Himachal Pradesh High Court
Sachin Kumar @ Sanju vs State Of Himachal Pradesh on 6 March, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 214/2020 Reserved on: 29.2.2024 .
Decided on : 5.3.2024
Sachin Kumar @ Sanju ....Appellant
Versus
State of Himachal Pradesh ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 No For the Appellant:
r Mr. K. S. Banyal, Sr. Advocate
with Mr. Uaday Singh Banyal,
Advocate.
For the Respondent: Mr. I.N. Mehta, Sr. Additional
Advocate General with Mr.
Navlesh Verma and Ms. Sharmila
Patial, Addl. A.Gs.
__________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict, after trial, has been convicted for offences under Sections 376 and 354 of the Indian Penal Code (for short, "IPC"), Sections 6 and 14(3) of the Protection of Children from Sexual Offences Act, 2012 (for short, "POCSO Act") and Sections 66-E and 67-B of 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 2Information and Technology Act (for short, I.T. Act) and aggrieved thereby has filed the instant appeal.
.
2 The case of the prosecution is that in the year 2017, the prosecutrix was studying in 10+2 class and met the appellant who at that time disclosed his name as Akhil. Later on, she came to know about his name as Sachin @ Sanju.
During those days, the prosecutrix used to attend extra classes in the school and the appellant used to meet her at bus stand "B". She used to take bus from bus stand "B" to her home.
The appellant thereafter used to follow her and tried to give his mobile number. Subsequently, the appellant gave his mobile number to her. During the month of July itself, the appellant started meeting the prosecutrix and one day, he took her to under construction building near "P" hotel and established physical relations with her inside that building 3-4 times. During the physical relations developed by the appellant, he took nude photographs of the prosecutrix and also prepared porn videos. Due to the physical relations, she became pregnant and the appellant brought some medicine from medical store and gave it to her for terminating the pregnancy and accordingly her pregnancy was terminated.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 33 The appellant on 7.8.2017 tried to call the prosecutrix on mobile phone, but she refused to accompany.
.
On this, the appellant sent her nude photographs and the videos on WhatsApp to the Principal of the school, where she was studying. The Principal in turn sent those photos and videos to her sister on WhatsApp, who then informed her father about this. Thereafter, on the next day, the prosecutrix along with her father went to the police station and on their complaint, application, Ext. PW1/A, formal FIR, Ext. PW1/B came to be registered. The police got the prosecutrix medically examined and thereafter conducted further case.
4 On completion of the investigation, charge sheet for the aforesaid offences against the appellant was presented in the court, to which he pleaded not guilty and claimed trial.
5 In order to prove its case, the prosecution examined as many as 31 witnesses. Statement of the appellant under Section 313 of Cr.P.C. was recorded, wherein he denied all the incriminating circumstances put to him. However, he did not choose to lead any evidence.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 46 The learned trial court, after evaluating the oral as well as documentary evidence convicted and sentenced the .
appellant as follows:-
i). Convict Sachin @ Sanju is sentenced under sec.354- B IPC to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for three months;
ii) Convict Sachin @ Sanju is further sentenced under section section 6 of the Protection of Children from Sexual Offences Act, 2012, to undergo rigorous imprisonment for 20 years and to pay fine of Rs.50,000/- and in defauit of payment of fine, to undergo simple imprisonment for one year;
iii) Convict Sachin @ Sanju is further sentenced under section 14(3) of the Protection of Children from Sexual Offences, Act, 2012, to undergo rigorous imprisonment for life and to pay fine of Rs.1,00,000/- (Rs.1 Lac) and in default of payment of fine, to undergo simple imprisonment for one year. It is further directed that the imprisonment of life, shall mean the 'imprisonment for the remainder of that convict's natural life'.
iv) Convict Sachin @ Sanju is further sentenced under section 66-E of Information and Technology Act to undergo rigorous imprisonment for three years and to pay fine of Rs.50,000/- and in default of payment of fine, to undergo simple imprisonment for six months;
v) Convict Sachin @ Sanju is further sentenced under section 67-B of Information and Technology Act to ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 5 undergo rigorous imprisonment for three years and to pay fine of Rs.1,00,000/- (Rs.1 Lac) and in default of payment of fine, to undergo simple imprisonment for one .
year.
7 Mr. K. S. Banyal, learned Senior Advocate, assisted by Mr. Uaday Singh Banyal, Advocate, has vehemently argued that there is nothing on record to prove that the prosecutrix was minor at the time of incident and further there is no proof that the appellant had committed the offences for which he has been convicted and sentenced.
