Pardeep Kumar @ Dimple vs State Of Himachal Pradesh on 6 October, 2023

[Cites 21, Cited by 2]

Himachal Pradesh High Court

Pardeep Kumar @ Dimple vs State Of Himachal Pradesh on 6 October, 2023

Bench: Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 364 of 2020.

Reserved on: 26.09.2023.

Decided on : 06.10.2023.

Pardeep Kumar @ Dimple                                                        .....Appellant.

                                      Versus

State of Himachal Pradesh                                                      ....Respondent.

Coram:

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Kul Bhushan Khajuria, Advocate.

For the Respondent: Mr. Yashwardhan Chauhan Senior Additional Advocate General with Ms. Sharmila Patial, Additional Advocate General.

Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced by the learned Special Judge, Fast Track Court (under POCSO Act), Kangra at Dharamshala, District Kangra, H.P. to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/ and in default of payment of fine, to undergo rigorous imprisonment for a period of one year, for the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 commission of an offence punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').

2. In brief, the prosecution story is that on 10.05.2015, the complainant Puran Chand moved an application to the police at Police Station, Palampur in which it was alleged that the appellant had allured his daughter, who was 17 years old and giving false assurances on the pretext of marriage had been committing sexual assault upon her for the last many months and had threatened her not to disclose the same to anyone and all these facts were disclosed to him by his wife. When he talked with the mother of that boy whether she was ready to marry his daughter, she refused and told that she could not bring the daughter of a caste. The victim was got medically examined. Her samples were preserved. Statement of mother of the victim was recorded and the appellant was also associated in the investigation and his MLC was also obtained and his undergarments were also taken into possession. Statement of the victim was also got recorded before Ld. ACJM, Palampur. On the identification of the victim, the places where sexual intercourse had taken place, were identified by her. The spot maps were prepared and the caste certificate of the victim was taken after moving an application to Tehsildar. On the 3 identification of the appellant, the spot map was prepared. Copy of 'Parivar' register was also taken into possession.

3. On completion of the investigation, the I.O. presented the challan in the Court and on finding a prima facie case, the appellant was charged for the commission of offence punishable under Section 376 (1) of IPC, under Section 6 of POCSO Act and under Section 3(1)(XII) of SC &ST (Prevention of Atrocities) Act, 1989, to which he pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution examined 19 witnesses in all. Thereafter, the appellant was examined under section 313 Cr.P.C. in which he denied the case of the prosecution and pleaded his innocence and stated that he had already told the victim that he would marry her after she turned 18 years of age and he had given a mobile phone to the victim which came in the hands of mother of the victim, who thereafter gave beatings to her. Later, the victim had also cut veins of her hands and on that day, he and his mother had been called and the villagers had also gathered there and he was asked to marry the victim, but he told that he would marry her after she turned 18 years of age and thereafter they returned to their home, but after one week, he came to be arrested.

3A 4(a). The learned Special Judge, Fast Track Court (under POCSO Act) after evaluating the evidence on record convicted and sentenced the appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/ (Rs. Ten Thousand) and in default of payment of fine to further undergo rigorous imprisonment for a period of one year for the commission of an offence punishable under Section 6 of the Act. It was further directed that the period, if any, during which the appellant had been in judicial/police custody would be set off under Section 428 Cr.P.C. against the substantive sentence only and not against the sentence in default. 4(b). As regards the charge framed against the appellant for the offence punishable under Section 3(1)(XII) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the appellant was acquitted and, as such, acquittal has attained finality.

4(c). Aggrieved by the judgment of conviction and sentence as passed by the learned Special Judge, the appellant has filed the instant appeal.

5. It is vehemently argued by Shri Kul Bhushan Khajuria, learned counsel for the appellant that the findings recorded by the learned Special Judge are totally perverse, whereby an innocent young man has been sent to gallows, and, therefore, the same deserve to be set aside.

