Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 3 August, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 512 of 2016 Reserved on: 21.07.2017 .
Decided on: 03.08.2017 __________________________________________________________ Kuldeep Singh .....Appellant.
Versus State of Himachal Pradesh ......Respondent. __________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? No. __________________________________________________________ For the appellant: Mr. G.R. Palsra, Advocate.
For the respondent: Mr. V.S. Chauhan, Addl. AG, with Mr. J.S. Guleria, Asstt. AG.
Chander Bhusan Barowalia, Judge.
The present appeal has been preferred by the appellant/accused/convict (hereinafter referred to as "the accused") challenging the judgment dated 02.11.2016, passed by the learned Special Judge, Bialspur, H.P. in Sessions Trial No. 20/7 of 2015, whereby he was convicted for the commission of offence punishable under Sections 376 and 506(ii) of Indian Penal Code, 1860 (hereinafter referred to as "IPC") and under Sections 4 and 8 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act").
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 22. The factual matrix of the case, as per the prosecution story, are that on 12.08.2015, around 03:30 p.m., when the .
prosecutrix, a minor girl (name withheld), was returning from school, in Chowgan area, near village Panol, the accused pounced upon her, dragged her to fields, broke the string of her salwar and started inserting his fingers into her vagina, thus in this manner the accused committed rape upon the prosecutrix by penetrative sexual assault. The accused also threatened the prosecutrix that he will eliminate her in case she divulges the incident to anyone.
r It has further come in the prosecution story that on 17.08.2015, around 06:30 a.m., when the prosecutrix was sleeping in her house, the accused pressed her breasts, thus he committed sexual assault upon the prosecutrix. The father of the prosecutrix, by medium of a complaint, reported the matter to the police, whereupon police registered an FIR against the accused under Sections 376, 506(ii) IPC and Sections 4 and 8 of POCSO Act. The investigation ensued and the police took into possession 'salwar' of the prosecutrix, which was sealed in a parcel having seal impression 'M'. The statement of the prosecutrix, under Section 164 Cr.P.C., was recorded before the learned Additional Chief Judicial Magistrate, Ghumarwin. The prosecutrix was medically examined and her medico legal certificate was obtained. The record qua date of birth of the prosecutrix was ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 3 also obtained from Government High School, Bhager. The spot of occurrence, i.e., where the accused dragged the prosecutrix, was .
photographed. The case property was sent for Regional Forensic Science Laboratory, Mandi, for chemical analysis and report therefrom was obtained. The medical examination of the accused and his medico legal certificate was also procured by the police. Site plans of the spot of occurrences were prepared and the statements of the witnesses, under Section 161 Cr.P.C., were also recorded. After completion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as fourteen witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he denied the prosecution case and claimed innocence. The accused while replying to Question No. 21 stated as under:
"A:21. Do you want to say anything else?
Ans. Path leading to the house of the prosecutrix goes from the court yard of my house. Shri Ramesh chand used to visit the house of the prosecutrix during odd hours. Since Shri Ramesh Chand used to pass through my court yard during odd hours, I objected to it. He threatened to teach me a lesson in future and got involved me in this false case after joining hands with the complainant party. I am innocent.
In defence, the accused did not examine any witness.
4. The learned Trial Court, vide impugned judgment dated ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 4 02.11.2016, convicted the accused for the offence punishable under Sections 376, 506(ii) IPC and Sections 4 and 8 of POCSO Act, and .
sentenced him to undergo imprisonment as under:
Under Rigorous imprisonment for a
Section period of ten years and fine of
376 of IPC `25,000/-. In default of payment
of fine, to undergo further
imprisonment for one year.
Under Simple imprisonment for a period
Section of one year.
506(ii) IPC
Under Rigorous imprisonment for a
Section 4 period of seven years and fine of
of POCSO `15,000/-. In default of payment
Act of fine, to undergo further
imprisonment for six months.
Under
Rigorous imprisonment for a
Section 8 period of three years and fine of
of POCSO `10,000/-. In default of payment
Act of fine, to undergo further
imprisonment for six months.
The learned Trial Court ordered that all the sentences shall run concurrently and out of total fine amount of `50,000/-, `40,000/-
was ordered to be paid to the prosecutrix as compensation.
Aggrieved against the impugned judgment of conviction, the accused/convict has preferred the present appeal.
