Tarachand Vs. State of Rajasthan - Court Judgment

Excerpt:
- - it has also been complained that due to his such culpable acts of molestation the girls have been frightened to go to the school and they stopped attending the school and, therefore on 15-2-1996 the informants went to the school to find out about him and when they reached at about 12-30 p. 4. first contention canvassed by shri karanpal singh learned counsel appearing on behalf of the petitioner is that prosecution of the petitioner is an outcome of the animosity having arisen out of the facts that his uncle pyarelal had defeated the family members of the complainant party in the election of sarpanch of gram panchayat khivasar and because of that there have been political differences between the accused and complainant party's family. 5. lastly shri singh contended that report.....orderarun madan, j.1. by this criminal revision petition, tarachand (petitioner) has challengedhis conviction for offence punishable under section 354, ipc for which he was sentenced by the appellate court to one year's simple imprisonment with a fine of rs. 4,000/- in (default, one month's si).2. facts in a very narrow compass. a written report (exp. 1) was presented by bhanwarlal & banwarilal to the sho, ps, laxmangarh (sikar) complaining therein that one tarachand (petitioner) teacher in primary school of their village ramchandra ka bas has been indulging in culpable activities of outraging the modesty and molestation of school girls to whom tarachand used to take in office room and after closing the room, the girls were forced by threats to get their clothes unworn then he fell on.....

Judgment:
ORDER

Arun Madan, J.

1. By this criminal revision petition, Tarachand (petitioner) has challengedhis conviction for offence punishable under Section 354, IPC for which he was sentenced by the appellate Court to one year's simple imprisonment with a fine of Rs. 4,000/- in (default, one month's SI).

2. Facts In a very narrow compass. A written report (Exp. 1) was presented by Bhanwarlal & Banwarilal to the SHO, PS, Laxmangarh (Sikar) complaining therein that one Tarachand (petitioner) teacher in Primary School of their village Ramchandra Ka Bas has been indulging in culpable activities of outraging the modesty and molestation of school girls to whom Tarachand used to take in office room and after closing the room, the girls were forced by threats to get their clothes unworn then he fell on them with kissings. It has also been complained that due to his such culpable acts of molestation the girls have been frightened to go to the school and they stopped attending the school and, therefore on 15-2-1996 the informants went to the school to find out about him and when they reached at about 12-30 p.m. they were given out that till then Tarachand had not come to the school so they kept on waiting for him till 1 O'clock when Tarachand came and was asked for girls complaints of his such acts then he started running and he was followed and caught hold or by them at a ramp. Hence FIR No. 42/96 (Ex. P2) was registered at PS, Laxmangarh and the investigation was put into motion. During investigation, site plan (Ex. P3) was prepared with description of site (Ex PSA); the petitioner (accused) was arrested vide memo (Ex. P4) and statements under Section 161 Cr. P.C. were recorded of not only school girls & teachers but also village people besides parents & guardians of the girls. After completion of investigation, challan was filed for offences under Sections 354 and 509, IPC for which the trial Court framed charges against the petitioner, to which he denied and claimed trial. As many as 19 witnesses were produced by the prosecution in support of the charge sheet. The petitioner was examined under Section 313, Cr. P.C. & in defence, he also examined 19 witnesses. After hearing the parties and considering rival contentions and marshalling the evidence on record, the petitioner was convicted by the learned Judicial Magistrate, Laxmangarh for offences under Sections. 354 & 509, IPC and sentenced to undergo two years' SI with a fine of Rs. 4,000/- on first count and one year's SI with a fine of Rs. 1,000/- on second count (in default, further 3 months' SI in each of counts). Against the aforesaid conviction and sentences, the petitioner went in appeal before the appellate Court which set aside the conviction & sentence under Section 509, IPC while it affirmed the conviction under Section 354, IPC, but with reduction of sentence of two years SI to one years' SI with fine of Rs, 4000/-, Hence this revision petition.

3. I have heard the learned counsel for the petitioner and the learned Public Prosecutor and have perused the relevant record.

4. First contention canvassed by Shri Karanpal Singh learned counsel appearing on behalf of the petitioner is that prosecution of the petitioner is an outcome of the animosity having arisen out of the facts that his uncle Pyarelal had defeated the family members of the complainant party in the election of Sarpanch of Gram Panchayat Khivasar and because of that there have been political differences between the accused and complainant party's family. Second contention urged by Shri Singh is that the prosecution has produced child witnesses whose versions are not only inconsistent but also contradictory, rather not corroborted by independent witnesses, inasmuch as except one Om Prakash (PW. 7) other prosecution witnesses are highly interested being in relation to the victim girls but also having inimical terms with the family members of the accused petitioner. Third contention urged by Shri Singh is that except child witnesses other prosecution witnesses are hearsay witnesses and therefore they cannot be said to be independent ones.

