Jharkhand High Court
Prakash Thakur vs The State Of Jharkhand on 14 June, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 61 of 2020
(Against the judgment of conviction and order of sentence dated
27.11.2019 and 11.12.2019, respectively passed by the learned
Additional Sessions Judge-I-cum-Special Judge, POCSO Cases,
Chatra, in Sessions Trial No. 179 of 2014.)
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Prakash Thakur ..... Appellant
Versus
The State of Jharkhand ...... Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mrs. Jasvindar Mazumdar, Adv.
For the State : Mr. Gautam Rakesh, APP
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05/Dated: 14th June, 2024 Heard learned counsel for the parties.
2. This appeal is directed against the judgment of conviction and order of sentence dated 27.11.2019 and 11.12.2019, respectively passed by the learned Additional Sessions Judge-I-cum-Special Judge, POCSO Cases, Chatra, in Sessions Trial No. 179 of 2014 arising out of Simariya P.S. Case No. 50 of 2014 (G.R. No. 570 of 2014); whereby the appellant has been convicted for the offence under sections 376/511 IPC and under section 8 of POCSO Act and sentenced to undergo R.I. for 5 years and to pay fine of Rs. 25,000/- for the offence under section 376/511 IPC, read with section 8 of the POCSO Act and in default of payment of fine, further sentenced to undergo 6 months S.I. Further all the sentences were directed to run concurrently.
3. The prosecution case in short is that the (P.W.1) lodged her written application (Exhibit1) to the office-in-charge of Simariya Police Station on 26.05.2014, on the basis of which the F.I.R. being Simariya P.S. Case No. 50 of 2014 dated 26.05.2014 has been registered for the offence under section 376 & 511 of the IPC against the appellant and its investigation was handed over to S.I. of Police who is PW6.
4. During the course of investigation the I.O. recorded the restatement of the informant and also inspected the place of occurrence. Thereafter, charge-sheet was submitted before the court of law under section 376/511 IPC and section 8 of 1 POCSO Act and the charges were framed under section 376/511 IPC and section 8 of POCSO Act. Thereafter, the case was transferred to the court of sessions and was numbered as S.T. Case No. 179 of 2014.
5. The accused pleaded not guilty and claimed to be tried. Altogether six prosecution witnesses were examined out of which P.W.1 is the Victim and P.W.2 is her father. P.W.-3 is the independent villager and she has not supported the case of prosecution. P.W.4 is also declared hostile. P.W.5 has recorded the statement of minor prosecutrix. P.W.6 is the I.O. of this Case.
6. Mrs. J. Mazumdar, learned counsel for the appellant contended that the appellant has falsely been implicated in this case and the learned trial court without paying any heed to the cross-examination of the victim girl convicted this appellant. As a matter of fact, the learned trial court has swayed away with the gravity of the section alleged against this appellant and failed to give any finding, whatsoever, on the cross-examination of the prosecutrix which clearly indicates that in no case it can be said to be a case of section 376/511 IPC.
She further draws attention of this court towards para 2 and 10 of the cross-examination of P.W.1 and submits that both the sentences clearly indicates that the F.I.R. was written at the dictates of the officer in charge and that is the reason that in the F.I.R. there is grievous allegation which indicates commission of offence under section 376/511 IPC, however, by going through the cross-examination of the prosecutrix herself, no case is made out under section 376 IPC.
As a matter of fact, normally F.I.R being the first piece of evidence; everything cannot be indicated in the F.I.R., but interestingly in this case everything is written in the F.I.R. which has been contradicted by the prosecutrix herself in her cross-examination. As such, at best this case can be a case of section 354/511 IPC, but in no case it can be said to be a 2 case under Section 376/511 IPC.
She further submits that the appellant remained in custody for about 1 year 7 months and 23 days for no offence he has committed; as such, the impugned judgment may be set aside.
7. Learned Addl. P.P. supported the impugned judgment. However, he could not justify the statement of the P.Ws, especially the statement of the victim made in Para 2 and 10 of her cross-examination. He further submits that there is no error in the impugned judgment; as such no interference is required in this case.
