Himachal Pradesh High Court
Nikka Ram vs State Of H.P on 5 January, 2019
Bench: Dharam Chand Chaudhary, Chander Bhushan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 321 of 2017 Reserved on: 14.11.2018 .
Decided on: 05.01.2019
Nikka Ram .......Appellant
Versus
State of H.P. ......Respondent
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Chander Bhushan Barowalia, Judge Whether approved for reporting?1 Yes For the appellant:
r Mr. Manoj Pathak, Advocate.
For the respondent: Mr. Narinder Guleria, Addl. A.G with Mr. Kunal Thakur, Dy. A.G. Dharam Chand Chaudhary, Judge Convict Nikka Ram (hereinafter referred to as the 'accused') has preferred this appeal against the judgment dated 16/29.12.2016 passed by learned Special Judge, Shimla in Sessions Trial No. 30-S/7 of 2015, whereby he has been convicted for the commission of offence punishable under Section 376 of the Indian Penal Code and Section 6 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act' in short) and while holding that the punishment under Section 6 of the POCSO Act is greater in degree as compared to the punishment under Section 376 IPC, has 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 2convicted him to undergo rigorous imprisonment for a period of 12 years under Section 6 of the POCSO Act and .
also to pay Rs.1,00,000/- and simple imprisonment for a period of three months for the commission of offence punishable under Section 506 IPC.
2. The accused has been tried, convicted and sentenced for the commission of offence stated hereinabove with the allegations that he belongs to village Sawala and the child victim (name withheld) allegedly aged about 12 years ravished by him 13-14 days prior to 3.8.2015 at Siyalta Nallah is also the resident of same village. Prior to that also, she was subjected by him to sexual intercourse on 3-4 occasions. It is on 3.8.2015, in the evening she disclosed about her ravishment sexually by the accused to her mother PW-2. She disclosed that accused had been taking her to Siyalta Nallah and ravished her sexually there on 3-4 occasions by removing her clothes. He allegedly had been paying Rs.10/- and giving some toffees to her on such occasions. He had been alluring her at the pretext of giving more money. When she told him that she will disclose her ravishment by him to her parents, he threatened to expose her in eyes of the school teachers and students. According to PW-2 and also PW-1, the parents of the victim, apprehending that their ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 3 daughter, the victim may not be telling lie and to rule-out the false implication of the accused, asked from her .
repeatedly about the correctness of the disclosure she made against him, but she remained firm on the facts she disclosed. Therefore, PW-1 and PW-2 went to police station, Nerwa, Tehsil Chopal, District Shimla. The victim also went there with them. The father of the victim PW-1 has made an application Ext.PW-1/A to the Station House Officer, Police Station, Nerwa stating whatever the victim disclosed therein. On the basis of application Ext.PW-1/A, FIR Ext.PW-14/A was registered.
3. The investigation was conducted by SI/SHO Narinder Singh PW-14. An application Ext.PW-6/A was made to the Medical Officer, Civil Hospital, Nerwa for getting the medico legal examination of the victim conducted, however, no female doctor was available at Nerwa on that day, therefore, the child victim was referred to D.D.U. Zonal Hospital, Shimla for her medical examination. She was examined by PW-8 Dr. Shalini Bhardwaj, who issued MLC Ext.PW-8/A. The I.O. visited the spot on 4.8.2015 itself and prepared the spot map Ext.PW-
14/C. The spot was videographed and photographed vide CDs mark X-1 to X-3. The statement of child victim Ext.PW-14/B was recorded as per her version. An ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 4 application Ext.PW-14/E was made to JMIC, Chopal, District Shimla with a prayer to record the statement of child .
victim under Section 164 Cr.P.C. An application Ext.pW-5/A was submitted to the Headmaster, Government Middle School, Sawala for supplying the date of birth certificate of the child victim. Certificate Ext.PW-5/B was prepared and signed by the Headmaster of the school. The copy of admission and withdrawal register Ext.PW-5/C was also obtained from the school. All these documents were taken in possession by the police vide recovery memo Ext.PW-
5/D. The I.O. had also made an application Ext.PW-7/A to the Secretary, Gram Panchayat, Pujarali Block Chopal, District Shimla for supply of certificate of date of birth of the child victim from the birth register. PW-7 Smt. Shyama Devi, Secretary, Gram Panchayat, Pujarli had prepared the birth certificate Ext.PW-7/B. She had also handed over the extract of birth register Ext.PW-7/C. The copy of parivar register Ext.PW-7/D was also prepared and supplied by PW-
7 to the police. All these documents were taken in possession vide recovery memo Ext.PW-7/E.