6. On the other hand, Shri Yashwardhan Chauhan, learned Senior Additional Advocate General, would argue that since the prosecution has established its case beyond reasonable doubt, therefore, the findings rendered by the learned Special Judge warrants no interference.

7. We have heard the learned counsel for the parties and have gone through the material placed on record.

8. At the outset, it needs to be observed that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness.

9. Rape is the most hated crime, which tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. Gang rape is all the more a serious and heinous offence.

10. The committal of rape is a beastly act and takes out the life from the life of victim. The scars of rape always remain engraved in her mind and she cannot overcome throughout her life. Rape leaves physical as well as mental scars on the victim. Physical wounds may heal up, but the mental scars, though less visible are more difficult to treat.

11. Rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. "Rape" not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of "Rape" is 6 grave by its nature, which warrants a strong deterrent by judicial hand.

12. In State of Punjab vs. Ramdev Singh, AIR 2004 SC 1290, the Hon'ble Supreme Court held as under: This Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her selfesteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."

13. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held: "Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an 7 offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."

14. In Shyam Narian Vs. The State of NCT Delhi , (2013) 7 SCC 77, the Hon'ble Supreme Court has elaborately dealt with the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra Pradesh Vs. Bodem Sundra Rao, AIR 1996 SC 530 and State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and has held that :

"It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed."

15. Equally settled is the proposition of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the given circumstances.

16. In Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court has dealt with the issue and held that :

"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."

17. There are catena of judgments passed by the Hon'ble Supreme Court wherein it has been held that only the deposition of the prosecutrix by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.

18. In Md. Ali Vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the victim, if it is unimpeachable and beyond reproach, a conviction can be based and in Mohd. Iqbal v. State of Jharkhand reported in (2013) 14 SCC 481, the Hon'ble Supreme Court has held that "there is no prohibition in law to convict the accused of rape on the basis of sole testimony of the victim and the law does not require that her statement be corroborated by the statements of other witnesses".

19. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A victim complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.

20. After all, the Court cannot overlook where the victim or a girl is subjected to sexual assault, she is not accomplice to the crime, but is victim of another's lust.

21. The victim appeared as PW7 and stated that her date of birth was 27.08.1998. She was learning sewing and cutting course in the year 2014 at Panchrukhi Centre. At that time her father was working at Hamirpur and prior to her joining the Sewing Centre at Panchrukhi, she was studying in Govt. High School, Andretta. When she used to go to the school, the appellant, who belonged to their village used to harass her on the way and asked her for marriage with him, but she refused. Appellant assured that he was definitely going to marry with her and he made sexual intercourse with her under the pretext of marriage and committed sexual intercourse with her on 14.02.2014 at the place outside her cowshed which was situated at the back side of their house and he had also committed sexual intercourse, for the second time, with her on the same pretext on 25.01.2015 in the tea garden at the back of university in the bushes. When she refused for sexual intercourse, then the appellant had threatened to defame and kill her. She did not disclose this fact to anyone, but her family members came to know about her relationship with the appellant and then her parents had asked her about such 11 happenings and then she disclosed about these occurrences to her parents. She had not disclosed about these occurrences to her family members earlier of her own as she was under fear from the accused.

22. On 06.05.2015, when the victim's parents had come to know about these occurrences, then they called the appellant and his mother to their house and asked them for her marriage. However, the parents refused and rather the mother of the appellant told them that she will not marry her son with the daughter of 'Chamaar' as they belonged to Scheduled Caste category and the appellant belonged to Chaudhary community. On their refusal for marriage, she alongwith her father and mother went to Police Station Palampur and reported the matter to the police. Her medical examination was also got done and her statement was also got recorded by Ld. ACJM, Palampur.

23. The victim disclosed before Ld. ACJM, Palampur that the appellant had brought one 'dori' and some 'sindhoor' from some hollyfaith (Chela) and asked her to tie 'dori' around her waist and apply 'sindhoor on her forehead. When she had done so, then she used to feel as if her parents were not saying good to her and whatever the appellant used to say, she used to like and follow.