5. We have heard the learned Counsel for the accused/appellant and the learned Additional Advocate General for the respondent/State.
6. The learned counsel for the appellant has argued that ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 5 the case against the appellant is the result of manipulation by one Ramesh Kumar, who was, in fact, involved with the prosecutrix and .
to teach a lesson to the accused, a false case has been registered against the appellant. He has further argued that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt and the judgment of the learned Trial Court may be set aside.
Conversely, the learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has further argued that as far as Ramesh Kumar is concerned, he has been separately convicted in another trial and the accused cannot take benefit of the conviction of Ramesh Kumar. He has argued that as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt, so the appeal may be dismissed.
7. In order to appreciate the rival contentions of the parties, this Court has gone through the statements of the prosecution witnesses in detail and also the record carefully.
8. Manifestly, the alleged offence of the first occurrence has not been witnessed by anyone and thus, at the very outset, the statement of the prosecutrix is being discussed. As the prosecutrix was a minor witness, the learned Trial Court, by putting certain questions to her, to which she replied correctly, found her ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 6 sufficiently mature in understanding the things. She has deposed that on 12.08.2015, around 03:30 p.m., when she was returning .
home from her school, the accused caught hold of her from her waist and dragged her to nearby field. The accused broke the string of her salwar and inserted his fingers in her vagina. He also threatened that in case she divulges the incident to anyone, he will kill her parents. She has further deposed that she wore her salwar by tying knots in her broken string. She did not narrate the incident to her parents due to fear.
9. On 17.08.2015, around 06:30 a.m. when she was sleeping and her parents were not there, the accused came and pressed her breasts. On 22.08.2015 the prosecutrix divulged the occurrences to her parents and the matter was reported to the police. She was medically examined and she handed over her salwar to the police, which was taken into possession vide memo, Ex. PW-
1/A. She has further deposed that her statement, Ex. PW-2/A, was recorded in the Court at Ghumarwin. As per the prosecutrix, when she went to Police Station, Ghumarwin, for lodging the report, Ramesh Kumar met her and before that on the same day, i.e. on
22.08.2015 he raped her in District Hospital, Bilaspur. She has deposed that she had gone to hospital to bring medicines for her mother, who was indisposed. She did not disclose to the police, ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 7 while lodging the FIR, that she had been raped by Ramesh Kumar.
She was threatened by Ramesh Kumar that in case she divulges the .
incident to anyone, he will kill all of them. She has further deposed that for the first time she revealed about Ramesh Kumar, who is her masad, before the police on 10.11.2015. The prosecutrix, in her cross-examination, has deposed that she did not remember the time, when she was raped by Ramesh Kumar and she did not narrate the incident to her parents. She has further deposed that Ramesh Kumar used to come to their house and they had amiable relations.
She denied the suggestion that fields belong to one Smt. Hakmi Devi.
She has further deposed that villagers use the path which is near to the maize field (spot of occurrence). She told to mother of one Pyare Lal, whose house is near to maize fields, that accused is obstructing her, who in turn advised her to go from another path, but in the statement given to the police it is not so recorded. As per her version, she divulged to the police that her younger sister was sleeping with her when the accused pressed her breasts, however, in her statement, Ex. DB, given to the police, it is not so recorded. She has further deposed that on 22.08.2015, she alongwith her father went to Police Station, Ghumarwin, and Ramesh Kumar had accompanied them. On 12.08.2015, during the occurrence she cried for help, but the accused muzzled her mouth. She has stated that ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 8 she did not raise any alarm when the accused pressed her breasts and the occurrence was witnessed by her sister. On 17.08.2015 she .
narrated to her parents that the accused pressed her breasts.
10. PW-2, Smt. Seema Devi, mother of the prosecutrix, deposed that on 22.08.2015 the prosecutrix informed her that accused used to tease her. The prosecutrix also narrated to her that on 12.08.2015 when she was coming from school, the accused was hiding in maize crop field. The accused pounced upon her and dragged her to field and inserted fingers in her vagina. As per this witness, on 17.08.2015, when she was away to fields, the accused came in their house and pressed the breasts of the prosecutrix. The accused also threatened the prosecutrix that in case she divulges the incident to anyone, he would kill her. She has further deposed that she recounted the incident to her husband and the matter was reported to the police. Police prepared the site plans and salwar of the prosecutrix was taken into possession, vide seizure memo Ex.