4. PW-13 ASI Kuldeep Singh while conducting the investigation partly, arrested the accused in this case on 5.8.2015. He made an application Ext.PW-9/A with a prayer to conduct medical examination of the accused. He ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 5 was accordingly examined and the MLC Ext.PW-9/B obtained. It is PW-13 who got recorded the statement of .
the child victim under Section 164 Cr.P.C. He had also collected the date of birth from the school and also the Panchayat.
5. On completion of the investigation, report under Section 173 Cr.P.C was prepared and filed in the Court. On going through the report and also the documents annexed therewith, charge for the commission of offence punishable under Section 376 and 506 IPC as well as under Section 6 of the POCSO Act was framed against the accused. He, however, pleaded not guilty to the charge and claimed trial. The prosecution has, therefore, produced the evidence in support of its case against the accused.
6. The material prosecution witnesses are the child victim (PW-3), her mother PW-2 and her father PW-1.
PW-4 Khyali Ram has been examined to show that in the month of July, 2015, the accused was noticed coming from Siyalta Nallah side around 5.00-6.00 p.m. This fact was disclosed by him to the mother of the victim, PW-2. PW-5 Vidya Nand O.T. (Shastri), Government Middle School, Sawala and PW-7 Smt. Shyama Devi, Secretary, Gram Panchayat, Pujarli have been examined to prove the date ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 6 of birth certificates Ext.PW-5/B and Ext.PW-7/B respectively, which were issued from the admission and .
withdrawal register and also the birth register maintained in the school/Gram Panchayat. PW-8 Dr. Shalini Bhardwaj who had medically examined the child victim and issued the MLC Ext.PW-8/B. Dr. Pritam Singh Thakur PW-9 has medically examined the accused and issued the MLC Ext.PW-9/B. The remaining prosecution witnesses are formal as PW-6 LC Meera had accompanied the child victim firstly to the Civil Hospital, Nerwa and thereafter to D.D.U. Zonal Hospital, Shimla as lady Medical Officer was not posted at Civil Hospital, Nerwa at that time. She had also collected the birth certificate Ext.PW-5/B and the extract of admission and withdrawal register Ext.PW-5/C, which were taken in possession vide memo Ext.PW-5/D in her presence. PW-10 Constable Rajinder Singh accompanied by HHG Pankaj had taken the accused to Civil Hospital, Nerwa for getting his medical examination conducted. PW-
11 LHC Shamim, the then MHC police station, had received the case property and retained the same in the malkhana after making entries Ext.PW-11/A in the malkhana register.
The case property was sent by her to the Forensic Science laboratory vide RC Ext.PW-11/C for chemical examination.
The parcels containing the case property were taken to ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 7 Forensic Science Laboratory by PW-12 Constable Rumail.
PW-13 and PW-14, as noticed supra, have conducted the .
investigation of the case.
7. On the other hand, the accused in his statement recorded under Section 313 Cr.P.C while admitting that the victim and he belongs to the same village, he is her maternal uncle (mama) in relation and used to visit her house off and on has, however, denied, the remaining prosecution case either being wrong or for want of knowledge. In his defence, a plea has been raised while answering question No.25 that he had seen the child victim and one Naku in an objectionable condition, however, before he could tell their parents about it, he was implicated falsely in this case.
8. In order to probablise the plea so taken in his defence, the accused has examined DW-1 Smt. Sunita, Pradhan, Gram Panchayat, who while in the witness box has stated that in August, 2015, the accused came to her and disclsoed that he had seen the child victim and Naku in an objectionable condition. He wanted to disclose this fact to the father of the child victim. Being Pradhan of the Gram Panchayat, she also inquired from the child victim, who told that she had friendly relations with Naku and that ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 8 Nika Ram was innocent. These facts were disclosed by her to the police.
.
9. Learned Special Judge on appreciation of the given facts and circumstances and also the evidence available on record has concluded that the prosecution case against the accused stands proved beyond all reasonable doubt. Consequently, he was convicted and sentenced, in the manner, as pointed out at the very out set.
