Himachal Pradesh High Court
State Of Himachal Pradesh vs Desh Raj on 4 October, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 453 of 2016 Reserved on: 13.09.2017 Decided on: 04.10.2017 .
__________________________________________________________ State of Himachal Pradesh .....Appellant.
Versus
Desh Raj ......Respondent.
__________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
approved for reporting? Yes.
1 Whether __________________________________________________________ For the appellant: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Dy. AG and Mr. Rajat Chauhan, Law Officer.
For the respondent: Mr. Ashwani Pathak, Sr. Advocate, with Mr. Sandeep K. Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The instant appeal has been preferred by the appellant/State (hereinafter referred to as "the appellant") laying challenge to judgment, dated 21.09.2015, passed by learned Special Judge, Hamirpur, District Hamirpur, H.P., in Sessions Trial No. 11 of 2014, whereby the accused/respondent (hereinafter referred to as "the accused") was acquitted for the offence punishable under Section 8 of The Protection of Children From Sexual Offences Act, 2012 read with Section 354(1) Indian Penal Code and Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 2Atrocities) Act, 1989.
2. The brief facts of the case, as per the prosecution, can tersely be described as under:
.
On 21.09.2013 the victim (name withheld) filed a complaint with Superintendent of Police, Hamirpur, alleging that she is student of 8th standard and belongs to scheduled caste category.
As per the victim, outside the school the accused runs a shop and she alongwith her friends used to visit there. The accused, on an earlier occasion, pinched the breasts of the victim and after protest he promised not to repeat such things. However, on 19.09.2013, after the school hours, when she visited the shop of the accused, he again pinched her breasts and asked for sexual favour. The victim narrated the episode to her mother. The accused proclaimed that father of the victim is known to him and reputation of the victim would be tarnished. The victim further contended that on earlier occasions also accused used to do obscene acts with other girls and Principal of the school was apprised about this. On the basis of the complaint, so made by the victim, police machinery was set into motion and FIR was registered against the accused. Statement of the victim was recorded under Section 164 Cr.P.C. and the same was also audio and videographed. Record qua date of birth of the victim was also collected, which revealed that she was born on 27.12.2000, thus she was child on the date of occurrence. The accused was ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 3 arrested and subsequently enlarged on bail. After completion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as .
many as fourteen witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution case and claimed innocence, however, the accused did not examine any defence witness. He pleaded that the victim had stolen a biscuit packet from his shop and he did not report the matter to the police.
4. The learned Trial Court, vide impugned judgment dated 21.09.2015, acquitted the accused for the offence punishable under Section 8 of The Protection of Children From Sexual Offences Act, 2012 read with Section 354(1) Indian Penal Code and Section 3(1)(xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, hence the present appeal.
5. Learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt, but the learned Trial Court has acquitted the accused on the basis of surmises and conjectures. He has argued that the statement of the victim and her class-mates go to show that accused has committed a serious crime. Conversely, the learned counsel for the respondent has argued that the statement of the victim does not at all inspire confidence, as she has admitted that her taya has paid for the biscuit packet and that biscuit packet was ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 4 not stolen by her, but by her sister. In these circumstances, story of the defence that the victim was given a slap by the accused, as she was stealing articles from his shop and that resulted into the lodging .
of the present FIR, cannot be ruled out. He has further argued that other witnesses of the prosecution have not supported the version of the victim. The shop of the accused remains busy and it is in bazaar and as the statement of the victim is not confidence inspiring and also the fact that the accused is aged about 62 years, running shop for many years, the offence, as alleged, is not expected from the accused. He has argued that the appeal be dismissed.
6. In rebuttal, the learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the reasonable doubts, so the accused be convicted.
7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully and in detail.
8. In the instant case, the statement of the victim is very vital; hence the same is being discussed at the very outset. As per the victim (PW-10) on 19.09.2013, during recess, she went to the shop of the accused and the acused pinched her breasts and also asked when she would give sexual favour to him. As per the victim, her class-mates, viz., Miss Deepika, Miss Vandna and Miss Sonali during the occurrence were standing outside the shop and she also divulged the incident to them. Thus, statements of Miss Deepika, ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 5 Miss Vandna and Miss Sanoli are of great value, as the same can easily provide lateral support to the version of the victim.
9. PW-11, Miss Deepika, class-mate of the victim, deposed .
that the victim did not disclose anything to her qua the incident.