PW-1/A. This witness, in her cross-examination, deposed that there is another path from the maize field, which leads to their house and the same also leads to the village. She has stated that on 12.08.2015 the prosecutrix was returning home from the other path.
She feigned her ignorance that on that day Smt. Bhaga Devi met the prosecutrix. As per this witness, on 17.08.2015, the prosecutrix ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 9 alongwith her sister was sleeping in the house and accused came and pressed the breasts of the prosecutrix. Her younger daughter, .
disclosed this incident to her on the same day. She disclosed this fact to the police, but in her statement, Ex. DA, this fact has not been recorded. As per this witness, on 22.08.2015, one Ramesh Kumar, who is working as Driver in District Hospital, Bilaspur, had raped the prosecutrix. On 22.08.2015 she sent the prosecutrix to District Hospital, Bilaspur, to bring medicines for her. The prosecutrix left for the hospital at 08:30 a.m. and returned home at 10:00 a.m. She was informed by the prosecutrix that around 09:00 a.m. she was raped by Ramesh Kumar in the hospital. She has further deposed that the prosecutrix used to call Ramesh Kumar as masad. The accused and Ramesh Kumar were having hostile relations. Ramesh Kumar met them outside the Police Station when they lodged the FIR against the accused.
11. PW-4, Dr. Bandana Gautam, deposed that on 22.08.2015, on application Ex. PW-4/A, moved by the police, she medically examined the prosecutrix, who was brought with the alleged history of sexual assault. She found no scar, injury or swelling on face, neck, both breasts and around vaginal region of the prosecutrix. She took into possession the vaginal swabs, slides, blood on FTA card, blood sample and pubic hair of the prosecutrix ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 10 and sealed them with the seal of the hospital and handed over the same to Lady Constable Sarita (PW-8). She issued Medico Legal .
Certificate, Ex. PW-4/B, which bears her signatures. After receipt of chemical report, Ex. PW-4/C, this witness opined that the possibility of intercourse cannot be ruled out, however, she reserved her final opinion, which was to be given after receipt of DNA profiling. This witness, in her cross-examination, has deposed that she did not conduct ossification test for ascertaining the age of the prosecutrix.
She also did not conduct any test for ascertaining that the prosecutrix has suffered any internal injury or not.
12. PW-14, Dr. Anuj Sharma, deposed that on 22.08.2015, on receipt of application, Ex. PW-13/I, moved by the police, he medically examined the accused and found him capable of performing sexual act. He has further deposed that he took into possession underwear, pubic hair, blood and nails of the accused, which were sealed and handed over to the police for chemical analysis. He has also issued Medico Legal Certificate, Ex. PW-14/A, qua the accused.
13. PW-3, Shri Inderjit (father of the prosecutrix) deposed that on 22.08.2015, his wife (PW-1) informed him that accused teased the prosecutrix. He has further stated that his wife had also informed him that on 12.08.2015 when the prosecutrix was ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 11 returning home from the school, the accused, who was hiding, caught hold of the prosecutrix from her back, dragged her to fields, .
broke the string of her salwar and inserted fingers in her vagina. He made complaint, Ex. PW-3/A, to the police, which bears her signatures. This witness, in his cross-examination, deposed that only one path leads to their house from chaugan. He has denied that on 12.08.2015 the prosecutrix was returning home through another path. He has admitted that Ramesh Kumar accompanied them to the police station, as he met them outside the police station.
14. PW-5, Shri Laxman Singh, Head Master, Government High School, Bhager, deposed that as per the school record the date of birth of the prosecutrix is 04.06.2002. He handed over the copy of admission and withdrawal register of the school to the police, which is Ex. PW-5/A. This witness, in his cross-examination, did not depose anything which is contrary to the prosecution case. PW-6, Smt. Sunita Mehta, Junior Assistant, Municipal Council, Bilaspur, deposed that as per the Municipal records, the prosecutrix was born on 04.06.2002 and qua this fact an entry had been made at Sr. No. 756 of the register and Certificate, Ex. PW-6/A, was prepared, as per the records. She handed over the certificate to the police vide memo Ex. PW-6/B. In cross-examination of this witness nothing averse to the prosecution has come.
::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 1215. Now, the statements of the official prosecution witnesses, is to be seen. PW-7, HC Mohinder Singh, MHC, Police Station, .