10. The accused aggrieved by his conviction and sentence has assailed the impugned judgment on the grounds inter-alia that no case is made out against him under Section 376 and 506 IPC and under Section 6 of the POCSO Act, however, irrespective of it, he has been convicted erroneously. His defence that child victim involved him falsely in this case has not been taken into consideration and to the contrary, the findings based upon conjectures and surmises. The evidence produced against him by the prosecution is stated to be not only tainted but also self-contradictory. The Court below has allegedly brushed aside the material contradictions in the statements of the witnesses by holding the same as minor ones. The impugned judgment, as such, has been sought to be quashed and set aside.
::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 911. Mr. Manoj Pathak, learned counsel representing the appellant-convict has vehemently argued that for want .
of cogent and reliable evidence, the accused could have not been convicted for the commission of alleged offence.
The offence allegedly committed by him is neither proved to be punishable under Section 376 IPC nor under Section 6 of the POCSO Act. Mr. Pathak while drawing our attention to the medical evidence has argued that the same is not suggestive of the penetrative sexual assault committed by the accused upon the child victim. It is also contended that bald assertions in the application Ext.PW-1/A and in that of child victim that she was sexually ravished do not disclose the essential ingredients required to be proved to infer the commission of offence punishable under Section 376 IPC or under Section 6 of the POCSO Act. According to Mr. Pathak, if in alternative, this Court believes the prosecution story as genuine and correct, the same only disclose the commission of offence punishable under Section 8 of the POCSO Act. It is thus urged that findings of conviction and sentence recorded against the accused are not supported by the record and rather based upon conjectures and surmises, hence not legally sustainable.
12. On the other hand, Mr. Narinder Guleria, learned Additional Advocate General has, however, argued ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 10 that own statement of the child victim supported by her parents lead to the only conclusion that the accused .
subjected her to sexual intercourse in the manner as claimed by the prosecution. According to Mr. Guleria, nothing tangible has come on record that the accused has been convicted and sentenced in this case falsely. The plea in defence that accused noticed child victim and Naku in an objectionable condition is highly imaginary and germane of the mind of the accused because had it been so, it is not understandable as to why he had not disclosed the same to her parents and chose to approach DW-1 Pradhan, Gram Panchayat. Since the accused has failed to probablise such plea he raised in his defence, therefore, the testimony of Pradhan is also doubtful. Learned Additional Advocate General has, therefore, emphasized that well reasoned judgment passed by learned Special Judge calls for no interference in the present appeal by this Court.
13. At the out set, it is worthwhile to mention here that in case of this nature, the age of the victim assumes considerable significance. In the case in hand, certificate Ext.PW-7/B issued by the Secretary, Gram Panchayat, Pujarli on an application made to her by the police on the basis of entries in the birth register, the date of birth of the ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 11 child victim has been recorded as 3.8.2003. The extract of register is Ext.PW-7/C. Against the entries at Serial No. .
36/03 in this document, the information qua her birth has been given to the Gram Panchayat by her father Liak Ram.
The accused has not cross-examined either the victim or her parents that 9.8.2003 is not the correct date of birth of the victim. Even similar is her date of birth which finds mention in the certificate Ext.PW5/B issued by the school.
Though, the same cannot be believed to be primary evidence qua her exact date of birth being issued from the middle school and not from that of primary school, where initially she was admitted in first class, yet the certificate Ext.PW-7/B and the extract of birth certificate Ext.PW-7/C is primary evidence qua her date of birth. Therefore, the prosecution has proved beyond all reasonable doubt that the victim is born on 9.8.2003. Since she allegedly was sexually ravished by the accused 13-14 days prior to 3.8.2015 and on 3-4 occasions before that also, therefore, the present is a case where it is established that her ravishment was at a stage when she was below 12 years of age.
14. Before analyzing the rival submissions and also the evidence available on record, it is desirable to take note as to what constitutes the offence of rape punishable ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 12 under Section 375 IPC. For the sake of convenience, we would like to reproduce here the provisions contained .
under Section 375 IPC, which defines the offence of rape:-
"375-Rape. A man is said to commit "rape" if he--
(a) penetrates his penis, to any extend, into the vagina, mouth, urethra or anus or a woman or makes her to do so with him or any other person;
or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus or a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,
15. We would also like to reproduce here the offence of aggravated penetrative sexual assault defined under Section 5 of the POCSO Act and punishable under Section 6 thereof, which for the purpose of this case reads as follows:-
"5. Aggravated penetrative sexual assault.-
(a) to (l).......xxxxxxxxxxxxxx
(m) whoever commits penetrative sexual assault on a child below twelve years; or
(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or
(o) to (u)......xxxxxxxxxxxxxxxx ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 13
16. What is aggravated penetrative sexual assault, .
has been defined under Section 3 of the POCSO Act, which reads as follows:-
"3. 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
(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."
