Himachal Pradesh High Court
Arun Kumar vs State Of Himachal Pradesh on 16 October, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
1 HON'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No.136 of 2018 Reserved on: 22.08.2019 Decided on: October 16, 2019.
.
Arun Kumar ..........Appellant.
Versus
State of Himachal Pradesh ........Respondent.
________________________________________________________________ Coram:
Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 yes For the appellant : Mr. Satyen Vaidya, Sr. Advocate, with Mr. Vivek Sharma, Advocate.
For the respondent :
Mr. Vikas Rathore and Mr. Narender Guleria, Addl. Advocate Generals, with Mr. J.S. Guleria, Deputy Advocate General and Mr. Manoj Bagga, Asstt. Advocate General.
__________________________________________________________________ Jyotsna Rewal Dua, Judge.
Instant appeal has been preferred by the appellant/accused against the judgment dated 29.03.2018, passed by learned Special Judge (District and Sessions Judge), Hamirpur, H.P., whereby accused has been held guilty and convicted for the offences punishable under Sections 341, 363, 328, 376(2)(i), 323 & 506 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act'). For the offence punishable under 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 2
Section 6 of POCSO Act, accused has been sentenced to undergo rigorous imprisonment for ten years with fine of Rs.10,000/- and in default of payment of fine, accused has to .
further undergo simple imprisonment for one year. Having been sentenced under Section 6 of POCSO Act, appellant was not imposed any sentence for the offences punishable under Sections 328 and 376(2)(i) IPC. Sentences of less than 10 years, in respect of other offences, were to run concurrently.
2(i). Appellant-accused was charged with offences:-
a). Punishable under Section 341 IPC having been committed by him on 26.02.2014 and r 28.10.2015;
b). Punishable under Section 363 IPC having been committed on 26.02.2014 and 28.10.2015;
c). Punishable under Section 328 IPC having been committed on 26.02.2014;
d). Under Section 6 of POCSO Act or in the alternative under Sections 376 (2)(i) IPC having been committed by him on 26.02.2014 and 28.10.2015;
e). Under Section 323 IPC having been committed on 11.03.2016; and
f). Under Section 506(ii) IPC having been committed on 26.02.2014 and 28.10.2015.
2(ii). Thirty one witnesses were examined by the prosecution for establishing its case. Accused also produced his father, wife and Panchayat Secretary in the witness-box.
::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 32(iii). We have heard Mr. Satyen Vaidya, learned senior counsel for the appellant/accused, Mr. J.S. Guleria, learned Deputy Advocate General for the State and with their .
able assistance, carefully gone through the record.
3. All the offences are alleged to have been committed on three specific dates, i.e. 26.02.2014, 28.10.2015 and 11.03.2016. Therefore, we propose to discuss hereinafter the alleged events of the case, date-wise.
Events on 26.02.2014:
3(i). Prosecutrix (PW-1), in her examination-in-chief, deposed that while going to school on 26.02.2014, she was forcibly taken by the accused in his car at around 08.00 a.m. from a place called Balle to a hotel at Rewalsar where she was subjected to sexual intercourse. Her deposition about the events of 26.02.2014, may be noticed thus:-
"On 26.2.2014, when I was going to school, the accused met me at place Balle at about 8.00 AM.
He came in his car and insisted to accompany him to Rewalsar. I initially objected, but on his repeated insistence I accompanied him. The accused took me to Lotus Hotel at Rewalsar. On reaching hotel, we had lunch together and thereafter the accused took me in a room for resting. The accused offered me cold drink and after drinking the same, I fell unconscious. After 2- 3 hours when regained conscious, I found that my ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 4 Salwar and underwear were lying on the side of the bed and I was feeling pain in my private part. I also spotted blood coming out of my private part. The accused threatened me not to disclose the .
incident, otherwise he would upload my photographs and video clips on the Internet. Later, we returned and he dropped me at my house.
I did not disclose the incident out of fear and threat."
3(ii). Though the case of prosecution primarily is under POCSO Act, where the prosecutrix (with date of birth:
26.05.1999) was allegedly taken to Rewalsar perforce, yet after going through the statements of witnesses on record, one cannot help but notice that as per prosecutrix, accused in past also used to indulge in minor obscene activities, which were objected by her. Despite being aware of alleged character of accused, she while going to school on 26.02.2014, chose to accompany the accused in his car merely on his 'insistence';
prosecutrix went in accused's car to a hotel at 'Rewalsar', a place at about 30 kilometres from her home; took lunch there with accused; and then went to a room in the hotel with accused, where she alleges to have become unconscious after a drink and on regaining her senses, found her cloths removed and felt pain in her private part.
