Himachal Pradesh High Court
State Of Himachal Pradesh vs Sunil Kumar Thakur on 5 January, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M). No.2977 of 2023.
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Date of decision: 05.01.2024.
State of Himachal Pradesh .....Applicant/Appellant.
Versus
Sunil Kumar Thakur .....Respondent.
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
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Whether approved for reporting?1 No
For the Appellant : Mr. I.N. Mehta, Senior Additional
Advocate General with Mr. Navlesh
Verma, Ms. Sharmila Patial,
Additional Advocate Generals and
Mr. J.S.Guleria, Deputy Advocate
General.
For the Respondent : Nemo
Tarlok Singh Chauhan, Judge (Oral)
The respondent has been acquitted of the offences punishable under Sections 376, 354-D, 323, 506 of the Indian Penal Code, 1860, (for short 'IPC'), Sections 3(1)(w), 3(2)(v)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 67(A) of the Information Technology Act, 2000 and aggrieved thereby the State has filed the instant application for grant of leave to appeal.
2. The case of the prosecution as set out against the respondent in brief and chronologically is as under:
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 2 "(i). In the year 2019, the prosecutrix 'S' (PW-1) joined M.A. (Political Science) course at Central University .
Kangra (Dehra Campus), District Kangra, H.P. where she met the accused and became friends.
(ii) In the month of March 2021, the accused allegedly forcibly kissed the prosecutrix 'S' (PW-1) and took selfie with her when she was taking online class at Dehra of Campus.
(iii) The accused started establishing physical contacts with the prosecutrix 'S' (PW-1) against her wishes upon rt which she was compelled to block his Cell number.
(iv) The accused compelled the prosecutrix 'S' (PW-1) to unblock him by threatening to post her selfie online and thereafter, repeatedly compelled and forced her to exchange nude photographs and to make obscene video calls through Whatsapp during which he took screen shots.
(v) On 17.07.2021, the accused forcibly established physical relations with the prosecutrix 'S' (PW-1) by threatening her to make her obscene/nude photographs viral on internet in case she refuses to his sexual overtures.
(vi) On 20.07.2021, the accused physically assaulted and slapped the prosecutrix 'S' (PW-1) and also insulted and humiliated her by caste name by uttering "Tum Caste Walo Ko Padai Nahi Karni Chahiya, Hum Logo Ke Bistar Garam Karne Chahiye"
(vii) On 21.07.2021, the prosecutrix 'S' (PW-1) reported the incident dated 20.07.2021 at Police Station Dehra vide complaint Ex.P1/PW-1.::: Downloaded on - 08/01/2024 20:36:36 :::CIS 3
(viii) The accused was summoned by SHO Police Station Dehra, where he tendered apology and assured .
the prosecutrix 'S' (PW-1) not to establish any contact with her in any manner whatsoever.
(ix) The accused despite assurance did not refrain and repeatedly tried to establish contacts with her by threatening her to post her obscene/nude photographs of online and on social media platforms.
(x) The prosecutrix 'S' (PW-1) filed a complaint with the Police Station, BCS, New Shimla, District Shimla, H.P. rt where again the matter was compromised and the accused again assured not to establish contacts with the prosecutrix 'S' (PW-1) and also to delete her photographs from his Cell phone and other electronic gadgets.
(xi) The accused thereafter sent and shared the obscene and nude photographs of the prosecutrix 'S' (PW-1) with her family members and friends.
(xii) On 10.09.2021, the prosecutrix 'S' (PW-1) reported the matter at Women Police Station, (BCS) New Shimla, District Shimla, H.P. by filing complaint Ex.P2/PW-1.
(xiii) On 22.11.2021, the accused followed the prosecutrix 'S' (PW-1) to B.Ed College, Annadale, District Shimla, where he abused and slapped her.