24. The police had taken the victim to the places where the appellant had committed sexual intercourse with her and she had identified the same. The accused who had committed sexual intercourse with her was present today in the Court. The doctor had taken her 'pajami' and bra into possession at the time of her examination and her statement was recorded by the police in Rest House, Palampur and videography was also done. The accused had committed sexual intercourse with her 8 to 10 times in between the aforesaid occasions i.e. between 14.02.2014 and 25.01.2015 under the pretext of marrying her.

25. In crossexamination, the victim stated that her statement was recorded by the police twice; one statement in the police station and another in Rest House and she visited the police station twice. Police had taken her to the court on the next day and when her statement was recorded before the Magistrate, her mother was also with her. She stated that she disclosed to the police in her statement that the accused used to tease her on her way to school. When confronted with statement Mark D1 wherein it was not so recorded. She had not disclosed to the police the date of sexual intercourse with her by the accused. She volunteered to state that the accused committed sexual intercourse with her in February, 2014. She denied that she had falsely stated the date of occurrence as 13 14.02.2014. She had also disclosed in her statement to the police that the accused had threatened her to do away with her life and to defame her in case she did not have intercourse with him. She was then confronted with statement mark D1 wherein it was not so recorded. She also disclosed to the police that the mother of the accused had told that she will not get her son married with a daughter of 'Chamaar'. She admitted that at the time of her medical examination, the doctor had told for her dental age and xray examination and these examinations were conducted thereafter. She denied that her age was 18 plus at the time of her medical examination. She denied that in February, 2014 she was above the age of 18 years. She did not disclose such facts to the police that the accused had brought 'dori' and 'sindhoor' from 'chela' and had asked her to tie 'dori' around her waist and apply 'sindhoor' on her forehead.

26. The victim denied that she made the statement before Ld. ACJM, Palampur at the instance of her parents. She admitted that the accused belonged to her village and was Chaudhary by caste. She denied that the accused had not committed sexual intercourse with her in between 14.02.2014, 25.01.2015 about 810 times. Letters Ex.DA1 to Ex.DA26 were letters which had been written by her to the appellant. Volunteered to state that the accused had also written letters to 14 her. She admitted that the accused had admitted that he would marry her on her attaining 18 years. Further, volunteered to state that the accused refused to marry her. She denied that on 06.05.2015, when the accused and his mother had come to her house, the accused had stated to marry her after attaining the age of majority. She denied that accused never committed sexual intercourse with under the garb of marriage. She denied that a false case had been registered against the accused at the instance of her parents on his refusal to marry her. She denied that she had attempted to commit suicide by cutting her pulse when her mother quarrelled with her on account of not having her marriage with the accused due to caste considerations. Selfstated, she never quarrelled with her mother. She denied that she was making a false statement against the accused in the court.

27. PW8, Smt. Kaya Devi stated that victim was her youngest daughter and she was not aware about her date of birth, but the month was August. Whenever her daughter used to go to her school at Andretta, then the accused on the way used to tease her and they had not given any mobile phone to their children, but when she saw mobile phone with her, then she inquired that as to from where she obtained the mobile phone, then she disclosed that the accused had given this 15 mobile to her. Thereafter, she had gone to the house of mother of accused where she told that accused had been talking to her daughter on phone and she asked her to make him understand and she assured to reprimand him.

28. The witness further deposed that after leaving school, her daughter used to go to Panchrukhi to attend sewing and cutting course and during that period the accused used to meet her on the way and she had seen 'dori' around the waist of her daughter and 'sindhoor' on her forehead and when she asked her about the same, then her daughter told that the same were given to her by the accused and he had asked her to tie 'dori' around her waist and to apply 'sindhoor' on her forehead. Thereafter her daughter used to abuse them whenever she used to tie 'dori' around her waist and apply 'sindhoor' on her forehead. Then, they got her treated from Chela and removed the 'dori' from her waist and 'sindhoor' from the forehead and thereafter her daughter disclosed that the accused had committed sexual intercourse with her many times.