17. It is seen from the perusal of Section 375 IPC and Section 3 of the POCSO Act, referred to hereinabove, that an offender can be said to have committed the same by way of penetrating his penis or any other object into vagina, mouth, urethra or anus of the victim or by manipulating any part of her body so as to cause penetration into her vagina, urethra, anus or any other part of her body or applies his mouth to the vagina, anus, urethra of a woman.
::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 1418. Now it is the turn to examine the evidence and find out as to whether the prosecution has been able to .
prove beyond all reasonable doubt that the offence committed by the accused is punishable under Section 376 IPC and Section 6 of the POCSO Act. What the victim has disclosed on 3.8.2015 to her parents is that she was taken by the accused to Siyalta Nallah 13-14 days ago, undressed her and ravished her sexually. Also that, she was taken there by him to ravish sexually earlier also on 3- 4 occasions at Siyalta Nallah. Although, while in the witness box as PW-3 it is stated by her that she had been going to Siyalta Nallah to bring grass and the accused used to come there and ravish her sexually by removing her clothes, yet irrespective of such version, which is contrary to the contents of application Ext.PW-1/A and version of her parents, PW-1 and PW-2, the prosecution story cannot be said to be false for the reason that the accused has miserably failed to discredit the version of PW-1, PW-2 and PW-3 that the accused ravished the child victim in Siyalta Nallah. The evidence as has come on record to our mind, however, is not sufficient nor convincing that the accused has subjected the child victim to sexual intercourse and thereby committed the offence of rape or offence of aggravated penetrative sexual assault because as per the ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 15 medical evidence i.e. MLC Ext.PW-8/A, PW-8 Dr. Shalini Bhardwaj did not notice any sign of injury on the body of .
the victim nor any sign of commission of forcible sexual assault with her. All her vitals were found normal. On vaginal examination, cervix was found soft without there being any sign of forced sexual assault. PW-8 has based her opinion that the child victim had intercourse one or more times, taking into consideration the condition of cervix i.e. admitting one finger loose. PW-8 has not stated anything about the condition of the vagina. On having gone through the Modi's "Medical Jurisprudence and Toxicology" 23rd Edition, the victim is raped or not depends upon the condition of her vagina and not cervix. We fail to lay our hand on any other material showing that it is only the condition of cervix to establish as to whether the sexual intercourse has been committed or not and condition of other genital including vagian and hymen etc. not relevant. The cervix is the opening part of uterus, therefore, no doubt when there is penetration in vagina, it is obvious that there will be penetration in cervix also but when there is no injury in the vagina and the only abnormality noticed by PW-8 was on the cervix of the victim i.e. admitting one finger loose, in our considered opinion, is not sufficient to disclose the commission of the ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 16 offence of rape punishable under Section 376 IPC nor the offence of aggravated penetrative sexual assault .
punishable under Section 6 of the POCSO Act. Otherwise also, a fully grown-up male aged 52 years as the accused in this case, could have not raped the victim nor subjected her to aggravated penetrative sexual assault, that too, on many a times without causing injury in her vagina. In that event rather her health was bound to deteriorate and even could have been fatal to her life also. She to the contrary as per her own statement and also that of her parents had been going to the school regularly and attending the classes and also taking part in all activities including sports. As a matter of fact, even after the so called sexual assault also, she throughout remained normal, which could have not been expected from a girl below 12 years of age, had she been sexually abused by a fully grown-up male on number of occasions.
19. It is also not proved that the accused is maternal uncle (mama) of the victim because her father while in the witness box has stated in his cross-
examination that the accused is not his relative, whereas, PW-2, the mother of the victim has said nothing about her relations with the accused as her brother or maternal uncle of her daughter. The victim though has stated in her ::: Downloaded on - 09/01/2019 23:03:29 :::HCHP 17 examination-in-chief that accused is her maternal uncle (mama). The accused in his statement recorded under .