(xiv) On 23.11.2021, the prosecutrix 'S' (PW-1) filed a complaint before the Superintendent of Police, Shimla regarding the incident dated 22.11.2021 which is Ex.P3/PW-1.
::: Downloaded on - 08/01/2024 20:36:36 :::CIS 4(xv) On 27.11.2021, the prosecutrix 'S' (PW-1) also filed online complaint with the Himachal Pradesh State .
Commission for Women which is Ex.P4/PW-1.
(xvi) On 29.11.2021, the prosecutrix 'S' (PW-1) filed a detailed complaint before the Superintendent of Police, Shimla Ex. P5/PW-1, on the basis of which F.I.R. No.22/2021 dated 01.12.2021 under Sections 376, 354- of D, 506, 323 of IPC, Sections 3(1)(w) and 3 (2)(v)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 67(A) of rt the Information Technology Act, 2000 was registered at Women Police Station, (BCS) New Shimla, District Shimla, H.P. which is Ex. P36/ PW-16."
3. The prosecution in order to establish the allegations of sexual harassment, sexual abuse, stalking, physical assault and criminal intimidation levelled against the respondent with respect to the incidents dated 17.07.2021, 21.07.2021 and 22.11.2021 heavily relied upon the evidence of the prosecutrix examined as PW-1, her father examined as PW-2, her cousin Monika examined as PW-3, her friends Raksha Kumari examined as PW-6, Tanuja Kashyap examined as PW-8 and Rohit Kumar examined as PW-9.
4. Adverting to the testimony of the prosecutrix, who appeared as PW-1 and in her deposition stated that she took admission in Central University, Dehra, Kangra, H.P. in July, 2019 and the respondent was her classmate. They were on good talking terms as they belonged to from same Tehsil.
::: Downloaded on - 08/01/2024 20:36:36 :::CIS 55. In the month of March, 2021, when the prosecutrix was attending online class at Library of Central University, the .
respondent came there and started teasing her. On this, she went to the adjoining room, but the respondent followed her and requested to take selfie with him and came close to her and kissed her and took photograph from his mobile phone. Thereupon, she started of crying and requested him to delete the photograph, but the respondent refused to do so and assured to delete the same later rt on.
6. On the next day, the respondent called the prosecutrix on cell phone and asked to make a video call and when she refused, then he told that he would upload the selfie on internet, therefore, she blocked his number.
7. Thereafter, the respondent started calling the friends of the prosecutrix Tanuja and Sangeeta by requesting them to ask her to talk to him. On this, she unblocked the cell number of the respondent. The respondent then called her and requested her to make video call and if she refused, he would send the photograph of taking kiss to her father, sister and brother. The respondent thereafter made video call and asked her to undress herself and to show her naked body and the respondent also told her that after seeing her naked body, he would never call her again. She got scared and out of fear of being defamed, she made a video call and ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 6 showed her naked body, but the respondent took the screen shot.
The respondent also passed the caste related aspersions and .
remarks against her by uttering "Tum Caste Walo Ko Padai Nahi Karni Chahiye, Hum Logo Ke Bistar Garam Karne Chahiye".
Thereafter, the prosecutrix got disturbed and went to Shimla to stay with her elder sister.
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8. The prosecutrix returned to Central University Dehra on 15.06.2021 for preparation of her exams. The respondent kept on rt calling her on the mobile phone and kept on blackmailing her that he would make her nude pictures viral.
9. The respondent went to village during vacation and on 16.07.2021, the prosecutrix's father gave him a carry bag to be handed over to her and the respondent asked her to come to his room to collect the same. When she reached outside the room, the respondent dragged her inside his room. She resisted, but the respondent showed her all the screen shots of her nude pictures and told her that he would send all these pictures to his friends and relatives and also make her nude pictures viral on internet. She requested him to delete her nude pictures, but the respondent forcibly made physical relations with her.
10. Thereafter, the prosecutrix left from the room and confined herself in the room for three days. On 20.07.2021, the respondent came to her room and physically assaulted her by ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 7 slapping her in the presence of her friends Tanuja and Sangeeta.
