Himachal Pradesh High Court
Jaspal Alias Jassu vs State Of Himachal Pradesh on 5 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 305 of 2018 Reserved on: 25.09.2023 .
Date of decision: 05.10.2023
Jaspal alias Jassu ...Appellant
Versus
State of Himachal Pradesh ...Respondent
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Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
rt Whether approved for reporting? No. For the Appellant : Mr. Goldy Kumar, Advocate.
For the Respondent: Mr. Anup Rattan, A.G. with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy. A.G. and Mr. Rajat Chauhan, Law Officer.
Tarlok Singh Chauhan, Judge.
The appellant has been convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5,000/- and in default of payment of fine, to further undergo simple imprisonment for six months for the offence punishable under Section 363 IPC, rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- and in default of payment of fine, to further undergo simple imprisonment for six months for the offence punishable under Section 366-A IPC, rigorous imprisonment for three years and to pay a fine of ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 2 Rs. 5,000/- and in default of payment of fine, to further undergo simple imprisonment for six months, for the offence punishable under Section 506 IPC and rigorous imprisonment .
for 10 years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to further undergo simple imprisonment for one year for the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for of short 'POCSO Act') and the period of all the sentences has been ordered to run concurrently.
2. rt Aggrieved by the aforesaid judgment of conviction and sentence passed by the learned Special Judge, the appellant has filed the instant appeal.
3. The story of the prosecution, in brief, is that on 28.07.2017, complainant Pawan Kumar son of Shri Sant Ram, filed a complaint with the SHO, Police Station, Bhoranj, alleging therein that he has two children, one son and one daughter. His son Vinod was elder and the victim was the younger and the victim had studied up to 8th standard and now-a-days she was residing at home. About eight (8) days back, his daughter had gone missing, and thereafter complainant and his wife searched for her in the houses of relatives, but she was not found. They came to know that she had been enticed by the appellant and taken to village Langhera, P.O. Khanahari Baihna, Tehsil Sarkaghat, District Mandi, H.P. and she was minor of the 16 years of age and ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 3 requested the police for taking action and releasing her from unlawful custody. The police accordingly registered an FIR and investigation of the case was entrusted to ASI Gian Chand.
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4. During the course of investigation, the victim was recovered from the house of Marchu Ram son of Saju Ram, grand-father of appellant. The spot map was prepared and the statement of the victim was recorded through L/C Milan of Kumari No.84 in the presence of her father Pawan Kumar under videography and photographs of the spot were taken.
rt Mobile phone along with SIM card produced by the victim was taken into possession. Father of the victim had produced the Adhar Card of the victim, which was also taken into possession and as per Adhar Card her date of birth was 20.06.2001. He also recorded statements of the witnesses under Section 161 Cr.P C. Section 366-A was added later on.
5. On 29.07.2017, victim was got medically examined at Civil Hospital, Bhoranj vide application Ext.PW7/A and obtained her MLC Ext.PW7/B, according to which the possibility of sexual intercourse cannot be ruled out and final opinion Ext.PW7/C was obtained. The Medical Officer had also taken the samples of pubic hair, vaginal swab, vaginal slides, cervical smear, urine sample and blood sample on FTA card of victim along with her garments, which were sealed in a parcel and handed over to the police. Statement of victim under ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 4 Section 164 Cr.PC was got recorded before learned JMIC(III), Hamirpur.
6. The investigating officer had obtained the abstract .
of family register of victim from the concerned Gram Panchayat. At the instance of victim, the bed sheet from the residential house of appellant was taken into possession.
Statements of the witnesses were recorded.
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7. On 01.08.2017 at 6.15 P.M, the appellant was arrested from Bhareri and he was got medically examined at rt Civil Hospital, Bhoranj vide application ExtPW7D and his MLC Ext.PW7/E was obtained, according to which there was nothing to suggest that appellant was incapable of performing sexual intercourse. Sample of penis swab, pubic hair, blood sample on FTA card were taken and Bermuda was sealed in a parcel and handed over to the police.
8. On 02.08.2017, appellant made a disclosure statement and got recovered his mobile phone along with SIM and charger from the bedroom of his house kept in a Godrej almirah and taken into possession vide separate memo and spot plan was also prepared. Photographs were also taken. His clothes i.e. pant and vest, were also taken into possession, which he had worn during the period from 22.07.2017 to 28.07.2017. Statements of the witnesses were recorded. The vehicle i.e. Car/Taxi along with its documents and key was also taken into possession vide separate memo. The date of birth ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 5 certificate was also obtained from District Hospital, Hamirpur, which showed the date of birth of victim to be 20.06.2001 i.e. 16 years 2 days, and on the direction of SDPO, Barsar, Section .
