Partly allowed

Ganga Prashad v. State

Himachal Pradesh HC1 Jul 2013CR.R/202/2012

Case brief

AI extract

What is this about?

This revisionary bench upheld the conviction of the accused under Section 354 IPC but modified the sentence. The court rejected the plea of fabrication despite a two-day delay in FIR registration, finding the victim's testimony credible and unsubstituted. However, recognizing the petitioner had already served the maximum sentence, the court set him free forthwith.

What did the court decide?

Conviction upheld; sentence reduced to the period already undergone; accused set free forthwith if not required in another case.

Ganga Prashad Vs State — Himachal Pradesh HC (2013) — LawSathi Research

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

¶2

Criminal Revision No. 202 of 2012-E Decided on: 1^st July , 2013

¶3

Ganga Prashad, son of Nandan Yadav, r/o Parsarma P.O Radhopur, District School, Bihar.

¶4

…..Petitioner.

¶5

Versus

¶6

State of H.P. ......Respondents.

¶7

___________________________________________________________ Coram_

¶8

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹

¶9

For the Petitioner : Mr. Nimish Gupta, Advocate. For the respondent : Mr. D.S Nainta & Mr. Virender Verma, Addl. A.G.

¶10

Justice Dharam Chand Chaudhary, J. (Oral)

¶11

The appellant, who is accused in FIR No. 128 of

¶12

1998, registered against him under Section 354 IPC, in Police Station, Dalhousie, District Chamba has been tried and convicted for the commission of such offence and sentenced to undergo simple imprisonment for two years and also to pay fine to the tune of Rs. 5000/- by the learned Judicial Magistrate 1^st Class, Dalhousie, District Chamba.

¶13

1 Whether reporters of Local Papers may be allowed to see the judgment?

¶14

¶15

In appeal, vide judgment dated 27.10.2008, passed by learned Sessions Judge, Chamba, the findings of conviction and sentence recorded against the accused have been affirmed and the appeal dismissed vide Judgment dated 27.10.2008, which has been assailed before this Court in the present appeal.

¶16

The legality and validity of the impugned judgment have been questioned only on the grounds that there was no iota of evidence to convict the accused for the commission of alleged offence and the evidence available on record is stated to be misread and misconstrued.

¶17

PW-3, Sarita is daughter of PW-2, Manisha Chauhan. She was studying in the year 1998 in Kendriya Vidyalya, Dalhousie. Her father Sh. Mool Chand was working as Lab Assistant in Military Hospital, Dalhousie. PW-3 was the student of 6^th Class. She was weak in the subject of maths and had been going to the house of the accused for tuition in the subject of maths. The accused was working as Librarian in the School. On 17.12.1998, as usual, she went to the quarter of the accused for tuition. PW-1, Sayara, had also been going there for tuition. On that day she had gone early and it is after her,s PW-3 also

¶18

¶19

reached there. Sayara, after finishing her studies early returned to her house whereas, Sarita left behind. It is after the exit of Sayara from the quarter of accused, he allegedly asked her to kiss him on his face and when she refused, he told her that he will kiss her forcibly. She therefore, was called inside the room, where he had kept television in the room. She was made to lie down on the bed. Thereafter, he laid down on her and started kissing her and pressing other private parts of her body. She cried and it is on this, the accused left her. She started weeping and on this, the accused allegedly consoled her by representing that he will arrange to award good marks to her in the subject of maths and also that she will get the marks even if not write anything in her answer sheet in the examination hall and that she can write the questions in the answer sheet at his residence lateron.. He also asked her not to disclose this incident to her parents.

¶20

PW-3, Sarita however, then reached at her residence, refused to go to the quarter of the accused and started weeping and on asking by her mother as to what happened, she told that Sir (accused) is not a good man and that she will not ever go to his place for tuition

¶21

¶22

henceforth. On further asking as to how the accused was not a good person, then she revealed the entire incident to her mother PW2, Manisha. PW-2 later on apprised her husband Mool Chand about this incident. The exams of maths and science of PW-3 were on 18^th and 19^th December 1998 respectively, therefore, no report could be made immediately either on 18^th or 19^th during day time. The report however, was lodged on 19^th of December, 1998 at 12:30 p.m and on the basis thereof FIR EX.PW2/A was registered in the Police Station, Dalhousie.

¶23

The police swung into action and during the course of investigation associated the victim PW3, her mother PW2 and also Sayara, another student PW1. Spot map EX.PW4/A was also prepared.

¶24

On completion of the investigation, the accused was charge sheeted subsequently. On finding a prima facie case having been made out against the accused, charge under Section 354 IPC was also framed against him. He also pleaded not guilty and claimed trial. As such, the prosecution was called upon to produce evidence in order to sustain the charge against the accused. After recording

¶25

¶26

the prosecution evidence, statement of the accused has also been recorded under Section 313 Cr.P.C.

¶27

Learned trial Magistrate, after holding the full trial

¶28

and hearing the parties on both sides, has concluded that the prosecution has been able to prove its case against the accused beyond all reasonable doubt.