She fell unconscious and was taken to Civil Hospital Dehra.
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11. On 21.07.2021, the prosecutrix along with her friends went to Police Station Dehra and made a complaint against the respondent which is Ex.P1/PW-1. The respondent was called by the police where he apologized and touched her feet by saying that he of would never repeat this act in the future. The respondent refrained for few days and thereafter, he again called her.
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12. On 31.07.2021, the prosecutrix came to Shimla and started preparing for her B.Ed entrance examination which was scheduled to be held on 21.08.2021. The respondent during the said period kept calling her. The respondent had also sent her nude pictures to her elder sister and friend Raksha and to his co-villager Rohit.
13. On 22.08.2021, the prosecutrix came to Shimla and was confronted by her sister upon which she narrated the entire incident to her. However, they decided to ignore the respondent and to focus on their studies.
14. On 25.08.2021, the prosecutrix came to the Women Police Station, (BCS) New Shimla, District Shimla and filed a complaint against the respondent. He was called by the police where he apologized and deleted some of the nude photographs from his ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 8 Cell phone. The respondent later kept harassing her by making repeated phone calls, abusing and threatening her.
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15. On 20.09.2021, the prosecutrix made a complaint at Women Police Station, (BCS) New Shimla, District Shimla, H.P. which is Ex.P2/ PW-1.
16. On 22.11.2021, the prosecutrix went to Annadale, of Shimla to appear in NET/JRF examination, where the respondent met her and slapped her.
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17. On 23.11.2021, the prosecutrix went to the office of Superintendent of Police, Shimla and made a complaint against the respondent regarding eve teasing Ex.P3/PW-1. She also approached the Himachal Pradesh State Women Commission and made a complaint Ex.P4/PW-1 online against the respondent.
18. Finally, on 29.11.2021, the prosecutrix filed a detailed complaint against the respondent with the Superintendent of Police, Shimla which is Ex.P5/PW-1. She has further testified that the respondent was having 6-7 Cell phones and two laptops where he had kept her nude pictures. She also testified that pursuant to the lodging of the F.I.R., she remained associated during the course of the investigation.
19. It would be evidently clear from the statement made by the prosecutrix that she had lodged five complaints vide Exts.
P1/PW-1 to Ext. P5/PW-1 with effect from 21.07.2021 to 29.11.2021 ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 9 regarding the involvement of the respondent in sexual harassment, sexual abuse, physical assaults and threats.
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20. Now, adverting to each of the events chronologically.
We would notice that Ext.P1/PW-1 is a complaint dated 21.07.2021 which was filed by the prosecutrix regarding the incident dated 20.07.2021 when the respondent is alleged to have come to the of room of the prosecutrix and slapped her due to which she fell unconscious and suffered panic attack. The respondent also rt indulged in abusing and threatening her. However, it would be noticed that this complaint dated 21.07.2021 Ext. P1/PW-1 does not make a mention or disclose series of alleged events which according to the prosecutrix had taken place with effect from March, 2021 onwards i.e. incident pertaining to taking of kissing selfie, forcible exchange of nude video calls and taking screen shots and forcible sexual intercourse on 17.07.2021 at Dehra. This document refers to only to the allegations of abuses and slapping which is alleged to have taken place on 20.07.2021 and was in continuation to the incident dated 17.07.2021. In such circumstances, non-
mentioning of the incidents, as noticed above, casts a serious doubt on the version put-forth by the prosecutrix.
21. Now, adverting to the complaint dated 10.09.2021 which is Ext. P2/PW-1. This complaint was filed by the prosecutrix with the S.H.O., Women Police Station, B.C.S.,Shimla, mentioning therein ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 10 that the respondent had forcibly taken kissing selfie at Dehra which also refers to incident dated 20.07.2021 and also makes reference .
to the nude and obscene photographs taken in possession by the respondent and threats to post those photographs online and making them viral by the respondent. Noticeably, this complaint does not disclose series of other incidents qua sexual harassment, of exchange of nude video calls, taking screen shots of nude video calls and sexual abuse dated 17.07.2021.
