Himachal Pradesh High Court
Prem Chand Alias Tittu vs State on 9 March, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 9th DAY OF MARCH, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
Between:-
r to
CRIMINAL APPEAL No.554 of 2019
PREM CHAND ALIAS TITTU,
AGED 51 YEARS,
S/O SHRI TRILOK CHAND,
R/O VILLAGE JHIKLI KHANNI,
TEHSIL NURPUR,
DISTT. KANGRA, H.P.
.... APPELLANT
(BY MS. ANJALI SONI VERMA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. VIKRANT CHANDEL,
DEPUTY ADVOCATE GENERAL)
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2
This appeal coming on for hearing this day, Hon'ble Ms.
Justice Sabina, delivered the following:
.
JUDGMENT
Appellant has filed the appeal challenging the Judgment/Order dated 31.08.2019/28.09.2019, passed by the trial Court, whereby, he has been convicted and sentenced as under:-
Section 6 of Protection : Rigorous imprisonment for ten years and to of Children from pay a fine of `1,00,000/- (Rs. One lac Sexual Offences Act, only). In default of payment of fine, he 2012 shall further undergo rigorous imprisonment for two years.
2. Prosecution story was set in motion on the basis of the statement of complainant Tara Singh, recorded under Section 154 of the Code of Criminal Procedure. It was the case of the complainant that prosecutrix, aged about nine years, was his daughter and was student of 4th Class. On 22nd September, 2017, prosecutrix, while returning from school, told him that appellant had given her a toffee and had taken her to a newly constructed house of Shera. Appellant had opened her salwar and committed wrong act with her on 22 nd September, 2017.
3. On the basis of the statement of the complainant, a formal FIR No.293 dated 22nd September, 2017 was registered at Police ::: Downloaded on - 14/03/2022 20:10:40 :::CIS 3 Station Nurpur, District Kangra 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').
4. After completion of investigation and necessary formalities, challan was presented against the appellant under Section 376 IPC and Section 6 of the POCSO Act.
5. Vide order dated 19th January, 2018, charge was framed
6.
r to against the appellant under Section 6 of the POCSO Act. Appellant did not plead guilty of the charge framed against him and claimed trial.
In order to prove its case, during trial, prosecution examined 17 witnesses.
7. After the close of prosecution evidence, appellant when examined under Section 313 of the Code of Criminal Procedure, prayed that he was innocent and had been falsely involved in this case.
8. Appellant examined two witnesses in his defence.
9. Ms. Anjali Soni Verma, learned counsel for the appellant has submitted that the appellant has been falsely involved in the case, due to enmity, at the instance of PW-4 Sandhya Devi. Learned counsel has further submitted that the present case could not be said to be one falling under Section 6 of the POCSO Act. In support of her arguments, learned counsel has placed reliance on the judgment of Hon'ble Supreme Court in Rai Sandeep Alias Deepu versus State ::: Downloaded on - 14/03/2022 20:10:40 :::CIS 4 (NCT of Delhi) (2012) 8 Supreme Court Cases, 21, and also on the judgments of this Court in Nikka Ram versus State of Himachal .
Pradesh, 2019 (1) Shim. LC 201, and in Kuldeep Singh versus State of Himachal Pradesh, 2019 (1) Shim. LC, 244.
10. Mr. Vikrant Chandel, learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that from the testimony of the prosecutrix as well as the medical evidence, it was
11.
r to duly established that the charge levelled against the appellant was fully proved.
Appellant had faced trial qua commission of offence punishable under Section 6 of the POCSO Act. Prosecutrix, in the present case, is aged about nine years.
12. Section 3 of the POCSO Act reads as under:
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 ::: Downloaded on - 14/03/2022 20:10:40 :::CIS 5 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.
13. Section 5 (m) of the POCSO Act reads as under:-
"whoever commits penetrative sexual assault on a child below twelve years; or"
14. The offence of aggravated penetrative sexual assault is punishable under Section 6 of the POCSO Act.
15. In order to appreciate as to whether the prosecution has been successful in proving its case, let us examine the statements of the material witnesses examined during trial.
16. The star witness of the prosecution is the prosecutrix herself. Prosecutrix while appearing in the witness-box as PW-2 has deposed that on the day of incident, she had been taken to the school by her father at 9.00 a.m. Her school closed at 12.00 noon, but her father did not reach to pick her up. She was returning home alone and when she had reached near the house of Shera, appellant met her and told her that he would give her a toffee. Appellant took her inside the house of Shera and did not give any toffee to her. Appellant removed her clothes and committed sexual intercourse with her. In the meantime, 'Amma' came there and made her wear her clothes. She ::: Downloaded on - 14/03/2022 20:10:40 :::CIS 6 returned home and did not disclose the occurrence to anybody.