29. The witness further deposed that when she came to know about all these facts, then she asked the mother of accused to come to their house on 06.05.2015, on which she and her son had come to their house and asked the mother of 16 the accused to marry her son with her daughter as he had committed sexual intercourse with her many times, but she refused to do so by saying that she will not marry her son with daughter of a 'Chamaar'. She had also told that for her, her son and her daughter both were dead and that she was not having any money for their marriage. Her daughter was below 17 years of age when the accused had committed sexual intercourse with her. Her husband was in service and on 10.05.2015 when he came to the house, then she along with her husband and her daughter had gone to Police Station, Palampur, to report the matter. The medical examination of her daughter was got done. Her statement was also got recorded.

30. In crossexamination, this witness admitted that her daughter never disclosed about her sexual exploitation by the accused. She volunteered to state that her daughter had told that due to threatening given to her by the accused, she had not disclosed about such facts to her. On or before 06.05.2015, she had not reported anything to police about the threatening of her daughter by the accused. She admitted that on 06.05.2015, when she caught her daughter talking to the accused on phone, then she had quarrelled with her. She denied that due to this quarrel, her daughter had tried to commit suicide by cutting her pulse. She had disclosed to the 17 police in her statement that the accused had brought 'sindhoor' and 'dori' to her daughter and had asked her to tie the 'dori' around her waist and to apply 'sindhoor' on her forehead. She was then confronted with MarkD2, wherein it was not so recorded. She denied that the accused had not brought the 'dori' and 'sindhoor' to her daughter and that he had not asked her to apply the same. She denied that no witchcraft was played by the accused with her daughter. There was no other person except their family members in the house on 06.05.2015 when the accused and his mother had come to their house.

31. The witness denied that the accused had told them to marry the victim after two years on 06.05.2015. The police had recorded her statement as per her version. She denied that when the mother of accused refused to get her son married with her daughter, then they got a false case registered against the accused. She denied that the mother of the accused had not used the word of caste as Chamaar against them. She denied that she was not ready to get her daughter married with the accused due to caste consideration. She denied that after 45 days, she and her husband had tutored their daughter to give statement against the accused in the Court and the statement made before ld. ACJM, Palampur by their daughter was given as per their versions. She denied that the victim had not 18 identified the places of her sexual assault by the accused to the police in her presence and that no videography of those proceedings had been conducted. She denied that in February, 2014 the victim was above 18 years of age. She denied that she was making a false statement in the Court.

32. PW9, Smt. Rajni Devi stated that she was Pradhan of Gram Panchayat, Andretta and did not remember the dates when she was associated in the investigation. She had gone with the victim and the police to the cowshed which was at the back of house of victim and that place was identified by the vic tim to be the same where the accused had committed sexual in tercourse with her and police had also gone to a nearby field and the victim also stated that the accused had committed sex ual intercourse with her. The police and the victim had also gone to Palampur with her and there in the tea garden near the university a place was identified by the victim where the ac cused had committed sexual intercourse with her. Another place in the nearby fields had also been identified by the vic tim where also the accused had committed sexual intercourse with her. All these places were identified by the accused on 14.05.2015 to be the same places where he had committed sexual intercourse with the victim. The memos of identification of these places were prepared by the police.

33. In crossexamination, this witness stated that she did not know as to on which date the accused was arrested by the police and whether the police had taken the accused to those places before her joining the police as a witness. She could not say anything as to how many times the police had taken the victim to those places. The victim and her mother were not related to her, but they were residents of her panchayat and the accused was also from her panchayat. She admitted that prior to this case, there was no complaint against the accused or the parents of victim before the panchayat. She denied that being from scheduled caste category she had given the statement in favour of victim. She denied that no spot identification was conducted at the instance of the victim. She denied that she was making a false statement.

