'Witness Not Expected To Have Photographic Memory, Variations In Facts/Improvements Natural In Depositions': P & H HC [Read Order]

The Punjab and Haryana High Court has asserted that in a criminal case,"one cannot be expected to have an eidetic/photographic memory" and that "slight changes in the facts or alleged improvements are bound to happen, being natural". "Natural variations do happen and such depositions are considered and relied upon by the courts after its careful analysis", observed Justice Anil Ksheterpal. The Single Bench made the remarks while dismissing the appeal by two convicts - a woman and her brother-in-law (sister's husband) - for sexually harassing her own underage daughter. The woman, who was living in separation from her husband, had illicit relations with the co-convict, who had also attempted to sexually exploit her daughter. The woman always sided with her brother-in-law when he tried to molest her daughter, even thrashing the daughter whenever she complained about it. Before the High Court, it was the appellant's main case that there have been significant improvements in the depositions of the prosecutrix from the time of the FIR, then in her statements under section 164, Cr. P. C., and finally when examined in court. "The learned trial Court permitted Learned Counsels representing the accused to cross examine the prosecutrix at length during 8 different hearings. The prosecutrix has withstood the volley of questions put to her in the cross-examination. In her deposition, she has given a detailed account of harassment meted out to her at the hands of the appellant-Surinder Singh @ Shinda. She has specifically deposed that the appellant- Surinder Singh @ Shinda sexually harassed, assaulted and molested her", noted the Single Judge. The bench opined that if one carefully examines the alleged improvements, it becomes clear that such alleged improvements are only explanations/elaborations of the allegations contained in the FIR. The Court observed that the prosecutrix although subjected to lengthy cross-examination has struck to her stand. Still further, the bench appreciated that it is well settled that FIR is not expected to be an encyclopedia of the entire case of the prosecution. "In these circumstances, it is wrong to expect that in the FIR, complete detail of all the incidents must be disclosed. An FIR is not expected to contain the proposed evidence to be produced by the prosecution", reads the judgment. "Here is a case where the prosecutrix, a daughter, has been compelled to allege that she was subjected to sexual overtures, advances, harassment and assault at the hands of her close relatives including her own mother. It must be kept in mind that her father had started living/residing separately from the family in the year 2009. Her family had broken down. It has also come in evidence that her mother was having sexual relations with Surinder Singh @ shinda for which he used to visit their house regularly...", the bench noted. Justice Ksheterpal was of the view that One must keep in mind that the prosecutrix found herself in unfortunate circumstances, that he did not get required protection/support even from her own mother, that For the first time, when the incident took place, she was barely 15 years old. "It has also come in evidence that the appellant-Surinder Singh @ Shinda used to carry a licenced pistol. The appellant Surinder Singh @ Shinda also used to help the family of the prosecutrix.", the judgment records. Delay of one and a half months in registration of FIR does not vitiate case of prosecution "She could not muster enough courage/strength to immediately confront her mother. She confronted her mother only on 04.10.2014. Her mother, the appellant-Rupinder Kaur, started beating her mercilessly...She was in a dilemma.On one side, she was concerned about the prestige of the family, whereas on the other side the appellants were driving her crazy", reflected the bench. The court further noted that after much deliberation, she drafted a complaint on 07.11.2014 but did not hand over to the police for a period of 11 days, and that "these facts clearly show that the prosecutrix being a sensitive young child took her time before deciding to initiate action". The bench attached weight to the fact that after 04.10.2014, she had started residing with her father. "It is very rare that a daughter decides to prosecute her own mother", expressed the bench, stating that it is apparent that there was hesitation on the part of the prosecutrix to take recourse to legal action even after she was beaten on 04.10.2014 by her mother mercilessly. "On 04.10.2014, her father had called the police but she gave a statement to the police that she does not want to take legal action. That itself shows that the prosecutrix was reluctant to take recourse to legal action against the accused", observed the Court. The bench took an empathetic approach in saying that "thereafter, she took more than a month in resolving what must have been her inner conflict before deciding to approach the police". ...

'Witness Not Expected To Have Photographic Memory, Variations In Facts/Improvements Natural In Depositions': P & H HC [Read Order]

Mehal Jain

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