376 IPC and Section 4 of POCSO Act were also added.
Statements of victim and her mother under Section 161 Cr.PC were recorded and Section 506 IPC was also added.
9. During investigation, it was found that 3-4 months of prior to the incident victim had gone to the house of her aunt at village Karyali in Dhaja's function, where the appellant met rt her and gave his mobile number to the victim and after few days appellant gave a mobile along with sim to the victim. It was also found that the appellant had been regularly talking to the victim.
10. On 22.07.2017, the appellant called the victim to Bhareri and in order to solemnize marriage enticed her and took to his village Langhera and kept her there till 28.07.2017 and during this period, he committed sexual intercourse with her twice and she was threatened to do away with her life in case she disclosed the incident to anybody.
11. The CDR and CAF of mobile were obtained and after deleting Section 4, Section 6 of POCSO Act was added.
Supplementary statement of victim was recorded by Inspector/SHO.
12. The case property was deposited with the MHC, Police Station, Bhoranj, who sent the same to RFSL, Mandi for ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 6 chemical examination and on receipt of RFSL report Ext.PX and on completion of investigation, challan was prepared and presented in the court for trial against the appellant.
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13. The Court on finding a prima-facie case framed charges against the appellant under Sections 363, 366-A, 376 & 506 IPC and Section 6 of the POCSO Act, 2012, to which he pleaded not guilty and claimed trial.
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14. The prosecution, in order to prove its case, has examined 15 witnesses in its support.
15. rt On closure of the prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. was recorded. The appellant denied the prosecution evidence in toto and stated that all the witnesses have deposed falsely against him and he was innocent. He claimed that the victim was brought by her aunt (Tai) to the house of her Bua at Langhera and had given the proposal. However, the appellant did not lead any evidence in his defence.
16. The learned trial Court after evaluating the evidence, convicted and sentenced the appellant, as aforesaid.
17. It is vehemently argued by Shri Goldy Kumar, learned counsel for the appellant that the findings recorded by the learned trial Court are totally perverse and, therefore, not sustainable in the eyes of law.
::: Downloaded on - 05/10/2023 20:42:17 :::CIS 718. On the other hand, Shri J. S. Guleria, learned Deputy Advocate General, would argue that the appellant has rightly been convicted and sentenced by the learned Special .
Judge on legally admissible evidence and such finding warrants no interference.
We have heard learned counsel for the parties and have gone through the record of the case.
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19. At the outset, it needs to be noticed that as per the case of the prosecution, statement of the victim had been rt recorded under Section 161 Cr.P.C. and thereafter recorded by the Magistrate under Section 164 Cr.P.C. If one would have to advert to the statement made by the victim under Section 164 Cr.P.C., the same makes no head or tail and is reproduced herein under alongwith its English translation:-
"Statement of Victim Sandhya Kumari u/s 164 Cr.P.C.
On Oath 29/7/2017 वव गगडड लल कर आए थल। उसनल धकग ददयग और ममझल गगडड मम दबठग लल गए। जसपगल जव लडकल वगललों ककी और सल हह, वव जबरदसतड महहदड वगहरग लगगई और कहग बयगह करनग हह I दफर उसनल कहग दक मम अपनल मगह-बगप ककी न मगनतग हह ह। ममझल कह रहग थग ककी वहगह सल अपनल घर चलल जगओ I और कहग मलरल सल थपपड पडनल। उसनल कहग Police कव यह न बतगऊह दक मम आयग थग और आपकव गगडड मम लल गयग। और कह मम Police वगललों सल नहह डरतग I दफर उसकग डहडड गगलड दलतग आयग। रगत कव सब लवग सवए थल तव वह गगलड दलतग आयग। वह भगहग कग नशग भड करतग हह और शरगब भड पडतग हह I ममनल कहग ममनल महददर मम जगनग हह तव वह कहतग हह दक अकललल चलल जगओ ममनल नहह जगनग हह ममनल नहड जगनग आपकल सगथ। और कह रहग थग ममनल solan लल ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 8 जगनग हह तममहम I जब मम सस जगदत थड तव उसनल कमरल मम शरगबड कवगबड लवग कमरल मम दबठग ललनल। ममझल पतग न थग दक उसनल पहलल शगदड ककी थड। ममझल कहतग थग दक तत कवई कगम न करतड हह व बहठड रहतड हह। खमद TV तक बहठल रहनग और ममझल कहनग दक तत कमछ नग करतड हह। घर सल चलल गयग पतग नहह कहगह दफर आ गयग गयग पतग नहह कहगह गयग थग । ममझल कहनग लगतल जडक / .
