Himachal Pradesh High Court
Banti vs State Of H.P on 10 May, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 58 of 2021 Reserved on: 02.03.2023 Decided on: 10th May, 2023 .
Banti .......Appellant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice.
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.
For the appellant: Mr. Dheeraj K. Vashisth, Advocate.
For the respondent: Mr. Anup Rattan Advocate General with Mr. I.N. Mehta, Mr. Y.W. Chauhan, Sr. Addl. A.Gs and Mr. J.S. Guleria, Dy. A.G. Virender Singh, Judge Appellant Banti has filed the present appeal under Section 374 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.P.C.') against the judgment of conviction, dated 23.07.2020, and order of sentence, dated 25.07.2020, passed by the learned Special Judge, Kangra at Dharamshala, District Kangra, H.P. (hereinafter referred to as the 'learned trial Court').
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 22. By way of the judgment of conviction and order of sentence, as referred to hereinabove, the learned trial Court has convicted the appellant (hereinafter referred to as the .
'accused') for the commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act') and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/- and, in default of payment of fine, to further undergo rigorous imprisonment for a period of six months.
3. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up as under:-
3.1. The police of Police Station Haripur, District Kangra, H.P. has filed a report under Section 173(2) Cr.P.C against the accused disclosing the following facts:-
3.2. On 25.02.2018 the complainant (mother of the child victim) along-with her husband, the child victim and Ward Member appeared before the police and submitted a complaint, disclosing therein, that the accused, who happened to be the brother-in-law of the elder brother of her husband, came to their village on 25.02.2018 at about 12.00 in the noon. After taking meal in the house of the brother-in-law ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 3 of the complainant, the accused had also consumed liquor.
Thereafter, accused came to the house of the complainant and requested her to provide space as he wanted to sleep, .
upon which, the complainant permitted the accused to sleep in her room. According to the complainant, accused took the child victim towards the shop and after two hours, he had left her on the gate of the house of her brother-in-law. Thereafter, the complainant brought back her daughter (child victim) and thereafter, the child victim slept at her house. After some time, when the child victim woke up and had gone to respond the call of nature, then, she started weeping. On inquiry, the child victim disclosed that she is feeling pain, while urinating, in her private part, upon which, complainant checked the 'Pajama' of the child victim and noticed blood. Thereafter, she also noticed swelling on her private part. Lastly, she has apprehended that the accused has committed some wrong with the child victim, as such, a request has been made to take action against the accused.
4. The age of the child victim, at the relevant time, was about 3½ years.
5. Upon this, the police registered the FIR and criminal machinery swung into motion. The child victim was then taken ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 4 to Civil Hospital, Dehra, where, she was medico legally examined by a lady doctor and thereafter, the child victim was also sent to RPGMC, Tanda for her examination by a .
Gynaecologist.
6. On 26.2.2018, accused was associated in the investigation of this case and was arrested. He was also medically examined.
7. During the investigation of the case, the child victim, as well as, her mother were produced before the Court, however, the statement of the complainant could only be recorded. The statement of one of the witnesses was also got recorded, under Section 164 Cr.P.C by producing the said witness before the learned ACJM, Dehra.
8. Since the child victim was not in a position to give statement, as such, she was produced before the Psychiatrist, where the doctor opined as under:-
"Keeping in view the age of the child victim, she is not able to give any statement."
9. On the basis of the documents collected by the I.O. regarding the date of birth of the child victim, her date of birth was found to be 09.05.2014.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 510. After receiving the report of the FSL, the police has filed the challan under Sections 376 IPC and Section 4 and 6 of the POCSO Act.
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11. Learned trial Court, after considering the report, under Section 173(2) Cr.P.C., as well as, the documents annexed therewith, found a prima-facie case for the commission of offences punishable under Section 6 of the POCSO Act and Section 376 IPC and charge-sheeted the accused accordingly, vide order dated 19.02.2019.
12. When the charges, so framed, were put to the accused, he has pleaded not guilty and claimed to be tried.
13. Since the accused has not pleaded guilty, as such, the prosecution has been directed to adduce evidence to substantiate the charge so framed against the accused.
Consequently, the prosecution has examined as many as 27 witnesses.
14. After closure of the evidence of the prosecution, the entire incriminating evidence appearing against the accused was put to him in his statement recorded under Section 313 Cr.P.C.
15. The accused has denied the entire prosecution case and took the defence of animosity with the complainant.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 616. However, when opportunity to lead evidence, was accorded to him, he has not opted to lead any evidence in his defence.
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17. Thereafter, the learned trial Court, after hearing the learned Public Prosecutor, as well as, the learned defence Counsel, has convicted the accused and sentenced him as mentioned above.
18. Feeling aggrieved from the said judgment of conviction and order of sentence, the accused has preferred the present appeal before this Court, on the ground, that the learned trial Court has passed the judgment of conviction and order of sentence on the basis of surmises and conjectures.
19. According to the appellant, the prosecution could not prove the charges framed against him beyond any reasonable doubt. The learned trial Court has wrongly accepted the oral, as well as, documentary evidence of the prosecution. The learned trial Court has not considered the material contradictions, in the statements of the witnesses and the improvements, so made by the prosecution witnesses, have simply been ignored by the learned trial Court. The inadmissible evidence has been considered by the learned trial Court.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 720. On the basis of above facts, Mr. Dheeraj K. Vashisth, Advocate appearing for the accused has prayed that the appeal may kindly be accepted and the impugned .
judgment of conviction and order of sentence may kindly be set aside, by allowing the appeal. It has also been prayed that the accused be acquitted of the charges, for which, he has been charge-sheeted by the learned trial Court.
21. Per contra, Mr. Anup Rattan, learned Advocate General, appearing for the respondent-State, has supported the judgment of conviction and order of sentence, on the ground that keeping in view the evidence, so adduced by the prosecution, the learned trial Court has rightly convicted the accused for the offences, for which, he has been charge-
sheeted by the learned trial Court.
22. In order to decide the present appeal, it would be apt for this Court to discuss the oral, as well as, documentary evidence adduced by the prosecution before the learned trial Court.
23. As referred above, the prosecution, in this case, has examined as many as 27 witnesses.
24. The criminal machinery, in this case, was put into motion by PW-1, who is mother of the child victim. While ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 8 appearing in the witness box as PW-1, this witness has given the age of the child victim as 5 years, as on 01.04.2019.