¶29

The accused was thus convicted and sentenced as pointed out at the outset. Learned Sessions Judge, Chamba has affirmed the findings of conviction and sentence while dismissing the appeal vide judgment under challenge before this Court in this petition.

¶30

Sh.Nimish Gupta, learned counsel representing the accused/ petitioner, while drawing the attention of this Court to the material available on record has contended that nothing of this sort as complained against the accused has taken place and the case has been engineered as well as fabricated against him merely on account of the accused having refused to oblige the complainant party in the matter of disclosing the paper of maths to them in which PW-3 had to appear on the next day. Mr. Gupta, further submits that the registration of the case after two days of the occurrence and non examination of the Principal of the

¶31

¶32

School and also Commanding Officer, who allegedly are informed about the occurrence before reporting the matter to the police has resulted in serious prejudice to the accused. It has further been pointed out that the factum of Sh. Mool Chand accompanied by one more person having visited the Police Station on that very day in the night, but, the Policeman who was sleeping there had told them to come on the next day has not been gone into during the course of investigation and this has also resulted in serious prejudice to the accused. While going through the statement of PW-3 and her mother PW2, it is pointed out that they never stated in the FIR and during the course of investigation that PW1 Sayara though wanted to go with PW-3 from the house of the accused, however, it is he who asked Saira to go first from that place. They allegedly have improved the entire story.

¶33

On the other hand, learned Additional Advocate General while making reference to the evidence as has come on record by way of the testimony of PW-3 and her mother PW-2 has forcefully contended that no parents can be expected to involve the honour of their minor daughter merely that she should get more marks in papers. Learned

¶34

¶35

Additional Advocate General further submits that the manner in which the incident occurred finds full corroboration from the FIR which contains the very best version of the occurrence and also corroboration from the testimony of the victim PW-3 and her mother PW-2 and for that matter PW-1 also. It has further been submitted that the delay in registration of the FIR in this case stands satisfactorily explained and, as such, hardly of any help to the accused.

¶36

The present is a case where accused/petitioner has invoked the revisional jurisdiction of this Court by filing the present petition against the findings of his conviction and sentence recorded by both the Courts. The present is a case of concurrent findings. In revisional jurisdiction, the scope of interference is very limited. The findings recorded on appraisal of the evidence available on record normally need not be interfered with unless and until perverse and amounts to miscarriage of justice. This certainly needs reappraisal of the evidence available on record.

¶37

If coming to the very first ground i.e delay as occurred in reporting the matter to the police, no doubt, the incident is of 17.12.1998 around 6:00 p.m. The FIR Ex.

¶38

¶39

PW2/A has been lodged in Police Station on 19.12.1998 at 12:30 noon. The explanation as has come in the statement of the complainant PW-2 that there were papers of PW-3 on next day i.e 18.12.1998 and even on 19.12.1998 and also that it is for this reason the matter could not be reported to the police, seems to be plausible for the reasons that the reporting of matter on 17.12.1998 itself or the next day would have definitely adversely affected the performance of PW-3 in the examination. Otherwise also the matter being sensitive one as the reputation and honour of a minor girl was involved, a thoughtful consideration was required before reporting the matter to the police. Taking into consideration, the given facts and circumstances, more particularly the categoric version of PW-2 and her mother PW-3 qua the manner in which the incident occurred, the delay as occurred in this case is not fatal nor any prejudice can be said to have caused to the accused. No doubt, before reporting the matter to the police, the complainant and her husband may have brought the same to the notice of the Principal of the School and also the Commanding Officer of the Army deployed there and for that matter, Sh. Mool Chand, the father of victim, accompanied by one

¶40

¶41

more person, may also have visited the Police Station on that very day in the evening during night time and it was required for the I.O. to investigate the matter from this point of view also. However, if no such investigation has been conducted, the present at the most can be said to be the case of faulty investigation which as per the legal principles should not come in the way of the conviction of an offender in case he is otherwise proved to be guilty from the other evidence available on record. Therefore, the plea so raised by the learned counsel also carries no substance.

¶42

Now, if coming to the evidence as has come on record by way of the own statement of the victim and her mother, PW-3 and also Kumari Sayara, PW-1 it stands satisfactorily proved that on 17.12.1998, PW-3 had gone to the house of the accused for tuition. Even, accused in his statement recorded under Section 313 Cr.P.C has also admitted this fact that on that day she had come to his house at 5:00 p.m. He admits the presence of PW-1 Sayara also there. He, however, denied the prosecution case that it is he who asked PW-1 Sayara to leave the house and that she told him that she would only be going alongwith the