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22. Exhibit P3/PW-1 is complaint dated 23.11.2021 that had been addressed to the Superintendent of Police, Shimla and pertains to the alleged incident dated 22.11.2021 on which date the respondent is alleged to have slapped the prosecutrix when she was on her way to B.Ed. College, Annadale, Shimla to appear in NET/JRF examination. Noticeably, the complaint is totally silent about other allegations which otherwise finds mention in Ext.
P1/PW-1 and Ext. P2/PW-1.
23. Adverting to fourth complaint Ext.P4/PW-1 dated 23.11.2021 which had been filed by the prosecutrix with the Himachal Pradesh State Commission for Women. The complaint refers to taking of selfie, incident dated 20.07.2021 and incident dated 22.11.2021. However, this complaint is conspicuously silent regarding other incidents of sexual harassment, blackmailing, ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 11 stalking, sexual abuse and exchange of nude video calls, as is otherwise claimed by the prosecutrix.
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24. Now, adverting to fifth complaint Ext.P5/PW-1 dated 29.11.2021 which had been filed by the prosecutrix with the Superintendent of Police, Shimla. The aforesaid document refers to all the alleged incidents that had taken place with effect from March, of 2021 till filing of the complaint Ext.P5/PW-1.
25. Thus, what can be summed up from the consideration rt of these documents which are in time-line is that they are selective in nature and do not contain all the allegations which otherwise find mention in Ext.P5/PW-1.
26. In this background, the question of delay would definitely crop up, as admittedly, the first incident which gave occasion to the prosecutrix to complain happened in March, 2021.
Yet, the prosecutrix did not report the matter to the police immediately. Here, it needs to be noticed that the prosecutrix in her cross-examination has categorically admitted that prior to complaint dated 10.09.2021 Ext. P2/PW-1, she never made mention of the allegations qua forcible taking of selfie by the respondent and making it viral. She also admitted that the allegations of caste remarks and aspersions do not find mention in the earlier complaints made to the police and unfortunately she does not even offer any plausible explanation in this regard.
::: Downloaded on - 08/01/2024 20:36:36 :::CIS 1227. As per the prosecutrix, her sexual harassment commenced after the respondent forcibly took kissing selfie in the .
month of March, 2021 when she was taking online class at Dehra.
The respondent is alleged to have started harassing and blackmailing the prosecutrix on the basis of the said selfie due to which she succumbed to his sexual desires and overtures. But, then of we notice that the prosecutrix has failed to bring on record the said photographs/selfie, which as per the case set up by the prosecutrix, rt was not only the main but the sole reason for her sexual harassment.
28. In such circumstances, the learned Special Judge has rightly concluded that in absence of these documents, the Court is not in a position to make an opinion that the said selfie was sufficient enough to prevail upon the respondent to succumb to the sexual desire and sexual overtures of the respondent which include the exchange of nude video calls and thereafter on Whatsapp and the respondent engaging in physical relationship with the prosecutrix.
29. As per the prosecutrix, Mark A-1 to Mark A-9 are the screen shots of Whatsapp, nude photographs and other pornographic material that were taken by the respondent and forwarded to her. However, a careful perusal of these documents reveals that the prosecutrix is not visible in these photographs.
Therefore, it cannot be held with certainty that these nude/obscene ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 13 photographs necessarily pertain to the prosecutrix. No doubt, the aforesaid documents are explicit and pornographic material, .
nonetheless, these photographs are not connected and cannot be connected with the prosecutrix.