8 On the other hand, Mr. I. N. Mehta, learned Senior Additional Advocate General, would argue that in the instant case, not only age of the prosecutrix has been proved below 18 years, but even the offences for which the appellant has been convicted and sentenced has been duly proved by the prosecution and such findings warrant no interference.
9 We have heard the learned counsel for the parties and have also gone through the records of the case carefully.
10 In order to appreciate rival contentions of the parties, it would be necessary to go through the case of the prosecution.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 6Material witnesses:
11 The prosecutrix appeared as PW1 and stated what .
has been narrated in paras 2 and 3 (supra), therefore, the same needs not be reproduced. In addition to the aforesaid, the prosecutrix further stated that her clothes were taken into possession in the hospital and she had also shown the places to the police, where the appellant had established physical relation with her. She also identified black colour mobile phones of her sister, appellant and the Principal, Ext.
P2, Ext. P3 and Ext. P4 respectively.
12 On being cross-examined, the prosecutrix stated that she had not met the appellant after 7.8.2017, but the appellant used to call her. She also used to telephone the appellant till the time he had not sent her nude photos and video to the Principal. She admitted that Ritu was from her village and she used to talk to her, though, she was not her friend. Prosecutrix denied that she had used SIM of Ritu in her mobile. She also denied that the complaint Ex. PW1/A was written by her only at the instance of her father or as directed to be written by the police. She admitted that prior to the registration of the FIR, her father had beaten up her.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 7Prosecutrix denied that she was having relations with one Akhil, resident of "P", but, voluntarily stated that the appellant .
had told his name as 'Akhil' initially. She denied that the appellant had never met her nor he had physical relations with her. She also denied that neither the appellant had taken her nude photographs and prepared videos nor he had sent the same to the Principal. She also denied that the appellant had never told his name as Akhil. She denied that the appellant had never taken her to under construction building near "K".
Prosecutrix further denied that she had not become pregnant or that the appellant had not given her any medicine for terminating the pregnancy. She denied that the appellant had never telephoned her or that he had never threatened her.
Prosecutrix denied that she used to talk to Akhil of 'P" and not the appellant.
13 The prosecutrix was recalled for further examination for showing photographs and videos in DVD Ex.P9, in the court computer. Prosecutrix stated that out of eight photographs, in one photograph she was appearing in school dress while seven others were her nude photographs, which were clicked by the appellant in hotel "P". She stated ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 8 that her nude videos extracted in DVD Ex.P9 were prepared by the appellant in hotel "P". She stated that out of 34 .
photographs, four were in her school dress and 10 photographs were in another dress and in remaining 15 photographs, she was with the appellant and in some of which, she appeared to be nude.
She stated that there were two nude photographs and two were porn. She stated that these photographs were clicked by appellant in hotel "P".
14 In her further cross-examination by the defence counsel, prosecutrix stated that she had gone to hotel "P" four times. However, she denied that her porn videos and photographs with the appellant were got prepared/ clicked by the police, after the appellant was arrested and was in custody.
She denied that the appellant had not clicked her photographs nor prepared the porn video.
15 PW2 Tara Chand is the father of prosecutrix, who stated that he was serving as Naib Subedar in Assam Rifles and had come to his home on 70 days leave. On 5.2.2018, his eldest daughter had telephonically informed him that something wrong had happened with the prosecutrix and sent ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 9 him nude photos of prosecutrix on his mobile. He then along with the prosecutrix visited the police station and lodged an .
FIR against the appellant.
16 PW2, On being cross-examined, admitted that he had beaten the prosecutrix after hearing the aforesaid incident.
He denied that he had pressurized the prosecutrix to name the appellant and to implicate him in this case.
17 PW3 Kamla Devi is mother of the prosecutrix, who corroborated statements of PW1 and PW2 on all material aspects.
18 On being cross-examined, PW3 denied that the prosecutrix knew one Akhil of "P" and had relations with him.
PW3 also denied that she had compromised the matter with the parents of Akhil or that they had engaged the prosecutrix with Akhil. She denied that the prosecutrix had not told her anything, therefore, they had not lodged any complaint with the Panchayat or Police. PW3 stated that even she used to receive telephonic calls of the appellant and he used to threaten her also.
19 This witness was recalled for further examination and brought original Matriculation Certificate of the ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 10 prosecutrix, Ex.PW31/A and stated that the date of birth of prosecutrix was 22.01.2000.
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20 PW3 was again cross-examined by the defence counsel. She denied that the matriculation certificate was got prepared by her in connivance with the officials of School of Education Board. She also denied that her daughter had not given the certificate to her. She stated that the prosecutrix was initially admitted in a private school in the village thereafter, she was admitted in 'B" school and at the time of admission of the prosecutrix, the birth certificate was produced. She denied that the date of birth of prosecutrix was 22.01.1999.
