Himachal Pradesh High Court
Reserved On: 25.07.2024 vs State Of H.P on 29 July, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2024:HHC:5951 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 335 of 2021 .
Reserved on: 25.07.2024
Date of decision: 29.07.2024
Nitya Nand ...Appellant
Versus
State of H.P. ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No. For the Appellant : Mr. Mukul Sood, Advocate.
For the Respondent: Mr. Anup Rattan, A. G. with Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl.
A.Gs., Ms. Sharmila Patial, Addl. A.G., Mr. J. S. Guleria and Mr. Raj Negi, Dy.
A.Gs.
Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced to undergo rigorous imprisonment for 10 years for the commission of offence punishable under Section 376 of the Indian Penal Code (for short 'IPC') and to pay a fine of Rs. 5,000/- and in default of payment of fine, he was further directed to undergo rigorous imprisonment for six months; he was further directed to undergo simple imprisonment for 7 years under Section 4 of the Protection of Child from Sexual Offences (for short 'POCSO Act') and to pay fine of Rs.5,000/- and in default of payment of fine, he ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 2 was further directed to undergo simple imprisonment for six months. All the sentences have been ordered to be run .
concurrently and aggrieved thereby the appellant has filed the instant appeal.
2. The prosecution case in a brief is that on 05.09.2016, victim alongwith her mother and aunt visited Civil Hospital Karsog with a complaint of cough, cold, fever and missed period and on her check up victim was found carrying 26 to 28 weeks pregnancy. Victim being minor, Dr. Amita, Medical Officer CH Karsog informed police of police station Karsog for legal action.
On this, ASI Jhabe Ram along with LC Reeta Kumari No.408 and C. Bhikesh Kumar No.230 went to Civil Hospital Karsog, where statement of child victim was recorded under section 154 of Cr.PC. The child victim in her statement stated that she was studying in 9th class. On 21.12.2015, at 12.00/12.30 p.m., when she was alone in her house, her cousin appellant Nitya Nand, who was studying in 2nd year in the college came to her house. At that time, she was watching television. The appellant came near her and sat on a chair lying in the room. She came out of the room. The appellant called her in room and told her that he wanted to do 'galat kam' with her. Despite her opposition, the appellant caught hold of her from waist and made her lie down in the double bed and came upon her and opened string of her ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 3 salwar. She raised noise and called Dada-Chachi, but no one heard her noise because she was alone in the house. Thereafter, .
the appellant committed forcible rape upon her and ran away from the room. In the evening, when she was weeping, her mother inquired about reason of weeping. She disclosed the whole incident to her mother, but her mother thought that a brother cannot commit such an act with his sister.
3. On 5.9.2016, when her menstruation circle stopped, she along with her mother had gone to CH Karsog for check up.
The doctor, after medical check up diagnosed her to be pregnant. On the statement of child victim Ex. PW5/A, police registered FIR No. 130/2016 (Ex. PW20/A) dated 5.9.2016 under sections 376 of IPC and section 4 of the POCSO Act, 2012.
4. The initial investigation was carried out by ASI Jhabe Ram of police station Karsog. During the course of investigation, the I.0 moved an application Ex. PW2/A to M.O. CH Karsog for medical examination of child victim and the doctor after taking her preserves, issued MLC Ex.PW2/B and referred the victim to ZH Mandi for ultra sound and further follow up. During the course of investigation on 5.9.2016, appellant was arrested and information regarding his arrest was given to his father. The I.0 moved an application Ex.PW1/A to M.O. Civil hospital, Karsog for the medical examination of appellant. The doctor took his ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 4 preserves and blood sample on FTA card for DNA profiling and handed over to police. Thereafter, the investigation of case was .
handed over to SHO Sunil Kumar.