Ghumarwin, deposed that on 22.08.2015 PW-13, S.I./SHO Ashok Chauhan deposited with him a sealed parcel alongwith facsimile seal. He has further deposed that on the same day, Lady Constable Sarita Devi (PW-8) also deposited a sealed parcel, which was sealed with seals of hospital. On the same day, Constable Raj Kumar also deposited with him four sealed parcels and an envelope. He made relevant entries in the malkhana register qua deposit of the aforesaid case property. The relevant abstract of the malkhana register is Ex.
PW-7/A. As per the version of this witness, on 28.08.2015, he had sent, through Lady Constable Usha Kumari, vide RC No. 204 of 2015, all the parcels, sample seals, docket, copy of FIR and MLCs to Regional Forensic Science Laboratory, Mandi, for chemical analysis and RC, Ex. PW-7/B, was handed over to him. Ex. PW-4/C is chemical report received in the police station and in the malkhana register entries in this regard were made by him. The case property remained intact under his custody. He issued CIPA certificate, which is Ex. PW-7/C. PW-8, Lady Constable Sarita Devi, deposed that on 22.08.2015 she accompanied S.I../SHO Ashok Chauhan (PW-13) to village Amarpur. The prosecutrix produced her salwar, which was taken into possession vide memo, Ex. PW-1/A, which ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 13 bears her signatures. She took the prosecutrix to Civil Hospital, Ghumarwin, for her medical examination and after the examination .
the doctor handed over to her the medico legal certificate of the prosecutrix and a sealed parcel. On the same day, she deposited the same with MHC Mohinder Singh (PW-7). As per her version, birth certificate, Ex. PW-6/A, was taken into possession vide memo Ex.
PW-6/B, which also bears her signatures. This witness, in her cross-examination, deposed that she did not remember the time when she went to the spot on 22.08.2015 alongwith SHO.
16. PW-9, ASI Nand Lal, deposed that he had partly investigated the case and took into possession birth certificate, Ex.PW-6/A, vide seizure memo Ex. Pw-6/B. He also recorded the statements of Sunita Mehta (PW-6) and Lady Constable Sarita Devi (PW-8). Thereafter, he handed over the case file to SHO for further investigation. PW-10, Head Constable Lalit Kumar, deposed that in November, 2015, he was officiating as MHC, as regular MHC was on leave. He has proved copy of FIR No. 281 of 2015, which is Ex. PW-
10/A. PW-11, Lady Constable Usha Kumari, deposed that on 28.08.2015 MHC Mohinder Singh, vide RC No. 204/2015, handed over him four sealed parcels, one sealed envelope, specimen of seal, copy of FIR, medico legal certificates and docket to him, which she deposited on the same day in Regional Forensic Science Laboratory, ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 14 Mandi, and on return RC was given by him to MHC. As per this witness, the case property remained intact under her custody. PW-
.
12, HC Parkash Chand, deposed that he partly investigated the case and on 17.11.2015 he recorded the statement of PW-5, Shri Laxman Singh, under Section 161 Cr.P.C. He handed over the case file to SHO for further investigation.
17. PW-13, S.I. Ashok Chauhan, deposed that on 22.08.2015 the prosecutrix and her father, Shri Inder Jeet (PW-3) came to the police station and moved complaint, Ex. PW-3/A, whereupon FIR, Ex. PW-13/A, was registered. The prosecutrix, vide application Ex.PW-4/A, was sent for medical examination. He prepared spot map, Ex. PW-13/B, and photographs, Ex. PW-13/C to Ex.PW-13/G, were taken by him with his mobile phone. Subsequently, he went to the house of the prosecutrix and site plan, Ex. PW-13/H, was prepared. The prosecutrix produced her salwar, which was taken into possession, in presence of witnesses, vide seizure memo Ex. PW-
1/A. He recorded the statement of the witnesses and the accused was arrested. The accused was medically examined and his medico legal certificate was also obtained. The statement of the prosecutrix was got recorded under Section 164 Cr.P.C. in the Court. As per this witness, the parcel containing salwar of the prosecutrix was sent to Forensic Science Laboratory, Junga, for D.N.A. test, however, no ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 15 report has been received. This witness, in his cross-examination, has deposed that initially he went on the spot of occurrence on .