34. PW11, Smt. Kushma Devi @ Sunka stated that on 06.05.2015 she was cutting grass in her field near the house of Puran Chand and heard noise from his house. Firstly, she had witnessed the occurrence from nearby the path and thereafter she had gone to the courtyard of Puran Chand. Many people had gathered there. The mother of the victim had been giving beatings to her daughter and she intervened the matter and asked her as to why she was beating her daughter. On this, the victim disclosed that she wanted to marry with the accused 20 present in the Court. On the same day, at about 5.00/6.00 p.m., when she was busy in her field, she again heard noise from the house of Puran Chand and thereafter she had gone there. The mother of the accused had disclosed in her presence that after attaining the age of majority by the victim, she would marry her son with the victim. The mother of victim had told that due to the nearness of place of residence, she was not ready to get her daughter married with the accused. Nothing was happened except the aforesaid in her presence.

35. In crossexamination, this witness admitted that she had gone to the house of Puran Chand on 06.05.2015, where lot of people had already gathered and out of them, she specified the names of some of persons present there as Amar Nath, Anu, Santosh, Parveen and Ashwani etc. She admitted that in her presence, the mother of accused as well as accused had not used casteist remarks to the family of victim. She also admitted that in her presence the mother of the victim as well as victim had not disclosed about the sexual assault being committed by the accused with the victim. She also admitted that the accused had agreed to marry with the victim after attaining age of majority by her.

36. PW14 Swaroop Kumar stated that he was doing the work of cable network. He knew Puran Chand, who was his 21 uncle and his house was adjacent to his house. On 06.05.2015, he was in his house and accused alongwith his mother came to the house of his uncle and started quarrelling with his uncle and he also went there, where he saw that some villagers namely Santosh, Parveen, Amar, Ashwani etc. were also present. They were talking about the daughter of his uncle who had been teased and sexually exploited by accused. All the family members of his uncle were asking the accused about the aforesaid facts, but he did not reply. The mother of accused continued opposing their versions regarding the aforesaid facts and further threatened if her son would marry the daughter of her uncle, then she would disinherit her son from the property. His uncle was 'Chamaar' by caste and the accused was Chaudhary by caste, so the mother of accused threatened that if her son would marry the daughter of Chamaar, then she would administer poison to both of them. Thereafter the accused did not marry the daughter of his uncle.

37. In crossexamination, this witness admitted that prior to 06.05.2015, he had not heard that accused had ever teased the victim. He admitted that there were so many other houses nearby the house of Puran Chand. He did not lodge any complaint with the Panchayat regarding the occurrence of 06.05.2015. He denied that the mother of accused had not used 22 any caste based language. He denied that in his presence there was no talk that the accused had sexually exploited the victim.

38. PW2 Kanta Devi stated that she being ward member of Gram Panchayat, Andretta remained associated with the police during the investigation of this case. The police officials had come to her house and had also taken her with them. Smt. Rajni Devi Pradhan was also present there and the accused was also present with the police at that time. The accused had shown the place of occurrence to the police in her presence, but she did not remember as to how many places had been shown by the accused to the police in her presence.

39. This witness was declared hostile on the request of Ld. P.P. and crossexamined, but in her lengthy cross exami nation, nothing material could be extracted from her statement. In crossexamination, she admitted that Rajni Devi had also signed the memos in her presence in the police station. She admitted that she was not aware as to when the accused was arrested by the police and also did not remember as to where the aforesaid photographs had been clicked by the police. She admitted that these memos had not been read over to her by the police and she is illiterate.