According to her, on 25.02.2018, she, along-with her mother-in-
.
law, was at her home. The child victim as well as her brother was also at home since it was Sunday, as such, both the children were playing in the courtyard. Her husband was not at home. At about 11.00 a.m., accused came to their house on motor cycle. House of the brother-in-law of the complainant was also adjacent to her house. Accused came there and sat in the 'verandha'. This witness served water to him. Thereafter, accused had gone to the house of her sister (sister-in-law of this witness). Thereafter, the accused along-
with brother-in-law of the complainant had gone to market on motor cycle for purchasing liquor. They returned back at 1.00 p.m. Thereafter, accused came to the house of PW-1 and her brother-in-law had gone to his house.
25. Thereafter, according to her, accused expressed his desire to sleep, upon which, PW-1 requested him to sleep inside the room, however, accused insisted upon PW-1 to send the child victim to sleep with him in that room. Upon this, this witness stated that the child victim is not in the habit of sleeping during day time. However, the accused took her ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 9 inside the room. Thereafter, this witness brought the child victim out of the room. Her mother-in-law was also present, who had witnessed all this. The accused, thereafter, told this .
witness that he is maternal uncle of the child victim and lifted the child victim in his lap and sat on the chair. After sometime, the accused left the child victim and had gone to the house of his sister. After sometime, the daughter of the sister-in-law of this witness aged about 6 years, also came to their house and started playing with other children. After sometime, the child victim along-with daughter of the brother-in-law of this witness had gone to her house.
26. Accused also had gone to the said house and slept there on the cot. At about 2.00 p.m., accused took the child victim on his motorcycle towards Haripur side. This witness along-with other relatives had searched the child victim, but, she was not found there. At about 4.00 p.m the accused came back and left the child victim near the gate of the house of brother-in-law of this witness. Thereafter, the child victim was brought back to her house and on being asked, the child victim has disclosed nothing. However, the child victim by sign had indicated that she wanted to sleep.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 1027. She has further deposed that after some time, the child victim asked for the food. This witness served her food and after some time, child victim had indicated by sign that .
she wanted to urinate. Thereafter, the child victim started crying by saying that she is feeling pain while urinating.
Thereafter, PW-1 took her inside and noticed blood on her 'Pajama'. However, she had washed the same and she had also noticed swelling on her private part. Her husband returned back home at about 5.00 p.m. Then this witness disclosed these facts to him and thereafter, her husband called the Ward Panch. The Ward Panch, after hearing the entire facts, advised them to report the matter to the police.
28. Thereafter, at about 7.00 p.m. PW-1 along-with her husband, child victim and Ward Panch reached at Police Station where she has moved an application, Ext.PW-1/A, and narrated the incident to the Police.
29. Thereafter, the child victim was got medico legally examined at Civil Hospital, Dehra. On 27.02.2018, this witness, along-with child victim was taken to the Court at Dehra, where her statement Ext. PW-1/B was recorded. The police also visited their house.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 1130. In the cross-examination by learned defence counsel, this witness has shown her ignorance as to who had written application Ext. PW-1/A. She has admitted that the .
contents of application Ext. PW-1/A were neither read over nor explained to her. The police had recorded her statement thrice, which she had signed. Before taking this witness to the Court for making statement, the police called them thrice to the police station. Her husband and the child victim were also with her, at that time. She has denied that thereafter, she has deposed as was tutored by the police to her. She has admitted that child victim is not dumb. The child victim used to talk to her as well as with the children, but, not with strangers. The doctor has not questioned the child victim nor recorded her statement. The accused used to come to the house of the sister-in-law of this witness, but, not to the house of this witness.
31. Learned defence Counsel has successfully confronted this witness with regard to the improvements made by her, in the statement recorded, under Section 161 Cr.P.C that 4-5 houses are situated near their house, but no-one was questioned by the police in presence of this witness. Rest of ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 12 the suggestions, which were put to her by the learned defence counsel, had been denied by her.
32. The child victim was also produced before the .
Court as PW-2, but despite efforts made by the learned Special Judge, her statement could not be recorded. In view of the request made by learned Public Prosecutor, the child victim was discharged on 01.04.2019 by the learned Special Judge. The learned Public Prosecutor has requested the Court to take the help of trained Clinical Psychologist, Zonal Hospital, Dharamshala.
33. The Clinical Psychologist has been examined by the prosecution as PW-27 and according to her deposition, despite holding counseling sessions with the child victim, she is unable to communicate. Lastly, this witness has deposed that the child victim is not able to re-collect the happening after lapse of more than 1½ years.
34. PW-3 Parkasho Devi is the grand-mother of the child victim. She has appeared in the witness box on 01.04.2019. According to her, about one year ago, at 10.00 a.m., accused came to their house and sat on her cot.
Thereafter, the accused sat on the chair by lifting the child victim and make her to sit in his lap. Thereafter, the accused ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 13 went inside the room of the father of the child victim and asked that the child victim be also sent inside the room to make her sleep with him, upon which, the accused has been .
apprised that the child victim is not in the habit of sleeping during day time. Thereafter, the accused went to the house of his brother-in-law. The child victim also went to the house of brother-in-law of the accused, while she was playing with other children. After some time, accused took the child victim on his motor cycle towards Haripur. The child victim was searched, but, she was found after three hours. The accused left the child victim near the gate of the house of his brother-
in-law and accused, thereafter had gone away from there on the pretext that some accident had taken place and he had to go there. The accused also took his helmet from the house of his brother-in-law and left the place. Thereafter, PW-1 inquired from the child victim and disclosed to this witness that she had noticed the blood on the 'Pajama' of the child victim.
Lastly, she had deposed that the accused had taken away the child victim and must have done something due to which there was blood on her 'Pajama'.
35. In the cross-examination, this witness has admitted that she had not gone to the police, rather the police came to ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 14 their house. Police had not questioned her about this case.
The father of the child victim was not having any dispute with his brother. However, according to this witness, they were not .
in visiting terms and the accused came to their house, for the first time. Village Gokharu was situated at a short distance from their house and Haripur is about two miles from their house. Rest of the suggestions, which were put to her by the learned defence counsel, have been denied by her.
36. The prosecution has also examined the cousin sister of the child victim as PW-4. This witness has deposed that the accused is her maternal uncle. About one year ago, accused came to the house of her uncle at about 11.00 a.m. on motor cycle. PW-1 served water to him. Thereafter, he came to the house of this witness and thereafter, the accused along-with father of this witness, had gone to Bazar. They returned back to their house and the accused consumed liquor there.
Thereafter, he had gone to the house of PW-1. According to this witness, she and the child victim were playing in the courtyard of the house of PW-1. The accused directed them to go as he wants to sleep with the child victim. The accused, thereafter, took the child victim inside the room, but PW-1 brought her back. Thereafter, the accused took the child ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 15 victim on his motor cycle on the pretext of purchasing sweets.
