Himachal Pradesh High Court
Kalgi Nand Delta vs State Of H.P on 22 May, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 340 of 2020 Reserved on: 10.05.2024 Date of Decision: 22nd May, 2024 .
Kalgi Nand Delta ..Appellant.
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Karan Kapoor, Advocate.
For the Respondent : Mr.Vishavdeep Sharma, Deputy
r Advocate General.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment and order dated 25.09.2020, passed by the learned Additional District and Sessions Judge, Fast Track, Special Court, Solan, District Solan H.P. (learned Trial Court), vide which, the respondent (accused before the learned Trial Court) was convicted and sentenced as under:
Under Section 354A of IPC To suffer rigorous imprisonment for three years and pay a fine of ₹5,000/- (five thousand) and in default of payment of fine to further suffer imprisonment for three months.
Under Section 6 of the POCSO To suffer rigorous imprisonment for Act ten years and pay a fine of ₹25,000/-
(twenty-five thousand) and in default of payment of fine to further suffer 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 22/05/2024 20:33:36 :::CIS 2
imprisonment for one year.
Under Section 506 of IPC To suffer rigorous imprisonment for two years and pay a fine of ₹2,000/-
(two thousand) and in default of payment of fine to further suffer .
imprisonment for two months.
Under Section 12 of the POCSO To suffer rigorous imprisonment for Act three years and pay a fine of ₹5,000/-
(five thousand) and in default of payment of fine to further suffer imprisonment for three months.
Under Section 10 of the POCSO To suffer rigorous imprisonment for Act five years and pay a fine of ₹10,000/-
(ten thousand) and in default of payment of fine to further suffer r imprisonment for six months.
(Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of offences punishable under Sections 376, 506, 354A of the Indian Penal Code (in short 'IPC') and Sections 4, 6, 10 and 12 of the Protection of Children from Sexual Offences Act (in short 'POCSO Act'). It was asserted that the victim 'B' (name being withheld to protect her identity) was studying in class 8th. The accused was a teacher in the school, where the victim was studying. The accused used to harass the victim. He would establish sexual relations with her and in case of ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 3 her protest, he would threaten to kill her. The accused again repeated his acts on the 28 th of the previous month of the filing of the complaint. The matter was reported to the police through an .
application (Ext. PW3/A). FIR (Ext. PW11/A) was registered in the Police Station. Hari Bhagat Negi (PW17) conducted the investigation. He wrote an application (Ext. PW8/A) for conducting the medical examination of the victim 'B'. Dr Supriya (PW8) conducted her medical examination and found that the possibility of sexual intercourse could not be ruled out. She preserved the samples and handed them over to the police official accompanying the victim. She issued the MLC (Ext. PW8/B). The victim identified the place, where she was sexually abused by the accused. The photographs (Ext. PW16/A1 to Ext. PW16/A3) were taken. Curtains (Ext. P2 and Ext. P3) were also seized. These were put in a cloth parcel (Ext. P1) and the parcel was sealed with six impressions of seal 'A'. The parcel was seized vide memo (Ext. PW2/A). Sample seal 'A' (Ext. PW 17/A) was taken on a separate piece of cloth and the seal was handed over to Veena Devi (PW4) after the use. Hari Bhagat Negi (PW17) prepared the site plan (Ext. PW17/B). He arrested and searched the accused. Cell Phone (Ext. P8) was recovered during the search. An application (Ext. PW 14/A) was ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 4 filed for conducting the medical examination of the accused. Dr Rajinder Negi (PW14) conducted his medical examination and found that there was nothing to suggest that the accused was .
incapable of having sexual intercourse. He preserved the samples and handed them over to the police official accompanying the accused. An application was filed for recording the statement of victim 'B' before the learned Judicial Magistrate, First Class, Arki, who recorded the statements (Ext. PW17/C and Ext. PW17/D). The cell phone recovered during the personal search was put in a cloth parcel (Ext. P7). The parcel was sealed with three seal impressions of seal 'X' and was seized vide memo (Ext. PW15/A). The sample seal (Ext. PW15/B) was taken on a separate piece of cloth. The victim 'R' also disclosed that she was sexually abused by the accused. An application was filed for recording her statement before the learned Judicial Magistrate, First Class, Arki, who recorded her statement (Ext. PW 17/F). The victim 'R' handed over her English grammar book (Ext. P4), which was seized vide memo (Ext. PW6/A). The record of appointment, posting, joining and attendance (Ext. PW9/E to Ext. PW9/J3) was sent by the Headmaster of the school vide his letter (Ext. PW9/K). The Investigating Officer wrote an application (Ext. PW9/A) to get the ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 5 record of admission of the victim 'B' in the school. The record (Ext.PW9/B) was sent vide letter (Ext. PW9/D). Neel Kamal (PW10) produced the birth certificate of victim 'R' (Ext.PW10/B). The case .
