JUDGMENT
K.S. Chauhan, J.
1. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 18.08.1993 passed by the Special Judge, Sehore in Special Case No. 69/92 whereby the appellant has been convicted under Section 3(1)(xi) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced thereunder to R.I. for 1 year with fine of Rs. 300/-in default to further R.I. for 2 months.
2. The prosecution case in brief is that on 04.02.1992 Hemlata (PW-1), aged about 10 years was going with her parents from Bhopal to Patan. They alighted at Jharkheda to change the bus. Pannalal (PW-3) -father of Hemlata (PW-1) sat at Hotel of Banwarilal (PW-4). Hemlata (PW-1) also went there. The appellant came there and talked with her. He caused to sit her in his lap, put his hand into her chaddi and inserted his finger in her vagina. She cried and ran towards her mother Janki Bai (PW-2) and told about it. Meanwhile, the appellant went away. On enquiry, Banwarilal (PW-4) told them that he was the teacher. Then they proceeded to Patan to attend marriage in their relations and returned therefrom on 06-02-1992. Hemlata (PW-1) lodged the report Ex.P/1 at Police Station, Doraha where the crime No. 36/92 under Section 354 I.P.C. and 3(1)(xi) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered. Map was prepared. Statements of the witnesses were recorded, accused was arrested. After completing the investigation, the charge sheet was filed in the Court of C.J.M., Sehore from where the case was committed on 11-11-1992 to the Sessions Court.
3. The appellant stood charged under Section 3(1)(xi) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 that on 04-02-1992 at 6:00 p.m. at village, Jharkheda he used criminal force to Hemlata a member of Scheduled Caste with intent to outrage her modesty.
4. The appellant abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated.
5. The prosecution examined as many as six witnesses and the appellant examined only one witness. After appreciating the evidence, the trial Court found appellant guilty under Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and convicted thereunder as stated in Para No. 1 of this Judgment. Being aggrieved by the judgment, finding and sentence passed by the trial Court, the instant appeal has been preferred under Section 374(2) of the Code of Criminal Procedure on the grounds mentioned therein.
6. Learned Counsel for the appellant has submitted that the report is delayed. No such incident was possible at public place when her father was sitting nearby to her. There was no any possibility of such incident. There was no any intention to outrage her modesty. No injury has been caused. There is no medical examination. The prosecution has failed to establish the guilt against the appellant beyond reasonable doubt. Therefore, the finding of guilt is erroneous, deserves to be set aside and the appellant is entitled for acquittal.
7. On the other hand, Shri P.K. Dixit, learned P.L. appearing on behalf of the respondent/State supported the judgment, finding and sentence passed by the trial Court mainly contending that the victim has given the evidence against appellant. Her evidence is corroborated by the evidence of her parents. Therefore, the prosecution has proved the case against the appellant beyond reasonable doubt. He has rightly been convicted and sentenced by the Trial Court hence does not call for interference.
8. The main point for consideration in this appeal is that whether the Trial Court has committed any illegality in convicting and sentencing the appellant under Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for using force with intend to outrage her modesty?
9. I have perused the entire case and evidence recorded therein.
10. Hemlata (PW-1), Janki Bai (PW-2) and Pannalal (PW-3) have deposed that on that day they were going to Patan and alighted at village Jharkheda. They were waiting for a bus to Patan. There was a Tea Stall. Pannalal (PW-3) sat at the bench lying there. Hemlata also went there and sat beside her father.
11. Banwarilal (PW-4) has also supported the fact that these persons came from Bhopal sitting there, waiting for a bus.
12. Hemlata (PW-1) has deposed that the appellant came there, sat beside her and started talking with her. She told him entire things then he took her in his lap and inserted his finger in her vagina. She started weeping and told her mother who in turn told to her father.
13. She has further deposed that she suffered pain but there was no bleeding or swelling.
14. Thus, from her evidence it is manifestly clear that appellant inserted his finger in her vagina. Her evidence in this regard is quite intact and has not been shattered in cross examination.
15. Janki Bai (PW-2) has also stated that the appellant was sitting beside her daughter. After an hour, she came weepingly and told her that accused put his hand in her Chhaddi, and was fondling her private part. She apprised this fact to her husband.
16. Pannalal (PW-3) has also stated that the appellant remained sitting beside her daughter for 10 minutes then his daughter cried and ran towards her mother who came there and apprised that the person who was sitting beside Hemlata has inserted finger in her vagina.
17. Both the witnesses have deposed that the appellant ran away from there.
18. Thus, the parents of victim Hemlata have clearly supported her evidence regarding the incidence.
19. Banwarilal (PW-4) has also stated that the appellant came to his Tea Stall, took tea and remained up to ten minutes and then went away. The appellant has also admitted this fact in the examination of accused recorded under Section 313 of Cr.P.C.