The family members, thereafter searched for the child victim and at about 4.30 p.m. accused met her near Rani-Da-Mahal .
and told that he has gone mad. At that time, brother of this witness was also with this witness. The accused, thereafter directed this witness and her brother to sit on the motor cycle and the child victim was made to sit on the front of the motor cycle. Thereafter, the accused took them near one curve and asked the brother of this witness to alight from the motor cycle and asked this witness to accompany him on the motor cycle, but, this witness has refused. Thereafter, the accused brought them back to their house and himself gone away on his motor cycle. Thereafter, the police came to their house and statement of this witness was recorded, upon which, she has appended her signature encircled red. This witness was also taken to the Court at Dehra, where, her statement was recorded, which she has proved as Ext. Pw-4/B.
37. In cross-examination, this witness has stated that she had gone to Dehra, Police Station and thereafter was produced before the Court at Dehra for making statement.
According to her further deposition, she had not signed any paper at Police Station, Dehra. At the time of recording of the ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 16 statement of this witness by Lady Constable, at her home, about three other police officials were there. The statement was recorded by the police in the courtyard. The Lady .
Constable, who recorded her statement, was wearing simple clothes, whereas, the other police officials were in uniform.
Learned defence Counsel has successfully confronted this witness with the improvements made by her in her statement recorded by the police as well as in the statement recorded under Section 164 Cr.P.C.
38. PW-5 Laxmi Devi was the Ward Member of the village. According to her deposition, her house is situated at some distance from the houses of the child victim and her paternal uncle. On 25.02.2018, accused came to their house at 11.00 a.m. on his motor cycle. Thereafter, this witness has gone to the house of her relatives in the village and returned back after 6.00 p.m. Thereafter, the mother of the child victim informed her that accused had taken away the child victim and the child victim was sleeping, upon which, this witness has gone there. After sometime, the child victim woke up and gone for urination. This witness along-with PW-1 had noticed blood on the 'Pajami' of the child victim and took her inside the room and noticed swelling on her private part. PW-1 ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 17 disclosed this fact to this witness that the accused has taken away the child victim on a bike to Mahewan Bassa around 11.00 a.m. and left near the gate of her brother-in-law at .
about 4.00 p.m. Thereafter, PW-1 along-with this witness, husband of PW-1 and child victim had gone to the police station, where application Ext. PW-1/A was moved, upon which, FIR against the accused has been registered. On 26.02.2018, police came to their village and accused was in police custody and he had disclosed to the police that he had taken the child victim towards the boulders and had committed wrong act. She has further deposed that the police clicked the photographs and also prepared the spot map.
39. In the cross-examination, this witness has admitted that prior to 26.02.2018, the police had not come to their village along-with the accused. The place, which had allegedly been identified by the accused, is situated at a distance of about 30 minutes journey from the village of this witness. Police came to the village in the official vehicle and in the presence of this witness, but no statement of the accused was recorded by the police. Learned defence Counsel successfully confronted this witness regarding the ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 18 improvements made by this witness with regard to the fact that she had checked the clothes of the child victim and examined her personally.
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40. PW-6 Smt. Raj Kumari deposed that on 25.02.2018, when she was present at house, then, she has noticed accused riding on the bike with child victim at about 4.30 p.m. They were moving towards Guard Khana. The mother of the child victim is known to this witness. She has further deposed that PW-1 along-with her mother-in-law (PW-3) were on the road and saying that the child victim was taken away on the bike. On the same evening, this witness came to know that the bike rider had committed wrong act with the child victim. She has admitted that the house of PW-1 is situated at a distance of five minutes walk from the house of this witness. According to her, only child victim was sitting on the bike. She has feigned her ignorance by saying that she does not remember that any other child was sitting on the bike or not.
41. PW-7 Sharif Kumar is the real brother of the accused. According to him, he is the registered owner of motor cycle bearing No. HP-83-4189. On 24.02.2018, this witness had gone to the college in the bus and, as such, left the bike and key of the motorcycle at his house. When, ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 19 returned back, he had not found his motorcycle at his house.
When he inquired from his mother, then she disclosed that the bike has been taken away by the accused in order to go to .
the house of his relatives. The police has visited house of this witness on 25.02.2018 during evening time and taken away the accused. On 27.02.2018, this witness handed over the bike and its keys along-with copy of RC and insurance, which were taken into possession by the police vide seizure memo Ext. PW-
7/A.
42. PW-9 Karam Chand, at the relevant time, was the Secretary of Gram Panchayat, Haripur. On 27.02.2018, on the application moved by the police Ext. PW-9/A, he has issued the birth certificate of the child victim Ext.PW-9/B and abstract of the birth and death register Ext. PW-9/C. According to him, the date of birth of the child victim is 09.05.2014.
43. PW-10 Rakesh Kumar is the Secretary of Gram Panchayat, Mehewa and has issued the copy of Parivar register of PW-3, which is Ext. PW10/B. As per parivar register, date of birth of the child victim is 09.05.2014.
44. PW-11 Shilpa Chaudhary, Staff Nurse, PHC, Haripur has proved the fact that the date of birth of the child victim is ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 20 09.05.2014, as per register of birth information maintained in the PHC.
45. PW-15 LC Meenakshi took the child victim to CHC, .
Dehra for her medico legal examination on 25.02.2018. After medical examination, the Medical Officer had handed over five sealed parcels along-with MLC to this witness, which she had deposited with MHC, Police Station, Haripur.
46. PW-16 LC Sudershana Kumari took the case property, which was given to her by MHC Ajay Kumar, on 28.02.2018 and she had deposited the same with RFSL, Dharamshala. RC was again handed over to the MHC.
47. PW-17 C. Dilbag Singh brought back the case property along-with the report from RFSL, Dharamshala on 25.04.2018 and handed over the same to MHC, PS, Haripur.
48. PW-18 MHC Ajay Kumar deposed about the manner, in which, the case property was deposited with him and was further transmitted to RFSL, Dharamshala. According to him, on 25.02.2018, on the basis of application Ext. PW-1/A, FIR Ext. PW18/A was registered. On 26.02.2018, LC Meenakshi deposited five sealed parcels brought by her from CH, Dehra.
The said case property was entered in Malkhana register at Serial No. 216, the abstract of which is Ext. PW-18/B. On ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 21 26.02.2018, C. Ramit Chauhan, deposited three sealed parcels brought by him from CHC, Haripur, which, this witness has entered in the Malkhana register, at Serial No. 217, the .
abstract of which is Ext. PW-18/C. On 28.02.2018, the case property deposited with this witness by LC Sudershana and C. Ramit Chauhan was sent to RFSL, Dharamshala vide RC No. 24/18, the copy of which is Ext. PW-18/D. On 25.04.2018, the case property was brought back by C. Dilbag Singh. On 03.05.2018, vide RC No. 42/21 Ext. PW-18/E the case property was sent to SFSL, Junga for DNA profiling through C. Rakesh Kumar.
