Himachal Pradesh High Court
Village Pudnallah vs Shiv Chand And Another on 29 April, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF APRIL, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.320 of 2019
Between:-
SHIV CHAND, SON OF SHRI BIR CHAND,
AGED ABOUT 32 YEARS, RESIDENT OF
VILLAGE PUDNALLAH, POST OFFICE,
SANGLA, DISTRICT KINNAUR, H.P. ......APPELLANT
(BY MR. K.B. KHAJURIA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH ......RESPONDENT
(BY MR. ASHWANI K. SHARMA, ADDITIONAL
ADVOCATE GENERAL)
CRIMINAL APPEAL No.471 of 2019
Between:-
STATE OF HIMACHAL PRADESH ......APPELLANT
(BY MR. ASHWANI K. SHARMA, ADDITIONAL
ADVOCATE GENERAL)
AND
KISHAN LAL, SON OF SHRI CHET RAM,
::: Downloaded on - 30/04/2022 20:05:21 :::CIS
2
RESIDENT OF VILLAGE AND POST OFFICE,
URTU, TEHSIL NIRMAND, DISTRICT KULLU,
H.P. ......RESPONDENT
(BY MR. RAJ KUMAR NEGI, ADVOCATE)
.
___________________________________________________
These Criminal Appeals coming on for hearing this day, Hon'ble
Ms. Justice Sabina, delivered the following:
JUDGMENT
Vide this judgment, above mentioned two appeals would be disposed of as they have arisen out of common judgment dated 30.4.2019, passed by learned District and Sessions Judge, Special Court (POCSO) Act, 2012), Kinnaur, Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No.17 of 2016, titled as State of Himachal Pradesh vs. Shiv Chand and another.
2. Prosecution case was set in motion on the basis of the statement of complainant, Normu Ram.
3. Prosecution story, in brief, is that on 11.5.2016, prosecutrix had gone to the old house to provide fodder to the cattle, but had not returned home till the evening. Younger daughter of the complainant, on returning from her school, went to the old house and found that the prosecutrix was not present there. Complainant party made search for the prosecutrix, but could not find her anywhere. On 12.5.2016, younger daughter of the complainant, while going to school, met Kishan Lal and he made her talk to the prosecutrix from his mobile ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 3 phone. Thereafter, it transpired that on 11.5.2016, prosecutrix was seen with Kishan Lal in a bus by the son of her maternal uncle, Brij Lal.
On 12.5.2016, complainant received a call from mobile phone .
No.94594-57613 from Shiv Chand and complainant was informed that he had solemnized marriage with the prosecutrix.
4. Thereafter, FIR No.43/2016 dated 13.5.2016 was registered at Police Station, Nirmand, District Kullu, under Sections 363, 366(A), 376 of the Indian Penal Code, 1860 (in short "the IPC") and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short "the POCSO Act"). r
5. After completion of the investigation and necessary formalities, Challan was presented against accused Shiv Chand and Kishan Lal.
Charges were framed against accused Shiv Chand, under Sections 363 read with Section 34 & Section 376 of the IPC and Section 4 of the POCSO Act. So far as accused Kishan Lal is concerned, charge was framed against him under Section 366 read with Section 34 of the IPC.
Accused did not plead guilty to the charges framed against them and claimed trial.
6. During trial, prosecution examined ten witnesses in order to prove its case. Accused, when examined under Section 313 of the Code of Criminal Procedure, 1973, after close of prosecution evidence, prayed that they were innocent and false case has been registered against them. Accused did not examine any witness in their defence.
::: Downloaded on - 30/04/2022 20:05:21 :::CIS 47. Learned trial Court, vide impugned judgment dated 30.4.2019, ordered the acquittal of accused Kishan Lal of the charge framed against him under Section 366 read with Section 34 of the IPC, .
whereas, accused Shiv Chand was convicted qua offences punishable under Sections 363, 376 IPC and Section 4 of the POCSO Act.