सब करनग पर कहनग तत कमछ नहह करतड हह । मलरग Phone ललयग पगनड मल डत बग ददयग। मलरड शगदड हह ई पमर फलरल नहड हह ए। हम एक हड कगमरल मम सवतल थल। मम आगल नहड ललखगनग चगहह गड I यहड यहह बहद करवगनग चगहह गड I RO&AC Sandhya Kumari Sd/-
(JMIC) Statement of victim Sandhya Kumari under Section 164 of Cr.P.C.
On Oath rt 29.07.2017.
They had come by a vehicle. He pushed me into the vehicle and took me along. Jaspal, who is from the boy's side, forcibly made me put 'mehandi' etc. and instructed me what was to be done. Then he said that he does not listen to and obey his parents. He was asking me to leave the place and go to my home from there and threatened to slap me. He further told me not to inform the police that he had come and taken me along in the vehicle. He further boasted that he was not scared of police. Then his father came in abusing while everyone was asleep. He is given to smoking 'charas' and consuming liquor. I said I wanted to go to temple to which he asked me to go alone and further said that he did not want to accompany me. He further told me that he would take me to Solan. When I used to sleep (in my room), he would make his friends, who were given to consuming liquor and eating meat to sit in the room. I did not know that he was already married. He used to tell me that I did not work and keep sitting idle. He used to watch T.V. himself whereas he would taunt me that I kept sitting idle. He went away from home and then came back; I did not know where he had gone. He used to ask me to serve him by ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 9 kneading and pressing his legs. I used to do all domestic chores whereas he would still taunt that I did not do anything. He took away my phone handset and submerged it in the water. I got married but 'fere .
ceremony' was not done. We used to sleep in one room only. I do not intend to state any further and wish to conclude my statement here.
20. Once the statement of the victim under Section of 164 Cr.P.C. is found to be totally vague, then the Court essentially would have to fall back on the statement of the victim in the Court, which then goes a long way to indicate as rt to whether the prosecution has been able to substantiate the charge framed against the appellant or not.
21. The victim appeared as PW1 and stated that she had left the school after 8th class. She further stated that there was a function in the house of her aunt at village Karyali where the appellant had met her. At that time the appellant was not known to her. The appellant had given his mobile number to her. She used to learn stitching in the house of her aunt (Tai) Meera Devi. Her aunt used to contact the appellant and she used to talk with the appellant on the mobile of her aunt. The appellant called her telephonically to Bhareri.
22. On 22.07.2017, the victim aunt had sent her to Bhareri as the appellant had called her with the proposal of marriage. She went to Bhareri in a private bus. Thereafter, appellant came there in a taxi and took her to his house at ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 10 village Langhera. The appellant had given her a new mobile phone number with Sim.
23. On 23.07.2017, the appellant told his parents that .
he had solemnized marriage with the victim in the Court and she stayed in the house of appellant for eight days. The appellant had committed forcible sexual intercourse with her for eight days. She further deposed that the mobile phone of given by her aunt was taken into possession by the police vide memo Ext.PWI/A, which she had produced in the presence of rt Garib Dass and Milap Chand. The Sim was already extracted from the mobile by her aunt. She further deposed that her mother and uncle brought the police and had taken her from the house of the appellant. On her demarcation, the police prepared the spot plan of the house of the appellant and had taken into possession the bed-sheet, which was sealed in a cloth parcel and taken into possession vide memo Ext. PW1/B. The police had got her medically examined at C.H. Bassi. The clothes which she was wearing were taken into possession by the Doctor. Her statement Ext.PW1/C was also got recorded before JMIC-III, Hamirpur. The appellant had threatened her not to disclose the incident to anyone. The victim then identified the mobile phone, charger, bed-sheet, salwar, bra and dupatta to be the same which were taken into possession by the police and doctor. She further deposed that the appellant was already married, but he had not disclosed this ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 11 fact to her. Later on, she came to know that the appellant was already married.
24. In cross-examination, the victim stated that she .
was not aware of her date of birth and did not know how many years old her elder brother was. She further stated that she had left the school on account of poor financial condition as her father had not given money for admission in 9 th class. She of denied the suggestion that there were houses of her relatives near the house of the appellant. However, she admitted that rt her aunt Meera Devi wanted to get her married with the appellant. She further admitted that she had not disclosed her date of birth to the appellant. But volunteered to state that she had refused to marry as she had not completed the age of 18 years. She admitted that the police had collected her date of birth record from her school. She denied the suggestion that when she was at the house of the appellant, she was regularly in the contact of her aunt.