49. PW-19 C. Ramit Chauhan took the accused, for medico legal examination, to CHC, Haripur. The physical evidence was collected by the Medical Officer, which was handed over to him and he has deposited the same with MHC, Police Station, Haripur.
50. PW-20 C. Rakesh Kumar took the case property, which was handed over to him, by MHC on 03.05.2018 vide RC No. 42/21, Ex. PW-18/E and deposited the same with SFSL, Junga.
51. PW-21 S.I. Trilochan Singh prepared the supplementary challan after receipt of DNA report Ext. PW-8/D ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 22 on 10.01.2019. This witness has explained, in the cross-
examination, as to why the statement of the child victim was not recorded under Section 161 or 164 Cr.P.C., by stating that .
this fact has been recorded in the report, under Section 173(2) Cr.P.C., that the child victim was too young. However, this witness has not made efforts to record the statement of the child victim with the help of Psychiatrist.
52. PW-22 C. Dinesh Kumar brought back the case property from FSL, Junga on 03.01.2019.
53. PW-23 Sheetal Sharma, the then, Additional Chief Judicial Magistrate, Dehra deposed that on 11.05.2018, police moved an application, Ext. PW-23/A, for recording the statement of the child victim, however, keeping in view the age of the child victim, the same could not be recorded, on the same day. PW-4 was produced before this witness by the police for the purpose of recording his statement, under Section 164 Cr.P.C. Consequently, this witness has recorded the statement of the PW-4 Ext. PW-4/B and this witness has passed the order Ext. PW-23/D.
54. In the cross-examination, this witness has admitted that she had not inquired from PW-4 as to how many times, she had been called in the police station, prior to her being ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 23 produced before this witness. This witness further deposed that she might have inquired as to why witness has been produced before the Court after a gap of about two months and eight .
days for recording her statement. According to her, she does not remember that any reason has been assigned by the I.O.
in this regard or not.
55. PW-8, PW-12, PW-13 and PW-14 are the doctors who have been examined by the prosecution to prove the manner, in which, the medical examination of the child victim, as well as, accused was conducted and the physical evidence, which was collected by them, was sent to the laboratory for analysis.
56. PW-8 Dr. Harmanjeet Kaur was posted as Medical Officer, Civil Hospital, Dehra. On 25.02.2019, on the application of the police Ext. PW-8/A, she has examined the child victim, aged about 3½ years, who was brought with the alleged history of rape. No history was given by the child victim, however, her mother disclosed that the child victim was complaining of pain over the genital region. Her mother had observed small blood spot over her 'Pajama' and swelling over genitalia. Her mother had washed her 'Pajama' with soap and water and changed the clothes of the child victim.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 24On local examination, this witness noticed wetness, as well as, tears present over sides of uretheral opening on libia minora.
When, she obtained swabs, minimum bleed was present. This .
witness had referred the child victim for expert opinion of Gynaecologist. She has proved the MLC Ext. PW-8/B. According to her, possibility of sexual intercourse cannot be ruled out, however, she had deferred her final opinion. On the request of police, she has answered the queries, which were reproduced as under:-
Query No. 1: Yes, tears present on both sides of uretheral opening is possible by sexual assault.
Query No.2: Probable duration of tears around uretheral opening mentioned is less then 24 hours.
Query No.3: Yes, intact hymen suggest that he did not penetrate his penis in vagina.
57. On 08.01.2019, police also produced the SFSL report Ext. PW-8/D and after perusing the DNA report, she has asserted that her final opinion remains the same, as mentioned in the MLC. She has expressed her inability to opine whether injuries No. 1 and 2 can be caused if the child is made to sit on the front portion of the bike, as shown in the photograph and the bike is plied on a kachha road in a high speed. She qualified her statement by stating that she had noticed wetness around the vaginal area. According to her, such ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 25 injuries cannot occur simply by sitting on a bike. She has further admitted that she had answered the queries on 16.05.2018, on the reverse of the MLC and at that time, reports .
of RFSL and SFSL were not shown to her. She has admitted that the child victim was not referred to Psychiatrist, but to the Gynaecologist. Lastly, she has admitted at the time of medical examination, no foreign material was found.
58. PW-12 Dr. (Major) Sukhjit Singh, Professor and Head Department of Psychiatry, Dr. RPGMC, Tanda had examined the child victim, on the application of police Ext. PW12/A on 21.05.2018. As per opinion given by this witness, child victim was delivered normally at full term. She cried immediately after birth. She had normal development mile stones according to age. The child victim was being sent to Anganwari Centre regularly, from where, she was brought back after few hours by her mother. On observations, this witness found the child victim to be cooperative, but shy. He has further deposed that the child victim was examined by the Child Psychologist and found to have IQ75 (borderline). This witness had issued the psychiatric opinion Ext. PW-12/B. The said certificate was issued by this witness by holding only one sitting.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 2659. PW-13 Dr. Parima, at the relevant time, was posted as Gynaecologist, Department of OBG, Dr. RPGMC, Tanda.
On 26.02.2018, the child victim was referred to this witness by .
the Medical Officer, Civil Hospital, Dehra for Gynaecological examination and the following statement has been made by this witness:-
1. The general condition of the patient was fair.
2. Pulse 102 per min.
On per abdomen examination:- Abdomen was soft and bladder seemed full. After asking to pass the urine by mother, patient passed urine.
On Local examination:- There were no external injuries over the body. Tears were present on both the sides of urethral opening. No bleeding was present at the time of examination. Hymen seem intact and patient was already taking syrup Ibugesic plus. I advised Betadine ointment for local application. In this regard, I had given my opinion Ex.PW13/A, within red circle, on the reverse page of MLC Ex.PW8/B."
60. On 16.05.2018, this witness had given her opinion on the request of the police, vide letter Ext. PW-13/B. She has answered those queries as under:-
Answer to query No.1: Yes, tears present on both sides of urethral opening is possible by sexual assault.
Answer to query No.2: Probable duration of tears around urethral opening mentioned is less then 24 hours.
Answer to query No.3: Hymen was intact which suggests that he did not penetrate his penis in vagina/ urethra.::: Downloaded on - 10/05/2023 20:45:51 :::CIS 27
61. In the cross-examination, this witness has denied the suggestions that the tear injuries noted in the opinion Ext.
P W-13/A cannot be caused, if a child sits on the front portion .
of the bike and the bike is driven at a very fast speed on the 'kachha' road. Lastly, she has volunteered that it is very rare, if any injury can be caused.
