Himachal Pradesh High Court
State Of Himachal Pradesh vs Parmod on 23 June, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 23rd DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL APPEAL NO. 283 OF 2020
.
Between:-
STATE OF HIMACHAL PRADESH.
......APPELLANT
(BY MR. SUDHIR BHATNAGAR AND
MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE
GENERALS WITH MR. SUNNY
DHATWALIA, ASSISTANT
ADVOCATE GENERAL)
AND
PARMOD, S/O SHRI VIJAY KUMAR,
R/O VILLAGE BANJARIYA, POST
OFFICE AGADHPUR KHAMARIA,
TEHSIL FARIDPUR, DISTRICT
BARELY, U.P. AT PRESENT NEAR
HETRO COMPANY CHAKKA ROAD,
BADDI, DISTRICT SOLAN, H.P.
......RESPONDENT
(BY MR. LAKSHYA PARIHAR,
LEGAL AID COUNSEL)
Whether approved for reporting? Yes.
This appeal coming on for orders this day, the Court
passed the following:
JUDGMENT
Instant criminal appeal filed under Section 378 Cr.PC, lays challenge to judgment dated 22.01.2020, passed by learned Special Judge, Nalagarh, District Solan, H.P., in Trial No. 29-NL/7 of ::: Downloaded on - 27/06/2022 20:02:19 :::CIS 2 2019, whereby learned court below while holding respondent/accused (hereinafter referred to as 'accused') guilty of his having committed offence punishable under Sections 341, 354- .
D, 323 & 506 of IPC read with Section 34 IPC convicted and sentenced him, as per description given in the order of sentence dated 23.1.20220, but acquitted him of charges framed against him under Sections 8 & 12 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'Act').
2. Precisely, the instant appeal has been filed against the aforesaid judgment of acquittal dated 22.01.2020, recorded by the court below in favour of the accused under Section 8 & 12 of the POCSO Act.
3. For having bird's eye view, certain undisputed facts, as emerge from the record are that on 27.1.2019, victim/prosecutrix PW-1, Kumari Akriti, got her statement recorded under Section 154 Cr.P.C with the police of Women Police Station, Baddi stating therein that she is studying in Vivek International Public School, Baddi, in 12th standard. She alleged that at about 5 P.M., she while she was coming back from tuition and was going towards the lift of Amarawati Apartment, she saw that accused was chasing her. She alleged that on seeing her alone, all of sudden, accused came in front of her and wrongfully restrained her and put knife on her neck.
She alleged that accused told her that in case she cried, he would kill her. She alleged that accused caught hold her tightly and out of ::: Downloaded on - 27/06/2022 20:02:19 :::CIS 3 fear, she cried. On hearing her cries, one lady came there and accused tried to run away, however, he was apprehended by the public gathered on the spot. She stated before the police that after .
some time, her parents also came there. On the basis of aforesaid statement, police registered FIR and after completion of investigation, presented the challan in the Court of learned Special Judge, Nalagarh, District Solan, H.P. Aforesaid Court after having found prima facie case against the accused, charged him under Sections 341, 354-D, 323 and 506 IPC and Sections 8 & 12 of Protection of Children from Sexual Offences Act, 2012, to which, he pleaded not guilty and claimed trial.
4. Prosecution with a view to prove it's case, examined as many as nine witnesses, whereas, despite opportunity, accused failed to lead evidence in defence, however, in his statement recorded under Section 313 Cr.P.C, denied the case of the prosecution in toto and claimed himself to be innocent.
5. Learned Trial Court on the basis of evidence led on record by the prosecution, though held accused guilty of his having committed offence punishable under Sections 341, 354-D, 323 & 506 of IPC, but acquitted him of charge framed against him under Section 8 & 12 of POCSO Act.
6. Being aggrieved and dissatisfied with the acquittal of the accused under Section 8 & 12 of POCSO Act, appellant-State has approached this Court in the instant proceeding, praying therein ::: Downloaded on - 27/06/2022 20:02:19 :::CIS 4 for conviction of the accused under aforesaid provisions of the Act.
7. I have heard learned counsel representing the parties and gone through the record.
.
8. Though, Mr. Narinder Guleria, learned Additional Advocate General, vehemently argued that judgment impugned in the instant proceedings is not based upon the proper appreciation of facts and evidence led on record by the prosecution and as such, same is not sustainable in eye of law, but having carefully perused the entire evidence led on record by the prosecution vis-a-vis reasoning assigned by learned court below while acquitting the accused of the charges framed against him under Sections 8 & 12 of POCSO Act, this Court has no hesitation to conclude that court below has rightly appreciated the evidence as as well provisions of law and as such, there is no scope of interference as far as findings returned by the court below that no charge is made out against the accused under Sections 8 & 12 of POCSO Act.