25. The victim admitted that the marriage had not been solemnized by performing Sapt-Padi or before the Marriage Registrar. However, she admitted that Katha was performed and community lunch/dinner was also given by the family of the appellant. She admitted that many persons from the relations of the appellant and from her village had attended the community lunch on 23.7.2017. She further ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 12 admitted that her parents, uncle and maternal uncle and maternal grandfather also reached in the house of the appellant to attend the community lunch on 23.7.2017. She .
further admitted that her parents and relatives returned after taking their meal in the house of the appellant and had not taken her alongwith them. She volunteered to state that the appellant had threatened her and asked her to say that she of wanted to reside in the house of the appellant.
26. The victim further deposed that father of the rt appellant had also threatened her father. She claimed to have disclosed all these facts to the police that her parents and relatives had attended the community lunch at the house of the appellant, however, the same is not recorded in the statement. She further admitted that it had not been recorded in her statement under Section 161 Cr.PC. that the appellant had forcibly committed sexual intercourse with her. She further admitted that she had not got recorded in her statement before Magistrate under Section 164 Cr.P.C. that the appellant had committed forcible intercourse with her. She denied that she was 18 years old when she was sent by her aunt with the appellant. She denied the suggestion that her parents had solemnized her engagement ceremony at the house of the appellant and had left her there. She further denied that the parents of the appellant had asked her parents to take her back. Lastly, she denied that after five ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 13 days, her parents had lodged a false case against the appellant.
27. Before discussing the testimony of the Victim .
(PW1), it would be necessary to refer to the other evidence that has come on record.
28. Father of the victim Pawan Kumar was examined as PW2 and stated that he had two children out of whom the of elder was son and the younger was the daughter who was victim in the instant case. He further deposed that her rt daughter had left the school after 8 th class. On 22.7.2017, his daughter had left the house without informing and they had searched her in their relations but she could not be traced.
After few days they came to know that his daughter had gone with the appellant to village Langhera, Tehsil Sarkaghat, District Mandi. She was 16 years old at that time. He had filed a complaint before SHO Bhoranj Ext.PW2/A. On 23.07.2017, the appellant said that he had solemnized court marriage with his daughter. When he demanded the papers from the appellant, then he stated that he would show the papers on Monday, but the appellant had not shown any document of marriage with the victim. The police had handed over the victim to him vide memo Ext.PW2/B. His daughter was got medically examined and her statement was got recorded before the Magistrate. He had produced the copy of Adhar ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 14 Card of his daughter Ext.P11 to the police which was taken into possession vide memo Ext. PW2/C. He had produced mobile to the police which Meera Devi had given to his .
daughter which was taken into possession vide memo Ext.PW2/D. The mobile was identified by the witness in the Court.
29. On being cross-examined, this witness denied that of they had left the daughter in the house of the appellant after engagement on 22.7.2017. He did not remember the date of rt birth of his daughter. He admitted that his daughter had left the school in the year 2013. He admitted that his daughter remained in the house of the appellant from 22.7.2017 to 28.7.2017 and volunteered to state that the appellant had stated that they had solemnized court marriage. He denied the suggestion that he was in regular contact with his daughter from 22.7.2017 to 28.7.2017. He stated that he had shown the Adhar Card of his daughter to the parents of the appellant. He denied the suggestion that after the engagement of his daughter they had left her with the appellant.
30. The uncle of the victim Madan Lal appeared as PW3 and stated that on 22.7.2017, the victim had left the house and could not be traced out. Thereafter, we came to know that victim had gone with the appellant. When he along ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 15 with his brother, nephew and one photographer went to the house of the appellant, the family of appellant was solemnizing the marriage at their house. When they inquired .
from father of the appellant, he disclosed that the marriage had been solemnized in the court. When they asked to show the documents of the marriage, they replied that they would produce the documents on Monday. When they failed to of produce the document, the matter was reported to the police on 28.07.2017. They had given the copy of Adhar Card of rt victim to the police which was taken into possession vide memo Ext.PW2/C. The mobile phone Ext. P13 was also produced by his brother Pawan Kumar which was taken into possession vide memo Ext.PW2/D.
31. On being cross-examined, this witness stated that he did not remember that it had been recorded in his statement that they went to the house of the appellant on 23.07.2017. However, admitted that they all had lunch there.
