Himachal Pradesh High Court
O.P. Chopra vs State Of Himachal Pradesh on 25 July, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal Nos. 25/2015 & 59/2015
Reserved on: July, 21, 2016.
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Decided on: July 25, 2016.
1. Cr. Appeal No. 25 of 2015.
O.P. Chopra ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
2. Cr. Appeal No. 59 of 2015.
Vijay Kumar ......Appellant.
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Versus
State of Himachal Pradesh .......Respondent.
Coram rt
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellants: Mr. Satyen Vaidya Sr. Advocate, with Mr. Vivek Sharma,
Advocate for appellant in Cr. Appeal No. 25/2015.
Mr. Anoop Chitkara, Advocate with Mr. Sat Parkash,
Advocate for appellant in Cr. Appeal No. 59/2015.
For the respondent: Mr. Parmod Thakur, Addl. AG.
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Justice Rajiv Sharma, J.
Since both these appeals are instituted against the same judgment dated 3.1.2015, the same were taken up together and are being disposed of by a common judgment.
2. Cr. Appeal No. 25 of 2015 and Cr. Appeal No. 59 of 2015 have been instituted against the judgment dated 3.1.2015, rendered by the learned Sessions Judge, Chamba, H.P. in Sessions Trial No. 73 of 2013, whereby appellants Vijay Kumar and O.P. Chopra were convicted and sentenced as under:
"Convict Vijay Kumar is sentenced to undergo simple imprisonment for five years and to pay fine of Rs. 20,000/- and in default thereof to further undergo simple ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 2 imprisonment for three months, under section 10 of Protection of Children from Sexual Offences Act, 2012; Convict Vijay Kumar is also sentenced to undergo simple .
imprisonment for one year and to pay fine of Rs. 5,000/- and in default thereof to further undergo simple imprisonment for one month, under Section 354 IPC;
Convict Vijay Kumar is also sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 1000/-
and in default thereof to further undergo simple imprisonment for 15 days, under section 506 IPC."
All the sentences were ordered to run concurrently.
of "Convict O.P. Chopra is sentenced to undergo simple imprisonment for three months and to pay fine of Rs. 5,000/- and in default thereof to further undergo simple imprisonment for one month, under section 21(2) of rt Protection of Children from Sexual Offences Act, 2012;""
2. The case of the prosecution, in a nut shell, is that on 3.10.2013 at about 1:20 PM, victim (name withheld) along with her mother and Pradhan visited PP Bakloh and made report that on 1.10.2013 at about 11:30 AM, she along with her class mates was attending the lecture of English being delivered by her teacher Shruti.
Her teacher Shruti started coughing and she brought water from the room of accused Vijay Kumar in a glass. Shruti told her to leave the glass in the room from where it was brought. The victim went to leave the glass in the room of accused Vijay Kumar. As soon as she kept the glass, accused Vijay Kumar got up and closed the door. He caught hold of her from arms and put her lips in his mouth and started sucking. He also started moving his hands on her cheeks and pressed her breasts. She got scared and got herself released from the clutches of accused with great difficulty and ran towards her class and disclosed the incident to her teacher ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 3 Shruti, who advised her to disclose the incident to her parents. She went to her house and disclosed the incident to her mother. On the same day, .
at about 8:00 PM, accused Vijay Kumar along with accused O.P. Chopra came to her house and threatened her not to disclose this incident to anyone in presence of Davinder Basnet who was present in her house at that time. It is, in these circumstances, she could not lodge the report on of 1st and 2nd October, 2013. FIR was registered and the statements of the witnesses were recorded. The birth certificate of the prosecutrix was obtained. She was minor. She was student of 10+1 class. Accused Vijay rt Kumar has confined her wrongly and outraged her modesty. Accused O.P. Chopra did not inform the parents about the occurrence. On completion of the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 13 witnesses. The accused were also examined under Section 313 Cr.P.C. They have denied the prosecution case and pleaded innocence. The learned trial Court convicted both the accused, as noticed hereinabove.
4. Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma Advocate and Mr. Anoop Chitkara Advocate with Mr. Sat Prakash, Advocate for the respective accused have vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Parmod Thakur, learned Addl. Advocate General, for the State has supported the judgment of the learned trial Court dated 3.1.2015.
::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 45. I have heard learned counsel for both the sides and gone through the judgment and records of the case minutely.