property was deposited with MHC. Case property was sent for analysis to SFSL, Junga. Reports (Ext. PW17/K to PW17/M) were issued showing that human semen was detected on the underwear of the accused. Blood was detected on the vaginal swabs and vaginal slides of the victim, which was insufficient for further analysis. The mobile phone did not contain any video recording or photographs. Statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court.
3. The accused was charged with the commission of offences punishable under Sections 354A, 376 & 506 of IPC and Sections 4, 6, 10 and 12 of the POCSO Act. He pleaded not guilty and claimed to be tried.
4. The prosecution examined 17 witnesses to prove its case. PW1 'R' and PW2 'B' are the victims. PW3 is the father of victim 'B' who made a report to the police. PW4 is the mother of victim 'B'. PW5 'RG' is another victim. PW6 was posted as a Drawing teacher in the school of the accused. PW7 was a student of ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 6 the school, who saw the incident. PW8-Dr.Supriya conducted a medical examination of the victim. PW9 was posted as a teacher in the school, who supplied the record. Neel Kamal (PW10) issued the .
birth certificate of the victims. HC-Rakesh Kumar (PW11) was posted as MHC with whom, the case property was deposited.
Constable-Desh Raj (PW12) carried the case property to SFSL, Junga. LC-Raksha (PW13) is the witness to recovery. Dr. Rajinder Negi (PW14) conducted the medical examination of the accused.
HC-Suresh Kumar (PW15) and HC-Kapil Dev (PW16) were associated with the investigation. Hari Bhagat Negi (PW17) conducted the investigation.
5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was posted as a teacher in the school, where the victims were studying. He also admitted that he was medically examined by a doctor and samples were preserved.
He denied the rest of the prosecution case. He stated that witnesses had deposed falsely against him. The informant has a personal rivalry with him due to the construction of a school boundary wall. He was innocent and was falsely implicated. He initially stated that he wanted to lead the defence evidence, ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 7 however, subsequently, a statement was made by him that he did not want to lead any defence evidence.
6. The learned Trial Court held that the testimonies of the .
victims were duly corroborated by the material on record. The testimonies were natural and consistent. The birth certificate proved that the victims were minors on the date of the incident.
Minor contradictions were not sufficient to discard the testimonies. The delay in reporting the matter to the police is not fatal to the prosecution case. Therefore, the accused was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the appellant/accused has filed the present appeal asserting that the learned Trial Court failed to properly appreciate the evidence. The complaint (Ext. PW3/A) did not contain any allegations of rape. There was a discrepancy regarding the name of the person, who had written the complaint. The delay in reporting the matter to the police was not properly explained and the same was fatal to the prosecution case. The defence version that the accused was not allotted the work of construction was probable. The students used to play in the playground and the teachers used to take food in the staff room. There was no ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 8 possibility of committing the offence in such circumstances.
Learned Trial Court failed to appreciate all these facts. Therefore, it was prayed that the present appeal be allowed and the judgment .
and order passed by the learned Trial Court be set aside.
8. We have heard Mr. Karan Kapoor, learned counsel for the appellant/accused and Mr. Vishvadeep Sharma, learned Deputy Advocate General, for the respondent/State.
9. Mr Karan Kapoor, learned counsel appellant/accused submitted that the learned Trial Court erred in r for the convicting and sentencing the accused. The testimonies of the victims were consistent. The delay in reporting the matter to the police was not properly explained. The possibility of false implications due to the dispute over the construction could not be ruled out. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
10. Mr. Vishavdeep Sharma, learned Deputy Advocate General for the respondent/State supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same.
::: Downloaded on - 22/05/2024 20:33:36 :::CIS 911. We have given considerable thought to the submissions at the bar and have gone through the records carefully.