8. Having heard learned counsel for the parties and after going through the LCR, it appears that the first information report was lodged after a delay of 3 days, inasmuch as, the alleged date of occurrence was on 23.05.2014 and the F.I.R. was lodged on 26.05.2014 under section 376/511 IPC. During the course of investigation the I.O. recorded the re-statement of the informant-cum- minor prosecutrix and also inspected the place of occurrence and on the very next day the appellant was arrested. From the allegations made in the F.I.R, it appears that when the prosecutrix shouted after the action of the appellant an her grandmother (Dadi) came after hearing the noise. However, her Dadi has been examined as P.W.3, and has been declared hostile. P.W.4 is the independent witness has also been declared hostile. P.W.2 is the father he has also been declared hostile and he said nothing about the case. P.W.5 is the Judicial Magistrate who recorded the statement of the victim under section 164 Cr. P.C. and P.W. 6 is the I.O. As such the only reliable witness in order to examine the perversity in the order is the deposition of the prosecutrix herself. After going through the entire deposition, be that it is examination in chief or cross-examination; nowhere has it indicated about the offence of attempt to rape and/or the offence under section 8 of POCSO Act. For brevity, the cross-examination of the minor victim made in para 2, 8, 9, 10, 13 and 14 is extracted hereinbelow:-
3"2. मैं अपना आवेदन थाने वाले के कहने पर लललख थी। थाना वाले बाबू जैसे- जैसे बोले मैं उसी तरह लललख थी।
8. प्रकाश ठाकु र द्वारा पकड़ने की बात कहीं जाती है लेककन धर पकड़ के क्रम में कहीं भी मेरे शरीर में कोई खरोच नहीं हुआ था।
9. मैं जो थाना तथा न्यायालय में बात को बताई, वह अलग-अलग बताई हूँ।
10. पुललस वाले के कहने पर मैं न्यायालय में बयान दी हूँ। पुललस वाले बोले थे कक न्यायालय में उसी बात को बताना जो मैं बताया हूँ नहीं तो के स खराब हो जायेगा।
13. प्रकाश ठाकु र धर- पकड़ के क्रम में न अपना कपड़ा को उतारा और न ही मेरा कपड़ा को उतारा था। प्रकाश ठाकु र मुझे जमीन पर भी नहीं लगराया था। प्रकाश ठाकु र मेरे पास आया और मैं डर से हल्ला करने लगी। लजससे वह वहाूँ से भाग गया और मैं भी वहाूँ से भाग गई ।
14. मैं डर से यह मुकदमा की हूँ।"
9. After going through the entire cross-examination indicated hereinabove there is no hesitation in holding that there is no case made out under section 376/511 or section 8 of POCSO Act.
Section-7 of POCSO Act deals with the circumstances when it will be a sexual assault and section-8 deals with its punishment. For convenience, the same is quoted herein below:-
"7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
8. Punishment for sexual assault.--Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine."
10. By a conjoint reading of the aforesaid sections and also the cross examination of the minor victim especially made in Para-13 that the moment the appellant came near the prosecutrix, she shouted and the appellant ran away. In entire episode there was no any physical contact by the appellant.
4Further, the statement of the victim herself that she has lodged the complaint due to fear and also that entire allegation has been made at the dictates of the officer-in- charge completely falsifies the entire prosecution.
11. Further, though the father of the victim P.W.-2 has been declared hostile, but a statement of his can be referred to the effect that since the appellant has tried to scold and used filthy language against her daughter, the case was lodged. Even after going through the deposition of P.W.6, it transpires from the cross-examination that nothing incriminating was found or seized by the I.O. and there was a delay of three days in lodging the F.I.R.
After going through the entire deposition it cannot be said that the appellant committed any offence under section 376/511 IPC as well as section 8 of POCSO Act; as such conviction under section 376/511 as well as section 8 of POCSO Act is, hereby, quashed and set-aside.
12. The appellant shall be discharged from the liability of his bail bond forthwith.
13. With the aforesaid observations, the instant criminal appeal stands allowed.
14. The lower court records be sent to the court concerned forthwith.
(Deepak Roshan, J.) Amardeep/ 5