21 PW7 Deepika is the sister of prosecutrix, who stated that during the year 2018, she had received a call from her mother that the Principal of "B" school was having some photographs and she should talk to her and take those photographs on her WhatsApp number. PW7 stated that she then took mobile number of Principal from her mother and talked to the Principal, who in turn, sent the photographs to her. PW7 further deposed that she had sent those photographs from her WhatsApp number to the WhatsApp number of her ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 11 father. She stated that the police had taken into possession her mobile Ex.P2, vide memo Ex.PW7/A. .
22 On being cross-examined, PW7 stated that the photographs received by her were of her sister. She denied that she used to talk with a friend of her sister with her mobile number.
23 Renu Sharma, Principal of the school "B" appeared as PW4 and deposed that in the year 2018, she had received nude photographs on her WhatsApp number of one girl student alongwith some male whom she did not recognize. She recognized the girl in those photographs, who was studying in their school. She asked Senior Assistant Pardeep Kumar to search for the residential telephone number of the girl and thereafter, she talked to the mother of prosecutrix and told her about the nude photographs. On that day, she did not come and on the next day, father of prosecutrix came with her to the school. She stated that on the request of father of prosecutrix, she sent those nude photographs on the mobile of elder sister of prosecutrix and thereafter, they went to police station. PW4 further deposed that thereafter, she received telephone of elder sister of prosecutrix with the request to send her those ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 12 photographs again as she had deleted the earlier one due to mistake and she then sent those photographs to her again.
.
She deposed that the police had questioned her in this case and she had also handed over her mobile Ex.P4, alongwith SIM to the police vide memo Ex.PW4/A. She had seen the DVD Ex.P9 in the court computer, which contained the photographs and video, which she had received on her WhatsApp number.
24 On being cross-examined, PW4 could not tell as to where the father of prosecutrix had gone from the school and deposed that she had not gone with the father of prosecutrix to the police station. She stated that the photograph of boy was a normal photo, may be passport size, above chest level. PW4 denied that she had not received the photograph of the boy.
Link evidence:
25 PW5 Pardeep Kumar is Senior Assistant of the School, who deposed that the Principal of the school had asked him to check the residential telephone number of the prosecutrix, whereafter, the Principal had called the family of prosecutrix from her mobile phone. He stated that the police had seized the mobile phone of the Principal vide memo Ex.PW4/A. ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 13 26 On being cross-examined, PW4 could not tell name of the manufacturer of the mobile Ex.P4. He stated that the .
Principal had given the SIM alongwith the mobile to the police.
27 PW9 Prashant Thakur is owner of Hotel "P". He deposed that the rooms in the hotel were being rented out to the customers. The police had come to his hotel on 8.2.2018 and taken pages from visitors entry register vide memo Ex.PW9/A. He stated that as per entry at Sr. No.2591, one room No.212, was rented out to the appellant on 16.7.2017, at 9:00 a.m. and he left the hotel at 2:40 p.m. on the same day.
As per this entry, two persons stayed in that room. He stated that the appellant Sachin Rana had given his mobile number.
PW9 stated that earlier he was given room No.207, which was not liked by him so, room was changed.
28 On being cross-examined, PW9 admitted that he used to maintain compact register in the hotel. He could not tell whether the police had taken any bed sheet from the hotel.
PW9 denied that subsequently at the instance of police, he had made the entries in loose sheets Ex.PW9/B-1 and Ex.PW9/B-
2. He admitted that CCTV cameras were installed in his hotel.
He admitted that at the time of making entry, some ID proof ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 14 was required to be taken from the customers. He deposed that the entry at Sr. No.2591 was not in his hand and was made by .
the customer. PW9 admitted that he was not present in the hotel when the aforesaid entry was made. PW9 admitted that he used to maintain attendance register of staff employed in the hotel. He also admitted that the police had not taken into possession duty register of the staff.
29 PW19 Chandar Pal, who was working in hotel "P"
at the given time, deposed that the police had seized the abstract of Visitors entry Register maintained in the hotel vide memo Ex.PW9/A. 30 In his cross-examination, PW19 admitted that prior to 2017, there were CCTV cameras installed in the hotel. He also admitted that whenever room is let out, the identity proof of the customer is taken. He admitted that the Visitors Register did not have loose pages. He stated the entries in the Visitors' Register are made by the customers and their signatures are obtained.
31 PW20 Kulwant Singh Rana is owner of the building opposite to school "P", where initially the appellant established physical relations with the prosecutrix. He deposed that only ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 15 4th and 5th floors were operational in the building in question while the remaining floors were still under construction and .
there were link roads on both side of this building and anybody could enter the building.
