ORDER
T.M. Hassan Pillai, J.
1. Heard the counsel for revision petitioner and Public Prosecutor. Copies of the depositions of witnesses and documentary evidence relied on the by the prosecution (marked in evidence) are made available for perusal.
2. Concurrent findings on facts recorded by the Courts below on proper appreciation of evidence ie., the revision petitioner committed the offences punishable under Sections 448, 354 and 506(ii) IPC, are sought to be challenged invoking the powers of this Court under Section 401 Cr.P.C.
3. Now the well-settled position of law is that revisional court is loath to interfere with the concurrent findings on facts recorded by the courts below unless glaring features which would otherwise tantamount to gross miscarriage of justice is brought to the notice of the Court. So, the question that is to be considered in this revision is whether the revision petitioner has been able to bring to my notice any glaring feature which would otherwise tantamount to gross miscarriage of justice.
5. With a view to connect the accused with the crime alleged, seven witnesses were examined by the prosecution. The investigation was conducted by PW7. PWs 1 and 4, who were cited as witnesses to speak the fact that PW1 narrated the incident to them immediately after the incident, turned hostile tot he prosecution. Evidence available to establish the prosecution case is the evidence given by PW. 2 (the girl whose modesty is alleged to be outraged), the evidence of PW.3 who testified the fact of seeing the accused coming out the house of the victim and medical evidence. Documentary evidence produced by prosecution in the trial court was Exts. P1. P1(a), P2 (scene mahazar), P3 wound certificate, P4 F.I.R. and P5 receipt filed by PW7 is court stating the name and address of revision petitioner as the culprit.
6. Denial of his involvement in the alleged commission of offence is the defence stand taken by the revision petitioner. Ext. D1 is the confronted portion of police statement of PW3 marked on the defence side.
7. The trial court on critical analysis of the evidence accepted and acted upon the evidence of PW2 holding that her evidence is reliable and suffers from no infirmity and is also not tainted. Trial court further held that her evidence receive corroboration from the evidence of PW3 and medical evidence and convicted the revision petitioner for the said offences. The trial court imposed rigorous imprisonment for two years under Section 354 IPC, rigorous imprisonment for six months under Section 448 IPC and rigorous imprisonment for one year Section 506(i) IPC. The sentences imposed were ordered to run concurrently.
8. Unsuccessfully the revision petitioner challenged the correctness of the judgment and order of conviction passed against him before the Sessions Court, Alappuzha in Crl.A. 46/2000 and the learned Sessions Judge, on a reappraisal of the evidence, agreed with the findings recorded by the trial court and confirmed the conviction. Sentence awarded by the trial court was maintained by the Sessions Judge.
9. As pointed out by me, in order to succeed, the revision petitioner has to bring to my notice glaring feature which would otherwise tantamount to gross miscarriage of justice.
10. One of the grounds strongly urged before me to attack the concurrent findings on facts is that there is no explanation for the delay in lodging the F.I.R. and materials are available to reach a conclusion that there was consultation before law was set in motion. The other ground projected is that there is evidence to show that there was bitter enmity between the two families (families of PW2 and revision petitioner) and false case was foisted against him (revision petitioner) on account of bitter enmity.
11. Keeping in view the legal position that the revisional court has no power to review the evidence unless the statute expressly confers on it that power I have to consider the question whether there is ground to interfere with the concurrent findings on facts recorded by the Courts below. Before considering that question, it may not be out place to extract here the following observation made by the Supreme Court in State of Rajasthan v. N.K. The Accused (2000 SCC (Crl.) 898):
“…..It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be reasonable doubt and not an excuse for a finding in favour or acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittal recorded by criminal courts which gives rise to the demand for death sentenced to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983 SCC (Crl.) 728) this Court observed that refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury, this Court deprecated viewing evidence of such victim with the aid spectacles fitted with lenses tinted with doubt, disbelief or suspicion”.
12. The Supreme Court took note of the existing rate of crime against women and held in State of Punjab v. Gurmit Singh (1996 2 SCC (Crl.) 318):
“21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad refiacted on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of him victim, a rapist degrades the very soul of the helpless female. The courts therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The court should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not a of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court find it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.”