Section 313 Cr.P.C has also said that he is maternal uncle of the victim. However, the contrary version of her father PW-1 and the silence of mother PW-2, renders this part of the prosecution case highly doubtful and as such, it cannot be believed by any stretch of imagination that the present is a case of aggravated penetrative sexual assault within the meaning of (n) of Section 5 of POCSO Act. The prosecution case that the offence the accused has committed is punishable under Section 376 IPC and Section 6 of the POCSO Act is not proved beyond all reasonable doubt and rather false, appears to be fabricated to implicate the accused in the commission of an offence more heinous in nature, as compared to the one which he in the given facts and circumstances and also the evidence available on record has committed.
20. The evidence as has come on record at the most discloses the commission of offence of sexual assault defined under Section 7 and punishable under Section 8 of the POCSO Act because the evidence as has come on record by way of statement of the victim that she had been undressed and ravished by the accused in Siyalta Nallah 13-14 days prior to 3.8.2015 and 3-4 occasions earlier ::: Downloaded on - 09/01/2019 23:03:30 :::HCHP 18 thereto, stands proved from the evidence discussed hereinabove. The version of the victim that the accused .
had been undressing her and then ravishing itself is sufficient to establish the commission of an offence of sexual assault within the meaning of Section 7 of the POCSO Act, and punishable under Section 8 thereof. He, to our mind, has satisfied his lust for sex by undressing the victim and ravishing sexually as she stated while in the witness box. He, to our mind, must be alive to the adverse consequences of subjecting her to penetrative sexual assault being a child below 12 years age. It is worth mentioning here that the accused has not seriously disputed the allegations of ravishment of the victim against him specifically while cross-examining the prosecution witnesses and rather satisfied himself with mere suggestions that he has been implicated in this case falsely and that he has not ravished the child victim, which were emphatically denied by them. True it is that PW-4 Khyali Ram is a liar because, had he disclosed the factum of child victim and the accused coming from Siyalta Nallah side to PW-2, she should have disclosed so to her husband PW-1, who in turn, would have disclosed the same in the application Ext.PW-1/A, on the basis of which FIR has been registered. However, it is proved from the own statement ::: Downloaded on - 09/01/2019 23:03:30 :::HCHP 19 of child victim and also her parents that accused had been taking her to Siyalta Nallah by alluring to give money and .
toffees to her. He, as per evidence, even used to pay Rs.10/- and some toffees to her on each and every occasion. Therefore, his intention to exploit the child victim to satisfy his lust for sex is established on record.
The offence, therefore, committed by the accused in the given facts and circumstances is punishable under Section 8 of the POCSO Act and not under Section 376 IPC or under Section 6 of the Act. It is for this reason, nothing has come during the medical examination of the child victim conducted by PW-8 qua commission of forcible sexual intercourse with her. The accused has ravished the victim by touching her vagina and other parts of her body including rubbing his penis with her vagina. It is for this reason, no injury on vagina and no categoric finding qua condition of hymen etc. could be recorded by the Medical Officer.
21. The remaining evidence as has come on record by way of testimony of PW-6 LC Meera and PW-9 Dr. Pritam Singh Thakur, PW-10 Constable Rajinder Singh, PW-
11 LHC Shamim, MHC Police Station, Nerwa and PW-12 Constable Rumail also supply the essential link to the prosecution story because PW-6 LC Meera had ::: Downloaded on - 09/01/2019 23:03:30 :::HCHP 20 accompanied the child victim firstly to Civil Hospital, Nerwa and thereafter to D.D.U. Zonal Hospital, Shimla because .
lady doctor was not posted at that time at Nerwa. She has proved that the victim was subjected to medical examination in the hospital. Similarly, PW-9 also connects the accused with the commission of offence because on his examination conducted by this witness, he was found capable of performing sexual intercourse. PW-10 Constable Rajinder Singh and HHG Pankaj had taken the accused for getting his medical examination conducted.
PW-11 Shamim and MHC has not only proved the prosecution case qua the case property was deposited by the I.O. with her, which she entered in the malkhana register vide entries Ext.PW-11/A and later on sent the same to the laboratory for chemical examination but the receipt of report Ext.PW-14/G also. PW-12 Constable Rumail is the person who had taken the case property to the Forensic Science Laboratory vide RC Ext.PW-11/C and deposited the same there for analysis.