9. If the statement made by victim/prosecutrix, i.e. PW-1, Kumari Akriti, is perused in its entirety, there is no allegation, if any of sexual assault and sexual harassment, rather in her statement recorded under Section 154 Cr.P.C, which subsequently came to be reiterated in her deposition, as PW-1 before trial court, is perused in its entirety, she nowhere levelled allegation of sexual assault and sexual harassment, rather her precise allegation against the accused is that on 27.1.2019, at about 5 P.M., while she was ::: Downloaded on - 27/06/2022 20:02:19 :::CIS 5 coming back from tuition and was going near the lift of Amarawati Apartment, accused having found her alone, all of a sudden, came in front of her and wrongfully restrained her. She alleged that .
accused put knife on her neck and told her that in case, she raised alarm, he would kill her. She also alleged that accused caught hold her tightly and out of fear, she cried and on hearing her cries, one lady came there and accused tried to run away. There is no allegation that accused with sexual intent touched any part of body of victim/prosecutrix. Though statement made by victim/prosecutrix suggests that accused caught hold of her tightly, but since, there is no material available on record to suggest that accused came in physical contact of victim/prosecutrix with intent to commit sexual offence, no offence, if any, can be said to have been committed by the accused punishable under Sections 8 & 12 of POCSO Act.
Similarly, there is no allegation of sexual harassment. It would be apt to take note of Sections 7,8, 11 & 12 of POCSO Act, which read as under:-
"Section 7. Sexual assault.- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
Section 8. Punishment for sexual assault-::: Downloaded on - 27/06/2022 20:02:19 :::CIS 6
Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also .
be liable to fine.
Section 11. Sexual harassment- A person is said to commit sexual harassment upon a child when such person with sexual intent,--
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or
(ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or
(iii) shows any object to a child in any form or media for pornographic purposes; or
(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or
(v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or
(vi) entices a child for pornographic purposes or gives gratification therefor.
Explanation.--Any question which involves '[sexual intent" shall be a question of fact.
::: Downloaded on - 27/06/2022 20:02:19 :::CIS 7Section 12. Punishment for sexual harassment.-Whoever, commits sexual
harassment upon a child shall be punished with imprisonment of either description for a term which .
may extend to three years and shall also be liable to fine."
10. Careful perusal of aforesaid provisions of law reveals that to hold somebody guilty of sexual assault punishable under Section under Section 8 of POCSO Act, it is obligatory to prove that accused with sexual intent touched vagina, penis, anus or breast of the child or made the child touch the vagina, penis, anus or breast of such person or any other person, or did any other act with sexual intent which involves physical contact without penetration. To prove guilt of sexual assault, if any committed by accused, sexual intent, if any, of the accused is necessarily required to be proved.
Similarly, to punish somebody, under Section 12 of the POCO Act, it is necessarily required to prove on record that sexual harassment was committed upon the victim child. Sexual harassment is defined in Section 11 of the Act, which has been reproduced hereinabove.
None of the ingredients of Section 11 have been proved in the case at hand, rather there is no allegation at all of sexual harassment and sexual assault and as such, no fault, if any, can be said to have been committed by court below while acquitting the accused of charged framed against him under Sections 8 & 12 of POCSO Act.
11. True it is, prosecution successfully proved on record by ::: Downloaded on - 27/06/2022 20:02:19 :::CIS 8 leading cogent and convincing evidence that accused stalked and thereafter, wrongfully restrained the victim/prosecutrix and voluntarily caused simply injury and as such, he rightly came to be .
convicted and sentenced for his having alleged offence punishable under Sections 341, 354-D,323 and 506 IPC. Since, no appeal, if any, has been filed by the accused against his conviction under the aforesaid provision of law, there appears to be no occasion for this Court to go into the correctness of the findings, returned by court
12.
r to below while holding the accused guilty under aforesaid provisions of law.
Consequently, in view of the above this Court finds no illegality in the judgment dated 22.01.2020, passed by learned Special Judge, Nalagarh, District Solan, H.P., in as much as, accused came to be acquitted of charges framed against him under Section 8 & 12 of the POCSO Act, which otherwise appears to be based upon proper appreciation of the evidence adduced on record as well as law and the same is accordingly upheld.
Accordingly, the appeal is dismissed being devoid of any merits. Pending application(s), if any, also disposed of.
(Sandeep Sharma) Judge 23rd June, 2022 (reena) ::: Downloaded on - 27/06/2022 20:02:19 :::CIS