He further stated that the victim was wearing bridal dress and ornaments on that day. He admitted that they had left the victim in the house of the appellant. He volunteered to state that the family of the appellant had stated that the appellant and the victim had got married by way of court marriage and it is then they had left the victim there. He denied the suggestion that they were in contact with the victim when she remained in the house of the appellant. He further denied the ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 16 suggestion that they had solemnized the engagement ceremony of the victim with the appellant and had left her at the house of the appellant.
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32. Smt. Mansha Devi, Ward Panch of Gram Panchayat, was examined as PW4 and proved on record the recovery of bed-sheet, mobile phone from the victim and the blue jeans of the appellant.
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33. Mr Anil Kumar is the Taxi Driver, who appeared as PW5 and stated that the appellant had taken his car on rt 22.07.2017 to bring a person from Bhareri. The appellant brought the victim from Badhani road and dropped both of them near the house of the appellant. In cross-examination, this witness stated that one lady also accompanied the appellant and the victim but he did not know who she was.
34. Mr. Nagender Singh Negi, the then BDC Member, was examined as PW6 and stated that he had been BDC Member for the last two years and had been associated by the police at the time of investigation on 28.07.2017. He stated that the victim was recovered by the police from the house of the appellant. In cross-examination, he admitted that on 23.07.2017, he was called by the parents of the victim and the appellant to attend the engagement ceremony in the house of the appellant. He further stated that engagement took place and the community lunch was also there. The family members ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 17 of the victim had also taken their lunch in the house of the appellant. Father of the appellant had asked father of the victim as to whether the victim had attained the age of .
majority, who in turn, told that she was now major and undertook to solemnize the marriage later on.
35. PW7 Dr. Neha Patial, examined the victim as well as the appellant and in the final report did not rule out the of possibility of sexual intercourse and also opined that there is nothing to suggest that the appellant was not fit enough to rt commit sexual intercourse. She issued MLC of both the appellant as well as the victim, and after receipt of the FSL report, had given final opinion Ext.PW7/C. She had also taken samples of pubic hair, vaginal swab, vaginal slides, cervical smear, urine sample and blood samples on FTA card and Bermuda of the appellant was sealed in parcel Ext.P21.
36. Pawan Kumar Jaswal, Senior Statistical Assistance, appeared as PW8 and stated that on the application moved by the police Ext. PW8/A, he had prepared the birth certificate of the victim Ext. PW8/B from the Birth and Death Register.
According to which the date of birth of the victim as per record was 20.06.2001.
37. PW9 Kamal Kumar is the photographer, who developed the photographs Ext. PW9/A-1 to Ext.PW9/A-8 and handed over the same to the police. On being cross-examined, ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 18 he stated that he had neither developed the photographs but prepared the CDs at one time nor the police had brought the handicam time and again.
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38. PW10 HHC Sanjay Kumar proved on record the videography conducted by him on the spot on 28.09.2017, 29.07.2017 and 30.07.2017. Nothing material could be elicited from his cross-examination.
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39. PW11 Lady Constable Milan Kumari No. 84 stated that on 28.7.2017, she had recorded the statement of victim rt under the supervision of ASI Gian Chand. On 29.7.2017, she had taken the victim for medical examination and obtained her MLC Ext.PW7/B. The samples were handed over to her by the Doctor alongwith the MLC which she had deposited with the MHC.
40. On 30.7.2017, she had recorded the statement of mother of the victim under the supervision of the Investigating Officer. The victim identified the bed-sheet Ext.P5 which was sealed in parcel Ext.P4 in her presence. The bed-sheet was taken into possession vide memo Ext.PW1/B and sealed in a parcel of cloth with seal 'S' at eight places. She had signed the memo as witness along with Mansha Devi. The signature of victim was also obtained on the memo. The statements of victim and her mother were recorded under the videography ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 19 which was done by HHC Sanjay Kumar. She had recorded the supplementary statement of the victim on 30.7.2017.
41. On being cross-examined, she stated that the .
parents of the victim as well as the appellant were present at the time of recording of statements of the victim and her mother. She denied the suggestion that she had recorded the statement of victim on the instruction of I.O. She further of denied the suggestion that victim had not given the statement that no sexual intercourse was performed by the appellant with her.
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42. PW12 HC Rakesh Kumar is the MHC who proved on record the case property that was deposited from time to time and sent for chemical analysis and examination and then returned in the Malkhana. Since he was not cross-examined, there was no necessity to refer to his testimony in detail.