8. Vide order of even date, accused Shiv Chand was sentenced as under:-
1. 363 IPC Rigorous imprisonment In default of payment of fine, for a period of three to further undergo simple years and to pay a fine of imprisonment for six months. Rs.5,000/-
2. 376 IPC and Rigorous imprisonment In default of payment of fine, Section 4 of for a period of seven to further undergo simple POCSO Act years and to pay a fine of imprisonment for one year.
Rs.10,000/-
9. Hence, convict, Shiv Chand has filed the appeal, challenging his conviction and sentence as ordered by the trial Court, whereas, State has filed appeal, challenging the acquittal of accused, Kishan Lal of the charge framed against him.
10. Learned counsel for appellant, Shiv Chand has submitted that prosecution had failed to prove its case. Appellant, Shiv Chand was liable to be acquitted of the charges framed against him. No reliance could be placed on the testimony of the prosecution witnesses.
11. Learned Additional Advocate General, on the other hand, has submitted that the prosecution has been successful in proving its case against both the accused. Learned trial Court had rightly ordered the ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 5 conviction and sentence of appellant, Shiv Chand, but had erred in ordering the acquittal of accused, Kishan Lal.
12. Learned counsel for respondent, Kishan Lal has opposed the .
appeal filed by the State and has submitted that the said respondent had been falsely involved in this case. Since the prosecution had failed to prove its case against respondent, Kishan Lal, he had been rightly acquitted by the trial Court.
13. We have carefully gone through the record of the case.
14. Complainant, while appearing in the witness box as PW-3 (Normu Ram) has deposed as per the contents of the FIR.
15. Prosecutrix, while appearing in the witness box as PW-1, has deposed that in the year, 2016, she was aged about 17 years. She knew appellant, Shiv Chand present in the Court. Her friend Mathura used to converse with appellant, Shiv Chand. During that period, Mathura also made her talk to the accused on phone. She had seen appellant, Shiv Chand for the first time during summer season in the year, 2016 at Urtu. After 7/8 days, appellant Shiv Chand had proposed marriage to her and she had declined the offer. Accused Kishan Lal was her co-villager and had exhorted her to accompany him to Bagipul to perform marriage with appellant, Shiv Chand. Therefore, she had gone with Kishan Lal in a bus to Bagipul at 2:00 p.m., where, she met Shiv Chand and he took her in a bus to village Tangling in Kinnaur and kept her there for five days. During the said period, appellant, Shiv Chand maintained physical relations with her. Then, Police met her ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 6 and brought to Nirmand and she was handed over to her father. She was got medically examined.
16. In her cross-examination, prosecutrix had admitted that accused .
Kishan Lal was having love affair with her younger sister. Accused Kishan Lal had given a mobile phone to her younger sister. Her parents did not know about the affair of Kishan Lal and her younger sister. She also stated in her cross-examination that appellant Shiv Chand had solemnized marriage with her in a hotel where he had put vermilion on her head. She had conveyed the factum of marriage with accused Shiv Chand on telephone to her father as well as her sister.
During the period she had stayed in the house of appellant Shiv Chand, she was not subjected to any maltreatment. She further stated that besides Shiv Chand, his mother and his three children were there in the house. At the time of marriage, she was aged about 17 years and five months. She denied the suggestion that appellant had not forcibly developed physical relations with her.
17. PW-2, younger sister of the prosecutrix has deposed that prosecutrix was her elder sister. On 11.6.2016, at about 4:15 p.m., when she returned from school, she found that the prosecutrix was not present at home. She inquired from her mother about the whereabouts of her sister and she was told that she was in their second house.
When she went there, she did not find the prosecutrix present there, but found the clothes of the prosecutrix worn by her. In the morning, on the next day, when she was going to school, she met accused ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 7 Kishan Lal and he made her talk to her sister on mobile phone. Then, her sister told her that she was at Kinnaur and she disclosed the said fact to her mother.
.
18. In her cross-examination, PW-2 admitted that she was having a love affair with accused, Kishan Lal. Her parents were not having any knowledge of her affair with accused, Kishan Lal. She also admitted that prosecutrix had told her that she had solemnized marriage with Shiv Chand.