5. Lastly Shri Singh contended that report lodged by the complainant party was not only belated with no explanation thereof but in the FIR itself, not a single name of student has been mentioned inasmuch as the informant has failed to mention name of his daughter and niece.

6. As regards the quantum of sentence, Shri Singh contended that the petitioner has already suffered mental agony by remaining in incarceration for substantial period of imposed sentence of one year's SI, either probation should be given or the impugned sentence be reduced to the term already undergone by him.

7. The learned Public Prosecutor contended that keeping in view the nature of commission of culpable act of sexual assault by a teacher with school students of tender years, the petitioner does not at all deserve any lenient view inasmuch as the Courts below have concurrently found him guilty of the Impugned offence of Section 354, IPC and such a concurrent findings of facts suffers from no error of law or incongruity or material Irregularity either In the impugned conviction or even the sentence as they are totally based on proper appreciation of evidence on record after having applied cardinal principles of criminal Jurisprudence to the facts of the case appearing in the prosecution evidence so also the defence evidence.

8. First of all I will discuss the citations relied upon by the learned counsel for the petitioner. InKanhaiyav. State of Rajasthan (1989) 2 Rajasthan LR 90 there was delay of about 24 hours in lodging the FIR, and according to medical evidence the injuries found on body of prosecutrix were not caused while making attempt to commit sexual intercourse, and so also the enmity between the parties was proved and in these circumstances the prosecution case was held doubtful.

9. In Bhagodevi v. Jai Singh (1984) 3 Crimes 39 (Him Pra) it has been held that where no reliable evidence in support of a complaint of sexual assault is produced and the conclusion seems inescapable that the complaint is a fabrication, such a complaint, is liable to be dismissed.

10. In Rameshwar v. Stae of Rajasthan, 1984 Cri LR (Raj) 650 this Court held that, children are generally innocent and there is justification in believing what they say but at the same time the risk of their being easily influenced requires the Courts to be cautious to consider their statements after careful scrutiny and it is for this reason that Courts seek corroboration to the testimony of a child witness either by way of direct evidence or circumstances on record. It was a case where there were infirmities rather there was no corroboration to evidence of the child witness and hence it was held that it cannot be made basis of conviction. However, it has also been held that the contents of the information other than those leading to any discovery of incriminating fact in FIR would not be admissible in evidence cannot be taken help of by either side and therefore, no corroboration from the FIR should have been sought regarding the presence of any witness or any version given by him or any other witness.

11. In Jetharam v. State of Rajasthan, 1985 Cri LR (Raj) 428 this Court held that the Courts are generally chary and reluctant of putting absolute reliance on the evidence of a solitary child witness and look for cor-roboration of the same from other circumstances in the case and when the only witness speaking about occurrence is a child witness, extreme care and caution is required in scrutinising his testimony. It was a case where the evidence of child witness lacked corroboration of other prosecution witness and the conviction could not be maintained on sole testimony of child. In the instant case, besides child witnesses their parents have also been produced inasmuch as child witnesses are the girls who are the victims of the accused-petitioner. These victim girls in the voir dire were found to have understanding for the sanctity of oath.

12. In Sher Singh v. State of Rajasthan (1995) 1 Raj LW 519 this Court held that main witness relied upon was of 9 years age was competent witness but possibility of tutoring and coaching could not be ruled out inasmuch as no body had been produced to support her version, therefore, in the absence of any corroboration the evidence of witness could not be relied upon and it would be unsafe to accept the testimony of this child witness who had not narrated the incident to any other person. In the instant case, victim girls had narrated the incident to their parents and uncles who have appeared in the witness box. Hence, the cited decision does not help in any manner to the petitioner.

13. In Nirmal Kumar v. State of U.P., AIR 1992 SC 1131 : 1992 Cri LJ 1426, the occurrence of murder had taken place in family house at night; the prosecution cases rested on child witness who deposed that she had seen accused in lantern light and so gave out their names. But the fact that lantern was burning was, however, not stated before police and names of accused were also not mentioned to police officer who examined her. Hence the Apex Court held that the contradictions were material and the recovery of weapon at the instance of accused was not a corroborative evidence of significance and consequently the accused was held as entitled to be acquitted. This decision does also not help the petitioner being distinguished to the facts of the present case where the prosecution has not rested solely on a single child witness but other victim girls child witnesses, whose versions have not been shaken in cross-examination by the defence pointing out any of material contradictions.