62. PW-14 Dr. Sanjay Bajaj had examined the accused on 26.02.2018. On examination, no mark of injury was found on external genitalia or any other part of his body by him. As per opinion of this witness, there was nothing to suggest that the accused was incapable of performing sexual intercourse.
63. PW-26 Dr. Vivek Sahajpal Assistant Director, DNA Division has proved the DNA report. This witness had received three sealed parcels in the DNA Division on 04.05.2018. The description of the same has been mentioned by him as under:-
Description of Parcels/Exhibits Parcel-3: One sealed brown envelope bearing six seals of CH Dehra (SUB. DIV. HOSP. DEHRA) The parcel contained exhibit-3.
Exhibit-3: One FTA card bearing a brownish stain. The exhibit was stated to be blood sample of Monika on FTA card.
Parcel-5: One sealed parcel bearing four seals of Biology and Serology Division, RFSL, Dharamshala. The parcel contained exhibit-5a to exhibit-5g. Exhibit-5a One yellow coloured, striped shirt having few, small light brownish stains near elbow region of right arm. There were few other large brownish stains present on the shirt & these are likely ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 28 from the leakage of blood sample of accused that was packed along with garments of accused. The exhibit was stated to be shirt of Banti.
Exhibit-5b: One dirty white sleeveless vest. The exhibit was .
stated to be vest of Banti.
Exhibit-5c: One brown coloured pants, having a small brownish stain on back side of right leg near knee region. One another large stain was also visible on the upper back region, and was likely from the leakage of blood sample of accused that was packed along with the garments of accused. The exhibit was stated to be pants of Banti.
Exhibit-5d: One brown coloured underwear. The exhibit was stated to be underwear of Banti.
Exhibit-5e: One brown coloured sleeveless sweater. The exhibit was stated to be sweater of Banti. Exhibit-5f. One plastic bottle containing a black hair like strand. The exhibit was stated to be pubic hair of Banti.
Exhibit-5g: One glass vial containing little amount of brownish putrefied liquid. The exhibit was stated to be blood sample of Banti.
Parcel-6: One sealed brown envelope bearing six seals of GM. The parcel contained exhibit-6 & sample of seal.
Exhibit-6: One FTA card bearing a brownish stain., The exhibit was stated to be blood sample of Banti on FTA card.
He has proved his report Ext. PW-8/D.
64. PW-27 Dr. Jyoti, Clinical Psychologist had conducted counseling sessions with the child victim. She has deposed that the child victim was not able to recollect the happening after lapse of more than 1½ years on 16.10.2019.
65. PW-24 and PW-25 are the Investigating Officers of the case. PW-24 had registered the FIR on the receipt of application Ext. PW-1/A. Thereafter, the child victim was sent ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 29 for medico legal examination at CHC, Dehra, by moving application Ext. PW-8/A. On 26.02.2018, the accused was arrested and sent for medical examination.
.
66. In the cross-examination, this witness has admitted that he had not recorded the statement of the child victim or her parents. This witness has also not inquired from the mother as to who had written the application Ext. PW-1/A. As per this witness, the contents of the application were not read over to the complainant, but has qualified his statement by stating that the application was brought by the complainant herself.
This witness has admitted that the child victim was not produced before the Magistrate from 25.02.2018 till 13.03.2018.
67. PW-25 SI Kushal Kumar deposed that the file was handed over to him on 27.02.2018 for investigation. He has seized the motorcycle No. HP-83-4189, vide seizure memo Ext.
PW-7/A. By moving application Ext. PW-9/A, the birth certificate of the child victim was obtained. The statement of PW-4 was videographed by producing her before the Magistrate and proved the DVD Ext. PW-25/A-3. On 27.02.2018, this witness moved the application Ext. PW-25/B for recording statement of the child victim, as well as, her mother, under Section 164 Cr.P.C. The statement of the complainant ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 30 was recorded under Section 164 Cr.P.C., however, the statement of the child victim could not be recorded.
68. In cross examination, this witness has stated that he .
has not sent the child victim to the Psychiatrist. This witness had recorded the statement of PW-4 on 28.02.2018. As per further statement of this witness, the statement of PW-3 was probably recorded by him on 28.02.2018. He has issued certificate under Section 65-B of the Evidence Act. Rest of the suggestions were denied by him.
69. This is the entire evidence adduced by the prosecution in this case.
70. Learned trial Court has convicted the accused mainly on the ground that there appears no reason for the mother of the child victim to falsely implicate the accused as, the victim was only 3½ years old, at the time of alleged crime.
71. Learned trial Court has also given the weightage to the testimony of PW-4, which, she has made under Section 164 Cr.P.C. The evidence of PW-8 Dr. Harmanjeet Kaur has also been made the ground for convicting the accused.
72. The rape is a legal term not the medical term. As such, before accepting the testimony of the doctors, which fall under the definition of the "expert witnesses", it is for the ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 31 Court to see whether the substantial evidence adduced by the prosecution inspires confidence or having a ring of truth in it.
.
73. The accused in this case, has been charge-
sheeted, for the offence punishable under Section 6 of the POCSO Act. Special statute i.e. POCSO Act, has, no doubt, put certain obligations upon the accused by way of provisions of Sections 29 and 30 of the POCSO Act, but merely that the case has been registered under the POCSO Act, does not result into the obligation of the accused to rebut the presumption of the above two sections. Before calling upon the accused to rebut the presumption, the prosecution has to prove the case against the accused beyond shadow of doubt.
74. Since stringent punishment has been proved under the POCSO Act, as such, the legislature, in its wisdom, has enacted Sections 29 and 30 of the POCSO Act by putting reverse onus on the accused to prove his innocence. The initial burden to prove the guilt of the accused beyond any shadow of doubt shall always be upon the prosecution.
75. In this case, the criminal machinery has been put into motion by the mother of the child victim, on 25.02.2018, by ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 32 moving a complaint Ext. PW-1/A. The accused is stated to have visited the house of the brother-in-law of the complainant PW-1 on 25.02.2018 at about 11.00 a.m. After .
taking meals, according to PW-1, he came to the house of the complainant and requested her to provide room, as he wanted to sleep, upon which, PW-1 allegedly requested him to sleep in her room. PW-1 has got mentioned in Ext. PW-1/A that the accused requested her to send the child victim to sleep with him in the room, upon which, PW-1 has told him that the child victim does not want to sleep. Thereafter, accused allegedly took the child victim towards the shop and left her after two hours. The child victim, thereafter, had gone to sleep. When she woke-up and had gone to respond to the call of nature, then, she started weeping. Upon inquiry, she had disclosed to PW-1 that she is feeling pain in her private part.