::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 53(iii). Though the prosecutrix alleged to have accompanied the accused in his car to the hotel at Rewalsar and stayed there for around 3/4 hours, yet no investigation .
appears to have been conducted by the police with regard to collecting any information regarding this from the hotel, its staff, CCTV Cameras' footage etc. No person has stepped into the witness-box professing to have seen the prosecutrix and accused together either at 'Balle' or during not so short journey from Balle to hotel in Rewalsar or in the hotel, which as per prosecutrix was in a thick locality or during their return journey from Rewalsar to her home.
3(iv). Prosecutrix, during her cross-examination, has admitted that on 26.02.2014, she attended her school and was present there throughout. She was studying at that time in Government Senior Secondary School, Ladraur. Her exact deposition may be noticed hereunder:-
"It is correct that on 26.2.2014 I was studying at Govt. Senior Secondary School, Ladraur. It is correct that on 26.2.2014, I attended the school and was present throughout."
3(v). In fact, her complaint dated 30.04.2016 (Ext.D-
1), addressed to State Women Commission, Shimla, does not contain any reference to any untoward incident on 26.02.2014.
Prosecutrix, as per her own version, attended the school on ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 6 26.02.2014 and was present in the school throughout. In that circumstance, her version of having been kidnapped on way to school on 26.02.2014 at about 08.00 a.m. and forcibly taken to .
Rewalsar by the accused and subjected to sexual intercourse there in a hotel, cannot be believed. Ironically, police has neither investigated nor produced any evidence in respect of her school attendance record, hotel record or any witness in respect of alleged incidents of 26.02.2014. The story put-
forward is unbelievable, appears to be concocted and is certainly not established on record.
3(vi). The story of events of 26.02.2014 described by the prosecutrix, falls absolutely flat in view of deposition of PW-10 Shri Bala Ram, who furnished the details of leaves availed by the accused w.e.f. February, 2014 to March, 2016 (Ext.PW-10/A). PW-10 Shri Bala Ram was posted as Deputy Commandant, 126 Bn., C.R.P.F., Badda, Reasi (J&K), where accused was posted as driver. Perusal of Ext.PW-10/A, shows that accused had not availed any leave during February, 2014.
3(vii). Shri Dharam Singh, father of the accused, also stepped into the witness-box as DW-2 and produced the leave record of the accused (Mark DX) obtained by him under the Right to Information Act. As per this record, accused was on duty on 26.02.2014, therefore, the story put-forward by the ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 7 prosecutrix in respect of the events of 26.02.2014, is not established on record.
4. Events alleged on 28.10.2015:
.
4(i). It may be noticed at this stage that no allegation of any nature whatsoever has been levelled by the prosecutrix against the accused for the period 27.02.2014 to 27.10.2015. Rather the prosecutrix has deposed in her examination-in-chief that during this interregnum "the accused got married in July 2015" and further in cross-examination she stated:- "It is correct that the accused got married in the month of June/July, 2014." This version of the prosecutrix that accused got married in June/July, 2014, has been corroborated by her mother Smt. Usha Devi (PW-2) in following manner:-
"It is correct that the accused got married in the month of June, 2014. It is correct that we all attended his wedding. It is correct that our photographs during the wedding were taken along with video recording. It is correct that my daughter also attended the entire wedding."
Prosecutrix (PW-1), in her cross-examination, has also deposed that:-
"It is correct that the accused got married in the month of June, 2014. It is correct that me and my family attended the wedding of the accused. It is correct that during wedding my photographs were ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 8 taken along with others. I also danced in the wedding."
4(ii). Families of prosecutrix and accused are related to .
each-other. Their grand-fathers, as per prosecutrix, were real brothers. We may now discuss the events alleged to have happened on 28.10.2015. Just like the happenings alleged for the date 26.02.2014, prosecutrix has given almost repeated version of events for 28.10.2015. To quote from her examination-in-chief for description of events on 28.10.2015:-
"Thereafter on 28.10.2015, the accused met me when I was going to school at about 8.00 AM near the same place. He came in his car and again insisted to accompany him to Rewalsar. I opposed and resisted, but was forced to accompany as he again threatened to upload my photographs and videos on the Internet. The accused took me to Mandi and thereafter to Rewalsar in the same hotel. The accused again subjected to me forcible sexual intercourse. The accused again threatened me from disclosing the incident. In the evening at about 4.00 PM, he dropped me at my home."