32 In his cross-examination, PW20 deposed that there was no room or bathroom in three under construction floors.
33 PW12 Shakti Chand, Jr. Office Assistant in the office of CMO, Dharamshala deposed that on 7.4.2018, police had moved an application Ex. PW12/A, for issuance of birth record of prosecutrix. On this, he had issued the abstract of Birth and Death Register Ex. PW12/B. He stated that as per the record, the date of birth of prosecutrix was 22.1.2000. The entry of the birth was made by one Makhauli Ram.
34 On being cross-examined, PW12 stated that he had not made the entry in the Register regarding the birth. He could not tell as to who had done cutting in column No.5 of the register against entry No.8. He admitted that when the record is deposited in the CMO office, entire record is deposited by the Panchayat. He denied that it was at the instance of police that he had written the name of prosecutrix against Sr. No.8.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 1635 PW31 is Harish Kumar, Clerk, HP Board of School Education, Dharamshala, who deposed that he had brought .
result sheet of the year 2016, and the certificate bearing Roll number of the prosecutrix, in which her date of birth was entered as 22.01.2000. He stated that the certificate Ex.PW31/A (Mark-P1), had been issued on the basis of the result sheet, which he had brought. He further stated that only one certificate was prepared out of the result sheet, which was given to the candidate.
36 In his cross-examination, PW31 stated that he had not seen the certificate issued to the candidate, but stated that he had seen the original result sheet, which he had brought, out of which the certificate had been prepared. PW31 denied that he had not prepared the record of result sheet. He feigned ignorance whether some case regarding fake certificates had been registered against the employees of the Board. He denied that certificate Ex.PW31/A, had not been issued by the Board.
37 PW6 Raghuvir deposed that on 13.2.2018, PW2 Tara Chand had produced the matriculation certificate of ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 17 prosecutrix Mark-P1, before the police in his house, vide memo Ex.PW6/A. .
38 PW15 HHC Shakti Chand deposed that on 7.2.2018, he alongwith LHC Kushal Guleria remained associated in investigation with IO/SI Rajesh Kumar. The I.O.
had seized one mobile of golden colour alongwith memory card and Sim card from the house of the appellant vide memo Ex.PW15/A. He further deposed that the mobile had been put in cloth parcel and sealed with four seals of 'BD'.
39 In his cross examination, PW15 deposed that the police had gone to village "C" and proceeded from police station around 5:00 a.m. in the official vehicle. He admitted that there were many houses in the village. He could not tell whether Panchayat Pardhan, Up-Pardhan or members reside there. He stated that in his presence, the Investigating Officer (I.O.) had not called any villager or member of the Panchayat or Pardhan to the house of appellant. He denied that the appellant did not produce the mobile phone alongwith memory card and SIM card in his presence.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 18Medical/ Forensic evidence 40 PW-11 Dr. Sujaya Manvi, who had medically .
examined the prosecutrix on 06.02.2018, on the application of police, Ex.PW11/A, deposed that she had found bruise over the right thigh, lateral aspect, linear, 3x7 cm in size, reddish blue in colour. She had also taken into possession clothes of prosecutrix and certain samples for forensic examination and issued MLC EX.PW11/B. After the receipt of RFSL report Ex.PA, she rhad opined that the possibility of sexual intercourse could not be ruled out.
41 In her cross-examination, PW11 admitted that the aforesaid injury was possible if the person had been beaten with Danda. She admitted that there was no symptom in the FSL report to indicate commission of rape. She stated that there was no semen found in the clothes or other samples. She admitted that there could be so many causes for absence of semen.
42 PW18 is Dr. Arvind Rana, who, on the application of police Ex.PW11/A, had medically examined the appellant and issued MLC Ex. PW11/B. He had also taken the samples, as per the MLC and sent the same for forensic examination.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 1943 In his cross-examination, PW18 stated that regarding scientific evidence, he had collected pubic hair, blood .
sample, semen swab, underwear and clothes of appellant.
44 The above said parcels sealed during the medical examination of the appellant and the prosecutrix, as per prosecution case, were examined by PW23 Dr. Ajay Sehgal, Scientific Officer, RFSL, Dharamshala, who after doing necessary tests, had given report Ex.PA.