This witness, in her cross-examination has deposed that on 19.09.2013, when she was standing with Miss Vandna (PW-13), the victim told her that the accused pinched her breasts and asked for sexual favour. She has further deposed that the matter was reported to Principal of the school. A year prior to the occurrence the accused committed wrong activity with her. She, in her cross-examination, has again deposed that the victim did not disclose anything to her qua the incident committed by the accused.
10. PW-12, Miss Sonali, deposed that on 19.09.2013 the victim went to the shop of the accused and subsequently she went to her house. As per this witness, the victim did not disclose anything to her. This witness, in her cross-examination, did not support the prosecution story. She deposed that on 23.09.2013 police came to their school and enquired from her in presence of the Principal. PW-
13, Miss Vandna Kumari, feigned ignorance what had happened with the victim on 19.09.2013. She, in her cross-examination, also did not support the prosecution story and, in fact, she denied the prosecution case as a whole.
11. PW-1, Smt. Pyungla Devi (mother of the victim) and Shri ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 6 Dharam Pal (father of the victim). PW-1, Smt. Pyungla Devi, deposed that on 20.09.2013 the victim disclosed to her that on 19.09.2013 something bad took place with her. She further deposed that she do .
not know whether it is correct or not. The victim disclosed that accused pressed her breasts and asked her that when she will give sexual favour to him. She narrated the occurrence to her husband (PW-2) and subsequently the matter was reported to the police. This witness, in her cross-examination, has deposed that her jeth, Purshotam, paid the accused for two Frooti packets. She admitted that the shop of the accused remains crowded. She denied that just to settle the score with the accused, as he had beaten the victim for stealing biscuits from his shop, he has been roped falsely. PW-2, Shri Dharam Pal, deposed that his wife (PW-1) disclosed to him about the incident. He, in his cross-examination, deposed that he is not aware that on the day of occurrence the accused caught the victim red handed while stealing two packets of biscuits and he slapped her. He further deposed that complaint, mark-A, was written by the victim on the dictation of the police officer.
12. PW-4, Dr. P.R. Katwal, Chief Medical Officer-cum-
Registrar Birth and Death, deposed that on application, Ex. PW-4/A, moved by the police, he had issued birth certificate, Ex. PW-4/B, which bears his signatures. PW-7, Dr. Shiv Kumar, Additional Superintendent of Police, District Kangra, deposed that through ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 7 application, Ex. PW-6/A, moved to Tehsildar, Hamirpur, he obtained pedigree table, Ex. PW-6/B, and caste certificates, Ex. PW-6/D, of the victim and of the accused. The licence of the shop of the .
accused, Ex. PW-7/A, was also taken into possession. Copy of jamabandi, Ex. PW-7/B, was taken into possession vide memo, Ex.
PW-7/A.
13. PW-3, Shri Tek Chand, deposed that he runs a tea-stall in front of Government Senior Secondary School, Didwin Tikkar, where accused also runs a confectionery shop. As per this witness, he heard about the incident when mother of the victim came to the shop of the accused and she was saying something to him. On his asking she disclosed the incident to him. This witness, in his cross-
examination, has deposed that he did not hear about the incident from anybody, except from PW-1 (mother of the victim). PW-5, Shri Balwant Singh, Principal, Government Senior Secondary School, Didwin Tikkar, deposed that on application, Ex. PW-5/A, moved by the victim, Nisha, Diksha, Sonali, Priyanka, Vidya, Rohit and Shilpa, he enquired the matter from the girl students of the school and it was unearthed that accused used to tease them. However, the accused denied that he used to tease the girls. This witness, in his cross-examination, deposed that in his inquiry the accused disclosed that the victim was caught red handed while stealing a biscuit packet from his shop and he slapped her. PW-6, Shri Lalman, ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 8 Tehsildar, Hamirpur, deposed that on application, Ex. PW-6/A, moved by the police, he countersigned pedigree table, Ex. PW-6/B, which was issued by Patwari, Patwar Circle Didwin Tikkar, and, Ex.
.
PW-6/C, schedule of castes was also signed by him. Pedigree table of the accused, Ex. PW-6/D, was also countersigned by him.
14. PW-8, Inspector Ramesh Chand, deposed that on the basis of application, Ex. PW-8/A, FIR, Ex. PW-8/B, was registered, which bears his signatures and endorsement thereon is Ex. PW-8/A. After completion of investigation, he prepared report under Section 173 Cr.P.C. and presented the same in the Court.