14. In the present case FIR was lodged by complainants Bhanwarlal and Banwarilal, As per the contents of written report, afore named complainants who are parents and village people of the school where the primary school is situated and wherein the accused petitioner was admitted working as Head Master, had gone to the accused petitioner in order to ask for about complaints made by the victim girls against him and when they'asked for and complained then as per the FIR the accused petitioner felt guilty conscious and went away by rushing out of the school premises which resulted in chasing him by the village people and during that process he fell down sustaining injuries on his person which stood proved by his injury report and his counter report on the same day when the present complainant had also lodged written report on 15-2-96. Though names of daughter and niece have not been mentioned in written report by Bhanwarilal but the words 'daughter & niece' have been used, for whom it has been alleged that they are frightened of attending the school because of culpable acts of the petitioner. For this reason, whole prosecution case cannot be thrown out of board. It is settled law that FIR is not a substantive piece of evidence requiring description and particulars of each events, and cannot be made use of but for the corroborating and confronting the maker of the same. Bhanwarlal maker of the written report has appeared as PW. 1 and has proved the contents of his first information report. In his cross-examination, as rightly pointed out by the trial Court, nothing has been elicited to show that this witness (informant) bore animosity or any grudge against the accused and in cross-examination admitted to have not disclosed the name of his daughter & niece due to shyness obviously because as per the contents of written report (Ex. P. 3) it was a general complaint of culpable acts of the petitioner having committed with students. It was during investigation on this complaint that the police discovered incriminating fact against the petitioner. Hence, the contents of the information other than those leading to any discovery of incriminating fact would not be admissible in evidence and cannot be taken help by defence and that being so, merely because the first information report did not disclose names or particulars of each and every event, no corroboration from the FIR should have been sought regarding the presence of any version given by prosecution witness produced in witness box or any other witness. The FIR is not an encyclopedia. In these circumstances, I do not find any incongruity or delay in lodging the report so as to cast' aspersion on the veracity of the prosecution case or even the written report.

15. As regards admissibility of hearsay evidence, it must be remembered that value to be attached always depends on facts of each case. To press Section 157 which is an exception to general rule of inadmissibility of hearsay evidence, into service prosecution is required to establish that the version given by eye-witness was at or about the time when the fact took place, and if the version of the eye-witness is at the time of the incident, there is no difficulty in applying Section 157 of the Evidence Act but in either case also, the only thing required is to have carefully examined the version. Much emphasis has always been laid by the Courts that there should not have been material omissions in police statement of a child witness or inconsistency between police statement which was being earliest version of the child, and his subsequent deposition in the Court. Similarly of the only witness speaking about the incident is a child witness, then extreme care and caution is required in scrutinising his testimony.

16. As per Manu, the earliest Jurist of Global Recognization, the competency of a child witness to testify his credibility and evaluation of his testimony has always intricate questions and that being so, Manu felt it difficult that at times only witness available of the incident may be a child witness e.g. the offence has been committed in a house where no person other than a child was present, then in that contingency, Manu allowed the child to be a competent witness. However, in modern era, Section 118 of the Evidence Act envisages a general rule that every person irrespective of his age, is a competent to testify unless he is found incompetent due to the reasons stated therein. Section 118 makes the understanding as sole test of the competency of a witness and not on the age of a witness. Thus competency of a child giving evidence depends on the degree of his understanding and not on his age. Extreme care and caution to scrutinise statement of a child witness is necessary only when he is the only eye-witness. That apart, tender years of the child, coupled with circumstances appearing on record e.g. as its demeanour, unlikelihood of tutoring etc. may render corroboration unnecessary but it is also a question of fact depending on every case, besides corroboration is not a rule of prudence but of practice only. It is also a general belief that a child is artless, innocent and uncrafty and that being so chances of false implication at whose instance are rare unless externally influenced and tutored to give a particular statement. Therefore, while assessing version of a child witness possibility of his being tutored has to be consistently kept in view by the Court. And in case after carefully analysing child's testimony, it appears pure, and unpolluted from external influence, it is entitled to the highest credit.

17. Applying this principle, I may observe that in the present case, victims of the culpable act of outraging or molestation on the part of the accused-petitioner are girls of 3rd to 5th standard of primary school. They all are of tender years and are natural eyewitnesses to culpable acts of sexual teasing and assault at the instance of their own teacher. In our Indian culture and tradition, there have been no openness in doing either sexual assault or even discussing as to sexual teasing or acts that too in presence of children or in the presence of common friends or relatives. The chances of tutoring the victim girls by their parents to utter against the petitioner as regards his sexual teasing or assault or culpable act of outraging or molestation, which in the present case, all of the child witnesses (girls) victims have deposed against him, cannot be inferred. The victim girls have deposed as to whatever the petitioner had acted by committing sexual assault or teasing and acts of outraging and molesting them.