45 PW25 Dr. Varun Verma, Senior Resident deposed that the police had produced the appellant before him on 09- 02-2018, as he had been referred by M.O. C.H. "B" for giving surgical opinion. He had examined the appellant. Secondary sexual characters were found to be well developed. He deposed that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. He had given his opinion Ex. PW25/A, on the reverse of MLC Ex. PW18/B. 46 In his cross-examination, PW25 admitted that he had not noted marks of identification separately at the time of examination and had physically examined the appellant and no examination was done with the help of chemical.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 2047 PW8 Dr. Neeraj Sharma, Psychiatrist, RPGMC, Tanda, deposed that the doctor from civil hospital "B" had .
referred the appellant to RPGMC Tanda for determination of potency. On 9.2.2018, the appellant had been produced by the police and he had examined him. He deposed that on his examination, no abnormality was found and after questioning the patient, it was concluded that the patient had adequate knowledge about issues relating to sexual intercourse and sexuality for his age. He stated that no issue relating to potency was there. No psychiatric intervention was required, as no psychiatric abnormality was detected. He had given his opinion vide Ex. PW8/A on the reverse of MLC Mark N-1.
48 On being cross-examined, PW8 deposed that he had not referred the patient for chemical examination to ascertain the potency of the patient. He stated that his opinion was based on his interaction with patient.
49 PW22 Dr. Meenakshi Mahajan, Deputy Director, RFSL, Northern Range, Dharamshala, deposed that three cloth parcels and two envelopes were received in the laboratory in sealed condition through HHG Rajinder, which were carefully and thoroughly examined in the laboratory using Universal ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 21 Forensic Extraction Device (UFED 7.10.1.1080). She stated that the porn images and porn video clips of the prosecutrix (P-
.
3 and P-4) were found to be physically present in the exhibit marked as Ex-3 and bookmarked under the headings 'WhatsApp', "Images" and "Videos" in UFED generated report of exhibit marked as Ex-1. She also stated that the porn video clips, porn images and other images of the prosecutrix (P-3 and P-4) and the appellant (P-1 and P-2) were found to be physically present r in the exhibit marked as Q-1 and bookmarked under the headings "Videos" "images" and "locations", in UFED generated report of exhibit marked as Q-
1. She also stated that the data extracted from the exhibit marked as S-1 was supplied in DVD Ex.P9. She stated that it could not be possible to extract the data from the exhibit marked as Ex-1 as the available database did not support the device and the exhibit marked as Ex-2 was found to be pin locked. Hence, it was not possible to extract the data from the device. She issued report Ext. PW22/B. 50 In her cross-examination, PW22 admitted that she had mentioned in her report that she could not extract the data from mobile phones Ex-1 and Ex-2, marked in the ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 22 laboratory. She also admitted that in her report in conclusion No.2 in the last line in place of Ex-1, it should have been Ex.3, .
as it was a typographical error, as the result was mentioned that of Ex-3 and in the soft copy of report it was also Ex-3. She denied that memory card Ex. P19 was not used in Samsung mobile Ex-1 (exhibited in the court as Ex.P3). She stated that the Meta-data of the photographs in the memory card Ex.P19, showed that it was used in the Samsung mobile Ex.P3. She denied that no data had been extracted from memory card Q-1 (Ex.P19) and Sim Card S-1 (Ex.P20). PW22 admitted that she had not given any specific finding in her report Ex.PW22/B, as to whether any porn video or images were transmitted from Ex-1 to Ex-3. She stated that the exhibit memory card marked Q-1 (Ex.P19) found in the Samsung mobile phone Ex-1 (Ex.P3) was containing photographs of the victim, whose photographs were marked as P-3 and P-4. She admitted that memory card of one mobile phone could be used in another mobile phone, but the photographs or videography done from a particular mobile could be verified from its meta-data.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 23Formal evidence:
51 PW14 LC Rakhi was deputed by MHC for getting .
the medical examination conducted at civil hospital "P" on 6.2.2018. The doctor had handed over MLC alongwith sealed parcel to her, which she had deposited with MHC, Police Station Baijnath.
52 In her cross-examination, PW14 deposed that the prosecutrix had been taken by her to civil hospital "P" from the Police Station itself. She stated that the mother of prosecutrix had accompanied her, who had been carrying her spare clothes. The prosecutrix had told the doctor that the clothes, which she had been wearing that day, were the same, which she had worn at the time of alleged sexual assault.
53 PW16 Sanjay Kumar deposed that he had handed over two sealed parcels, vide RC No.24/21 Ex.PW16/A, for depositing with RFSL Dharamshala. He had deposited the parcels with RFSL, Dharamshala on the same day and on return, the RC was handed over to the MHC.
54 In his cross- examination, PW16 deposed that the MHC did not disclose contents of the sealed parcels. He stated that he had received the RC from the MHC while proceeding ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 24 from police station, but, he had not given any separate receipt to the MHC.