43. PW13 HHC Ashok Kumar is the witness to the recovery and stated that on 02.08.2017, he was associated by the I.O. in the investigation. The appellant during the custody had got recorded his statement that he could get the mobile phone recovered, which he had kept in almirah of his house and the statement of the appellant was recorded by the I.O.
vide Ext.PW13/A. He along with Constable Daler Singh had signed the statement as witness. Signatures of the appellant were also obtained on the statement. On demarcation of the ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 20 appellant, the mobile phone Ext.P15 was recovered and taken into possession vide memo Ext.PW4/A and thereafter deposited. This witness admitted that no independent witness .
was present at the time of recording the statement of the appellant.
44. PW14 Inspector Chhota Ram, SHO, P.S. Banjar stated that on the complaint Ext.PW/A of Pawan Kumar, he of had recorded the FIR Ext.PW14/A and thereafter investigation was handed over to ASI Gian Chand.
45. rt PW 15 ASI Gian Chand, who was the Investigating Officer in this case, stated that the investigation of the FIR No. 83/17 was handed over to him by SHO/Inspector Chhota Ram.
He further deposed that on 28.07.2017, he along with police party went to village Langhera to the house of appellant along with Garib Dass and Milap Chand and searched the house of the appellant from where the victim was recovered. The victim produced the mobile phone Ext.P2 along with charger Ext.P3 which was sealed in a parcel of cloth Ext.P1 with seal impression 'C' and was taken into possession vide memo Ext.PW1/A in presence of the witnesses. He also prepared the spot plan Ext.PW15/B and took photographs of the house of the appellant. He got the statement of victim recorded through LC Milan Kumari and the victim was handed over to her father vide memo Ext.PW2/B. On next day i.e. on ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 21 29.7.2017, the victim was sent for her medical examination through LC Milan Kumari alongwith application Ext.PW7/A and her MLC Ext.PW7/B and opinion of M.O. Ext.PW7/C was .
obtained.
46. On 29.7.2017, the statement of victim EXPW1/C was got recorded before JMIC-III Hamirpur. On 30.7.2017.
Statement of mother of victim was recorded and on of demarcation of victim, the bed-sheet Ext P5 was recovered from the house of the appellant which was sealed in a cloth rt parcel Ext.P4 and taken into possession vide memo Ext.PWI/B. The parcel was sealed with seal 'S' at eight places. The site plan Ext.PW15/D was prepared by him. Supplementary statement of victim was recorded along with statements of other witnesses.
47. On 1.8.2017 the appellant was arrested at Bhareri and he was got medically examined by filing application Ext.PW7/D and obtained his MLC Ext.PW7/E.
48. On 2.8.2017, during the custodial interrogation, the appellant had given disclosure statement Ext.PW13/A and on his statement, mobile phone Ext.P15 was recovered from his house alongwith charger Ext.P16, which were sealed in parcel Ext.P14 with seal impression 'T' and memo Ext.PW4/A was prepared. Sample seal Ext.PW15/E was drawn on separate piece of cloth and site plan Ext PW15/F was prepared. He had ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 22 recorded the statements of witnesses as per their version. The photographs were also obtained through HHC Sanjay Kumar.
49. On 2.8.2017, the clothes of the appellant i.e. jeans .
pant Ext.P18 and banyan Ext P19, were taken into possession and sealed in a parcel Ext.P17 and memo Ext.PW4/B was prepared. The parcel was sealed with seal 'T' at 8 places.
Sample seal 'T' was handed over to Constable Daler Singh.
of
50. On 3.8.2017, father of victim produced one mobile phone Ext.P13 which was sealed and taken into possession rt vide memo Ext.PW2/D. On the said date i.e. 3.8.2017, Maruti car which was used by the appellant was taken into possession along with documents vide memo Ext PW5/A. He further stated that he had obtained the birth certificate Ext.PW8/B by filing application ExtPW8/A to CMO Hamirpur. He had filed application Ext.PW15/H and obtained the CDRs Ext.PW15/1 from Nodal Officer, Vodaphone. He had handed over the case file to the SHO Mukesh Kumar, who had recorded the statement of victim on 26.10.2017 through LC Nisha Devi and prepared the challan.
51. On being cross-examined, this witness admitted that there was a kitchen in the house of the appellant separate from four rooms which was not shown in the site plan. However, he denied the suggestion that it had come in the investigation that the victim was brought by her parents ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 23 and uncle and aunt to the house of appellant for her engagement with the appellant. He denied the suggestion that the victim had given the statement that she was left in .
the house of appellant by her aunt (Tai) Meera Devi. He also denied the suggestion that Meera Devi accompanied the victim to the house of the appellant in his vehicle. He also denied the suggestion that he obtained the birth certificate of of victim from Govt. Senior Secondary School, Badhani which was not placed on record. He denied the suggestion that the rt victim was major as per record and further denied that having foisted a false case in connivance with the parents of the victim to falsely implicate the appellant in this case. He denied the suggestion that he had prepared the memos as per his wish and also denied that the appellant had not given any disclosure statement and also denied the suggestion that he had recorded the statements of witnesses as per his own wish.