12.08.2015 and he did not call any villager on the spot. He has voluntarily deposed that the spot of occurrence is a solitary place and when he visited the same the prosecutrix and her father were with him. He feigned his ignorance that house of one Shri Shiv Singh is near to point 'D', as depicted in site map, Ex. PW-13/B and another path leads to the house of the prosecutrix from point 'X', as reflected in site plan, Ex. PW-13/B. He also feigned his ignorance that houses of S/Shri Ramesh, Kailu and Munshi Ram are near to point 'F' and houses of S/Shri Piare Lal, Jagdev, Bablu, JaiRam, Jai Kishan, Baldev and Sita Ram are near to point 'E', as depicted in spot map, Ex. PW-13/B.
18. After thoroughly discussing the entire prosecution evidence, this Court finds that DNA reports received from State Forensic Science Laboratory, Junga, qua the prosecutrix, accused and Ramesh Chand are of valuable aid in deciding innocence or guilt of the accused. Thus, the relevant portions of the reports are extracted hereunder for ready reference:
Report qua the prosecutrix and the accused:
"Description of Parcels/Exhibits Parcel-1: One sealed parcel bearing one seal of Biology & Serology, RFSL Mandi. The Parcel contained ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 16 exhibit-1a and 1b.
Exhibit-1a: Two cotton swabs wrapped at one end of each plastic stick were present in respective test tubes. The exhibit was mentioned as vaginal swabs of ..... (the prosecutrix).
.
Exhibit-1b: One FTA card having brown stains. The exhibit was mentioned as blood sample of ......... (the prosecutrix).
Parcel-2: One sealed parcel bearing one seal of Biology & Serology, RFSL Mandi. The parcel contained exhibit-2.
Exhibit-2: One white coloured salwar. The exhibit was mentioned as salwar of ........ (the prosecutrix).
Parcel-3: One sealed parcel bearing one seal of Biology & Serology, RFSL Mandi. The parcel contained exhibit-3.
Exhibit-3: Small plastic container having dried brown rstains inside and emitted putrefaction smell. The exhibit was mentioned as blood sample of Kuldeep Singh.
LAB EXAMINATION & Results DNA isolation was carried out from aforesaid exhibits through Organic method and differential extraction. The isolated DNA was checked for quality and quantity by 0.8% agarose gel electrophoresis and ethidium bromide staining. The DNA was subjected to Multiplex PCR for co-amplification of 20 STR loci and Amelogenin using Powerplex 21® PCR Amplification Kit. The amplified products along with controls wee run on automated DNA sequencer (ABI 3130). DNA profiles were prepared and analysis was carried out using Gene Mapper ID Software v 3.2. The results were as under:-
1. The DNA profile obtained from Exhibit-1a (vaginal swab,......{the prosecutrix}) was of male origin which was different from DNA profile obtained from Exhibit-3 (Blood sample, Kuldeep Chand).
2. Exhibit-2 (salwar,......{the prosecutrix}) yielded highly degraded DNA that did not show amplification with Powerplex 21® PCR Amplification Kit PCR amplification kit. Hence no DNA profile could be generated."::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 17
Report qua the prosecutrix and Ramesh Kumar:
"Description of Parcels/Exhibits Parcel-1: One sealed parcel bearing one seal of .
Biology & Serology, Division State FSL, Junga. The parcel contained exhibit-1.
Exhibit-1: Two cotton swabs wrapped at one end of plastic stick each and were present in the respective test tubes. The exhibit was mentioned vaginal swabs of ....... (the prosecutrix).
Parcel-4: One sealed parcel bearing one seal of Himachal Pradesh Kshetri Parishad Jantai Janadran. The parcel contained exhibit-4.
Exhibit-4: One FTA card having brown stains. The exhibit was mentioned as blood sample of Ramesh Chand.
LAB EXAMINATION & Results DNA isolation was carried out from aforesaid exhibits through Organic methods and differential extraction. The isolated DNA was checked for quality and quantity by 0.8% agarose gel electrophoresis and ethidium bromide staining. The DNA was subjected to Multiplex PCR for co-amplification of 20 STC loci and Amelogenin using using Powerplex 21® PCR Amplification Kit. The amplified products along with controls were run on automated DNA sequencer (ABI 3130). DNA profiles were prepared and analysis was carried out using Gene Mapper ID Software v 3.2.