18. Kumari Urmila (PW. 3), Kumari Prabhati (PW. 4), Kumari Urmila d/o Rameshwar Jat (PW 5), Kumari Indira (PW 6}, Kumari Meena (PW 9), Kumari Raj kumari (PW 10), Kumari Urmila d/o Mahavir (PW. 11), Kumari Sunita (PW. 12), Kumari Babita (PW. 14) and Kumari Kamla Rebari (PW. 15) appearing in witness box all have deposed against the petitioner as to his culpable acts of sexual assault, teasing and indulging in outraging their modesty and molestation by calling them in office room and after closing the office room, he used to unwear their undergarments and then teasing their private parts so also forcing them to tease his private part for kissing, touching, sitting on his lap and further showing his penis for being caught in their hand for doing sexual act. The Courts below have assessed the versions of these child witnesses who were students and victim girls of primary school where the petitioner was working as Head Master, by taking extreme care and caution and after carefully analysing their testimonies, found their statements pure and unpolluted from external omissions in police statement or even inconsistency between the Court on material particulars as to the commission of culpable act against the petitioner.

19. Kumari Prabhati (PW. 4), Kumari Urmila (PW. 5), are admitted to have been belonging to the caste of the petitioner. Om Prakash (PW. 7) another teacher of the school of the victim girls was produced by the prosecution to prove that on the day of lodging the written report (Ex. P. 1) i.e. 15-2-1996 in the absence of the petitioner who had went away by running out the school due to complaints made by the informants and village people, he took over the charge on the basis of notice affixed on the notice board. Even he deposed that on acount of the incident of 15-2-1996, the students did not turn to the school obviously because of fear. Since it is not a case of single child witness rather from the prosecution evidence or material on record it is a case where allegation against the petitioner teacher is of commission of offence of Section 354, IPC having been done with victim girls of primary school of whose the petitioner has been Head Master. The victim girls have appeared in the witness box narrating culpable acts against the petitioner in corroborative manner and in their deposition the Courts below have found no material omissions muchless any contradictions or inconsistencies as to the material particulars of the commission of offence against the petitioner. The Courts below have based the impugned conviction upon the prosecution evidence of the victim girls and not on other hearsay evidence. Admittedly Om Prakash (PW 7) is a compan-ion teacher in the primary school of which the petitioner was Head Master and it is surprise as to how he could be an independent witness inasmuch as keeping in view nature of commission of sexual offence of Section 354, IPC, the accused could not have been expected to commit such an offence in the presence of his own colleague teacher, and rather when the commission of offence was alleged by the victim girls of the school, itself against their teacher, how could other co-teacher have supported the girls when he was not witness to those secret acts of the petitioner with the girls which were being done in his absence. Bhanwarlal (PW. 1), Rameshwar (PW. 2) and Kedar (PW. 3) have appeared and deposed on the basis of information given by their wards & other victim girls of their village, who admittedly have been studying in the primary school and which has not been denied by the petitioner. In fact these trioka witnesses have been produced to prove the contents of the written report which they have established beyond doubt, and the incident of sustaining injuries by the petitioner on the day of lodging the report. They may be hearsay witness to the acts of culpability on the part of the petitioner narrated by victim girls who have been produced as prosecution witnesses, but they are natural and ocular witnesses to the events described in written report (Ex. P. 1) wherein the petitioner was asked for explanation to the complaints of the victim girls of the school made against him to which he protested and run away out of the school and then chased by them alongwith other village people during which the petitioner had sustained injuries. Therefore, their evidence describing it as hearsay cannot be discarded from consideration so as to base the conviction against the petitioner. Hence, I do not find any cogent ground to disturb or upset the concurrent findings of fact on the basis of which the Courts below have based and sustained the impugned conviction for offence of Section 354, IPC and those findings are based on proper appreciation of evidence on record containing no incongruities or material irregularities or abuse of process of law warranting interference by invoking revisional jurisdiction.

20. However, on the question of quantum of punishment, in the facts and circumstances of the case the ends of justice will be met if the petitioner is sentenced to the terms already undergone by him, which is said to be about five months. Be that as it may, in my view, impugned sentence of one year's SI deserves to be reduced while maintaining the sentence of fine and impugned conviction under Section 354, IPC.

21. Resultantly, this revision petition is partly allowed only to the reduction of substantive sentence. While maintaining the impugned conviction under Section 354, IPC and sentence of fine of Rs. 4,000/- (in default, one month's SI), impugned sentence of one year's SI awarded by the appellate Court under its Judgment dated 8-12-2000 is reduced to the period already undergone by the petitioner. The petitioner is in jall and, therefore, Is ordered to be released if not wanted in other case. To the above extent, the Impugned judgments of the Courts below are modified. The record be sent back to the lower Courts forthwith.