¶43

¶44

victim, PW-3. He also denied that when PW-1 was getting late, she inquired from him as to at what time he will leave the victim and on this told Sayara that if she wants, she may go and on this Sayara left that place. Such stand of the accused taken in the statement under Section 313 Cr.P.C seems to be nearer to the factual position for the reason that Sayara PW-1, has no where stated that the accused told her to go, however, she told him that she will go with PW-3 and that after some time when she asked the accused as to at what time PW-3 will be there, he told that if she is getting late, she can go and that on this, she left for her house, leaving behind PW3 in the house of the accused. The version of PW-1 Sayara rather is that she had gone early for tuition whereas PW-3 came after some time and that she came back from the house of the accused after understanding the questions from him leaving behind PW3 who had come back later on. Any how the fact remains that PW-1 Sayara left the house of the accused leaving behind PW-3 there, who had come late. There is no reason to disbelieve that the accused on finding PW-3 alone there, conducted himself with her in an indecent manner and outraged her modesty. The plea that her parents wanted

¶45

¶46

that he should disclose the paper of maths to them and that when he refused to oblige them has been falsely implicated in this case raised by the accused in his defence is not plausible for the reason that no parents would like to involve the reputation and honour of their minor girl that too at the pretext of her getting more marks in her examination knowing fully well that such accusation will result in stigma in her life throughout. Therefore, there is no reason to disbelieve the testimony of victim that on her refusal to kiss the accused she was made to visit the room in which television was installed and laid down on the bed in the room and thereafter, he after having laid down on her, kissed and touched private parts of her body. The prosecution case that the accused set her free only when she cried loudly also stands proved from her testimony. No doubt, the area where the house of the accused situated was thickly populated however, for variety of reason such as the location of the room, in which the occurrence had taken place it is not always necessary that the neighbours, could hear the cries of some one more particularly that of a girl like the victim studying in 6^th class and aged around 10 years at the relevant time . The

¶47

¶48

allurement and assurances advanced that he will arrange to award good marks in her paper of maths and that she may even left the answer sheet blank and he will see that the answers to the questions are written therein lateron seems to be advanced to console her. This part of the prosecution case also finds full support from her own testimony and also that of her mother PW-2 . True it is that there is no corroboration to the testimony of victim and her mother PW-2 from any other independent source. However, it is again well settled that if the statement of the victim inspires confidence, the same alone is sufficient to record the findings of conviction against the offender. In this case, no doubt, no independent witness has been associated nor examined however, testimony of PW-3 finds full corroboration from that of her mother PW-2. The improvement in their version to the effect that the accused asked PW-1 Sayara to go from the house and that she desired to go with PW-3 later on and also that when the said witness started getting late she asked the accused as to when he will allow the victim to go and on this he told her that if she intends, she may go and also that on this she went from his house leaving behind PW-3 no doubt, there

¶49

¶50

is no such mention in the FIR and also in the statement of

¶51

PW-3 recorded under Section 161 Cr.P.C. however, not fatal to the prosecution case for the reason that it is satisfactorily established from the statement of PW1, Sayara that she was already there when PW-3 came for tuition and she left the house of the accused well before PW3. True it is that this is an improvement, however, not fatal for the reasons that even if this aspect of the testimony of PW-2 and PW-3 is ignored, the guilt of the accused stands otherwise established from remaining part of their testimony.

¶52

Having regard, to the evidence available on record and also the arguments addressed on both sides, this Court is in agreement with the findings recorded by both Courts below holding the accused as guilty for the commission of offence punishable under Section 354 IPC. The findings so recorded are neither illegal nor perverse and the same as such deserve to be upheld.

¶53

In the matter of sentence, it is pertinent to note that under Section 354 IPC, there is provision of maximum sentence to undergo imprisonment of either description for a term which may extend to two years or with fine or with

¶54

¶55

both. In the case in hand, the accused has been sentenced to undergo the maximum imprisonment i.e two years and also to pay fine of Rs.5000/- . Mr. Gupta, representing the

¶56

accused has also pointed out that the accused has his family and children to look after and that on account of this case and also he is undergoing the sentence w.e.f 8^th June, 2012 when he surrendered to serve out the sentence, in the matter of sentence, a lenient view may be taken and that the sentence may be reduced for the period he already undergone. Taking into consideration the submissions so made and also the facts and circumstances discussed hereinabove, I find considerable force in the submissions so made by learned counsel. Therefore, in the matter of sentence, the accused is sentenced to undergo imprisonment for the period already undergone. Consequently, the impugned judgment shall stand modified to this extent.

¶57

In view of the above ,the conviction of the accused though upheld, however, the sentence is reduced to the period already undergone. The impugned judgment stands modified only to this extent. The accused who is serving

¶58

¶59

out sentence in jail be set free forthwith if not required in any other case.

¶60

With the above observations, this petition stands

¶61

finally disposed of.

¶62

July, 1, 2013 (Dharam Chand Chaudhary), (veena ) Judge.

Ganga Prashad v. State

Case brief

What is this about?

What did the court decide?

Ganga Prashad v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Hans Raj @ Sardaru Vs State

Brij Lal Vs State of Hp

Bal Krishan Verma Vs State of Hp

Roop Basant Vs State

Sher Singh Vs State

Anu Rani Vs State of Hp