5. Further investigation in this case was conducted by SI/SHO Sunil Kumar. He procured birth certificate Ex.PW4/C of child victim and birth certificate of accused Nitya Nand as Ex.PW4/D. He also prepared spot map Ex.PW17/A at the instance of child victim. Photographs of the spot EX.PW3/A-1 to EX.PW3/A-
5 were also clicked. He also took into possession Bed sheet Ex.P-
13 from the room of child victim vide seizure memo Ex.PW5/E and he also recorded statements of prosecution witnesses Nisha Devi, Kalawati, Chetna Devi and Chet Ram. Thereafter, the investigation of case was again handed over to ASI Jhabe Ram.
The spot of occurrence was inspected at the instance of appellant on 7.9.2016 and spot map Ex.PW20/C was prepared to this effect. The child victim was brought to the Court of learned JMIC, Karsog for her statement under section 164 of Cr.P.C., who recorded statement Ex.PW5/B and copy of same was handed over to the police.
6. During the course of investigation, statement of child victim was also recorded under section 161 Cr.P.C. in which child victim disclosed that juvenile Tijinder, younger brother of appellant Nitya Nand had also committed sexual intercourse with ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 5 the child victim. On this, section 376(2) of IPC was added in the FIR. On 29 9.2016, during the course of investigation, appellant .
Tijinder Kumar admitted to have committed rape upon child victim. The police on moving application Ex. PW15/D to Secretary Gram Panchayat, Bhanera obtained birth certificate of co-
accused Tijinder Kumar and his date of birth was found as 19.11.2001. He was minor at the time of commission of offence.
The I.0 after moving application Ex. PW13/A to the M.O. C.H Karsog obtained the MLC of juvenile, who took preserves and blood sample of Juvenile accused on FTA card for DNA profiling and handed over the same to police. The juvenile was produced before the Principal Magistrate, Juvenile Justice Board (for short 'PMJJB'), Mandi.
7. On 15.9.2016, the child victim gave birth to a female child and doctor also took the blood sample of newly born child on FTA card on the identification form Ex.PW5/D and handed over the same to police for DNA profiling. The blood samples of appellant Nitya Nand, Child victim and newly born female child were sent to SFSL, Junga for DNA profiling. The preserves of child victim, appellant Nitya Nand and juvenile Tijender Kumar were sent to RFSL, Mandi for analysis.
8. On 16.11.2016, the child victim and newly born female child were produced before CWC Mandi and on the ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 6 direction of CWC, the female child was sent to Child Home Shimla. On completion of investigation, challan against the .
juvenile Tijender Kumar was produced before learned PMJJB, Mandi and the challan against appellant Nitya Nand was produced before learned Special Judge Mandi.
9. The prosecution examined as many as 20 witnesses and thereafter the appellant was examined under Section 313 Cr.P.C. wherein he claimed to be innocent and stated that a false case has been made against him due to enmity between his family and family of the victim. However, the appellant did not choose to lead any defence evidence.
10. The learned Court below after recording evidence and evaluating the same, sentenced the appellants as aforesaid.
We have heard learned counsel for the appellant and learned Senior Additional Advocate General and have gone through the material placed on record.
11. Child victim while appearing as PW-5 stated that on 21.12.2015, the appellant had come to her house in the day time between 12 to 12:30 p.m. At that time she was alone at home and watching T. V. The appellant sat on chair and after some time he came to my bed and sat near me and asked that he wanted to have sex with her. Thereafter she left the room and came out. The appellant called her back to the room and when ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 7 she entered the room the appellant bolted the door of the room from inside. The appellant made her lie on the bed. She cried but .
none listened to her and thereafter the appellant pulled her trouser and laid upon her. Appellant forcibly committed sexual intercourse with her. After some time her younger brother came from the school. In the evening, her parents came back and her mother saw her weeping, her mother asked her the reason of weeping. She then narrated the entire incident to her mother but her mother said that as they were brother and sister, nothing of this sort can happen. When she told the entire incident to her mother, her mother went to the mother of the appellant and told her about all this and the mother of the appellant told that the appellant was not present in the house.