13. The revision petitioner failed to bring to my notice any infirmity or irregularity in the findings recorded by the courts below on a proper appreciation of the evidence. PW2, a minor girl (she was studying at that time in 8th standard) has clearly testified that while she was in the kitchen of her house on the fateful day (19.10.98 was a holiday) at about 10.30 a.m. the revision petitioner, who is a neighbour of her, came inside the house. He came to the kitchen and closed her mouth and nose. She was made to bent and fondled her breasts. She has also deposed that after taking the chopper lying there he threatened to kill her if she made any noise or sound. Her skirt was removed upwards by him and he removed her undergarment. He again closed her mouth and nose when she attempted to raise alarm. When she turned back she had seen seme discharged from penis lying on the floor. She was released from his grip when she struggled to get released from his grip. He ran away. It is also her version that on seeing her crying PW1 and PW4 enquired with her as to why weeping and she narrated the incident to them. On the next day she went to police station and complained to police about the incident and Ext. P1 is the first information statement of her recorded by the police. She successfully withstood the searching cross-examination made on behalf of the revision petitioner.
14. Evidence of a girl or a woman who complains of rape or sexual molestation should not be viewed with doubt, disbelief or suspicion. Supreme Court summarised the position in the following words in State of Maharashtra v. Chandraprakash Kewalchand Jain (1990 SCC (Crl.) 210):
“A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care an caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which required it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have to hesitation in accepting her evidence.”
Though the above quoted observation was made while considering a case of rape principles laid down could be well applied in appreciating the evidence given by PW2.
15. PW2 was examined on the next day at about 7 p.m. by PW6 who was the Assistant Surgeon, Taluk Head Quarters Hospital, Pulinkunnu at the material time and the evidence given by PW2 received corroboration from medical evidence. Ext. P3 is the injury certificate issued by PW8. He found both breasts odaematous. She complained of pain. PW8 found valva, labia majora and labia minora odaematous. She complained of pain on both breasts. Nothing was brought out from PW8 in cross examination to rule out the prosecution story. Ext. P1 and body note Ext. P1(a) also lend corroboration to the evidence given by PW2.
16. The additional circumstances lending credence to the version of PW2 is the narration of incident by her to PWs 1 and 4 (she has testified that fact and there is no good reason for discarding her evidence on that aspect, though PWs 1 and 4 turned hostile. I also agree with the findings of Courts below that prosecution succeeded in establishing the case charged against the revision petitioner.
17. It is true that complaint was made to police only on the next day at 3.30 p.m. It is also in evidence that F.I.R. reached in court only on 21.10.98 at about 10.40 a.m. (no explanation is forthcoming as to why there was delay in dispatching F.I.R. to court). In a very recent decision Supreme Court has held that requirement of law is that FIR should reach the magistrate concerned without any undue delay and Supreme Court further held that there were some court holidays cannot be a ground for delay in F.I.R. (State of Rajasthan v. Teja Singh, 2001 SCC (Crl.) 439). Of course there is delay in lodging the F.I.R. and before considering the explanation given by PW2 regarding the delay in filing the F.I.R. the following observation made by the Supreme Court in State of Punjab v. Gurmeet Singh (1996 SCC (Crl.) 338) is to be borne in mind.
“The Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged”.
18. In State of Rajasthan v. N.K. The Accused (2000 SCC (Crl.) 898) the Supreme Court held that a mere delay in lodging the F.I.R. cannot be a ground by itself for throwing the entire prosecution case overboard. The court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the court it cannot be counted against the prosecution. The following observation made by the Supreme Court in State of Rajasthan v. Narayan (1992 SCC (Crl.) 781) also to be kept in view while considering the question of delay:
“Indian society being what it is the victims of such a crime ordinarily consult relative and are hesitant to approach the police since it involves the question of morality and chastity of a married woman”.
Though such an observation was made by the Apex Court while considering the question of delay in filing the F.I.R. in a case or ravishment of a married woman it is clear from the observation that the victims of sexual assault are reluctant to approach police without consulting her near relatives to lodge F.I.R.
19. F.I.R. was registered on the basis of Ext. P1. Explanation given in Ext. P1 for the delay in making complaint of police is that time was taken to consult with father of PW2 and father’s family members. The same fact was disposed by PW2 also. She has stated that on coming to know about the incident her father’s people (family members) came and they were also consulted whether complaint was to be made or case was to be filed. From that fact an inference or a conclusion of concocting a false story against the revision petitioner is not possible. The incident concerns the reputation of prosecutrix and honour of her family and naturally, the family members were consulted. So on that ground prosecution case is not liable to be thrown out. It is also clear from the evidence of PW2 that her father had gone to changanacherry and returned only in the night (no doubt such a fact is not disclosed by her in Ext. P1) PW2’s evidence that her mother came from the shop run by her father (her father is running a provision store and vegetable shop at Ramankari) on the fateful day at about 2 p.m. to take her noon meal. She related the incident to her mother and mother told her that action could be taken after father coming from shop. Even if it is proceeded on the assumption that PW2’s father had not gone to Changanacherry as asserted by PW2 mere delay in lodging F.I>R. by itself is not a ground to throw overboard the prosecution case or distruct the evidence given by PW2. Very recently Apex Court has considered the question of delay in lodging the F.I.R. in Ravinder Kumar and Anr. v. State of Punjab (JT 2001 (7) 377) and held:
“13. The attack on prosecution case on the ground of delay in lodging F.I.R. has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the F.I.R. Hence a delayed F.I.R is not illegal. Of course a prompt and immediate lodging of the F.I.R. is the idea as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged F.I.R. the demerits of the delayed F.I.R cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged F.I.R. is not an unreserved guarantee for the genuineness of the version incorporated therein.