19. PW-4 (Dr. Yashoda Anand) has deposed that on 18.5.2016, she had medico legally examined the prosecutrix and had found that her hymen was ruptured. Edges were tender to touch and also bled on touch. There were small hemorrhages at posterior commissar and it was torn. She had given her opinion that the victim had been subjected to sexual intercourse within probable duration of less than a week. She proved the medico legal examination report (Ex.PW4/A).
20. Ex.PX is the report of Forensic Science Laboratory and as per the same, human blood was detected on vaginal swab, vaginal slides, Salwar and underwear of the prosecutrix. Human semen was detected on vaginal slides, Salwar and underwear of the prosecutrix.
21. PW-5 (Dr. Abhilash) has deposed that on 18.5.2016, he had medico legally examined appellant, Shiv Chand and did not find anything to suggest that the accused was incapable of performing sexual intercourse.
::: Downloaded on - 30/04/2022 20:05:21 :::CIS 822. PW-6 (Balbir Singh) proved the Birth Certificate of the prosecutrix (Ex.PW6/A). As per Ex.PW6/A, the date of birth of the prosecutrix was, 1.3.1999.
.
23. Thus, from the Birth Certificate (Ex.PW6/A), it is evident that the prosecutrix was less than 18 years of age at the time of incident.
24. The defence taken by appellant, Shiv Chand was that he had performed marriage with the prosecutrix. The said fact is evident from the cross-examination of the prosecutrix. However, it has also come in the cross-examination of the prosecutrix that in the house of appellant, Shiv Chand, his mother, and his three children were residing. During the course of arguments, it has also transpired that the wife of appellant, Shiv Chand was also alive. Prosecutrix had not attained the age of majority and since she was a minor, appellant Shiv Chand could not have legally performed marriage with her. Moreover, the first wife of appellant, Shiv Chand was also alive.
25. As per Section 2(d) of the POCSO Act, "child" means any person below the age of eighteen years.
26. Section 3 of the POCSO Act reads as under:-
"Penetrative sexual assault-A person is said to commit "penetrative sexual assault' if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 9
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or .
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
27. Section 4 of the POCSO Act reads as under:-
"Punishment for penetrative sexual assault-
(1) Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than (ten years) but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine.
(3) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim."::: Downloaded on - 30/04/2022 20:05:21 :::CIS 10
28. It has been held by Hon'ble Supreme Court of India, in Independent thought vs. Union of India and another, 2017 (1) SCC 800 as under:-
.
"1. The issue before us is a limited but one of considerable public importance - whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code, 1860 (IPC) answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The exception carved out in IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice. What is equally dreadful, the artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil.
xxx xxx xxx ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 11 Conclusion
107. On a complete assessment of the law and the documentary material, it appears that there are really .
five options before us: (i) To let the incongruity remain as it is - this does not seem a viable option to us, given that the lives of thousands of young girls are at stake;
(ii) To strike down as unconstitutional Exception 2 to Section 375 IPC - in the present case this is also not a viable option since this relief was given up and no such issue was raised; (iii) To reduce the age of consent from 18 years to 15 years - this too is not a viable option and would ultimately be for Parliament to decide; (iv) To bring the POCSO Act in consonance with Exception 2 to Section 375 IPC - this is also not a viable option since it would require not only a retrograde amendment to the POCSO Act but also to several other pro-child statutes; (v) To read Exception 2 to Section 375 IPC in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-
child legislations and the human rights of a married girl child. Being purposive and harmonious constructionists, we are of opinion that this is the only pragmatic option available. Therefore, we are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 IPC to now be meaningfully read as: "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape." It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 12 the Framers of our Constitution can be preserved and protected and perhaps given impetus.
108. We make it clear that we have not at all dealt with the larger issue of marital rape of adult women since .
that issue was not raised before us by the petitioner or the intervener."
