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Umda Ram vs Rupa Devi R on 13 November, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr.MMO No. 269 of 2018.

Reserved on: 05.11.2018
Date of decision: 13th November, 2018.

Umda Ram …..Petitioner.

Versus
Rupa Devi r ….. Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. B.S. Chauhan, Senior Advocate, with

Mr. Munish Datwalia, Advocate.

For the Respondent : Mr. Digvijay Singh, Advocate.

Tarlok Singh Chauhan, Judge

The petitioner is 80 years of old retired ex-serviceman and has

sought quashing of criminal complaint and also all subsequent proceedings

being instituted against him by the respondent under Sections 354, 341, 504

and 506 IPC and is pending adjudication in the Court of learned Judicial

Magistrate 1st Class, Jogindernagar, District Mandi, H.P.

2. In the complaint it was alleged that on 19.9.2017 at about 6.00

p.m. when the complainant was returning from her field and going towards her
1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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2

residence then at that time the petitioner stopped her and caught hold of her

.

right hand with bad intention and told her that “Randi ether udhar ghumti reheti

hai per peshi mei hazir nahi hoti hai”. Upon this, she raised hue and cry and

on hearing her cries, her husband came out of the house and upon warning

given by him (husband), the petitioner left her by saying that he would see her.

Even though, the alleged incident was stated to have taken place on

19.9.2017, however, the complaint came to be filed against the petitioner only

after a delay of 4 days i.e. on 22.9.2017 and this delay in fact forms the

anchor-sheet of the petitioner’s case assailing the maintenance of the criminal

complaint. In addition thereto, quashing of the complaint is sought on the

ground that the complainant/respondent apart from examining herself and her

husband has failed to examine any independent witness, therefore also, the

complaint was liable to be quashed.

3. Lastly, quashing is sought on the ground that there is animosity

and enmity between the petitioner and the respondent and, therefore, he has

been falsely implicated in the case and the same should therefore be quashed.

4. Normally, a woman would not put her honour at stake by levelling

allegations of outrage of her modesty. The delay in lodging an FIR or a

complaint, as the case may be, could be due to variety of reasons, particularly,

the reluctance of the prosecutrix or her family members to approach the police

or Court and lodging the complaint about the incident, which concerns the

reputation and honour of the family and victim. Ordinarily, the family would not

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intend to get a stigma attached to the family. In other words, the delay in

.

lodging an FIR in a sexual assault cannot be equated with the cases involving

other offences.

5. The delay per se is not a mitigating circumstance for the accused

when accusations of offence of sexual assault be it modesty or rape. The

delay in lodging the FIR or complaint cannot be used as ritualistic formula for

discarding the prosecution case and doubting its authenticity. It only puts the

court on guard to search for and consider if any explanation has been offered

for the delay. Once it is offered the Court is to only see whether it is

satisfactory or not. In case the complainant fails to satisfactorily explain the

delay and there is possibility of embellishment or exaggeration in the version

putforth by her on account of such delay, then it obviously is a relevant factor.

On the other hand, satisfactory explanation of delay is weightly enough to

reject the plea of false implication or vulnerability of prosecution case.

6. As observed above, normally the version of the prosecutrix

regarding outraging of her modesty, is accepted by the Court, but this is not an

universal law and would depend upon the facts and circumstances of each

case. The Court has to scrutiny the testimony of the complainant and the other

material on record. The Courts normally insist for prompt and immediate

lodging of FIR or complaint, as the case may be. In the case of FIR, idea is

that it would give the prosecution a twin advantage. First is that it affords

commencement of the investigation without any time lapse; second is that it

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expels the opportunity for any possible concoction of a false version. Barring

.

these two plus points for a promptly lodged FIR, the demerits of the delayed

FIR cannot operate as fatal to any prosecution case. Though, it cannot be

overlooked even a promptly lodged FIR is not an unreserved guarantee for

the genuineness of the version incorporated or putforth therein.

7. As regard the prompt filing of the same, that too, at the instance of

the complainant by herself and not through a professional like lawyers etc.

would lend credence and dispel the impression of putting forth a concocted

and a fabricated story before the Court.