Medical Evidence:

40. PW6 Dr. Preeti Sood had conducted the medical examination of victim and issued the MLC EX.PW6/D and her final opinion was PW6/G. In crossexamination, she denied that she had advised for radiological examination of the victim to know her dental age due to the developed sexual organs of the victim. She volunteered to state that it was their normal practice to get dental age determined in such like cases. She admitted that dental examination and radiologist report was done for determination of age of the victim. She admitted that when the I.0. had put up the case before her for final opinion, at that time the report of the radiologist regarding dental age of the victim, had not been produced before her. She denied that her opinion mentioned in MLC was not based on the scientific reasoning.

Formal/Link evidence:

41. The other witnesses examined in this case are to establish the link.

42. PW1, Constable Smt. Bobby, who had accompanied the victim to the hospital and also remained present at the time when her statement was recorded at Rest House, Palampur. In crossexamination, she stated that the victim was identified 24 by her mother before her. She denied that the victim was not ready for her Medical examination and she had been forced by her family members for her medical examination and videography. She denied that at the time of videography, she was neither present nor the statement of victim was recorded in her presence.

43. PW3, Parveen Kumar stated that he was doing the work of welding at Mirgan. When he was coming back from his work to his house at about 4:35 P.M. or 5:00 P.M. and reached near the house of Puran Chand, he saw some people standing in the courtyard of his house. There some talk was going on in between the accused and victim and he had neither gone to the house of Puran Chand nor heard anything there. This witness was not crossexamined.

44. PW4, Constable Sarwan Singh had deposited the case property at RFSL and handed over the RC to the MHC.

45. PW5, Constable Amit Kumar entered the application in the computer in order to generate the FIR and issued CIPA certificate EX.PW5/C.

46. PW10, HC Vipan Chand was MHC in Police Station, Palampur with whom the case property was deposited and he entered the same in the malkhana register and sent the same to RFSL, Dharamshala.

47. PW12, Mittar Dev was Tehsildar, who on the application of police Ext.PW12/A, called the report from the field agency which was Ext. PW12/B and on the basis of the report issued letter Ext. PW12/C. As per the record, the caste of the victim was 'Chamaar' which was scheduled caste as per notification issued by the Govt. of H.P.

48. PW13 Baldev Dutt, Dy.S.P. stated that Puran Chand moved an application Ext. PW5/A on the basis of which, FIR Ext. PW5/B came to be registered.

49. PW16, Smt. Bandana, Secretary of Gram Panchayat, Andretta had issued the birth certificate Ex.PW16/B and the copy of family register was Ex.PW16/A.

50. PW17, Dr. Jai Desh Rana had conducted medical examination of the accused and issued the MLC EX.PW17/A.

51. PW18, Inspector Gurbachan Singh had prepared the challan and filed the same in the court.

52. PW19, Vijay Sharma was Patwari and he had given the report to the Naib Tehsildar and his report was Ex.PW12/B. Investigating Officer:

53. PW15, Shri Navdeep Singh, Dy.S.P. had investigated the matter. According to him, the accused had committed the 26 offence. In crossexamination, he stated that before 10.05.2015, no statements of victim and her mother were recorded by the police. The victim was never called in the police station before 10.05.2015. He denied that during investigation the exact date of alleged sexual assault could not be verified. Selfstated, the victim had disclosed the exact date in her statement. He denied that the FIR in this case was antetime and antedate. He admitted that the statement of victim under Section 164 Cr.P.C. was not got recorded on 10.05.2015. He denied that the statements of victim under section 161 Cr.P.C. and 164 Cr.P.C. were the tutored versions. He denied that he had not carried out fair investigation and accused had been falsely implicated in this case. He denied that the victim and accused had not identified any spot to the police. He denied that he had recorded the statements of witnesses on his own.

This is the entire evidence of the case on record.