According to PW-1, she noticed blood on her 'Pajama' and on local examination, this witness noticed swelling on the private part of the child victim.
76. On the basis of above facts, the complainant has prayed to the police to take action, as, she is having suspicion that the accused has committed wrong act with the child victim. The FIR is on record as Ext. PW-18/A. As per this ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 33 document, the intimation regarding the alleged incident was received on 25.02.2018 at about 10.25 p.m. After two days of the alleged incident, PW-1 has made a statement before the .
learned Additional Child Judicial Magistrate, Dehra under Section 164 Cr.P.C., in which, she has added the sentence that the accused has forcibly made the child victim to sleep with him, but PW-1 had taken away the child victim from there. She has further got recorded that the accused again made the child victim to sleep with him and she again had taken away the child victim from there. Thereafter, the accused woke-up and sat on the chair and the child victim thereafter had gone with her grand-mother and started playing. Thereafter, the accused told the child victim to come to him, as, he is her 'mama'. Thereafter, the child victim had gone to the house of sister-in-law of this witness. Thereafter, accused also went to the house of the sister-in-law of PW-1 and slept there.
77. According to her further deposition made before the police, after sometime, the accused took the child victim on the bike and thereafter, all of them had started searching for the child victim and after two hours, the accused was found at Paret. Thereafter, he brought back the child victim ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 34 on bike and left her on the gate. When the child victim was left by the accused on the gate of the house of PW-1, then, she took her inside and offered her water. PW-1 had provided .
food to her. After taking food, the child victim became normal and after sometime, she has requested to PW-1 to go to washroom. Thereafter, she has started weeping and with signs, she has told PW-1 that she is feeling pain in her private part. When this witness checked her 'Pajama', then she noticed blood. On examination of the private part of the child victim, she noticed swelling. Thereafter, she has washed her 'Pajama'. Thereafter, she apprised the matter to her husband and thereafter the matter was reported to the police by this witness, as well as, her husband.
78. When FIR was lodged, at that time, her husband was also with her. Perusal of the list of witnesses, annexed with the report, under Section 173(2) Cr.P.C., shows that the police has not bothered to associate husband of PW-1 (father of the child victim) as witness, in this case. Although, there is no requirement that the father of the child victim should always be associated in such type of cases, but, when, he was with the complainant, who had put the criminal machinery into motion, then, non-associating him or not recording his ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 35 statement, is a question which, although, does not go to the roots of the case, but, creates a doubt about it.
79. The complainant, when appeared in the witness .
box as PW-1, on 01.04.2019, after a gap of about one year and two months, has again changed her version by deposing that the accused came to the house of her sister-in-law at about 11.00 a.m. on motorcycle. He came to her and sat in the 'verandha', upon which, she had served water to him.
Thereafter, the accused had gone to the house of his sister-in-
law (i.e. sister of the accused). Thereafter, the accused, according to her, had gone to market along-with her 'Jeth' Dharam Chand on bike to purchase liquor and returned back at about 1.00 p.m, whereas, in the initial statement made to the police, PW-1 has deposed that the accused reached there at about 12.00 in the noon and had meals in the house of her brother-in-law and also consumed liquor. In the statement on oath as PW-1, she has not stated that the accused had consumed liquor in their village/house.
According to her, when the accused returned around 1.00 p.m., he came to her house and her 'Jeth' had gone to his own house. Thereafter, the accused told him that he wanted to sleep, upon which, she has requested him to sleep inside ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 36 the room. The statement made on oath is altogether contrary to the initial statement made to the police Ext. PW-1/A, as well as, the statement recorded under Section 164 Cr.P.C Ext. PW-
.
1/B. In the statement recorded under Section 164 Cr.P.C, she has no-where stated that her brother-in-law had also gone to take liquor. PW-1 has not deposed about the fact that the accused took the child victim twice inside the room on the pretext of making her to sleep with him.
80. PW-1 has also changed her version qua the manner, in which, the accused had allegedly taken away the child victim. In the complaint Ext. PW-1/A, she has got recorded that the accused took the child victim towards the shop of one Monika and left her after about two hours, whereas, in the statement under Section 164 Cr.P.C., she has changed her version by deposing that the accused thereafter took the child victim on bike and all of them thereafter started searching for the child victim. Such material aspect of the case has not been deposed by her, when she had put criminal machinery into motion by moving complaint Ext. PW-
1/A. In her statement on oath, she has deposed that at about 2.00 p.m., accused took the child victim towards Haripur and thereafter, they had searched for him, but he was not found ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 37 there and at about 4.00 p.m., the accused returned back and left the child victim near the gate of the house of her brother-
in-law.
.
81. Although, parrot like version is not expected from the witnesses, keeping in view the low legal literacy of the Indian masses, however, this fact is also not liable to be ignored that PW-1 has changed her version, at different stages of the investigation, including the trial, but, when the version, which has been given in complaint Ext. PW-1/A is altogether different from the statement recorded, under Section 164 Cr.P.C, whereas, when she has appeared in the witness box as PW-1, she has put forward altogether different story. Thus, her testimony is required to be scrutinized with extra care and caution.
82. Learned counsel appearing for the appellant-
accused has rightly pointed out about the fact that things had not happened on the spot, as deposed by PW-1, as, she herself has admitted that she cannot say as to who had written the complaint Ext. PW-1/A. The said complaint Ext. PW-
1/A was allegedly given by her to the police in the police station. The said complaint has not been read over nor explained to this witness. The improvements per-se, are not ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 38 liable to be considered as adverse to the case of the prosecution, but, when learned defence counsel has specifically put those improvements to this witness for being .
explained by her and she is not able to explain those improvements, then, those improvements are not liable to be ignored, while considering the evidence of the prosecution.
83. Learned defence counsel has successfully confronted the witness about the improvements made by this witness, qua the fact, that the accused took the child victim near the gate, at about 4.00 p.m., as well as, the child victim had gone to the house of sister-in-law of this witness and the fact that the accused along-with her brother-in-law (Jeth) had gone to the market to take liquor.
84. It has rightly been argued by learned counsel for the appellant that the evidence of PW-1, qua the fact that child victim has disclosed to her that she is feeling pain in her private part, is not liable to be accepted, as PW-1, in her complaint to the police Ext. PW-1/A, has, no doubt, mentioned this fact that when she has made a statement before the learned Additional Chief Judicial Magistrate, Dehra, under Section 154 Cr.P.C., she has introduced another story by deposing that the child victim had started weeping and with ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 39 signs told that she is feeling pain in her private part, whereas, PW-1, when appeared in the witness box, has deposed that the child victim, after some time, indicated that she wanted to .
urinate. Thereafter, she had started crying, as she was having pain while urinating. Perusal of the record shows that the child victim was also produced before the learned ACJM, Dehra for recording her statement under Section 164 Cr.P.C. The then ACJM, Dehra has appeared as PW-23 in the witness box. She has deposed that the child victim was very small and was unable to speak any words, except 'Mumma' and 'Papa'.