8. Adverting to the facts of the case, it would be noticed that even

though the alleged incident to have taken place on 19.9.2017, yet she took no

steps whatsoever to approach the police station by lodging the FIR when the

same was nearly at a distance of 7 KM. That apart, there is no explanation

whatsoever offered by the respondent as to why the complaint was lodged

only after four days that too through her counsel.

9. Prompt and early reporting of the occurrence by the informant

with all its vivid details gives an assurance regarding truth of its version. In

case, there is some delay in filing the FIR, the complainant must give

explanation for the same. Undoubtedly, delay in lodging the FIR does not

make the complainant’s case improbable when such delay is properly

explained. However, deliberate delay in lodging the complaint is always fatal.

(Vide: Sahib Singh vs. State of Haryana, AIR 1997 SC 3247).

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10. In cases where there is a delay in lodging an FIR, the Court has to

.

look for a plausible explanation for such delay. In absence of such an

explanation, the delay may be fatal. The reason for quashing such

proceedings may not be merely that the allegations were an after thought or

had given a coloured version of events. In such cases the Court should

carefully examine the facts before it for the reason that a frustrated litigant who

failed to succeed before the Civil Court may initiate criminal proceedings just

to harass the other side with malafide intentions or the ulterior motive of

wreaking vengeance on the other party. Chagrined and frustrated litigants

should not be permitted to give vent to their frustrations by cheaply invoking

the jurisdiction of the criminal court. The court proceedings ought not to be

permitted to degenerate into a weapon of harassment and persecution. In

such a case, where an FIR is lodged clearly with a view to spite the other party

because of a private and personal grudge and to enmesh the other party in

long and arduous criminal proceedings, the court may take a view that it

amounts to abuse of the process of law in the facts and circumstances of the

case. (vide : Chandrapal Singh and others vs. Maharaj Singh and another,

AIR 1982 SC 1238: State of Haryana and others vs. Ch. Bhajan Lal and

others, AIR 1992 SC 604: G.Sagar Suri and another vs. State of U.P. and

others, AIR 2000 SC 754: and Gorige Pentaiah vs. State of A.P. and others

(2008) 12 SCC 531).

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11. Apart from the above, it would be noticed that there is material

.

contradictions in the statements of the respondent and her husband with

regard to the incident. As observed above, the respondent while appearing as

CW-1 has stated that while she was on her way to her house, the petitioner

caught hold of her right hand with bad intention and had thus abused her as

aforesaid. It is thereafter on raising hue and cry, husband came out of the

room and warned the petitioner which constrained him to flee from the spot.

On the other hand, CW-2 husband of the respondent states that he himself

was an eye witness to the entire episode wherein the petitioner had caught

hold of the hand of the respondent and has telling her “peshi me hazir na hoti

hai, either udhar ghumti rehati hai” and it is only after he had warned the

petitioner that he left the hand of the respondent and fled away from the spot.

12. Lastly, it would be noticed that there is not only animosity between

the parties but there are various civil and criminal cases that have been

decided or are still pending inter se them, some of these are thus:

(1) Civil Suit No.33/2017 Umda Ram vs. Akshay Kumar ;

(2) Civil Suit No.16/2017 Akshay Kumar vs. Umda Ram ;

(3) Civil Suit No.32/2017 Umda Ram vs. Suresh Chand. All these

cases are pending between the parties.

Cases which are disposed of:

(1) FIR No.52 of 2017 u/s 379, 506 IPC ;

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(2) Civil Suit Suresh Chand vs. Umda Ram, filed in June, 2012

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stands disposed of on 28th September, 2013.

13. As there is a delay in filing of the complaint coupled with the

previous enmity and animosity of the parties and there is contradictions in the

testimony of the complainant’s witnesses, the complaint filed by the

respondent and cognizance thereof taken by the Court below is nothing, but

an abuse of the process of the Court and therefore, the same alongwith all

consequential proceedings including complaint No.12 of 2017 titled as Smt.

Rupa Devi vs. Umda Ram, pending in the Court of Judicial Magistrate 1 st

Class, Joginder Nagar, District Mandi, H.P. are quashed and set-aside.

14. In view of the above, the petition is disposed of in the aforesaid

terms, so also the pending application(s) if any.

13th November, 2018. (Tarlok Singh Chauhan),
(GR) Judge

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