The results were as under:-
1. The DNA profile obtained from Exhibit-1 (vaginal swab,...... (the prosecutrix) matched completely with the DNA profile obtained from Exhibit-1b (Blood sample of same victim i.e. ........(the prosecutrix)) received vide file no2136 /SFSL/DNA(293)/15, docket No 8856/5a dt 30.09.15 P.S Ghumarwien.
2. The male DNA profile obtained from Exhibit-1a (vaginal swab, ......(the prosecutrix)) received vide file no2136 /SFSL/DNA(293)/15, docket No 8856/5a dt 30.09.15 P.S. Ghumarwien matched completely with the DNA profile obtained from Exhibit-4 (Blood sample, Ramesh Chand)."
19. As far as first incidence is concerned, it is correct that as per the prosecutrix, she was all alone, but the fact that why the ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 18 accused, only after allegedly inserting his fingers in her private parts, left her. The prosecutrix could not give any plausible explanation to .
the effect that why the accused only after inserting his fingers in her private parts left her alone, it creates a doubt in the prosecution story, when this Court finds that DNA on vaginal swabs matched with the DNA of Ramesh Kumar, who remained with the prosecutrix and her family on 22.08.2015 when FIR was lodged. As per the prosecution evidence on 22.08.2015, at about 11:00 a.m., Ramesh Kumar was present with the prosecutrix in the police station and the DNA report received from State Forensic Science Laboratory, Junga, qua the prosecutrix and Ramesh Kumar, reveals that on 22.08.2015, in between 9-10 a.m., Ramesh Kumar has committed sexual intercourse with the prosecutrix in the hospital, where she has gone to bring medicines for her mother. In the present set of circumstances, the explanation of the accused that he was falsely roped in by Ramesh Kumar, as the accused obstructed Ramesh Kumar to go to the house of the prosecutrix from the path, which passes from the courtyard of the accused, seems plausible. Further, the prosecutrix, in her cross-examination, has deposed that on 17.08.2015, in the morning, at about 06:30 a.m., the accused pressed her breasts, when she was sleeping alongwith her sister.
However, nothing is emanating from the record that when the ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 19 accused was pressing the breasts of the prosecutrix, what action did the sister of the prosecutrix or prosecutrix take. The prosecution .
evidence demonstrates that Ramesh Kumar, who was so called masad of the prosecutrix and used to come to her house, was having affable relations with the family of the prosecutrix and he was instrumental in lodging the FIR against the accused, as he accompanied the prosecutrix and her father to the police station for lodging the FIR, thus, it cannot be ignored that Ramesh Kumar played an active role in getting lodged an FIR against the accused.
The DNA report qua the prosecutrix and Ramesh Kumar unambiguously demonstrates that Ramesh Kumar had sexual intercourse with the prosecutrix just approximately 30-60 minutes before (as the DNA profile obtained from the vaginal swab of the prosecutrix completely matched with the DNA profile obtained from the blood sample of Ramesh Kumar) lodging the FIR against the accused. However, the prosecutrix did not utter any word against Ramesh Kumar. Thus, withholding of facts by the prosecutrix creates a doubt in the prosecution story. A symmetrical scrutiny of the prosecution story and the available evidence raise following suspicions:
(a) The association of Ramesh Kumar, who, as per the DNA report, committed sexual intercourse ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 20 with the prosecutrix on 22.08.2015 just approximately 30-60 minutes before lodging of the report against the accused, and his .
remaining throughout with the prosecutrix and her parents in the police station on that day, coupled with the fact that for inexplicable reasons the prosecutrix did not whisper or murmur against Ramesh Kumar that he had committed sexual intercourse with her, if read in conjunction with the explanation given by the accused in his statement recorded under Section 313 Cr.P.C., the same creates a doubt upon the veracity of the prosecution story and renders it improbable.
(b) The prosecutrix portrayed the facts that on 12.08.2015 the accused dragged her in the maize field and he left her after inserting his fingers into her private parts, are unconvincing and it makes the prosecution story wholly doubtful, as the prosecutrix did not explain that what prompted the accused to left her without committing sexual intercourse.
Why the accused left the prosecutrix without committing sexual intercourse, whether the prosecutrix cried for help or someone came on the spot, are the questions which remained unanswered and the prosecution could not explain these facets of the case, which certainly go against the prosecution story ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 21 rendering it highly doubtful.