The child victim was also produced before the learned trial Court for recording her statement. She was produced before the learned trial Court on 01.04.2019. When Court questions were put to her, she was not able to respond to any of the Court questions. At that time, her age has been mentioned as 5 years. As per observations recorded by the learned trial Court, despite the best efforts by the learned Special Judge, she could not utter anything. As per observations of the learned trial Court, the child victim was referred to Clinical Psychiatrist. The prosecution has examined Dr. (Major) Sukhjit Singh, Professor & Head Department of Psychiatry, Dr. RPGMC, Tanda. The IQ of the child victim was found to be 75%, which, ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 40 according to this witness, was borderline. It has specifically been deposed by PW-12 that due to her tender age, the child victim was not able to give any statement.
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85. PW-27 Jyoti Sharma, Clinical Psychologist, ZH, Dharamshala has made attempts to counsel the child victim and due to her efforts, the child victim was able to communicate with her, but, according to her final deposition, the child victim was unable to recollect the happening after a lapse of more than 1½ years.
86. All the above facts, have been highlighted by this Court, with a view to demonstrate that in the present case, it cannot be expected from a small child, like the child victim, to depose about the incident which had allegedly taken place with her, what to talk about deposing against the accused.
The entire prosecution case rests upon the deposition of mother, grand-mother and cousin sister of the child victim. The accused is stated to be the real brother of the 'Jethani' of PW-1. Neither the said 'Jethani', as well as, her husband who is real uncle (Taya) of the child victim has been mentioned as witness in the report under Section 173(2) Cr.P.C., nor any explanation has been put forwarded by the prosecution for not citing them as witnesses. As per deposition of PW-3, the ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 41 accused had visited the house of her sister for the first time.
Considering the relationship of the witnesses with the child victim, as well as, with the accused, the Court has to take .
extra care and caution before relying upon the testimonies of above witnesses to endorse the view of learned trial Court to convict the accused in this case.
87. The Hon'ble Apex Court in case titled as Munshi Prasad and others vs. State of Bihar, AIR 2001 SCC 3031 has held that extra care and caution has to be adopted while considering the evidence of the interested witnesses. The relevant portion of para 27 of the judgment is reproduced as under:-
"ii) A complaint focussed that except the interested witnesses none else from the nearby residential areas have been examined - this is so: It is the quality of the evidence and not the quantity, which is required. The crux of the issue being has the prosecution been able to bring home the charges with the evidence available on record - if the evidence on record is otherwise satisfactory in nature and can be ascribed to be trustworthy, an increase in number of witnesses cannot be termed to be a requirement for the case. The two independent witnesses have also been grouped in the group of interested witnesses, which is neither acceptable nor worthy of acceptance and in any event the same does not have the support from the ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 42 available records. Apart there from PWs. 1, 2 and 3, they may be related to each other but that does not mean and imply total rejection of the evidence:
interested they may be but in the event they are so - it .
is the predominant duty of Court to be more careful in the matter of scrutiny of the evidence of these interested witnesses and it on such a scrutiny it is found that the evidence on record is otherwise trustworthy, question of rejection of the same on the ground of being interested witnesses would not arise. As noticed above, it is the totality of the evidence, which matters and if the same creates a confidence of acceptably of such an evidence, question of rejection on being ascribed as 'interested witness' would not be justifiable."
88. The Hon'ble Apex Court in case titled as Pulicherla Nagaraju alias Nagaraja Reddy vs. State of A.P. (2006) 11 SCC 444 has discussed about the evidentiary value of the witnesses, who are closely related to the victim. The relevant para 16 of the judgment is reproduced as under:-
"16. In this case, we find that the trial court had rejected the evidence of PW-1 and PW-2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 43 escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected.
.
Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. [vide Hari Obula Reddi v. State of Andhra Pradesh 1981 (3) SCC 675, Ashok Kumar Pandey vs. State of Delhi 2002 (4) SCC 76 and Bijoy Singh vs. State of Bihar 2002 (9) SCC 147]. Nothing had been elicited in the cross-examination of PW-1 and PW-2 to discredit their evidence. Their evidence finds corroboration in Ex.P-1 and the evidence of the Doctors (PW-11 and PW-12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PW-1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by re-
appreciating the evidence and reaching independent conclusions."
89. The Hon'ble Apex Court has taken a similar view in case titled as Ramanand Yadav vs. Prabhu Nath Jha and others (2003) 12 SCC 606. The relevant para 15 of the judgment is reproduced as under:-
"15. So far as non-examination of Lambodar and two others is concerned it is established by the evidence on record that the village was a faction ridden one. In some cases persons may not like to come and depose ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 44 as witnesses and in some other cases the prosecution may carry the impression that their evidence would not help it as there is likelihood of partisan approach so far as one of the parties is concerned. In such a case mere .
non examination would not effect the prosecution version. But at the same time if the relatives or interested witnesses are examined, the Court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused foundation for the same has to be laid. If the materials show that there is partisan approach, as indicated above the Court has to analyse the evidence with care and caution. Additionally, the accused persons have always the option of examining the left out persons as defence witnesses."
90. The Hon'ble Apex Court in case titled as Thoti Manohar vs. State of Andhra Pradesh (2012) 7 SCC 723 has discussed the manner, in which, the evidence of the close relatives, in a trial, is to be considered . The relevant para 36 of the judgment is reproduced as under:-
"36. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh[6], while dealing with the liability of interested witnesses who are relatives, a two- Judge Bench observed that:
"16...it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 45 partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible. The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the .
innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon.
"16....If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted."
91. Another star witness, who is none other than the grand-mother of the child victim and mother-in-law of PW-1, while appearing in the witness box as PW-3, has stated that the accused at about 10.00 a.m. came to their house and sat on the cot. Thereafter, he picked up the child victim and made her to sit in his lap. Thereafter, the accused went inside the room of Deep Raj and asked that the child victim be also sent inside the room, upon which, it has been apprised to the accused that the child victim is not in the habit of sleeping during day time. Thereafter, he had gone to the house of Dharam Chand. The child victim also went there and after some time, the accused took her towards Gokharu/Haripur side. The child victim was searched, but she was not found.