14. When there is criticism on the ground that F.I.R. in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to the lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident.
15. We are not providing an exhausting catalogue of instances which could cause delay in lodging the F.I.R. Our effort is to try to point out that the stale demand made in the criminal courts to treat the F.I.R. vitiating merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the F.I.R. the court is to look at the cause for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the F.I.R. (Vide Zahoor v. State of U.P> (JT 1990 (4) SC 207=1991 Suppl (1) SCC 372); Tara Singh v. State of Punjab (JT 1991 (5) SC 40=1991 Suppl. (1) SCC 536); Jamna v. State of U.P. (JT 1993 (5) SC 534=1994 (1) SCC 185). In Tara Singh (supra) the court made the following observations:
“It is well settled that the delay in giving the F.I.R. by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kind who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report”.
20. It is true that evidence of PW3 is to the effect that there is bitter enmity between the families of PW2 and revision petitioner and they were not on visiting terms. As there is reliable evidence to prove commission of the offences by the revision petitioner merely on the ground that families of PW2 and revision petitioner are not on cordial terms and are on inimical terms it is not possible to overthrow prosecution case. The evidence given by PW 3 would prove that on the date of the incident the revision petitioner was seen by him coming out of the house of the prosecutrix. It is not suggested to him in cross examination that he is inimically disposed towards the revision petitioner. The suggestion put to PW2 was that revision petitioner’s brother one Prasad went to the house of PW2 at the time of the incident making enquiry about her father and she got frightened on seeing a person coming from behind and she was in a perplexed state of mind is denied by her. That suggestion put to PW2 may demolish the story of bitter enmity suggested to PW2 between her family and revision petitioner’s family. In my view both the courts adopted the correct approach and analysed the evidence in a proper perspective. Prosecution case is true and acceptable.
21. Learned counsel for the revision petitioner submitted that sentence imposed is too harsh and disproportionate to the gravity of offences alleged to be committed. Counsel submitted that the revision petitioner at the time of commission of the offence was unmarried and subsequent to the incident he got married and he has got one child. It is also submitted by him that the revision petitioner is the sole bread winner of the family and if he is put in jail his family will be left in the lurch. Before considering the question whether sentence imposed in harsh and severe or not it is worthy to extract the passage quoted by the Supreme Court in Baldev Singh v. State of Punjab (1995 SCC (Crl.) 1132) occurring in B.B. Mitra’s Code of Criminal Procedure-18th Edn. (1995) at pages 1240-1241:
“357.(a) Scope:- The power of courts to award compensation to victims under Section 357, is not ancillary to other sentences but is an addition thereto. It is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes, a step forward in our criminal justice system. Therefore, all courts are recommended to exercise this power liberty so as to meet the ends of justice in a better way. Any such measure which would give the victim succour is far better than a sentence by deterrence. Sub-section (3) of Section 357 provides for ordering of payment by way of compensation to the victim by the accused. it is an important provision and it must also be noted that power to award compensation is not ancillary to other sentences but it is in addition thereto…in awarding compensation the courts has to decide whether the case is fit one in which compensation has to be awarded. If it is found that compensation should be paid then the capacity of the accused to pay compensation has to be determined. It is the duty of the court to take into account the nature of crime, the injury suffered, the justness of the claim for compensation and other relevant circumstances in fixing the amount of compensation”.
22. Now-a-days, assault on the young girls is no the increase and that an young girl, who was in her house, was molested (her modesty was outraged). However, taking into consideration the facts and circumstances of the case the sentence imposed under each court is reduced to six months imprisonment. Compensation of Rs. 15,000/- is awarded to PW2 under Section 357(3) Cr.P.C. Sentence imposed on each count is to run concurrently. Bail bond, if any, executed by the revision petitioner stands cancelled and the revision petitioner is directed to surrender before the court below to undergo the sentence imposed. Trial court is to take steps to execute sentence imposed and also directed to take steps to recover the compensation awarded by proceeding under Section 431 Cr.P.C.
23. With the above modification in the sentence awarded, the revision is dismissed.