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6. PW-1, prosecutrix (name withheld) deposed that she was studying in 10+1 class in Govt. Sr. Secondary School, Kakira. On 1.10.2013 at about 11:30 AM their English period was running and Shruti madam was delivering lecture. In the meantime, Shruti madam of started coughing and she went to bring water for her from the room of accused Vijay Kumar, who was Superintendent of the school. When she was bringing water for her teacher, she was seen by the peon of the rt school, namely, Sumitra. She gave water to her teacher and went inside the room to keep empty glass. Accused Vijay Kumar, all of a sudden, got up and closed the door of the room and caught her and started sucking her lips. He also started moving hands on her cheek. He also pressed her breasts. With great difficulty, she got herself released from the clutches of the accused. She went to Shruti madam and disclosed the incident to her parents. After leaving the school, she went to her home and disclosed the incident to her mother. At about 8:00 PM, accused Vijay Kumar and accused O.P. Chopra, Principal came to her house. Accused Vijay Kumar told her to patch up the matter. Principal O. P. Chopra did not say anything nor he threatened her to patch up the matter. She was declared hostile and cross-examined by the learned Public Prosecutor. In her cross-examination by the learned Public Prosecutor, she deposed that accused Vijay Kumar had threatened her and her family not to disclose the incident to anybody. Her statement was recorded under Section 164 ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 5 Cr.P.C. They were terrorized, thus they could not lodge the FIR immediately and it was lodged on 3.10.2013. In her cross-examination by .
the learned defence counsel, she deposed that the school building was two storied. There were four Peons in the school, namely, Sumitra, Nanak, Jaiwanti and Dumnu Ram. In her class room, more than hundred students were studying. She was student of Arts. She has also of narrated the incident to her class-mates. Her house was situated 2-3 kms. from the school. Police Post was 2-3 kms from her house. She narrated the incident to her mother at 3:30 or 3:45 PM. All the family rt members were present in the house at that time.
7. PW-2 Suman Rani testified that the prosecutrix was her daughter. She was studying in 10+1 class in Govt. Sr. Secondary School, Kakira. On 1.10.2013, her daughter had gone to the school and she returned home at 3:30 PM. On reaching home, she started weeping and told that when her teacher started coughing, she went to bring water from the room of accused Vijay Kumar. When she again went to put empty glass in his room, he caught hold of her from arms and put her lips in his mouth and started sucking. He also started moving his hands on her cheeks and pressed her breasts. On that day, in the evening, accused Vijay Kumar and accused O.P. Chopra came to their house and requested to patch up the matter. Accused O.P. Chopra had not threatened not to disclose this incident to anyone. She was declared hostile and cross-
examined by the learned Public Prosecutor. In her cross-examination by the learned Public Prosecutor, she denied that accused O.P. Chopra had ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 6 threatened them with dire consequences. In her cross-examination by the learned defence counsel, she deposed that when the incident was .
narrated to her by her daughter, aunt of her daughter also came to their house. She also narrated the incident to her husband. Police Post was at a distance of 2 kms. from their house. They went to PP Bakloh at 1:30 PM on 3.10.2013. Her statement was recorded on the same day.
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8. PW-3 Saroj Bala deposed that she was posted as lecturer in Govt. Sr. Secondary School, Kakira. She was associated by the police in the investigation. On 17.10.2013, the police moved an application Ext.
rt PW-3/A for obtaining the certificate of prosecutrix whether she was student of 10+ 1 class or not. Accordingly, she issued certificate Ext. PW-
3/B. She also issued attested copy of office staff attendance register Ext.
PW-3/D.
9. PW-4 Shruti is a material witness. She deposed that at 10:00 AM on 1.10.2013, she was delivering lecture of English to 10+1 class.
She started coughing and the prosecutrix brought water. After drinking water, she put the glass on the table and then she completed her lecture and went to NSS room situated in the ground floor. While she was preparing the lecture of next class, the prosecutrix came to her and at that time she was perplexed. On asking, she disclosed to her that she had gone to the office of Superintendent Grade-II to put the empty glass back. When she was putting the glass in the room, accused Vijay Kumar tried to kiss her. She was declared hostile and cross-examined by the learned Public Prosecutor. In her cross-examination by the learned ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 7 Public Prosecutor, she denied that the prosecutrix disclosed to the police that when she went to put the glass in the room, accused Vijay Kumar .
closed the door and caught hold of her from her arms and touched her cheeks and thereafter kissed on her lips. She also denied that the prosecutrix also disclosed that the accused had pressed her breasts. In her cross-examination by the learned defence counsel, she deposed that of she did not personally complain to the Principal or some higher officer about the incident.