(c) Likewise, the medico legal certificate of the prosecutrix depicts no positive evidence of .
sexual intercourse by the accused with her, thus the medical evidence also shakes the pillars of the edifice of the prosecution case.
(d) The mother of the prosecutrix has not stated anything why she remained silent, when her younger daughter told her that accused pressed the breasts of the prosecutrix on 17.08.2015.
(e) In the complaint written by the father of the prosecutrix, on the basis of which FIR was registered, the alleged incidence in the maize field is stated to have happened on 17.08.2015 and the alleged incidence in the house of the prosecutrix is stated to have happened on 12.08.2015 and on the similar lines the FIR was got recorded. This contradiction, when seen alongwith the above mentioned factors, creates a dent in the prosecution story.
(f) Last, but not the least, non-examination of the sister of the prosecutrix, who was sleeping alongwith her on 17.08.2015, when the accused allegedly pressed the breasts of the prosecutrix in the morning, makes the prosecution story doubtful.
20. Besides the above enumerated lacunae in the ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 22 prosecution story, there are other loopholes as well. It has also come in the prosecution story that on 12.08.2015 one Bagga Devi was also .
there, to whom the prosecutrix complained about the accused, but surprisingly and for unexplained reasons she was not examined by the prosecution and the same weakens the prosecution case.
Similarly, the prosecutrix has categorically stated that on dated 17.08.2015 when the accused pressed her breasts, her sister was also with her, but she offered no explanation that thereafter till 22.08.2015 why she did not tell anybody about the incident.
21. It has also come in the prosecution evidence that the house of Shri Shiv Singh and other persons are adjoining to the spot where the occurrence of 12.08.2015 allegedly took place, however, the Investigating Officer, ASI Ashok Chauhan (PW-13), when he was cross-examined, feigned his ignorance qua nearby houses. This also creates a doubt in the prosecution story. At the same point of time, the prosecutrix has stated, in her cross-examination, that on 17.08.2015 she told to mother of one Shri Pyare Lal, whose house is near to the maize field, that accused is obstructing her way.
However, the prosecution did not bother to examine the mother of said Shri Pyare Lal, to establish this crucial fact, as portrayed by the prosecutrix.
22. PW-3, Shri Inderjeet Singh (father of the prosecutrix) ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 23 specifically admitted in his cross-examination that Ramesh Kumar accompanied them to the police station. He denied the suggestion .
that accused and Ramesh Kumar are not having good relations, but he stated that prior to 22.08.2015 they had good relations with Ramesh Kumar. PW-1, Smt. Seema Devi (mother of the prosecutrix), specifically stated that on 17.08.2015 the prosecutrix was sleeping with her sister in the house and on the same day younger sister of the prosecutrix told her about the incident, as alleged by the prosecutrix, that accused in the morning pressed the breasts of the prosecutrix. This witness has also admitted that on 22.08.2015 Ramesh Kumar of their village committed sexual intercourse with her daughter (prosecutrix) and said Ramesh Kumar is working as driver in District Hospital, Bilaspur. She has further stated that prosecutrix told her that Ramesh Kumar has committed sexual intercourse with her at 09:00 a.m. on 22.08.2015.
23. It is worthwhile to take note of the fact that FIR against Ramesh Kumar was only registered on 10.11.2015 when his sperms were found on the vaginal swabs of the prosecutrix, which were taken on 22.08.2015.
24. In these circumstances, we conclude that the prosecution has failed to prove the guilt of the accused under Sections 376 and 506(ii) IPC and Sections 4 and 7 of POCSO Act ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP 24 beyond reasonable doubt. The suspicions qua innocence of the accused are strong and definitely benefit of which has to be given to .
the accused, therefore, we hold that the prosecution could not establish and prove its case beyond reasonable doubts and the accused is required to be acquitted after setting aside the judgment of conviction rendered by the learned Trial Court.
25. The cumulative effect of the above discussion is that the prosecution has failed to prove the guilt of the accused and the story of the prosecution is full of doubts. Therefore, the judgment of the learned Trial Court is set aside, as the same is not sustainable in the eyes of law. Accordingly, the accused is acquitted and ordered to be released forthwith, if not required in any other process of law. The Registry is directed to prepare the release warrants.
26. Accordingly, the appeal, so also pending application(s), if any, stand(s) disposed of.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 3rd August, 2017 (virender) ::: Downloaded on - 03/08/2017 23:57:17 :::HCHP