29. In the present case, prosecutrix has categorically deposed that appellant Shiv Chand had developed physical relations with her in his house. The said version of the prosecutrix is duly corroborated by medical evidence. Although, the prosecutrix has averred that he had solemnized marriage with her by putting vermilion on her head, but in view of the decision given by the Hon'ble Supreme Court in Independent Thought's case (supra), the learned trial Court, rightly ordered, the conviction and sentence of the appellant Shiv Chand with regard to the charges framed against him. The victim in the present case was less than 18 years of age. Appellant Shiv Chand was already married and was having a wife and children and consequently, could not have legally performed marriage with the victim. Moreover, the victim was aged less than 18 years and as per provisions of POCSO Act, there is no distinction between the rape of a married girl child and penetrative sexual assault punishable under Section 4 of the POCSO Act. Keeping in view the fact that the prosecutrix was less than 18 years of age, her consent with regard to the physical relations developed by her with appellant Shiv Chand, is immaterial.
::: Downloaded on - 30/04/2022 20:05:21 :::CIS 1330. In the facts and circumstances of the present case, learned trial Court has rightly ordered the conviction and sentence against accused Shiv Chand.
.
31. The next question that arises for consideration is, as to whether, the acquittal of respondent Kishan Lal as ordered by the learned trial Court, is liable to be upheld or not.
32. In the present case, it has been alleged by the prosecutrix that she had been taken by Kishan Lal up to Bagipul by bus. She has also admitted in her cross-examination that accused Kishan Lal had sat on a separate seat in the bus and there were 5-10 passengers in the bus.
She also admitted that accused Kishan Lal was having love affair with her younger sister and apparently, due to this reason, prosecutrix knew accused Kishan Lal. Although, prosecutrix and co-accused Kishan Lal might have travelled in the same bus up to Bagipul, but from the facts and circumstance of the present case, it cannot be said that accused Kishan Lal had forcibly taken the prosecutrix in the bus. If that be so, prosecutrix could have made hue and cry in the bus as there were other passengers also travelling in the bus. It is not the case of the prosecutrix that she was given any threat by accused Kishan Lal to accompany him in the bus. The prosecutrix had gone with the other accused Shiv Chand to his house. The possibility that accused Kishan Lal might have been falsely involved in this case, as he was having an affair with the younger sister of the prosecutrix, cannot be ruled out.
::: Downloaded on - 30/04/2022 20:05:21 :::CIS 1433. It is a settled proposition of law that in a case of acquittal, if two views are possible, then the view taken by the trial Court is liable to be accepted. It has been held so by the Hon'ble Supreme Court of India, .
in Alarakha K. Mansuri versus State of Gujarat, (2002) 1 RCR (Criminal) 748.
34. Similarly, in Mrinal Das & others versus State of Tripura, reported in (2011) 9 SCC 479, the Hon'ble Supreme Court, after looking into various judgments, has laid down parameters, in which, interference can be made in a judgment of acquittal by observing as under:- r "13. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal.
::: Downloaded on - 30/04/2022 20:05:21 :::CIS 1514. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion .
arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", r it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
35. The view taken by learned trial Court vis-à-vis respondent/accused Kishan Lal, in the facts and circumstances of the present case, is a possible one. Hence, we are of the opinion that the acquittal of respondent/accused Kishan Lal is liable to be up-held.
36. Accordingly, keeping in view the above discussion, both the appeals are dismissed. The judgment/order dated 30.4.2019, passed by learned District and Sessions Judge, Special Court (POCSO) Act, 2012), Kinnaur, Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No.17 of 2016, titled as State of Himachal Pradesh vs. ::: Downloaded on - 30/04/2022 20:05:21 :::CIS 16 Shiv Chand and another, whereby learned trial Court had ordered conviction and sentence of appellant Shiv Chand and acquittal of respondent, Kishan Lal, are upheld.
.
Pending miscellaneous application(s), if any, also stands disposed of.
( Sabina )
Judge
April 29th, 2022 (ks)
r to ( Satyen Vaidya)
Judge
::: Downloaded on - 30/04/2022 20:05:21 :::CIS