10. PW-5 Davinder Singh deposed that on 1.10.2013 at around rt 7-8 PM, he was present in the house of Suman, wife of Ganesh. At that time, both the accused came there and accused Vijay Kumar threatened the prosecutrix and her mother that prosecutrix should not come to the school. The prosecutrix also disclosed to him that accused Vijay Kumar had bolted the room from inside when she went to his room and kissed her. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he deposed that accused O.P. Chopra had not threatened the prosecutrix and her family members in his presence. In his cross-examination by the learned defence counsel, he deposed that both the accused remained in the house of the prosecutrix for about 45 minutes. One Kuldeep was also present.
11. PW-10 HC Raj Pal deposed that on 3.10.2013 at about 1:20 PM, prosecutrix along with her mother and Sandeepa Gurang came to the Police Post and complained against the accused. On the basis of the ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 8 statement given by the prosecutrix, report Ext. PW-1/A was registered.
He sent this report to PS Chowari through LC Sapna for registration of the .
case. He recorded the statements of prosecutrix, her mother and Sandeepa Gurang, Pradhan as per their version. In his cross-
examination, he deposed that he has not recorded the statement of Sumitra, who met him in the school on that date. Sumitra remained with of him for about half an hour. Sumitra had shown the rooms of Superintendent and Principal. The table of Superintendent was at a distance of 5-6 feet from the main entrance.
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12. PW-11 Aman Dogra, had issued birth certificate Ext. PW-
11/B. He also issued copy of pariwar register Ext. PW-11/C.
13. PW-12 Sandeepa Gurang deposed that she was Pradhan of Gram Panchayat Chalama. On 2.10.2013, meeting of Gram Sabha was going on in the Panchayat at about 2:00 PM, mother of prosecutrix came to her and told that on 1.10.2013, accused Vijay Kumar, who was Superintendent in Govt. Sr. Secondary School, Kakira has tried to outrage the modesty of her daughter. She was giving information about it and in case the accused apologized, the matter would be settled and if not the matter would be reported o the police. The mother of the prosecutrix again came to her on 3.10.2013 and told that she wanted to lodge report in the Police Station and she accompanied her along with her daughter to PP Bakloh.
14. PW-13 SI Hoshiar Singh deposed that he has taken over the investigation from HC Raj Pal. He collected the date of birth certificate ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 9 and copy of pariwar register of the prosecutrix. He also collected posting orders of accused Vijay Kumar Ext. PW-3/C. Attendance certificate of .
school teachers Ext. PW-3/D was collected. In his cross-examination, he deposed that he has moved an application before the learned JMIC Dalhousie for recording the statement of prosecutrix under Section 164 Cr.P.C. He also admitted that no statement of any other teacher apart of from Shruti was recorded. He visited the house of the prosecutrix.
15. The statement of PW-1 prosecutrix is most material. She has categorically deposed that on 1.10.2013, at about 11:30 AM their English rt period was running and Shruti madam was delivering lecture. In the meantime, Shruti madam started coughing and she went to bring water for her from the room of accused Vijay Kumar, who was Superintendent of the school. She gave water to her teacher and went inside the room of accused Vijay Kumar to keep empty glass. Accused Vijay Kumar, all of a sudden, got up and closed the door of the room and caught her and started sucking her lips. He also started moving hands on her cheek. He also pressed her breasts. She got herself released from the clutches of the accused with great difficulty. She went to Shruti madam and disclosed the incident to her. She went to her house and disclosed the incident to her mother. At about 8:00 PM, in the evening, accused Vijay Kumar and accused O.P. Chopra, Principal came to her house. PW-2 Suman Rani is the mother of the prosecutrix. She has corroborated the statement of PW-
1. She specifically deposed that on 1.10.2013, her daughter had gone to the school and she returned home at 3:30 PM and narrated the incident ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 10 to her. PW-4 Shruti has also deposed that she started coughing on 1.10.2013 at about 10:00 AM while delivering lecture. The prosecutrix .
brought a glass of water for her. After drinking water, she put the same on the table. While she was preparing the lecture of next class, the prosecutrix came to her and at that time she was perplexed. On asking, she disclosed to her that she had gone to the office of Superintendent of Grade-II to put the glass back. When she was putting the glass in the room, accused Vijay Kumar tried to kiss her.