However, on the third day, she disclosed the incident to her father. Her .
statement was recorded by the Police.
17. PW-1 Tara Singh, father of the prosecutrix, has deposed as per the contents of the FIR.
18. PW-3 Saroj, mother of the prosecutrix has also corroborated the statement of her husband on material aspects.
19. PW-4, Sandhya Devi, deposed that on the day of incident, she had seen the appellant taking a small girl to a newly constructed house of Sher Singh. After about 15 minutes, she also entered the house and saw that the girl was not wearing any clothes. Appellant was also present there. She slapped the appellant. Thereafter, the girl put on her Pajami and she brought her out of the house. Appellant apologized and told her not to reveal the incident to anybody. On the next day, she narrated the incident to the mother of the girl.
20. PW-14, Dr. Neelam Verma, deposed that on 22nd September, 2017, she had medico-legally examined the prosecutrix and had observed as under:-
"On general physical examination child (Bharti) was conscious, co-operative and well oriented to time place and person. Her purlse rate was 80 per minute. RR was 22 per minute regular. Chest and CVS of the child were within normal limits. On per abdomen examination it was soft. No injury marks were present ::: Downloaded on - 14/03/2022 20:10:40 :::CIS 7 over forehead, cheeks, nose, chin, neck, chest breast region, abdomen back, inner part of thighs and arms. Breasts were not developed.
.
On genitalia examination: External genitalia was not well developed. Pubic hairs were not developed.
Vulva was congested and tender. Forchette was intact. Hymen was intact, but congested and tender. Vaginal mucosa was congested and tender. Swabs were taken from vagina, slides were prepared from the, dried, sealed and handed over to police."
21. PW-14 further deposed that as per her final opinion, possibility of sexual intercourse could not be ruled out.
22. Thus, in the present case, as per the version of the prosecutrix, appellant had committed sexual intercourse with her, after removing her clothes. As per the medical evidence, although, hymen of the prosecutrix was intact, but it was congested and tender. Vulva was congested and tender. Vaginal mucosa was congested and tender. Hence, from the ocular and medical evidence, it is evident that the act committed by the appellant would fall within the definition of penetrative sexual assault.
23. As per Ex.PW-6/B, the date of birth of the prosecutrix is 2 nd April, 2009. Thus, as per the said document, the prosecutrix was less than nine years of age at the time of incident. Hence, the offence ::: Downloaded on - 14/03/2022 20:10:40 :::CIS 8 committed by the appellant would fall under the definition of aggravated penetrative sexual assault.
.
24. The statement of the prosecutrix, being natural, inspires confidence. The prosecutrix had no reason to falsely involve the appellant in this case. Although, it has been argued by the learned counsel for the appellant that the appellant had been involved on account of his enmity with PW-4 Sandhya Devi, but there is nothing on record to suggest that PW-1, Tara Singh was, in any way, related to Sandhya Devi, to have a reason to falsely involve the appellant in this case at the instance of Sandhya Devi vis-à-vis his daughter aged less than nine years. In normal circumstances, a father would not involve his minor daughter in a false case of this nature, especially when he has no direct enmity against the accused. Moreover, the argument raised by the learned counsel for the appellant to the effect that the appellant had been falsely involved in this case due to his enmity with Sandhya Devi PW-4, was not even put to PW-1.
25. So far as DW-2 is concerned, she has deposed with regard to some compromise Ex.D-2 effected between Piyungla Devi and Sanjeev Kumar. As per DW-2, Sandhya Devi was also present at the time of execution of Ex.D-2. However, Ex.D-2 was not put to PW-4 Sandhya Devi, when she appeared in the witness-box. DW-2 has also admitted in her cross-examination that from Ex.D-2, it cannot be stated ::: Downloaded on - 14/03/2022 20:10:40 :::CIS 9 that Sandhya Devi was present or was signatory to the said document.
Hence, the testimony of DW-2 Anjna fails to advance the case of the .
appellant to the effect that he has been falsely involved in this case.
26. We have carefully gone through the judgments relied upon by learned counsel for the appellant, but the same fail to advance the case of the appellant as they are based on their own facts. So far as the prosecution case is concerned, it has been successful in establishing its case against the appellant beyond the shadow of reasonable doubt. The testimony of the prosecutrix finds corroboration from the medical evidence.
27. In the facts and circumstances of the case, learned trial Court has, thus, rightly ordered the conviction and sentence of the appellant under Section 6 of the POCSO Act. Therefore, no ground for interference is made out. Accordingly, the appeal is dismissed and the judgment/order passed by learned trial Court is upheld.
(Sabina) Judge (Satyen Vaidya) Judge March 09, 2022 (ps) ::: Downloaded on - 14/03/2022 20:10:40 :::CIS