This in entirety is the case of the prosecution.
52. At the outset, we find the very initiation of the criminal proceedings at the instance of father of the victim to be based on a complete falsehood and rather an abuse of the process of the law.
53. It was stated in the FIR dated 28.07.2017 that the victim left the house without informing anybody about eight days back and he remained under the impression that she ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 24 might have gone to the house of her relatives. Thereafter, he along with his wife looked for her in the house of the relatives, but she was not found. It is now that they learnt that her .
daughter has gone with the appellant to his house at village Langhera.
54. Whereas in the statement of the victim but also in the statement of her father PW2 Pawan Kumar and her uncle of PW3 Madan Lal that they had attended the community lunch/dinner in the house of the appellant on 23.07.2017. Not rt only this, but even the maternal uncle and grand maternal uncle of the victim had also attended the same.
55. It has specifically come in the statement of PW3 Madan Lal that they had seen the victim on 23.07.2017, who was wearing bridal dress and ornaments, meaning thereby, that father of the victim was fully conscious and aware of the fact that his daughter had voluntarily, out of her free will and volition, gone to the house of the appellant and had resided there w.e.f. 22.07.2017 to 28.07.2017. Even thereafter, she herself never made any complaint and the FIR, as stated above, was lodged by her father, that too, on false pretext.
56. It would further be noticed that even as per the victim, it was her aunt Meera Devi, who wanted the victim to get married to the appellant and she knew everything. No doubt, the marriage between the appellant and the victim ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 25 may not have been solemnised by performing sapt-padi or before the Registrar but the fact remained that they were residing together with the consent of their parents, which not .
only goes to indicate but rather proves that the victim had not been kidnapped.
57. Now, the further question as to whether the appellant had kept the victim for procuration so as to attract of the applicability of Section 366A of the IPC, firstly, there is nothing on record to establish the fact that the appellant was rt aware that the victim was a minor and this is so specifically stated by the victim in her cross-examination when she stated that "I have not disclosed date of birth to the appellant." That apart, there is nothing on record to establish that the victim was forced or seduced to illicit intercourse with the appellant.
58. It has been held by the Gujarat High Court that where there is no evidence to show that the accused had induced the minor victim girl to leave her father custody with the intent that she may be forced or seduced to have illicit sexual intercourse with him, the offence under Section 366A of the IPC cannot be said to be established. (See:
Mahendera Murtiyan Madrasi vs. State (2004) Cr.LJ 539 Guj.)
59. Now, the further question that arises for consideration is as to whether the prosecution has been ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 26 successful in driving home its charge under Section 376 read with Section 6 of the POCSO Act.
60. In the peculiar background of the instant case, it .
would be necessary to refer to the MLC of the victim Ext.
PW7/B, wherein it was mentioned that the victim was brought on 29.7.2017 at 10:00 a.m. by the police for medical and gynecological examination and having history of sexual of assault. It was mentioned herein that the victim had given history of last sexual intercourse on 22.07.2017 and changed rt her clothes many times and taken bath many times after the said incident of sexual intercourse.
61. It needs to be borne in mind that as per the prosecution story, the victim had stayed in the house of the appellant from 22.07.2017 to 28.07.2017 and as per the victim, she had last sexual intercourse on 22.07.2017.
However, when the statement of the victim was recorded under Section 164 Cr.P.C (as reproduced supra), no allegations of rape were levelled against the appellant.
62. The Guahati High Court while stressing upon the value of statement recorded under Section 164 Cr.P.C. has gone to the extent of holding that wherein statement under Section 164 Cr.P.C., the prosecutrix does not state that the accused raped her, her statement in the Court that she was raped by the accused would not be believed and the accused ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 27 would be acquitted of the charge under Section 376 IPC (Ref:-
Allaudin vs. State of Assam 2004 (1) Crime 149 and Shri Mukund Madhav Sakia vs. State of Assam 2008 Crl.
.
LJ (NOC) 645).