12. It was submitted that there was a delay in reporting the .
matter to the police. The last incident took place on the 28 th of the month before the complaint was made to the police. As per the complaint, the incident continued for three months. There is no explanation for the delay and the same is fatal to the prosecution case. This submission is not acceptable. Victim 'B' (PW2) stated that the accused had repeatedly subjected her to forcible sexual intercourse three months before reporting the matter. He threatened her to do away with her life, in case the incident was disclosed to any person. The accused took her to the school office on 28.09.2016 and tried to commit forcible sexual intercourse but could not perform the act due to her periods (mensuration). The incident was seen by one male student, who disclosed it to other students and later to her parents. Her parents enquired about the matter from her, and she disclosed the entire incident to them.
13. The testimony of the victim shows that she was intimidated and threatened and had not reported the matter due to fear. The incident came to light, when it was seen by one of the students, who narrated the same to the victim's parents and the ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 10 victim was forced to disclose the incident to them. The victim was a student of class 8th, where the accused was a teacher, hence, her apprehension can be duly understood. The accused was an .
authority figure in a position to terrorize the victim. Therefore, the fact that the victim was unable to report the matter to the police or some other person will not help the accused.
14. It was laid down by the Hon'ble Supreme Court in State of Himachal Pradesh Versus Sanjay Kumar @ Sunny (2017) 2 SCC 51, that the delay of three years in reporting the matter in a case of sexual assault is not fatal. It was observed:-
"24. When the matter is examined in the aforesaid perspective, which in the opinion of this Court is the right perspective, reluctance on the part of the prosecutrix in not narrating the incident to anybody for a period of three years and not sharing the same event with her mother, is clearly understandable. We would like to extract the following passage from the judgment of this Court in Tulshidas Kanolkar v. State of Goa, 2003(4) R.C.R.(Criminal) 964 : (2003) 8 SCC 590:
"5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. A delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case the ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 11 prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, a satisfactory explanation of the delay is weighty enough to reject the .
plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle."
25. In Karnel Singh v. State of Madhya Pradesh, 1995(3) R.C.R. (Criminal) 526 : (1995) 5 SCC 518, this Court observed that:
"7...The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathises with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false..."
26. Likewise, in State of Punjab v. Gurmit Singh & Ors., 1996(1) R.C.R.(Criminal) 533 : (1996) 2 SCC 384, it was observed:
"8...The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to a variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of a sexual offence is generally lodged..."
15. It was held in Sohan Singh v. State of Bihar, (2010) 1 SCC 68 : (2010) 1 SCC (Cri) 452: 2009 SCC OnLine SC 1706 that the victim ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 12 has to undergo the trauma in a rape case and the delay in reporting the matter is not fatal. It was observed:
13. When FIR by a Hindu lady is to be lodged with regard to .
the commission of an offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for the little delayed FIR. As mentioned hereinabove, the delay has already been found to be properly explained by both the courts below. Thus, we are not required to deal with this issue any more.
16. One of the students (PW7) stated that the accused used to call the victim 'B' to the office/staff room. He saw the accused touching the body of the victim. He enquired from the victim as to what the accused was doing with her but she did not disclose anything. Later, he told the victim that the matter would be reported at home, on which the victim revealed that the accused indulged in gandi gandi bate (dirty talks) and touched her body. He disclosed the incident to his teacher and class fellow. The accused called him near the toilet and asked him not to narrate the incident to any person.
17. His statement is corroborated by the teacher (PW6), who stated that he came to know from the school children on 01.10.2016 that the accused had indulged in teasing the girl ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 13 students. He informed the Pardhan of the School Management Committee. Pardhan came and made enquiries. The grandmother of the victim also came to the school. These statements show that .
the incident came to light when the student (PW7) saw the accused and the victim together and threatened the victim. He also narrated the incident to the teacher. When the incident was revealed to the other students, the victim was compelled to disclose the same to her parents, who in turn informed the police.
18. These circumstances show that the victim was not in a position to reveal the incident to anyone due to her position vis-a-
vis the accused. The incident came to light due to the acts of the others. Hence, in such a situation, the delay will not be fatal to the prosecution case but is quite understandable. Learned Trial Court had rightly held that the delay in the cases involving sexual offences cannot be used to discard the prosecution case. Hence, the submission that the prosecution case is liable to be rejected due to the delay was rightly rejected by the learned Trial Court.
19. The testimony of the victim is duly corroborated by the statement (Ext. PW17/C) recorded by learned Judicial Magistrate, First Class, Arki. It contains the details of the incident in a similar manner as were deposed in the Court.
::: Downloaded on - 22/05/2024 20:33:36 :::CIS 1420. It was submitted that the victim had mentioned the time of the incident as 1:30 in the cross-examination, whereas, she had not mentioned any time in her statement recorded under .