12. On 05.09.2016, she alongwith her mother had gone to CH Karsog as she felt pain in her stomach. The doctor checked her and told that she was pregnant. The police was informed and reached CH Karsog, where her statement Ext. PW5/A was recorded. Her medical examination was conducted and the doctor issued MLC Ext. PW2/B. Spot inspection was conducted at her instance and photographs Ext. PW3/A-1 to Ext. PW3/A-5 of the spot were also clicked. Her statement was recorded in the Court under Section 164 Cr.P.C. Ext. PW5/B. On 15.09.2016, she gave birth to a female child at CHC Sunni. She deposed that the ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 8 younger brother of the appellant, namely, Tijinder had also committed sexual intercourse with her. During medical-
.
examination, doctor had preserved her underwear and took blood sample. At the time of taking blood sample the doctor had filled the identification form Ext.PW5/C and also filled identification form of her baby Ext.PW5/D. She also produced the bed sheet to the police which was sealed by the police and taken into possession vide memo Ext. PW5/E.
13. Having gone through the examination-in-chief of the child victim, it needs to be noticed that even though the victim would claim that the appellant had committed rape and penetrative sexual assault with her on 21.12.2015, but then no complaint whatsoever was made to any of the authorities for nine months. Even then the complaint was not made by the victim child or her family members but it was at the instance of the doctor.
14. No doubt, the delay in registering FIR cannot by itself be a ground to doubt the case of the prosecution. However, then the Courts are required to examine the evidence with a close scrutiny and in doing so; the contents of the FIR and statements thereafter recorded have to be scrutinized more carefully to find out whether there is any indication of fabrication or there has been concoction and statements were designed and engineered ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 9 to implicate innocent person. We are fully conscious of the fact that there could be disinclination to inform the family or report .
the matter to the police might be due to apprehension and attitude of the society towards the victim. Therefore, the delay in lodging the complaint in such like cases would not necessarily indicate that her version is false. It will all depend on the facts and circumstances of each case.
15. As observed above, the child victim in the instant case claimed to have been sexually assaulted by the appellant on 21.12.2015 whereas the FIR that too not at her instance was came to be registered after nine months on 05.09.2016. The inordinate and unexplained delay in not reporting or even registering the FIR casts a serious cloud or suspicion regarding the credibility of the prosecution story when read with the testimony of the victim, medical evidence and all other evidence led by the prosecution.
16. It is here that the requirement of the testimony of the victim being credit worthy to be termed as sterling witness whose version can be accepted without corroboration steps in. It is here that the version of the victim on the core spectrum of the crime should remain intact while all other attending materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 10 Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the .
charge alleged.
17. In this background, it shall be fruitful to refer to the following observations of the Hon'ble Supreme Court in Rai Sandeep @ Deepu vs. State (NCT of Delhi) (2012) 8 SCC 21:-
15. Keeping the above basic features of the offence alleged against the appellants in mind, when we make reference to the evidence of the so called 'sterling witness' of the prosecution, namely, the prosecutrix, according to her version in the chief examination when the persons who knocked at the door, were enquired they claimed that they were from the crime branch which was not mentioned in the FIR. She further deposed that they made a statement that they had come there to commit theft and that they snatched the chain which she was wearing and also the watch from Jitender (PW-11). While in the complaint, the accused alleged to have stealthily taken the gold chain and wrist watch which were lying near the T.V. It was further alleged that the appellant in Criminal Appeal No.2486 of 2009 was having a knife in his hand which statement was not found in the complaint. After referring to the alleged forcible intercourse by both the appellants she stated that she cleaned herself with the red colour socks which was taken into possession under Exhibit PW-4/B in the hospital, whereas, Exhibit PW- 4/B states that the recovery was at the place of occurrence. The police stated to have apprehended the appellants at the instance of Jitender (PW-::: Downloaded on - 30/07/2024 04:57:02 :::CIS 11
11) who knew the appellant in Criminal Appeal No.2486 of 2009 even prior to the incident, that Jitender (PW-11) also revealed the name of the said accused to her and that, .
therefore, she was able to name him in her complaint. When the seized watch was shown to her in the Court, the brand name of which was OMEX, she stated that the said watch was not worn by her nephew Jitender (PW-11) as it was stated to be 'TITAN' and the chain was a gold chain having no pendant. She made it clear that that was not the chain which she was wearing and that it did not belong to her and that the watch found in the same parcel which was a women's watch was not the one which was worn by Jitender (PW-11).