.
55 PW17 Rajinder Kumar, Home Guard deposed that MHC, P.S. Baijnath had handed over three sealed parcels for depositing at RFSL, Dharamshala vide RC No.34/21 Ex.PW17/A, which were deposited at RFSL, Dharamshala on the same day and on return, the RC was re- deposited with the MHC.
56 In his cross-examination, PW17 could not tell as to what contained in the sealed parcel, which he had taken to RFSL, Dharamshala. He stated that the RC Ex.PW17/A was written by the MHC.
57 PW21 HC Rajnish Kumar deposed that on 07.02.2018, PW28 SI Rajesh Kumar had deposited five sealed parcels in the Malkhana, which he had entered at Sr. No.20 of the Malkhana Register, abstract of which is Ex. PW21/A and on the same day, SI Rajesh Kumar had also deposited four sealed parcels in the Malkhana, which he had entered at Sr No.21 of the Malkhana Register, abstract of which is Ex.PW21/B. He further stated that on 08.02.2018 SI Rajesh Kumar had deposited one mobile in sealed parcel in the ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 25 Malkhana, which he entered at Sr. No.23 of the Malkhana Register, abstract of which is Ex. PW21/C. He further deposed .
that on 13.03.2018, SI Rajesh Kumar had also deposited one sealed parcel of mobile in the Malkhana, which he had entered at Sr. No.39 of the Malkhana Register, abstract of which is Ex.PW21/E and on 10.02.2018, PW24 SDPO Puran Chand had deposited one mobile in sealed parcel in the Malkhana, which he entered at Sr. No.25 of the Malkhana Register, the abstract of rwhich is Ex.PW21/D. He stated that on 09.03.2018, the case property mentioned at Sr. No.20 and 21, of the Malkhana Register was sent to RFSL, Dharamshala through HHG Sanjay Kumar, vide RC Ex. PW16/A. On return, the RC was deposited with him. He stated that the FIR Ex.PW1/B, was fed by PW21 in the computer and the certificate under section 65-B of Evidence Act Ex.PW21/F, was issued in this regard.
58 In his cross-examination, PW21 denied that no case property was deposited with him.
59 PW26 Devinder Verma, Nodal Officer, Bharti Airtel Ltd. Kasumpti, Shimla deposed that on the request of the police, he had sent the Voice CDR of Mobile No. xxxxxx, ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 26 through e-mail to. S.P. Kangra. The information of CDR is Ex.
PW26/A-1 to Ex. PW26/A-21. The information was w.e.f.
.
1-08-2017 to 09-02-2018. He stated that the CAF address of the aforesaid mobile number is Ex. PW26/B and this sim number was in the name of mother of the prosecutrix. He had issued the certificate U/s 65-B of Evidence Act, Ex. PW26/C. 60 The witness was cross-examined about calls made between SIMs of the prosecutrix and the appellant.
Investigating Officers:
61 PW24 Dy.S.P. Puran Chand deposed that on 08.02.2018, he alongwith police party had visited hotel "P" and had taken into possession the pages of original Visitors Register of the hotel, Ex.PW9/B-1 and Ex.PW9/B-2. He stated that entry in the hotel room qua appellant has been made at Sr. No.2591, and as per this entry, he had come to the hotel with another person, around 9:00 a.m. and left at 12:40 p.m. These documents were taken into possession vide memo Ex.PW9/A, in the presence of PW19 Chandar Pal, Khushal Singh and PW9 Prashant Thakur. He had also recorded the statements of above witnesses, as per their respective versions and also prepared the spot map of the place, Ex.PW24/A. He ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 27 deposed that on 10.02.2018, sister of prosecutrix produced one mobile, on which, the Principal of the school of prosecutrix .
had sent the pics and porn video. He seized the mobile and sealed in cloth parcel vide memo Ex.PW7/A. 62 In his cross-examination, PW24 denied that documents Ex.PW9/B-1 and Ex.PW9/B-2, had not been taken out from the Visitors Register or had been prepared later on by him. He could not tell whether he had investigated the matter regarding the installation of the CCTV camera in the aforesaid Hotel or that CCTV camera was in operation in that hotel during that time.
63 PW27, Devanad, had partly investigated the case and recorded the statement of witnesses. PW27 deposed that he had moved an application Ex PW12/A for obtaining the birth certificate of prosecutrix before CMO, Dharamshala, and obtained the birth certificate, Ex. PW12/B and after the completion of investigation, he prepared challan and filed in the court.
64 In his cross-examination, PW27 deposed that the witness Shakti Chand had told him the date of birth of the prosecutrix to be 08-02-2000, while recording his statement ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 28 under Section 161 Cr.P.C. PW27 denied that he had tampered with original record of Ex. PW12/B in connivance with Shakti .