Section 161 of Cr.P.C. or her statement recorded under Section 164 of Cr.P.C. This is an improvement, which will affect the credibility of the victim. This submission is only stated to be rejected. The cross-examination seeks many details, which are not mentioned in the examination-in-chief to discredit the witness making the statement or the prosecution case as a whole. Even the questions not relevant under Section 6 of the Indian Evidence Act can be asked in the cross-examination. Therefore, the testimony of a witness can never be discarded on the ground that it contains detail in the cross-examination, which was omitted in the earlier statement made before the police or the statement made before the learned Magistrate.
21. Even otherwise, Section 145 of the Indian Evidence Act provides that the attention of the witness should be drawn to the previous statement with which, he is sought to be contradicted.
The previous statement is also required to be proved as per the law.
It was laid down by the Hon'ble Supreme Court in Binay Kumar Singh Versus State of Bihar, 1997 (1) SCC 283, that if it is intended to ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 15 contradict a witness, his attention must be drawn towards the previous statement. It was observed: -
"11. The credit of a witness can be impeached by proof of .
any statement which is inconsistent with any part of his evidence in Court. This principle is delineated in S. 155 (3) of the Evidence Act and it must be borne in mind when reading S. 145 which consists of two limbs. It is provided in the first limb of S.145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him but the second limb provides that "if it is intended to contradict him by the writing his attention must before the writing can be provided, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage im-
peaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb.
But if the witness disowns having made any statement which is inconsistent with his present stand his testi-
mony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the proce- dure prescribed in the second limb of S. 145.
12. In Bhagwan Singh's case (AIR 1952 SC 214), Vivian Bose, J. pointed out in paragraph 25 that during the cross-examination of the witnesses concerned the formalities prescribed by S. 145 are complied with. The cross-examination, in that case, indicated that every circumstance intended to be used as a contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses' attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 16 that the procedure adopted was in substantial compliance with S. 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to .
them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein.
13. So long as the attention of PW 32 (Sukhdev Bhagat) was not drawn to the statement attributed to him as recorded by DW-10 (Nawal Kishore Prasad) we are not persuaded to reject the evidence of PW-32 that he gave Ex. 14 statement at the venue of occurrence and that he had not given any other statement earlier thereto."
22. Thus, in view of the binding precedent of the Hon'ble Supreme Court, it is not permissible to contradict a witness with her previous testimony without drawing her attention to the same.
In the present case, the attention of the witness was never drawn to the previous statement and the previous statement was also not proved by the Investigating Officer; hence, no advantage can be derived from the time mentioned in the cross-examination.
23. It was submitted that the students used to play in the playground during lunch time and the teachers used to take their lunch in the school office during lunch. This would make it impossible for the accused to sexually abuse the victim. This submission overlooks the explanation provided by the victim that the accused used to call her in the office when other teachers were ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 17 on leave. There were only four teachers in the school and it is quite possible that three of them would not be present in the school during the lunch.
.
24. One of the teachers (PW6) stated that he had gone to LR Institute Oachghat on 28.09.2016 in connection with a science competition. His testimony establishes his absence during lunchtime on 28.09.2016. This provides a valuable corroboration to her on 28.09.2016.
r to the testimony of the victim that the accused had attempted to rape
25. It was submitted that the victim's father was a Mason to whom the work was not allotted in the year 2016, hence, he had a grudge to falsely implicate the accused. This submission is not acceptable. Teacher (PW6) categorically denied that the accused and Shastri's teacher had opposed the awarding of boundary wall construction work to the informant. He is employed as a teacher in the school so he would have more affinity with his fellow teacher rather than the informant. Therefore, his denial that the accused and Shastri's teacher had opposed the allotment of the work would show that the defence version regarding the false implication is not probable. It was laid down by the Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217:
::: Downloaded on - 22/05/2024 20:33:36 :::CIS 181983 SCC (Cri) 728 that a woman in India will rarely make a false allegation of rape. It was observed:
9. In the Indian setting, refusal to act on the testimony of a .
victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male- dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution to problems cannot therefore be identical. It is conceivable in Western society that a female may level false accusations as regards sexual molestation against a male for several reasons such as :
"(1) The female may be a 'good digger' and may well have an economic motive -- to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by fantasizing or imagining a situation where she is desired, wanted, and chased by males.::: Downloaded on - 22/05/2024 20:33:36 :::CIS 19
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity to appease her ego or to satisfy her feeling of self-
importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win the sympathy of others.