15. In our considered opinion, the 'sterling witness' should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have co-relation ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 12 with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert .
opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a 'sterling witness' whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.
18. Bearing in mind the aforesaid exposition of law, we would now advert to the cross-examination of the child victim who at the outset stated that the father of the appellant was her uncle (elder brother of my father) and they had been residing separate since the time she gained consciousness. She further stated that they were not on the visiting terms since long and they were not even having talking terms. The house of the appellant was situated at a distance of 50-100 meters from her ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 13 house. They were five family members while her grand father was residing with uncle, who too had four family members, while .
the family of the appellant was having five family members. Her father was having five brothers and all of them were residing in the same village. She further admitted that there were other families also residing in the village. She stated that she remembered the date of incident because in those days she was under mensuration. She stated that the appellant had never visited her house prior to and after the date of incident. When she came out of the room, she did not tell any person regarding the appellant having came to her room and demanded sexual favour from her as no one was present there. Her parents had gone to village Bhanera and my elder brother had gone for driving and younger brother had gone to school. When she cried nobody listen to her as the other houses are at some distance and there were no one nearby. Her younger brother had reached the house after half an hour of the incident. She further claimed that she had raised an alarm after the appellant had left the room. At that time nobody from the house of her uncle or from the village had come there except her brother. She did not tell her brother about the said incident on that day and only told her parents when they reached home. She stated that she had not shown her undergarments to her mother as she did not believe ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 14 her. She further stated that her mother had not told anyone about the incident in the village and had searched for the .
appellant after the incident and had gone to his house but he was not traceable. She further claimed to have told the name of the appellant to the doctor at the time of her medical examination. She further admitted that the police had been called by the doctor after she had been examined and found pregnant. She further claimed that Tijinder had committed sexual intercourse with her 25-35 times.
19. Since there is no eye witness to the incident, it is now to be seen whether the sole testimony of the prosecutrix does inspire confidence and is supported by other evidence on record.
20. No doubt, the prosecution has examined PW-6, who is the mother of the child victim, but her testimony regarding the incident has to be kept out of consideration as the same is based on hearsay.
21. As regards the identification of the spot, clicking of photographs, taking into possession the bed sheet etc. even the appellant does not seriously dispute that these proceedings having been carried out by the prosecution.
::: Downloaded on - 30/07/2024 04:57:02 :::CIS 1522. The medical evidence does not support the case of the prosecution, as Tijinder was found to be the biological father .
of the child born to the child victim.
23. As regards the sole testimony, the same obviously cannot be held to be of very high quality and calibre and cannot be accepted on its face value without any hesitation. It needs to be noticed that it is the specific case of the child victim that it was for the first and last time that the appellant came to their house on 21.12.2015 and yet she did not ask him to leave the place given the fact that she has specifically stated that not only the relations between the two families were strained but they were not even on talking terms.
24. What appears to be highly improbable is that according to the victim, the appellant straightway asked for sexual favour, but what casts serious doubt in the prosecution is that from the arrival, till the appellant left and for nine months thereafter the prosecutrix and her family members did not complain or report to anyone regarding the offence. This action assumes importance given the fact that the relations between the families are completely strained.
25. It appears to be the handiwork of the prosecution to have manipulated the date of incident given the fact that the victim was at an advanced stage of pregnancy of 26-28 weeks at ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 16 the time of lodging of the FIR and had shortly delivered a child.
Even the medical evidence does not support the case of the .
prosecution as admittedly it has been proved on record that it was Tijinder who was the biological father of the child that was born to the victim.
26. Strangely enough, the learned Special Judge has not at all referred to any of these circumstances and has simply convicted the appellant by claiming that the statements of the victim and her mother are consistent and inspire confidence regarding the manner of the commission of the crime.