30. Apart from above, none of these documents reflects the data regarding the cell phone from which chats were forwarded.
of Therefore, on the basis of these documents, no logical inference can be drawn that these documents pertain either to the prosecutrix or to rt the respondent. This assumes importance because the mobile numbers reflected in these documents are not those which were used by the respondent during the relevant period. Why we observe so is because as per the prosecution, the respondent was using cell numbers 70187-66077 and 98169-08846. But then, both these cell phone numbers are not reflected in these documents. Moreover, there is also no mention of the cell numbers of the prosecutrix i.e. cell numbers 86797-13213 and 70184-84580 that were being used by the prosecutrix during the relevant time.
31. Thus, what needs to be noticed is that it is not safe to rely upon the testimony of the prosecutrix, who by no standards, can be held to be a "sterling witness" and, therefore, the Court, in this background, would have to look for corroboration of the testimony of the prosecutrix.
::: Downloaded on - 08/01/2024 20:36:36 :::CIS 1432. For that, we would have to advert to the testimony of PW-6 Raksha Kumari, who was the course-mate of the prosecutrix .
and testified that in the month of August, 2021, the respondent had sent some obscene photographs on her Whatsapp which are Mark A-6, Mark A-7 and Mark A-12. But, then the version of this witness is not well corroborated since her cell phone was neither examined of nor these documents were found in her cell phone. Moreover, there is nothing in her evidence to ascertain that these documents pertain rt to the prosecutrix.
33. Now, the Court would turn to the testimony of PW-8 Tanuja Kashyap, who deposed regarding the incident dated 20.07.2021. However, the said incident is also not well corroborated for the reason that admittedly no medical examination of the prosecutrix was conducted on the date which could substantiate the allegations made by the prosecutrix, who was stated to have admitted in the hospital on the said date. No doubt, this witness also claimed that the respondent had slapped the prosecutrix in her presence on 22.11.2021, however, the aforesaid fact is also not well substantiated from the independent corroboration.
34. As regards, the other independent witness PW-9 Rohit Kumar, he testified that in the month of July/August, 2021, the respondent sent him nude photographs of the prosecutrix on his Whatsapp number. However, the screen shots Mark A-1 to Mark A-
::: Downloaded on - 08/01/2024 20:36:36 :::CIS 1519, as has already been discussed hereinabove, cannot be held to be pertaining to the prosecutrix and the same for this simple reason .
are of no assistance to the case of the prosecutrix, more particularly, when it has come in evidence that pursuant to receipt of the said photographs, PW-9 did not make any attempt to lodge a formal complaint to the police and disclose this incident to anyone-else.
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35. As regards, medical evidence, PW-14 doctor Para Ukkhal had conducted the medical examination of the prosecutrix on rt 02.12.2021 at D.D.U., Zonal Hospital, Shimla. As per her evidence and MLC Ext. P27/PW-14 and final opinion Ext. P28/PW-14, she opined that the possibility of sexual intercourse cannot be ruled out.
However, she deposed in her cross-examination that she cannot say with certainty as to whether the sexual assault had taken place or not and her final opinion is just a comment.
36. In such circumstances, the learned Special Judge has rightly concluded that the prosecution is inconclusive to ascertain whether the prosecutrix on 17.07.2021 was subjected to sexual intercourse by the respondent against her will.
37. In this background, it is the testimony of PW-26 Vijay Sharma that becomes relevant. The prosecutrix had filed five complaints against the respondent i.e. Ext.P1/PW-1 to P5/PW-5 out of which only complaint Ext. P5/PW-1 mentions that the prosecutrix was subjected to sexual intercourse by the respondent. He also ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 16 admitted that caste related aspersions and throwing of acid by the respondent find mention for the first time in the last complaint .