54. Adverting to the testimony of victim, it would be noticed that as per version putforth by her, the appellant committed sexual intercourse with her that too under the pretext of marriage, firstly, on 14.02.2014 and for the second time on 25.01.2015. But, on both the occasions, she never complained and rather it is the specific case that she talked about the incident only after her mother came to know after she 27 seized the mobile phone from the victim that had been given by the appellant to her. It has also come in the evidence that the family of the victim had tried to impress upon the appellant to marry their daughter and the appellant had not out rightly refused to marry her, but had stated that he would marry the victim after she attained the age of 18 years. The versions put forth by the victim and her mother regarding conflict of caste clearly appear to be an afterthought.

55. Going by the statement of the victim, she had never disclosed to the police that the appellant used to tease her on her way to school. She had further not disclosed to the police that the appellant had threatened her to do away with her life and to defame her in case she did not have sexual intercourse with him. She further admitted that she had not disclosed to the police in her statement that the appellant had brought 'dori' (thread) and 'sindhoor' (vermilion) from 'chela' and asked her to tie 'dori' around her waist and apply 'sindhoor' on her forehead. She admitted the letters Ext. DA1 and Ext. DA26 to have been written by her to the appellant and further volunteered to state that even the appellant had written letters to her. What is more important is the clear admission of the victim regarding the suggestion that the appellant had admitted that he would 28 marry her on attaining the age of 18 years, as would be evident from the following version:

"It is correct to suggest that the accused had admitted that he would marry me on my attaining age of 18 years."

56. From the aforesaid discussions, we find the testimony of the victim to be not trustworthy or credible so as to be considered as sterling witness. The sterling witness has to be of a very high quality and caliber, whose version should be unassailable and such statement ought to have been accepted on its face value without any hesitation. The witness has to be truthful and there would have been no reason for the victim to have come up with a false version as in the instant case.

57. Therefore, we would look for other evidence which may corroborate the evidence as has come on record.

58. Evidently, PW2 Kanta Devi, who was associated by the police during investigation, has not supported the prosecution case regarding the identification of the spot where the appellant is alleged to have committed sexual intercourse with the victim.

59. As regards PW9, Rajni Devi, who was Pradhan of Gram Panchayat, Andhretta, no doubt, she tried to support the case of the prosecution. But, then her testimony will have to 29 be taken with a pinch of salt as she happens to be belonging to the same community and caste as that of the victim. This assumes importance that when her testimony is considered along with the testimonies of the victim and her mother and statement of PW11 Kushma Devi @ Sunka, who clearly stated that on 06.05.2015 she was cutting grass in her field and upon hearing noise, she had gone to the courtyard of the father of the victim where lot of people had gathered and she saw mother of the victim giving her beatings and she had intervened in the matter and asked the mother of the victim why she was giving beatings to her daughter upon which victim disclosed that she wanted to marry with the appellant. On the same day, at about 5.006.00 p.m., she had again heard noise from the house of Puran Chand and thereafter went there to pacify the situation when the mother of the appellant disclosed that after attaining the age of majority by the victim she would be ready for the marriage of her son with the victim. She further stated that it was mother of the victim who told that due to nearness of place of residence, she was not ready to get her daughter married with the appellant and nothingelse had happened except the aforesaid in her presence.

60. Be it stated, this witness was not even declared hostile and upon crossexamination by the defence counsel, she 30 admitted that when she had gone to the house of Puran Chand on 06.05.2015, there were lot of people, who had already gathered there and named a few of them. She also admitted that in her presence mother of the appellant as well as appellant had not used any casteist remarks to the family of the victim. She further admitted that even in her presence, the mother of the victim as well as victim had not disclosed about sexual assault being committed by the appellant with the victim. Lastly, she admitted that the appellant had also agreed to marry the victim after attaining the age of majority.

61. Evidently, nothing has come on record to show that PW11 Kushma Devi was inimical to the victim or her family or that she was in any way related to the appellant or had any other reason to depose in favour of the appellant. Rather, her testimony appears to be truthful and is probable for this reason that at no stage she was turned hostile unlike PW2 and was further permitted to complete her testimony which casts a serious dent in the case of the prosecution.