27. What is more strange and otherwise totally unacceptable are the reasons recorded by the learned Special Judge for convicting the appellant:
a) PW5 child victim has specifically stated about the rape and penetrative sexual assault committed by accused on 21.12.2015 upon child victim. Her mother Chetna Devi as PW6 has also corroborated the statement of child victim.
Their statements are consistent, fair and inspire confidence of this court regarding the manner of commission of crime. There was no significant cross- examination by learned counsel for the defence of PW5 and PW6 regarding the actual incident. There was no explanation on the part of accused regarding the commission of offence by the accused on 21.12.2015. In his statement under Section 313 Cr.PC, specific question was put to the accused, regarding this fact but he simply answered "it is incorrect". The evidence of the victim, deposing as PW5, completely incriminated the accused.
::: Downloaded on - 30/07/2024 04:57:02 :::CIS 17She has provided details of the manner in which she had been raped by the accused on 21.12.2015. Her testimony, during trial and her statement under Section 164 Cr.PC .
was consistent and corroborated each other The accused is cousin of the victim and there was no reason for the child victim or her family to falsely implicate the accused.
The unchallenged testimony of child victim PW5 was fully corroborated with the testimony of PW6 mother of child victim established the case against accused of commission of penetrative sexual assault and rape upon the child victim when she was about 14 years of age.
28. We really wonder how the learned Special Judge could have recorded such findings by ignoring the testimony of the child victim who in her cross-examination has clearly stated "that father of the accused Nitya Nand is my Uncle (elder brother of my father) and they are residing separate since the time I gained consciousness. They are not at visiting terms so long.
They are also not having talking terms".
29. Likewise PW6 in the opening line of her cross-
examination has clearly stated that the relations between the families were strained for the last many years. It shall be apt to reproduce the relevant portion whereof, which reads as under:-
::: Downloaded on - 30/07/2024 04:57:02 :::CIS 18"Our family and the family of accused are having strained relations for the last many years. I do not know the reasons of strained relations between our family. Self .
stated they always quarreled with us. All the brothers of my husband are residing in the same village in their separate houses. We have normal relations with the other brother of my husband."
30. In further cross-examination, she voluntarily stated that it was prior to the occurrence in question that he used to talk with us.
31. The other reasons given in Clauses (b), (c) and (d) are as under:-
b) The DNA report Ex.PW18/D placed on record by the prosecution reveals younger brother of accused Tijender as biological father of the baby born to child victim, which proved one part of statement of child victim true. When one part of the statement of child victim is proved true, this court finds no reason to disbelieve the other part of statement of child victim stating with regard to commission of rape and penetrative sexual assault by the present accused Nityanand. Moreover, child victim in the first instance had mentioned the name of accused Nityanand as perpetrator of crime on 21.12.2015 and not of juvenile Tijender Furthermore she had named the present accused much before receipt of DNA report and matching of DNA profiling of child victim with that of accused is not necessary ingredient of section 375 IPC and section 4 of POCSO Act.
c) The argument of Id defence counsel that the family of accused and child victim were having strained relations ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 19 becomes falsified by Ex.PW18/D DNA report, the supporting proof of commission of sexual offence by younger brother of the present accused, moreover PW6 .
mother of child victim has specifically stated in her cross examination that prior to the occurrence in question accused used to talk with them.
d) Furthermore, this is admitted case of defence side that Tijender was convicted by Id PMJJB, Mandi. Tejinder was Juvenile and contemporary of child victim. It is also to be noted here that separate challan was produced against Tijender younger brother of the accused before Id PMJJB Mandi. Tijender was also of the age of child victim and birth r entries of Tejinder and child victim were incorporated in the birth register of GP Bhanera on the information given by Sh. Mani Ram father of present accused and Tijender, as such age of child victim cannot be disputed by the accused. This fact has come on record in the cross examination of PW4 Sh.Sant Ram Panchayat Secretary.