Chand.
65 PW28 Inspector Rajesh Kumar is the Investigating Officer, who deposed that on 6.2.2018, prosecutrix had moved a complaint Ex.PW1/A, whereupon FIR Ex.PW1/B, came to be registered and thereafter, the prosecutrix was sent for medical examination by moving application Ex.PW11/A, through LC Rakhi No.569. After medical examination, the MLC was handed over to him and the sealed parcels were given to the MHC. During investigation, on 07.02.2018, it came to his notice that the actual name of appellant was Sachin @ Sanju and not Akhil. Thereafter, he went in search of the appellant and arrested him on the same day. He further deposed that room of the appellant was searched and one golden colour mobile and one 4 GB memory card were found there. The appellant was medically examined and case property was deposited with the MHC. The witness stated that on 07.02.2018, he alongwith prosecutrix and her mother visited to the place near "P", where the appellant had sexually assaulted her there 2-3 times. He prepared the spot map of ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 29 that place, Ex.PW28/A and also got clicked the photographs, Ex.PW1/D-1 to Ex.PW1/D-4. On 13.03.2018, he visited the .
school and seized the mobile of Principal and sealed in a cloth parcel. He had also recorded the statements of witnesses under section 161 Cr.P.C.
66 In his cross- examination, PW28 stated that at the time of moving complaint Ex.PW1/A, the prosecutrix was accompanied by her parents and the Principal of the school was not with the prosecutrix. He testified that the Principal had told that there were extra classes during vacations for the children of +1 and +2 classes. PW28 denied that he had wrongly prepared the site plan of building under construction.
He stated that he had not prepared the site plan of the house from where appellant was arrested. He admitted that he had not associated any local witness at the time of recovery. He denied that he had prepared the memo Ex.PW15/A wrongly in the police station. He stated that the Principal of the school was associated in the investigation 3-4 times. PW28 denied that in connivance with the parents of Akhil, resident of "P", he had not disclosed the correct facts in the case. He stated that he had recorded the supplementary statement of prosecutrix ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 30 twice. He denied that the photographs and video of the appellant were prepared by him after his arrest in the house of .
Akhil. He stated that there was no person by name of Akhil.
67 PW13 Tilak Raj, the then SHO, desposed that on 13.2.2018, the father of prosecutrix had provided the photocopy of matriculation certificate of prosecutrix Mark P1, as per memo Ex.PW6/A. He had recorded the statements of Raghuvir and Tara Singh.
68 In his cross- examination, PW13stated that the certificate was produced by the father of prosecutrix at his home.
69 PW29 is Sub Inspector Abhimanyu, who on the receipt of RFSL reports Ex.PW22/B and Ex.PA, had prepared supplementary challan and filed it in the court.
70 Adverting to the first submission of the appellant regarding there being no proof of the prosecutrix being minor at the time of incident, as per the provisions of section 2(12) of the Juvenile Justice (Care and Protection of Children), Act, 2015 (for short, "JJ Act, 2015"), "child" means a person who has not completed eighteen years of age. Further, provisions of section 94 (2) of the JJ Act, 2015, provide as under :-
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 31"94 (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee .
or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -
(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;
(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(iii) and only in the absence of (1) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteeri days from the date of such order."
71 The provisions of Rule 54 (17)(iv) of the Juvenile Justice (Care and Protection of Children) Rules, 2016 (for short, the "JJ Rules, 2016"), provide as under:-
"54 (17) (iv): For the age determination of the victim, in relation to offences against children under the Act, the same procedures mandated for the Board and the Committee under section 94 of the Act to be followed."::: Downloaded on - 06/03/2024 20:31:45 :::CIS 32
72 No doubt, submission of the appellant would have found favour with this Court, had not the prosecution at the .
subsequent stage examined PW31 Harish Kumar, Clerk, who proved on record date of birth of the prosecutrix, specifically stating that the certificate had been issued by the Board and the entries were correct as per the original record produced by him in the Court.
73 Now, if the certificate, Ext. PW31/A is perused, it goes to prove that the date of birth of the prosecutrix is 22.1.2000 and the same stands otherwise reflected in the other certificate produced on record by the concerned Panchayat, Ext. PW12/B, wherein also date of birth of the prosecutrix has been recorded as 22.1.2000. Therefore, this Court has no difficulty in concluding that the prosecutrix was below the age of 18 years on the date of incident.
