IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 81 of 2002 Smt. Gangesh Sharma. ………. Appellant. Versus Veer Singh. ..…. Respondent Present : Sri Vinod Sharma, Advocate holding brief of Mr. Jitendra Chaudhary, Advocate for appellant. Sri Pramod Tiwari, Advocate holding brief of Mr. Rajendra Singh, Advocate for the respondent Hon’ble Servesh Kumar Gupta, J. 1. The challenge, by way of this appeal, is to the judgment and order of the learned trial court dated 27.03.2002 whereby the accused Veer Singh was acquitted of the charge under section 354, 457 IPC. 2. The background facts are that Smt. Gangesh Sharma is a Basic Health Worker and on the day of incident dated 29.04.1995 at about 08.30 p.m. when she was in her house along with her two minor daughters, aged about 10 and 12 years. The accused Veer Singh rang the call bell of the door. Smt. Gangesh Sharma opened the door. No sooner did the door so opened, the accused Veer Singh forcibly entered in the house pushing Smt. Gangesh Sharma behind. He took Smt. Gangesh Sharma to one of the bedrooms, tore her clothes and attempted to rape her, without her consent and against her will. The alarm was raised by her two daughters. The accused snatched a 20 grams golden chain from the neck of Smt. Gangesh Sharma. The incident was reported by phone call by Smt. Gangesh Sharma to the outpost police station of New Tehri. The police came at the spot. Smt. Gangesh Sharma gave a narration of the entire incident to Sub-Inspector, arrived at the spot. 2 3. It was also alleged that prior to this incident, some unknown persons used to make a ring call on the personal telephone of Smt. Gangesh Sharma and strive to be indulged in unwanted talks, which was also reported by Smt. Gangesh Sharma to the police but of no avail. 4. Next day on 30.04.1995 at about 05.00 p.m. when Smt. Gangesh Sharma tried to know what happened about her narration, then she came to know that no FIR has been lodged by the police, as has been stated by Smt. Gangesh Sharma. However, a report under section 323, 504 IPC was registered instead. 5. Smt. Gangesh Sharma then on 12.05.1995 reported the matter to the District Magistrate, Tehri Garhwal. Meanwhile, the accused continued to extend threats to kill Smt. Gangesh Sharma, so she all throughout remained in persistent fear, reporting to the District Magistrate went in vain. Feeling aggrieved Smt. Gangesh Sharma filed a criminal complaint on 29.07.1995. After recording the requisite statement under section 200 Cr.P.C. and taking other evidence under section 202 Cr.P.C. (if any), the Magistrate did not find any reason to take cognizance in the matter and the same was dismissed under section 203 Cr.P.C. on 08.08.1995. Smt. Gangesh Sharma filed a revision against the order of dismissal of her complaint, which was accepted by the learned Sessions Judge and the Magistrate was asked to apply his judicial wit afresh. The Magistrate extended several opportunities to Smt. Gangesh Sharma to appear in the court in furtherance of the prosecution of her case but notwithstanding of several opportunities so extended but Smt. Gangesh Sharma failed to appear in the court, with the result that her complaint again was dismissed under section 3 203 Cr.P.C. on 31.03.1998. Smt. Gangesh Sharma, disclosing so many explanations of her indisposition, filed a fresh complaint with the same facts on 28.06.1999 in the court of the Magistrate and learned Magistrate after recording her statement afresh under section 200 Cr.P.C. on dated 07.02.2000 and that of Km. Vijeta on 19.02.2000, took cognizance of the incident on 19.10.2000 for the offence under section 354, 457 IPC. 6. The accused Veer Singh was made to stand for trial after recording of statement under section 244 Cr.P.C., the charge under section 457, 354 IPC was leveled against him, which he denied, claimed trial. Smt. Gangesh Sharma examined herself under section 246 Cr.P.C. and produced her daughter Km. Vijeta as witness. No other evidence was produced. After recording the statement of Veer Singh under section 313 Cr.P.C. and taking one document, in defence, produced by Veer Singh on record, the judgment impugned was pronounced. 7. This Court, having heard the pros and cons of the case and after going through the evidence available on record, finds that Smt. Gangesh Sharma is a Government Employee and used to reside in a two-room accommodation of a Block. This block has six like quarters and the Block is situated in a colony, where several other families lived in the neighbouring vicinity. It is astonishing that when screams were being raised by Smt. Gangesh Sharma, during the resistance extended by her to the accused with full force, coupled with the alarming voice of her two daughters aged 10 – 12 years, gave no turn up at the spot to rescue the helpless and hapless Smt. Gangesh Sharma. The time of incident being 08.30 p.m. in the month of April last is also not unusual as to infer the entire colony felling asleep. The