22. The Investigating Officers in this case are PW-
13 and PW-14 the then SI/SHO Police Station, Nerwa Narinder Singh and ASI Kuldeep Singh. They both have proved the manner in which the investigation is conducted by them. Nothing has come in their cross-examination ::: Downloaded on - 09/01/2019 23:03:30 :::HCHP 21 conducted on behalf of the accused that he has been falsely implicated or nothing of the sort had taken place.
.
23. On the other hand, the accused has admitted the prosecution case to the extent that he belongs to the same village of which child victim is also one of the residents and that he is her maternal uncle (mama) in relation, hence used to visit her house off and on. The remaining prosecution case has either been denied by him being wrong or for want of knowledge.
24. r The defence of the accused as emerges from the trend of cross-examination of the prosecution witnesses and his answer to the last question in his statement recorded under Section 313 Cr.P.C that the child victim and one Naku were noticed by him in an objectionable condition, therefore, it is for this reason, he has been implicated in this case falsely, is neither probable nor plausible and rather that such plea has been raised by him merely to get rid of this case. The prosecution witnesses have denied any objectionable relations between the child victim and Naku and rightly so because Naku is cousin of the victim as has come in the statement of her mother PW-2. Even if he had seen something objectionable between the two, would have apprised the parents of the victim qua the same. The plea so raised by ::: Downloaded on - 09/01/2019 23:03:30 :::HCHP 22 the accused is also vague as he failed to disclose the day, time and place when he noticed both of them in an .
objectionable condition. Had he been maternal uncle of the victim and noticed something objectionable, it was his foremost and utmost duty to have apprised her parents about it. It is highly doubtful that in such a situation, a man of ordinary prudence like the accused would have visited the Pradhan, Gram Panchayat and disclosed something objectionable between the victim and Naku, that too, when he was her maternal uncle. Therefore, not only the plea raised by the accused is false and germane of his mind, but the evidence as has come on record by way of testimony of DW-1 is also highly imaginary and false.
Had it been so, she should have discussed the matter with the parents of the victim and not with her. Therefore, her testimony that the victim had admitted her relations with Naku as correct and also informed DW-1 that accused was innocent has no grain of truth and rather false. DW-1, therefore, is a liar and deposed falsely to help the accused for the reasons best known to her.
25. In view of the given facts and circumstances of this case and also the evidence available on record as well as the submissions made by learned counsel representing the appellant-convict and learned Additional Advocate ::: Downloaded on - 09/01/2019 23:03:30 :::HCHP 23 General, the present is a case where the commission of the offence punishable under Section 376 IPC and Section 6 of .
the POCSO Act is not made out against the accused.
Consequently, his conviction and sentence for the commission of such offence deserves to be quashed and set aside. The evidence available on record, however, discloses the commission of the offence of sexual assault defined under Section 7 of the POCSO Act and punishable under Section 8 thereof. The prosecution has also proved beyond all r reasonable doubt that the accused has threatened her with dire consequences including exposing her in the school before teachers and other students, because it is not the victim alone but her parents have also stated so while in the witness box. It has even come so in the application Ext.PW-1/A on the basis of which the FIR Ext.PW-14/A has been registered. The accused, as such, has committed the offence punishable under Section 506 of the Indian Penal Code also.
26. For all the reasons discussed hereinabove, in modification of the impugned judgment, the accused is acquitted of the charge framed against him under Section 376 IPC and Section 6 of the POCSO Act. He, however, is convicted for the commission of the offence of sexual assault punishable under Section 8 of the Act. There is ::: Downloaded on - 09/01/2019 23:03:30 :::HCHP 24 provision of sentence i.e. imprisonment for five years and imposition of fine against an offender, if held guilty for the .
commission of the offence of sexual assault. In the matter of sentence, keeping in view the gravity of the offence i.e. assaulting sexually a minor below 12 yeas of age, the convict deserves no leniency. Therefore, convict Nikka Ram is sentenced to undergo rigorous imprisonment for a period of five years and also to pay Rs.25,000/- as fine. In default to pay the fine, he shall undergo rigorous imprisonment for a period of six months. On deposit of the fine, the same will be paid to the victim of the occurrence as compensation. This appeal partly succeeds and the same is accordingly allowed. Consequently, the impugned judgment stands modified to the extent as indicated hereinabove.
27. The appeal stands finally disposed of in the above terms.
(Dharam Chand Chaudhary)
Judge
January 05, 2019 (Chander Bhusan Barowalia)
(naveen) Judge
::: Downloaded on - 09/01/2019 23:03:30 :::HCHP