After three hours, she was left near the gate and the accused ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 46 left the spot by saying that some accident had taken place and he had to go there. The accused had also left his helmet in the house of Dharam Chand. Thereafter, this witness .
inquired from the child victim and then she has narrated the facts to this witness that she had seen the blood on the 'pajami' of the child victim. Lastly, she has deposed that the accused must have done something due to which 'there was blood on her 'pajami'.
92. As per cross-examination of this witness, she had not gone to the Police Station, rather the police had come to their house. Her son (father of the child victim) is not having any dispute with his brother. According to her further deposition, accused came to their house for the first time. The deposition of this witness is not natural as it is highly improbable that a person, who is visiting their house for the first time, has been permitted to take the child victim out of the custody of her parents, that too, for a substantive period of three hours. It is highly improbable that the eldest member of the family has permitted the stranger to take the child victim away from their custody. This witness remained silent about the factual position, which has been narrated by PW-1 qua the fact that the accused and the son of this witness had gone to Bazaar to ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 47 take liquor and then accused had expressed his desire to sleep upon which, PW-1 had permitted him to sleep in her room. Extending such type of hospitality to a person, who has .
visited their house for the first time, seems to be not natural, keeping in view the conservative nature of the families in our country.
93. The prosecution has also examined real niece of the accused as PW-4 and according to her at about 11.00 a.m., accused came to the house of PW-1, where the water was served to him. Thereafter, he came to the house of PW-4 and then had gone to the market. Thereafter, they had returned back and accused thereafter had taken the liquor.
The accused allegedly directed PW-4 to go, as he wanted to sleep with the child victim. The accused allegedly took the child victim inside the room, but she was taken away by PW-1.
She has further deposed that the accused thereafter took the child victim on his motorcycle on the pretext of purchasing sweets. The version of this witness is not natural as no sane woman will permit any person, who has consumed liquor, to take away the child of tender age of about 3½ years. There is no explanation as to how PW-4 reached at Rani-ka-Mahal ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 48 along-with her brother who was also directed by the accused to sit on the motorcycle.
94. When, there are contradictions in their statements .
regarding the material aspects of the case, then, the Court has to take extra care and caution to scrutinize their statements.
95. The statement of PW-5, who is a Ward Member, is also not confidence inspiring as her version, though not contrary to PW-1, but the same is quite different, as she has deposed that when she was called by PW-1, then, she and PW-1 had noticed blood on the 'Pajami' of the child victim.
Thereafter, both of them noticed swelling on her private part, whereas PW-1 has not stated that when she had noticed blood on the 'pajami' of the child victim, PW-5 was also present there. It is her statement that after noticing blood, she had washed the 'pajami'. The over cautious attempt of PW-5 also assumes significance, in this case, as, on the advice of this witness, PW-1 has decided to report the matter. The learned trial Court, in the present case, has placed much reliance on the testimony of witnesses, whose statements have been discussed above. Merely the child victim is of the tender age of 3½ years, does not mean that whatsoever version given by ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 49 witness, is to be accepted as gospel truth. The duty of this Court is to ascertain and find the truth from the deposition of the prosecution witnesses.
.
96. In this case, the only independent witness is PW-5.
Her evidence, in the considered opinion of this Court, is not liable to be accepted, as, she has adopted an over cautious approach. According to PW-1, she has called PW-5 after 5.00 p.m, when her husband returned back. According to PW-1, when PW-5 came, she was apprised about the whole facts, then she advised to report the matter to the police. PW-1 has no-where stated that she and PW-1 took the child victim inside the house and noticed swelling over her private part. Her over cautious approach is sufficient to take out the testimony of this witness from the definition of 'reliable witness'. Another contradiction has rightly been pointed out by learned counsel for the accused in this case that statement of PW-6 is contrary to the statement of PW-4. As per PW-4, she along-with her brother sat on the motorcycle of the accused, as per his direction, whereas, according to PW-6, she has seen only one child sitting on the motorcycle of the accused. In such situation, no reliance can be placed upon the testimony of PW-4 and PW-6.
::: Downloaded on - 10/05/2023 20:45:51 :::CIS 5097. Now, coming to the medical evidence, which has heavily been relied upon by the learned trial Court, while deciding the culpability of the accused. PW-8 has medico .
legally examined the child victim on 25.02.2019. The perusal of MLC Ext. PW-8/B shows that the child victim was examined at 11.45 p.m. No doubt, this witness has deposed about her opinion, in which, she has asserted that "possibility of sexual intercourse cannot be ruled-out". The relevant portion of the testimony of PW-8 is reproduced as under:-
"The patient was referred for expert opinion of Gynaecologist. I issued the MLC Ex.PW8/B. As per my opinion possibility of sexual intercourse cannot be ruled out. However, I reserved my final opinion. On the request of the police, received vide letter No.1976/5A, dated 16.5.2018, I answered the queries No.1 to 3 in the back of the MLC, which are as follows:-
Query No.1: Yes, tears present on both sides of uretheral opening is possible by sexual assault.
Query No.2: Probable duration of tears around uretheral opening mentioned is less then 24 hours. Query No.3: Yes, intact hymen suggest that he did not penetrate his penis in vagina."
98. The aforesaid statement of PW-8, if seen in the light of authoritative text of Modi's Medical Jurisprudence & Toxicology 22nd Edition, then, the said opinion, without any ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 51 corroborative piece of evidence, is not liable to be taken into consideration. The relevant portion of the authoritative text of Modi's Medical Jurisprudence & Toxicology 22nd Edition, at .
page 495, is reproduced as under:-
"Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to be the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."
99. If the statement of doctor, who has conducted the medico legally examination of the child victim is seen in the light of authoritative text of Modi's Medical Jurisprudence & Toxicology, then the sole statement of doctor is not sufficient to convict the accused, for which, he has been charge-
sheeted in this case.
100. The cumulative effect of the above discussion is that this Court is unable to concur with the conclusion drawn by the learned trial Court, convicting the accused for the offence, for which, he has been charge-sheeted.
101. Accordingly, the appeal is allowed, by setting aside the impugned judgment of conviction. The accused, ::: Downloaded on - 10/05/2023 20:45:51 :::CIS 52 who is in judicial custody, is ordered to be released forthwith, if not required in any other case.
102. The accused is directed to furnish bail bonds in the .
sum of Rs. 50,000/-, with one surety in the like amount, to the satisfaction of learned Registrar (Judicial), as per provisions of Section 437A Cr.P.C. The bail bonds, so furnished, shall remain in force only for a period of six months from the date of the execution of such bonds.
103. Records be sent back.
( Tarlok Singh Chauhan )
Acting Chief Justice
May 10, 2023 ( Virender Singh )
(naveen) Judge
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