32. We really wonder how and on what basis such findings could have been recorded by the learned Special Judge.
Merely because the brother of the appellant had been convicted could not itself be a circumstance to convict the appellant, especially, when there is no material available on record to hold the appellant guilty, that too little realising that more graver the offence, stricter is the proof.
33. The other reasons given in Clause (e) are as under:-
e) Ld. Defence counsel also argued that there are is major delay in lodging the FIR by the complainant in this case. In ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 20 State of Himachal Pradesh vs. Prem Singh, (2009) SCC 420 Hon'ble Supreme Court has laid down as follows:
.
"6. So far as the delay in lodging the FIR is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint.In a tradition-bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the rFIR......."
In the present case, it is also to be noted that child victim and her parents never reported the matter to police, it was the doctor PW2 Dr.Amita who called the police, finding the child victim pregnant at the age of 14 years. The signatures of PW5 and PW6 on their statements before this court reveal that they are illiterate people and it is also revealed that they hail from rural area and could not report the matter to police due to reputation of whole family i.e of accused and child victim which is clear from the cross examination of PW6 which must be reproduced here and is as under:-
"My daughter did not tell about all this to any one regarding the alleged act of Tejinder as the mother of the accused had told that it was a question of life of her sons."
In the light of cited case law and peculiar facts of the case, delay was explained by the mother of child victim in her cross examination. Moreover the argument put forth ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 21 by Id SPP has force that child victim who was 14 years old : at the time of occurrence should not suffer due to any lapse on part of her parents.
.
34. In view of what has already been discussed, we need not go into the question once again given the fact that the delay on the part of the prosecution has not been satisfactorily explained.
35. The reasons given in Clause (f) are as under:-
f) I have also considered the case laws cited by Id defence counsel. The facts of the cases State of Himachal Pradesh Vs Kartar Singh and anr 2003(2) SLJ1620, 2013(3) Him L.R 1807 titled as Vikas Sharma Versus State of HP, 2012 (3) Him L.R1612 titled as Hoshiar Singh Versus State of HP and 2013(3) Him L.R (DB) 1869 State of HP Versus Dila Ram are totally different and are not applicable in the present case and the law Navin Dhaniram Bariye vs State of Maharashtra decided on 25-06-2018 also states that the presumption under section 29 of POCSO Act can be raised only after the prosecution is able to establish foundational facts. As discussed in the foregoing paragraphs the prosecution was able to establish foundational facts i.e age of the child victim, videography of statement of child victim Ex.PW3/A-6 by police and Id Magistrate Ex.PW3/A-7 proved authenticity of her version that the incident as deposed by child victim had taken place and the offence was committed by accused.
However, the accused failed to rebut the presumption raised against him by leading cogent and reliable evidence in defence.
36. The last reason recorded by the learned Special Judge for for convicting the appellant is on account of the ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 22 presumption incorporated under Section 29 of POCSO Act and it has been held that since the prosecution has been able to .
establish foundational facts regarding the age of the child victim, videography of statements of child victim Ext.PW3/A-6 by police and by the learned Magistrate Ext. PW3/A-7 proving authenticity of her version that the incident as deposed by child victim had taken place, therefore, the offence was committed by the appellant and it was for him to rebut the presumption raised against him by leading a cogent and convincing evidence.
37. To say the least, even this finding is totally perverse in light of the what has already been stated above.
38. In view of the aforesaid discussion and for the reasons stated above, we find merit in the appeal and the same is accordingly allowed. The judgment of conviction and sentence as passed by the learned Special Judge, Fast Track Court (POCSO), Mandi, District Mandi, is accordingly set aside. The appellant Nitya Nand is ordered to be set free forthwith, if not required in any other case.
39. The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., each of the appellant is directed to furnish personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned trial court, which shall be effective for ::: Downloaded on - 30/07/2024 04:57:02 :::CIS 23 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 notice thereof shall appear before the Hon'ble Supreme Court.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
29 th
July, 2024 Judge
(Sanjeev)
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