LOVE KUMAR Vs. STATE OF DELHI

JUDGEMENT

(1.) Aggrieved by a judgment dated 16.08.2003 of Additional Sessions Judge in Sessions Case No.618/2002 arising out of FIR 211/02 registered at Police Station Ambedkar Nagar by which the appellant Love Kumar @ Bittoo was held guilty for committing offences under Section 376/452 IPC, the instant appeal has been filed by him. By an order dated 18.08.2003, RI for three years with fine Rs. 500/- under Section 452 IPC and RI for seven years with fine Rs. 500/- under Section 376 IPC was awarded to him.

(2.) Briefly stated, the prosecution case as projected in the charge-sheet was that the appellant sexually assaulted 'M' (assumed name), aged about 13 years after putting her in fear at the point of knife at the roof of her House No.1/359 Dakshinpuri, New Delhi at about 3:00 p.m. before 1.5.2002. The police machinery swung into action when the incident was reported vide daily diary (DD) No.31 B (Ex.PW-8/A) recorded at 1:22 p.m. on 1.5.2002 at Police Station Ambedkar Nagar. FIR was lodged after recording victim's statement (Ex.PW-1/A). The prosecutrix was medically examined. The accused was arrested and medically examined. Statements of witnesses conversant with the facts were recorded. After completion of investigation, a charge-sheet was filed against the appellant for the commission of aforesaid offences. To establish appellant's guilt, the prosecution examined ten witnesses in all. In 313 statement, the appellant denied his complicity in the crime and pleaded false implication. He examined DW-1 (Udai Singh) and DW-2 (Deepak) in defence. The trial resulted in his conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred.

(3.) I have heard the learned counsel for the parties and have examined the file. The incident occurred about six months prior to the lodging of the report. Exact date when the occurrence took place has not been established. Undisputedly, there is inordinate delay of about six months in lodging the report with the police. No cogent and plausible explanation has been offered by the prosecution witnesses for the delay. 'X'in her Court statement attempted to justify it and deposed that she suspected the appellant's hand in the disappearance of her cousin for the last five or six months and due to fear, she did not lodge the report. No such reason finds mention in her initial statement given to the police (Ex.PW-1/A). PW-2 (Vijay Kumar), 'M's cousin who was allegedly present at the time of occurrence contradicted her and in the crossexamination disclosed that he had apprised his mother about the incident same day. Her mother had scolded the accused after calling him. The prosecution did not examine prosecutrix's uncle and aunt to ascertain as to what had prevented them not to lodge the report with the police at the earliest. PW-8 (SI Kailash Chand), the Investigating Oficer, revealed that he had inquired from the prosecutrix about delay in lodging the complaint and her reply was that she was under threat extended by the accused. Inconsistent version has been given by the prosecution witnesses and the delay has remained unexplained. The prosecutrix and her cousins were not expected to be under threat for long six months and not to lodge the report with the police. It is unclear if the appellant had given threat to 'M' on any specific date. The appellant lived in their neighbourhood. Nothing has come in record if at the time of occurrence he was armed with knife; no such knife was recovered in the instant case. The prosecutrix and her family members had no real apprehension not to lodge the report with the police. It is true that delay in lodging the First Information Report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It, however, puts the court on guard to search for and consider if any explanation has been offered for the delay. In case, the prosecution fails to satisfactorily explain the inordinate delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay it is a relevant factor.