63. Be that as it may, the victim has appeared as PW1 and has stated that she stayed in the house of the appellant for eight days and the appellant had committed forcible of sexual intercourse for 8 days, which is clearly belied from the history given by the victim herself at the time of her medical examination.
rt
64. That apart, the only document upon which the appellant has been convicted is the report of the RFSL, Mandi Ext. PX, which shows that blood was not detected on the vaginal slides of Sandhya Devi and Ext. P7 Bermuda belonging to the appellant but human semen was detected on these exhibits. However, there was nothing on record to suggest that the semen as found on the Bermuda was that of the appellant. Since the appellant was not examined immediately after the alleged incident of rape i.e. on 22.07.2017 and was examined after one week on 29.07.2017, this fact could have only been established by DNA test for which purpose necessary samples on FTA card had already been taken by Dr. Neha Patial (PW7), then why the DNA report was withheld and not placed on record, only constrains this Court to draw an ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 28 adverse inference against the prosecution that had this report been placed on record, the same would have demolished the case of the prosecution. (Ref.: Rajendra Pralhadrao .
Wasnik vs. State of Maharashtra (2019) 12 SCC 460).
65. Even the opinion given by the doctor after receipt of the FSL report vide Ext.PW7/C, states that since the RFSL has detected human semen on Ext.7A and Ext. 7B, recent of intercourse, cannot be relied upon. It is contrary to the version of the victim, who herself had stated that she had last sexual rt intercourse on 22.07.2017 and was examined after a week on 29.07.2017. Therefore, there is no question of the report of the FSL suggestive of 'recent intercourse' being reliable of any credence.
66. As regards the applicability of Section 506 IPC, we are unable to find any allegations that would constitute an offence of criminal intimidation, as the victim not only of her own accord but with the consent of parents and other relatives had been voluntarily residing in the house of the appellant and has neither been enticed, kidnapped or even subjected to any sexual intercourse by the appellant.
67. What makes the case of the prosecution completely doubtful and untrustworthy, is the testimony of PW 6 Narender Singh Negi, who was a BDC member and stated that on 23.07.2017, he had been called by the parents fo the victim and the appellant to attend the engagement ceremony ::: Downloaded on - 05/10/2023 20:42:17 :::CIS 29 in the house of the appellant. He further stated that the engagement took place and community lunch was organized where the family members of the victim had also taken lunch.
.
He further deposed that the father of the appellant had asked father of the victim regarding the victim having attained the age of majority and father of the victim had told that she was a major now and undertook to solemnized her marriage later of on.
68. Moreover, not only the victim but her father and rt uncle have clearly stated that after attending the community lunch on 23.07.2017, they left for their houses, leaving the victim in the house of the appellant. No steps, whatsoever, were taken by them to call her back till 28.07.2017 and even on 28.07.2017, it was not the victim who complained but it was her father who lodged the FIR, that too, on the allegations that were false to his very knowledge.
69. It also needs to be noticed that as per PW2 Pawan Kumar, father of the victim and PW3 Madan Lal, uncle of the victim, they had contacted the appellant on 23.07.2017, who had informed that we had solemnised court marriage with the daughter of PW2 i.e. victim and when they demanded papers, the appellant had said that he would be showing the paper on Monday but the appellant had not shown any document of his marriage with the daughter of PW2.
::: Downloaded on - 05/10/2023 20:42:17 :::CIS 3070. It further needs to be noticed that 23.07.2017 was a Sunday and, therefore, as per the story put-forth by PW2 and PW3, the appellant was to produce the documents on .
Monday i.e. 24.07.2017 but he failed to do so. Then why the parents and relatives of the victim kept mum till 28.07.2023 i.e. Friday, is not at all forthcoming and it is extremely difficult for this court to accept the version put-forth by PW2 and PW3, of more particularly, when they not only attended the community lunch along with all the relatives in the house of rt the appellant who had left behind the victim in the appellant's house. In case, they had any doubt whatsoever regarding the so-called marriage, we see no reason why father of the victim and other relatives of the victim would have left behind their daughter in the house of the appellant and not taken her along with them.
71. In view of the aforesaid discussion, we are clearly of the view that the prosecution has not been able to establish its case beyond reasonable doubt and the appellant is, thus, entitled to the benefit of doubt.
72. Accordingly, the appeal is allowed and the judgment of conviction and sentence, as recorded by the learned Special Judge, being not legally sustainable, is set aside. The appellant is ordered to be released immediately, if not required in any other case. Release warrant be prepared accordingly.
::: Downloaded on - 05/10/2023 20:42:17 :::CIS 3173. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish personal bonds in the sum of Rs.50,000/- with one surety of the like amount to the .
satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in an event of an SLP being filed against this judgment or on grant of the leave, the appellant on receipt of of notice thereof shall appear before the Hon'ble Supreme Court.
rt (Tarlok Singh Chauhan)
Judge
(Ranjan Sharma)
05.10.2023 Judge
(sanjeev)
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