(8) She may do so upon being repulsed."
10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not-so-sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1) A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by society or being looked down by society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 20 is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others .
will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of her upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, face the court, face cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
26. One of the students (PW7) saw the accused touching the victim's body in the staff room, which corroborates the testimony of the victim regarding the incident. The Medical Officer-Dr. Supriya (PW8) also found in the medical examination of the victim 'B' that her hymen was torn. She admitted in her cross-
examination that hymen can get torn in sports activities but that is merely an alternative possibility and will not make the version of the victim suspect.
::: Downloaded on - 22/05/2024 20:33:36 :::CIS 2127. Victim 'R' (PW1) stated that she was studying in class 6th. The accused was a teacher in the school. He used to touch the victim inappropriately and indulge in obscene talks. He used to .
show the obscene videos on his cell phone. The accused told her not to disclose these activities to her family members. The accused had also told her the wrong meaning of a word in an English book by drawing its figure which was later disfigured by the accused.
The accused was teaching the superlative degree of the word 'long' by giving an example of a Donkey. She stated in her cross-
examination that the school had one head teacher and two other teachers besides the accused, who were taking the classes daily.
She did not remember the date on which, the accused touched her inappropriately and indulged in dirty talks. However, the year was 2016. The accused would do these activities when the victim 'R' used to be absent. She disclosed these facts to her friends and other students. She had also mentioned these facts to the police but did not know whether the police had recorded them or not. She denied that the accused had not drawn the figure and he was falsely implicated at the instance of Pardhan and the father of victim 'B'.
::: Downloaded on - 22/05/2024 20:33:36 :::CIS 2228. There is nothing in the cross-examination of this witness to show that she had made a false statement. She denied that the accused was falsely implicated at the instance of Sanjay .
and victim B's father and a denied suggestion does not amount to any proof. As already stated, the defence version that there was enmity between the accused and the victim's father due to the allotment of construction work is not established.
29. The witness 'R' (PW5) stated that she was studying in class 6th. The accused was teaching her English and Social Science.
She came to know from the student that the accused had done a bad act with victim 'B'. The victim had also narrated the incident to her. The accused called her in the school toilet and threatened her with dire consequences if the matter was disclosed to any person.
30. It is apparent from her testimony that she had heard about the incident from other persons; hence, her testimony is hearsay and no advantage can be derived from her testimony.
31. The parents of the victim were told about the incident by the victim and are not actual witnesses to the incident.
Therefore, their testimonies can at best be used for corroboration.
::: Downloaded on - 22/05/2024 20:33:36 :::CIS 2332. It was submitted that the police had seized the curtains but no body fluids were found on them, which would make the prosecution case suspect. The victim never stated that curtains .
were used during the sexual act in her statement on oath before the Court and she was not confronted with the recital in the seizure memo to this effect, therefore, the fact that nothing was found in the curtains will not help the defence.
33. It was also submitted that no obscene video was found in the mobile phone seized by the police. First, there is no evidence that the mobile phone seized by the police was shown by the accused to the victim. The victim never identified the mobile phone. Second, the obscene material could be shown even without downloading the same by streaming it using the internet; hence, the absence of the obscene material on the mobile phone will not assist the accused.
34. A heavy reliance was placed upon the judgment of the Hon'ble Supreme Court in Nirmal Premkumar and Anr. Vs. State Rep.
By Inspector of Police, 2024 INSC 193. However, the cited judgment does not apply to the present case because the Hon'ble Supreme Court found that the testimonies of the victim were not ::: Downloaded on - 22/05/2024 20:33:36 :::CIS 24 satisfactory, which is not the case here; hence, no advantage can be derived from the cited judgment.
35. No other point was urged.
.
36. Hence, the learned Trial Court had rightly convicted the accused of the commission of offences punishable under Sections 354A, 506 of IPC and Section 6 of POCSO Act for committing the acts against victim 'B' and the offences punishable under Section 10 and 12 of POCSO Act. The accused was a teacher and in a fiduciary relationship with the victims. He was supposed to protect them but has taken advantage of his position to sexually abuse the victims. Hence, the sentence imposed by the learned Trial Court is not excessive and no interference is required with the same.
37. In view of the above, there are no reasons to interfere with the judgment passed by the learned Trial Court. Hence, the present appeal fails and the same is dismissed.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 22nd May, 2024 (saurav pathania) ::: Downloaded on - 22/05/2024 20:33:36 :::CIS