presumption that normally no person wants to be a witness 4 in the affairs of others is hardly applicable in the present circumstances because Smt. Gangesh Sharma resides in her residence along with her two minor daughters and in like such incident, which is enough to attract the attention of all the neighbours. The inclination of all the persons to be a witness of such incident is very natural. Such incidents in the society, if any, are still not acceptable and invite abhorrence of all the persons concerned. Smt. Gangesh Sharma has deposed in her evidence that when accused entered in the house, he allowed the door remain to be opened and did not shut it from inside. Had there been any truthfulness in the occurrence then this must not have been the attitude of the accused to remain the door opened all throughout the incident and even he did not take to his heels when one Jagdish Payaal, as stated by the victim had arrived at the spot. 8. A general presumption that Indian Society is a traditional one and in such matters where the modesty of a woman is outraged, the allegations prima faciely are taken to be true because we assume that no woman would like to raise such allegation against anyone to put her chastity at the stake. But this presumption is not always true, as the Hon’ble Apex Court in the case of Panduranga Sitaram Bhagwat Vs. State of Maharastra 2005 Cr.L.J. 888 SC has held: the approach that ordinarily a lady would not “put her character at stake” may not be wrong but cannot be applied universally. Each case has to be determined on the touch stone of the factual matrix thereof. Reports are replete with decision of charges under section 376, 354 IPC have been found to be false. 9. There is yet another aspect that Smt. Gangesh Sharma has stated in her complaint as well as in her evidence 5 that one Sub Inspector Pooran Singh Bhandari along with one constable had arrived at the spot and they arrested the accused from the spot itself whereas neither any arrest memo has been prepared by the police nor such entry has been found in the General Diary of the police. Learned counsel for the appellant contended that accused Veer Singh was an influential person and he was capable to manage everything including the police and that was the reason no FIR could be lodged, reducing the same version which was stated by the complainant to the police. This contention is not tenable because even for a moment, it is taken to be true that the accused was an influential one, so report could not be lodged but nothing prevented Smt. Gangesh Sharma to send the process to the Sub Inspector or to the Constable concerned, for adducing the evidence in the court. There is no explanation that Smt. Gangesh Sharma, on just next day i.e. 30.04.1995, noticed the non reporting of the true fact by the police, then why she made a delay of 14 days to report the matter to the District Magistrate concerned. Not only this when she notice inactivity of the district administration then also complaint was filed almost after one and a half month 29.07.1995. That was dismissed two times under section 203 Cr.P.C. All the explanations regarding ailment of Smt. Gangesh Sharma or her counsel are not sufficient enough to make them worthy to engender credence of this Court. She filed a fresh complaint on 28.06.1999 i.e. almost after four years from the date when her complaint was dismissed first time with the same fact. 10. Her witness is her own daughter, who was 10-12 year old at the time of incident and she has deposed in the court on 25.02.2002 i.e. almost after 7 years of the incident. She 6 has disclosed her age 17 years at the time of deposition. It means that she was the younger daughter of the prosecutrix, who might be 10 years of age at the time of incident. It is again strange that Smt. Gangesh Sharma produced her younger daughter in evidence before the court instead of her elder one, who might be 12 years of age at the time of incident. Naturally, the power of observation and noticing the occurrence by the elder daughter, was of better degree than the younger one. Otherwise also the statement of this minor witness Km. Vijeta narrating the incident 7 years old is not believable and appears to be tutored one. 11. It is also pertinent to observe that the prosecutrix Smt. Gangesh Sharma when allegedly closed the door of the room confining the accused in room, her moments were free, she was not restrained by anybody to knock the door of her neighbours and make them assemble at the spot but it was not done by her. It appears that entire episode has been fabricated by Smt. Gangesh Sharma, on account of some enmity towards Veer Singh, which has not been surfaced before the court. 12. In view of the above, this court is of the view that learned court below has not committed any error in finding the charge not proved. This court upholds the impugned judgment. The appeal, being devoid of merit, is hereby dismissed. (Servesh Kumar Gupta, J.) 29.08.2011 SKS