16. PW-11 Aman Dogra, has proved birth certificate of the rt prosecutrix vide Ext. PW-11/B and copy of pariwar register PW-11/C. PW-3 Saroj Bala has issued certificate Ext. PW-3/B to the effect that the prosecutrix was student of 10+1 class of Govt. Sr. Secondary School, Kakira. She also issued attested copy of attendance certificate of the staff vide Ext. PW-3/D.
17. The incident was disclosed by the mother of the prosecutrix to Pradhan PW-12 Sandeepa Gurang. She also advised the prosecutrix and her mother to lodge the FIR. Though, incident has taken place on 1.10.2013 but the FIR was lodged on 3.10.2013. The prosecutrix has categorically deposed that accused Vijay Kumar had visited her house and threatened not to disclose or report the matter. PW-2 Suman Rani, mother of the prosecutrix had also visited PW-12 Sandeepa Gurang, Pradhan and apprised her about the incident. Thus, the delay in lodging the FIR has been duly explained.
::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 1118. Mr. Satyen Vaidya, Sr. Advocate and Mr. Anoop Chitkara, Advocate have drawn the attention of the Court to the statement of DW-1 .
Sumitra Devi. According to her, she remained sitting outside the room of the Superintendent from 9:00 AM to 5:00 PM on 1.10.2013. Two lady peons and two gents peons were present on duty to attend other staff. On 1.10.2013, from 9:00 AM to 5:00 PM, no student of their school came in of the room of the Superintendent nor she allowed any student to go inside the room of the Superintendent. In her cross-examination, she admitted that in the room of Superintendent, water filter was kept on the table rt adjoining to almirah. She also admitted that on 1.10.2013, only Superintendent was sitting in his room. She also admitted that if the door of the room of the Superintendent is closed from inner side, one cannot tell what was happening inside the room.
19. DW-1 Sumitra has deposed under the sway of Superintendent. She has admitted in her cross-examination that she came under the administrative control of the Superintendent. Accused Vijay Kumar after bolting the door from inside has outraged the modesty of the prosecutrix by kissing and pressing her breasts. He has done these acts with sexual intent resulting in outraging the modesty of the prosecutrix. The contradictions pointed out by the learned Advocates in the statements are minor in nature. The delay in lodging the FIR has been duly explained. The presence of accused Vijay Kumar in the school has been duly proved. Moreover, the accused has not denied his presence ::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 12 in the school. His own witness DW-1 Sumitra Devi has proved his presence in the school.
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20. The prosecutrix was born on 17.1.1998. The birth certificate of the prosecutrix has been issued from birth and death register. The date of birth was also incorporated in copy of pariwar register Ext. PW-
11/C. These entries were made by the public servants in accordance with of provisions of H.P. Panchayati Raj Act, 1994 and rules framed thereunder.
The prosecution has proved all the charges against accused Vijay Kumar, however, the prosecution has failed to prove charges against accused O.P. rt Chopra under Section 21 of the Protection of Children from Sexual Offences Act, 2012. Since the prosecutrix has not brought the matter to the notice of O.P. Chopra, Principal, the Court has already noticed that she has reported the matter to her class mates, PW-4 Shruti and her mother.
21. The prosecution has duly proved that the prosecutrix has visited the room of accused Vijay Kumar and he has outraged her modesty by confining her to the room.
22. Now, as far as the role of accused O.P. Chopra, Principal of the School is concerned, PW-1 prosecutrix has categorically deposed that accused O.P. Chopra had not stated anything to her nor threatened her to patch up the matter. PW-2 Suman Rani, has deposed that accused O.P. Chopra has not threatened them not to disclose the incident to anyone. PW-5 Davinder Singh has also deposed that the Principal has not threatened the prosecutrix and her family members in his presence.
::: Downloaded on - 15/04/2017 20:52:39 :::HCHP 13The prosecutrix has not brought the incident to the notice of Principal O.P. Chopra. She has only narrated the incident to PW-4 Shruti madam, .
class mates and her mother finally at 3:30 PM. PW-4 Shruti has categorically deposed that she has not personally filed complaint to the Principal or some higher authority about the incident.
23. Accordingly, Cr. Appeal No. 25 of 2015 is allowed. Accused of O.P.Chopra is acquitted of the charge framed against him. Bail bonds in respect of O.P. Chopra are discharged. Cr. Appeal No. 59 of 2015 preferred by accused Vijay Kumar is dismissed.
rt His conviction and
sentence are upheld.
July 25, 2016, ( Rajiv Sharma ),
(karan) Judge.
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