74 As regards other contentions of the appellant qua there being no proof of sexual intercourse committed by the appellant and nude images of the prosecutrix having not been transmitted by the appellant to the Principal of the school, where the prosecutrix was studying, the same are without merit.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 3375 The prosecutrix has duly supported her case as is evident from what has already been enumerated in paras 2 .
and 3 (supra).
76 Her testimony alone is sufficient to nail the appellant for the offences committed by him under IPC and POCSO Act, more particularly, when the appellant in his statement under Section 313 Cr.P.C. has admitted that in the videos and images in question, he was also seen. The appellant has specifically admitted that he was seen in the videos indulging in sexual activities with the prosecutrix and as per the prosecutrix, it was the appellant, who had prepared all these videos when she was sexually assaulted by him.
77 As regards photographs, it is also claimed by the prosecutrix that it was the appellant, who had clicked these photographs.
78 The introduction of one Akhil to give a twist to the case in hand is a futile exercise as the prosecutrix and other witnesses have duly proved commission of the offences by the appellant and the same, as observed above, is duly supported by the photographs and the videos, which have been duly proved on record.
::: Downloaded on - 06/03/2024 20:31:45 :::CIS 3479 Likewise, as regards commission of offences under I.T. Act, PW4, Principal of the school, has specifically stated .
that nude images of the prosecutrix were sent to her mobile by the appellant and he had also sent the photograph of strip of festone combi-kit tablet on 5.2.2018 at 10:37:06, which is a tablet used to medically terminate the pregnancy as noted by the learned trial court.
80 This further supports version of the prosecutrix that she had been repeatedly sexually abused by the appellant and her pregnancy probably had been terminated by administering the aforesaid medicine. Further, what is more important is the answers given by the appellant to questions No. 75 and 76 in his statement recorded under Section 313 Cr.P.C., which read as under:-
"Q. No.75. It has come in the prosecution evidence led against you that as per RFSL report Ex.PW22/B, you transmitted above nude photos and porn video including messages from your mobile No........... on to the Mobile No. ......... of Principal of ..........School, on 05.02.2018 between 08:36:04 to 10:18:47 O'clock, which report is contained in REPORT Ex-3 in the DVD Ex.P9. What have you to say about it?::: Downloaded on - 06/03/2024 20:31:45 :::CIS 35
Ans: It is incorrect. I had not sent that photographs. This mobile with SIM was lost by me in July 2017. Q. No.76. It has come in the prosecution evidence led .
against you that as per RFSL report Ex.PW22/B, you also transmitted above nude photos and porn video including messages from your mobile No............. on to the Mobile No.............. of Principal of ............. School, on 05.02.2018 between 10:36:46 to 10:47:28 O'clock, which report is contained in REPORT Ex-3 in the DVD Ex.P9. What have you to say about it?
Ans: It is incorrect. This mobile with SIM was lost by me in July 2017."
81 Evidently, the appellant has not denied these questions and has simply stated he had lost mobile with SIM card in July 2017.
82 As rightly noticed by the learned trial court, the appellant did not choose to lead any evidence to prove that he had lost his mobile along with SIM in July 2017 constraining this Court to draw an adverse inference. For it is duly established on record that the mobile along with Airtel SIM and memory card were in fact recovered from the possession of the appellant vide memo, Ext. PW15/A in the presence of the witnesses regarding which, extraction report is available in ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 36 DVD, Ext. P9, prepared by RFSL, Dharamshala, which shows that the incriminating evidence was available in the memory .
card of the mobile of the appellant, which he had sent to Principal of the school, where the prosecutrix was studying.
83 We see no reason to interfere with the findings recorded by the learned trial court.
84 As a last ditch effort, learned senior counsel for the appellant would argue that the sentence of life imprisonment as imposed upon the appellant r is absolutely harsh and warrants interference.
85 We find merit in the contention. No doubt, the appellant has committed very heinous crime, however taking into consideration the fact that the appellant is a first offender and was barely 21 years of the age, at the time of incident, we are of the considered view that imposition of maximum sentence under Section 14(3) of POCSO Act is not warranted.
86 Accordingly, the sentence, as imposed by the learned trial court under Section 14(3) of POCSO Act to undergo rigorous imprisonment for life is modified and accordingly, the appellant is sentenced to undergo rigorous imprisonment for a period of 20 years (without remission) and ::: Downloaded on - 06/03/2024 20:31:45 :::CIS 37 to pay a fine of Rs.1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of 2 years .
under Section 14(3) of POCSO Act. Rest of the sentences, as imposed upon the appellant by the learned trial court, are upheld.
87 The appeal is partly allowed in the aforesaid terms.
Pending application(s), if any, also stands disposed of.
r to (Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
5.3.2024 Judge
(pankaj)
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