly acquitted the accused. This judgement calls for no interference. Hence, the appeal is dismissed. Bail bonds furnished by the accused are discharged. December 11, 2008 (Deepak Gupta), J. ™