20. Thus, this fact is well established that accused was present at the tea stall of Banwarilal (PW-4).
21. Hemlata (PW-1), Janki Bai (PW-2) and Pannalal (PW-3) have stated that then they went to Patan to attend marriage in their relation, returned therefrom and alighted at Jharkheda.
22. Hemlata (PW-1) has deposed that the appellant started quarrelling with her father.
23. Janki Bai (PW-2) has deposed that the appellant was standing at the door of School and her daughter pointed him out. The people advised him to touch the feet of victim but he refused saying that she is not god. He caught the collar of her husband and started scuffling.
24. Pannalal (PW-3) has also deposed that there were several persons of Jharkheda village. They carried them to School. The Sarpanch was also present there. The victim identified the appellant amongst the teachers. He started quarrelling with him and his wife. Then they went to Police Station to lodge the report.
25. From the evidence of these witnesses, it is evident that when they returned from village, Patan and alighted at Jharkheda the victim identified the appellant and on asking as to why he has committed such an act he denied and further started scuffling with the parents of victim.
26. Thus, it is clear from this evidence that victim identified the appellant who instead of resolving the dispute, quarreled with her parents.
27. Ramesh Chandra Upadhyay (DW-1) has also stated that on 05-09-1992 he came to know that some incident has taken place.
28. Suresh Bhargava (PW-6) has stated that on 06.02.1992 Bharat Choudhary, Head Constable of Police Station, Doraha has recorded the F.I.R. (Ex. P/1). The investigation was done by him. He prepared the map (Ex.P/3) before Kailash (PW-5) and recorded the statements of the witnesses. He has proved the contradictions and omissions brought in the evidence of witnesses.
29. No doubt some contradictions have been brought in evidence of Janaki Bai (PW-2) and Pannalal (PW-3) but they are not on the material point and hence of no significance.
30. The main defence of the appellant is that the F.I.R. is belated but the reasons of delay has been sufficiently explained by the prosecution. The victim and her parents were going to attend the marriage in their relation. The bus came therefore they proceeded to Patan and when they returned therefrom and asked the appellant as to why he has done so instead of pacifying the matter he started scuffling with the parents of the victim. Therefore, they went there to lodge the report. The Trial Court has considered this aspect in great detail and has rightly came to the conclusion that the prosecution has properly explained the delay in lodging the F.I.R.
31. In the case of Tara Singh v. State of Punjab the Apex Court has held thus:
It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, it is not wise to expect from villagers that they would rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin 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-sticken 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. Unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay.
32. In the case of Amar Singh v. Balwinder Singh it has been held that:
There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It is necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.
33. In the case of State of Rajasthan v. N.K. AIR 2000 SC 1812 it has been held that:
A mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case abroad. 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 can not be counted against the prosecution.
34. In the case of Ramdev v. State of Rajasthan (2003) 1 WLC 34, it has been held thus:
Where eye-witness are reliable and trustworthy, mere delay in filing FIR would be no ground to discard the entire prosecution case.
35. In the light of the aforesaid pronouncements and keeping in view the facts and circumstances of the case, I found that the delay in lodging the F.I.R. has been properly explained by the prosecution. The defence of the appellant is that on account of enmity he has been falsely implicated. He has adduced the defence in this regard wherein Ramesh Chandra Upadhyay (DW-1) has tried to establish that there were no good relations of Laxmi Narayan teacher with him and with appellant. But, on appreciation of evidence, it cannot be said that the appellant has been implicated on account of such enmity. The reason is that there is no relationship of victim with this teacher Laxminarayan. She is also not the resident of Village Jharkheda. She was on the way to Patan and alighted at Jharkheda only to change the bus. Therefore, there is no reason to implicate him falsely by complaint.
36. Kailash (PW-5) who is said to be in relation of victim has not even supported the fact that the victim told him about the incident. Moreover, no any evidence is adduced as to what was the enmity even of this witness Kailash (PW-5) with the appellant. Thus, there was no question of falsely implicating the appellant at the behest of this witness.
37. There is overwhelming evidence against the appellant and it is clearly established that the appellant inserted the finger in vagina of victim with intent to outrage her modesty and his act is clearly covered under Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and trial Court has rightly found him guilty and sentence thereunder affirm such finding. No leniency is required in the matter of sentence. The appellant being a teacher has committed such condemnable act with a girl of 9-10 years. Therefore, the sentence passed by the trial Court cannot be said excessive hence the sentence passed by the Trial Court is also hereby affirmed. There is no merit or substance in this appeal and hence deserves to be dismissed.
38. Consequently, the appeal fails and is dismissed accordingly. The appellant is on bail. His bail bonds are cancelled. He be directed to appear before the C.J.M., Sehore on 14.12.2007 to serve out the remaining part of the sentence.