62. It is in this background that one may have to fall back to the medical evidence which again is of no avail because the victim had alleged that the appellant had sexual intercourse with her on 14.02.2014 and thereafter for the second time on 25.01.2015. She was medically examined on 10.05.2015 and, 31 obviously then, there could be no signs of any recent sexual intercourse, yet, PW6 doctor Preeti Sood would give a stereo type opinion that "the possibility of sexual assault could not be ruled out".

63. Here, we need to observe that as per the statement of the victim, she had categorically stated that the appellant for the first time had sexual intercourse with her on 14.02.2014 at the place outside her cowshed which was situated at the back of their house and for the second time he had committed sexual intercourse with her on 25.01.2015. But, then she further deposed that when she refused for sexual intercourse with the appellant, he had been threatening her to defame her. He had also been threatening to kill her in case she refused to have sexual intercourse with him and also qualified that she had not told about it to anyone.

64. We really fail to understand that even as per the story of the victim herself, it was on two occasions that she had sexual intercourse with the appellant and she did not even term the same either to be forcible or without her consent. In case, the testimony of the victim is believed, then we see no reason why the victim should not have complained immediately to her parents and waited for more than 3½ months.

65. Importantly, the victim infact never complained to her parents and talked about the incident only after her parents came to know about the relationship. The silence of the victim in the given circumstances is something more than what meets the eye.

66. The further story of the victim as well as her mother Kaya Devi (PW8) that the appellant had given her 'dori' to tie around her waist and 'sindhoor' to apply on her forehead which made the victim to abuse them when she used to tie 'dori' around her waist and apply 'sindhoor' on her forehead and then they got treated her daughter from 'chela', is not at all worthy of credence. Afterall the Court cannot give credence much less uphold any theory of black magic as was sought to be putforth by the prosecution. Even for the sake of arguments if the versions of the victim and her mother are read, then there is no evidence led by them which may indicate how and by whom the victim was treated and who removed the 'dori' from her waist and 'sindhoor' from her forehead as stated by the victim (PW7) and PW8 Kaya Devi.

67. In absence of there being any material on record, save and except, bald statements of victim and her mother, regarding penetrative sexual assault with victim, which testimonies as observed are not fully reliable, it cannot be held 33 that the prosecution has proved its case beyond reasonable doubt, rather, the appellant is entitled to benefit of doubt.

68. Even assuming that it was the appellant, who refused to marry with the victim that too at a stage subsequent to the alleged incident, even the same cannot be a handle to incriminate the appellant on the charges clamped against him, particularly keeping in view the admitted previous relationship between the victim and the appellant. Any other interpretation would frustrate the purpose of the POCSO Act as well as the jurisprudence behind the Indian Penal Code and lead to unscrupulous abuse of the said statutes at the drop of a hat.

69. In view of the aforesaid discussions, impugned judgment and order of conviction and sentence passed by the learned Special Judge, which suffer from patent illegality and being legally unsustainable, are set aside. The appellant is acquitted of the charges framed against him after giving benefit of doubt in his favour. Consequently, the appellant, in the instant case, is ordered to be released immediately, if not required in any other case.

70. The Registry is directed to prepare release warrants of the appellant.

71. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of 34 Rs.25,000/ with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

72. The instant appeal is allowed in the aforesaid terms. Pending application(s), if any, also stands disposed of. Digitally signed by KHEM RAJ THAKUR (Tarlok Singh Chauhan)

KHEM DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=b3bb0330a36091c417dc6aa42212c1 Judge RAJ 4caec7825ba4158459325bd600d273f58b, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=6aa9db3b3e85e608387fb 6f0fa0bb2ddacd2e1b82f232ca3c0adea331d a33983, CN=KHEM RAJ THAKUR THAKUR Reason: I am approving this document Location:

Date: 2023-10-07 09:40:05 (Ranjan Sharma) 06.10.2023. Judge (krt)

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Himachal Pradesh High Court