15. PW-9, Miss Nisha (sister of the victim), deposed that on 19.09.2013 she was standing near the shop and her sister (victim) alongwith her friends went to the shop of the accused. As per this witness, when the victim came back, she disclosed to her that accused pinched her breasts. This witness was declared hostile and subjected to exhaustive cross-examination. She, in her cross-
examination, denied that the victim also disclosed to her that the accused asked her that when she will give sexual favour to him. She feigned ignorance whether Ex. PW-5/A (complaint to the Principal of the School) was collectively submitted. She admitted that after the school hours there remains crowd in the shop of the accused.
16. PW-14, Inspector Reeta Sharma, deposed that on 21.09.2013 the victim, through application, Ex. PW-8/A, reported ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 9 the matter, whereupon FIR, Ex. PW-8/B, was registered. On 22.09.2013 she visited the spot and prepared spot map, Ex. PW-
14/B. Birth certificate, Ex. PW-4/B, was procured by moving .
application, Ex. PW-4/A. She also took into possession application, Ex. PW-5/A, from Principal, Government Senior Secondary School Didwin. Statements of Nisha Kumar, Sonali and Vandna Kumar were recorded, which are Ex. PW-14/C, Ex. PW-14/D and Ex. PW-
14/E, respectively. Statement of the victim was also recorded under Section 164 Cr.P.C., which is Ex. PW-10/A. This witness, in her cross-examination, has deposed that all the witnesses are friends of the victim. She denied that the caste of all the witnesses is same as that of the victim.
17. PW-11, Miss Deepika, class-mate of the victim categorically deposed that the victim did not disclose anything to her qua the incident committed by the accused. She was cross-
examined at length, but nothing favourable to the prosecution could be extracted. PW-12, Miss Sonali, student of the same school, also deposed that the victim did not disclose anything to her with regard to the alleged incident. Similarly, PW-13, Miss Vandana Kumari, deposed that the victim did not disclose anything to her qua the incident. She has further deposed that neither any incident took place in her presence, nor was reported by the victim to her. Thus, the prosecution has failed to prove that the accused pinched the ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 10 breasts of the victim. Similarly, all the above mentioned prosecution witnesses have stated that they did not hear any cries when the breasts of the victim were pinched by the accused, as narrated by .
the victim. At the same point of time, it has come on record that crowd remains in the shop of the accused and many children were also present at the time of the alleged occurrence. The statements of other shopkeepers are hearsay and the statements of other prosecution witnesses are full of lacunae.
18. Indeed, in cases of such like nature, statement of the victim is of great importance. In the case in hand, the victim was examined as PW-10. She, supported her earlier version, however, in her cross-examination, she deposed that she went there to purchase emli (tamarind). She has categorically stated that her breasts were pinched by the accused and she cried in pain. However, no signs of injury or redness on her breasts were found, as she herself deposed that she showed her breasts to her mother. She has admitted that her taya, Shri Purshotam, paid for Frooty, whereas as per the victim Frooty might have been stolen by her sister. Thus, the possibility of stealing, either by the victim or by her sister, cannot be ruled out.
There is also possibility that when the act of stealing was noticed by the accused, the same was highlighted to the Principal of the School and may be due to this the students got annoyed. The close scrutiny ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 11 of the prosecution evidence goes to show that PWs 11, 12 and 13 have not supported the prosecution case. The victim, in her cross-
examination, has admitted that during day time the shop of the .
accused remains over crowded and her class-mates remained outside. As per the statement of PW-5, Shri Balwant Singh, Principal of the school, on inquiry the accused divulged that the victim was caught red-handed while stealing biscuit from his shop.
19. The statement of the victim becomes unbelievable, especially when PWs, 11, 12 and 13 have not supported the prosecution case, therefore, the accused cannot be convicted on the sole statement of the victim, which is also full of suspicions. PW-2, Shri Dharam Pal (father of the victim) deposed that his wife and brother Purshotam never disclosed to him that he (Purshotam) paid the accused for two packets of Frooty, which were allegedly stolen by the victim. This witness did not deny that on the day of occurrence the victim was caught red handed and the accused slapped her and due to this reason the victim got annoyed and she subsequently divulged untrue facts to her mother against the accused. Thus, the statement of PW-2, Shri Dharam Pal, belies the prosecution story and also creates a doubt in it and the benefit of the same can safely be given to the accused.
20. Keeping in view what has been discussed hereinabove, in a nut shell it is more than safe to hold that the prosecution has ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP 12 failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Thus, there is no occasion to interfere with the well reasoned judgment of the learned Trial Court, as such the .
appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly.
(Chander Bhusan Barowalia) Judge 4th October, 2017 (virender) ::: Downloaded on - 05/10/2017 23:01:19 :::HCHP