Ext.P5/PW-1. He also admitted that the documents Mark A-6, Mark A-7, Mark A-9, Mark A-15, Mark A-16 and Mark A-17 are of different mobile numbers and that he had not procured the CAF of these mobile numbers reflected in the screen shots. He also admitted that of the prosecutrix never disclosed in her complaint regarding mobile numbers on which Whatsapp message had been exchanged. As per rt the testimony of this witness, he did not recover obscene photographs of the prosecutrix from the cell phones of her friends and relatives which clearly discredits the testimonies of Raksha Devi (PW-6) and Rohit Kumar (PW-9) regarding receiving the obscene photographs/material on their Whatsapp from the respondent.
38. In the given facts and circumstances, it can be held that the prosecution has miserably failed to prove the offences punishable under Sections 376, 354-D, 506 and 323 of IPC.
39. Now, as regards the allegations under Sections 3(1) (w), 3(2)(v)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the prosecutrix appeared in the witness box as PW-1 and testified that the respondent passed caste related aspersions and remarks by uttering "Tum Caste Walo Ko Padai Nahi Karni Chahiye, Hum Logo Ke Bistar Garam Karne Chahiye". However, there is no material brought on record by the ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 17 prosecution as to when and whereunder, in which context and in whose presence, these remarks were passed by the respondent.
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This assumes importance when these allegations find mention only in the last complaint Ext. P5/PW-1 and have not been mentioned in any of the earlier complaints i.e. Ext.P1/PW-1 to P4/PW-1.
Furthermore, PW-26 Vijay Sharma, has also admitted that the of allegations regarding caste related aspersions and throwing of acid by the respondent were mentioned for the first time in the complaint rt Ext. P5/PW-1.
40. Thus, in these circumstances, the learned Special Judge has rightly concluded that these allegations are clearly an afterthought.
41. Since, the prosecution has failed to prove that the prosecutrix was subjected to forcible intercourse by the respondent on 17.07.2021, therefore, the charges under Section 3(1)(w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, becomes inconsequential. More importantly, there is no evidence led by the prosecution to infer that the alleged caste related aspersions and remarks were made by the respondent in any place within public view so as to make it an offence.
42. In coming to such conclusion, we are duly supported and fortified by the judgment of the Hon'ble Supreme Court in ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 18 Swaran Singh and others vs. State through Standing Counsel & Another, (2008) 8 SCC 435.
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43. Lastly, adverting to the offence punishable under Section 67 of the Information Technology Act, 2000. It needs to be noticed that the documents Mark A-1 to Mark A-19 do not necessarily prove that these screen shots pertain to the prosecutrix.
of Even though, these documents are alleged to have been transmitted and forwarded by the respondent to the family members and friends rt of the prosecutrix, however, as per the statement of the Investigating Officer (PW-26), no obscene/nude photographs were found in the cell phones of any of the friends and relatives of the prosecutrix. Not only this, the police during the course of the investigation had not seized the cell phone of Raksha Kumari (PW-6) and Rohit Kumar (PW-9) to be sent to the forensic examination in order to ascertain whether they received any obscene/pornographic material pertaining to the prosecutrix. Therefore, in absence of any proof that the respondent took screen shots during nude video Whatsapp calls stealthily and clandestinely and shared the same with the family members of the prosecutrix, the respondent cannot be convicted for the offence for which he has been charged.
44. Here, the evidence of PW-27 Dr. Akhilesh Kumar, Assistant Director, Physics, C.F.S.L, Chandigarh, becomes relevant ::: Downloaded on - 08/01/2024 20:36:36 :::CIS 19 when he did not retrieve any obscene data pertaining to the prosecutrix from cell phones Ext. M-1 and Ext. M-2.
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45. Thus, it can be conveniently held that the prosecution has failed to establish that the respondent transmitted/forwarded and shared the material containing sexual explicit material of the prosecutrix in an electronic form to her family members and friends.
of Accordingly, the allegation under Section 67(A) of the Information Technology Act, 2000, has also not been proved in the instant case.
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46. In view of the aforesaid findings, no case for grant of leave to appeal is made out. Consequently, the application for grant of leave to appeal is dismissed.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 5th January, 2024.
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