The Sikkim high court comprising a bench of THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI observed that So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors that weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint.( Maheshwar Singh versus State of Sikkim)

The Court also remarks that A prosecutrix of a sex offence cannot be put on 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.

Facts of the case

The petitioner was the teacher in the higher secondary school in the Sikkim. A girl in the school complaint that the Appellant made her bolt the door from inside when she was alone with him attending tuitions in the Physics Laboratory where he fondled her breasts, rested his head on her chest and kissed her despite her protests. the Appellant had taunted her for sitting with some boys of her Class while doing Maths. On the next date during the fourth period, when they had a Chemistry Class with the Appellant, he called the Students to the Physics Laboratory. He enquired from her whether she was offended with his reprimanding her the day before and told her not to sit with other boys as that made him jealous. He also told her that he gave her good marks because he cared for her and promised to give her very good marks in her Practical Lessons. Thereafter he began rubbing her thighs, touching her body and kissing her cheeks. She crossed her arms across her chest to protect herself but he forcefully tried to remove her arms with the assurance that nothing would happen. She collected her books, left the room and told her four friends of the incident. After that case was registered against the petitioner and he was convicted for the offence under Section 354A(1)(i) of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo Rigorous Imprisonment for a period of one year and six months and to pay a fine of Rs.25,000 only.

Contention of the parties

Learned Senior Counsel for the Appellant advanced the argument that the First Information Report (for short, “FIR”) is suspicious as there are unexplained subsequent insertions on it pertaining to the age of the victim and the period of offence.

He also contended that the delay in lodging the FIR is unexplained. And the Scribe of the FIR was not examined making the contents suspicious. That, the victim falsely implicated the Appellant as she was weak in Physics, the Appellant’s subject and his constant monitoring irked her. That, the victim having earlier obtained the benefits of compensation in a POCSO matter is attempting to obtain an identical benefit herein.

Senior counsel for respondent contended that the delay in lodging of the FIR was on account of the victim harbouring the anxiety that it would adversely affect her studies, the Appellant having threatened to give her low marks. And colleagues of the victim duly corroborate her evidence pertaining to the Appellant’s conduct towards her.

Court observation and Judgement

The high court observed that in a tradition-bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case of sexual offences merely on the ground that there is some delay in lodging the FIR.

Court also held that that the Prosecution chose only four friends of the victim as witnesses cannot be termed as cherry picking as the protection of the identity of the victim is of paramount importance in such offences and all efforts ought to be made to ensure confidentiality as done in the instant matter, to prevent stigmatization and ostracization of the victim for no fault of hers. Merely because the victim’s friends were produced as witnesses, it cannot be said that their evidence is unreliable.

The court dismissing the appeal held that notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation, the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.

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