4(ii)(a). The defence has endeavoured to prove that on 28.10.2015, prosecutrix was present in the school and attended her classes, therefore, the entire story put-forward by her is absolutely false. In furtherance to this defence, reliance has been placed on extracts of the Attendance Register of class ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 9 10th(A) (Ext.PW-6/C) of the school in question, produced by Sh.
Rajni Kant (PW-6), showing attendance entries of class 10 th (A), Government Senior Secondary School, Ladraur, for the month .
of October, 2015. It is admitted by the prosecutrix that her roll number in class 10th (A) was 28.
4(ii)(b). Some general features in Attendance Register (Ext.PW-6/C), may be noticed:- presence of students is marked twice in a day, i.e. during pre-lunch session and post-lunch session; presence of every student is denoted by mark 'I', whereas absence is marked as 'A'.
4(ii)(c). It is apparent to the naked eye that marking in respect of presence/absence of prosecutrix on 28.10.2015 in the Attendance Register (Ext.PW-6/C), is not clean. Though for both sessions, i.e. the pre-lunch as well as post-lunch sessions, she has been marked as absent, however, even to the naked eye, it appears that mark 'A' has been converted from earlier existing mark 'I'. Prosecutrix has also been marked absent on 16th and 17th October, 2015. If she had been really absent on 28.10.2015, then total presence entries against her name would have been 40, whereas Attendance Register (Ext.PW-6/C) shows 42 No. of present entries against her name. Apparently, whosoever fiddled with the record pertaining to attendance of the prosecutrix on 28.10.2015, omitted to correct her total ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 10 attendances during the month separately recorded in the same register, therefore, it cannot be conclusively said that the prosecutrix was absent from the school on 28.10.2015.
.
4(iii). Police though has taken care to obtain the school attendance record of the prosecutrix for 28.10.2015, however, it did not even investigate what to speak of collection of any evidence from the school about her presence or absence on 26.02.2014. Though we have already observed in para supra that on 26.02.2014, the accused was discharging his duties in his place of posting and not was on leave.
4(iv)(a). As per prosecutrix, she was in school uniform on 28.10.2015 when she was intercepted by the accused and taken to hotel at Rewalsar, where accused allegedly committed sexual intercourse with her. However, during examination-in-
chief, she deposed that on 01.05.2016 she handed over her undergarments and jeans to the police, which she was wearing on 28.10.2015.
4(iv)(b). Prosecutrix alleged to have been taken to same hotel in Rewalsar twice, i.e. on 26.02.2014 and 28.10.2015.
However, in her in cross-examination, she deposed:
"The police took me to hotel at Rewalsar. I did not identify the room in the hotel. Self stated that the police checked the record and located the room."::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 11
The above is surprising considering there are no allegations of prosecutrix having been intoxicated till the time she was inside the hotel room on 26.02.2014. There are .
no allegations of prosecutrix having been intoxicated at all on 28.10.2015.
4(iv)(c). There are no specific allegations that any obscene photographs of prosecutrix were clicked by the accused either on 26.02.2014 or 28.10.2015. In this regard, hereinafter:-
r to contents of SFL report Ext.PW-28/A, may be reproduced "Recorded obscene video and clicked obscene photographs of the girl as shown in photograph marked as C-2 could neither be found in the data extracted from mobile phone marked as Ext.1 nor in the data extracted from memory card marked as Q-1. However, clicked photographs of the girl having face appearing similar to the face of girl shown in photograph marked as C-2, clicked obscene photographs of girls and recorded obscene videos were found to be present in the data extracted from memory card marked as Q-1 whereas clicked photographs of the girl having face appearing similar to the face of girl shown in photograph marked as C-2 and clicked obscene photographs of girls were found to be present in the data extracted from mobile phone ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 12 marked as Ex.1. All the relevant photographs & videos of Ex.1 and Q-1 were exported in their respective XRY generated reports."
The above report conclusively says that obscene .
photographs/videos of prosecutrix were not recovered from the mobile of accused.
4(iv)(d). PW-9 Dr. Sapna Dhiman, Medical Officer, C.H., Bhoranj, District Hamirpur (H.P.), conducted the medical examination of the prosecutrix on 30.04.2016. In her examination-in-chief, this witness opined that:-
"Possibility of forceful sexual intercourse cannot be ruled out".
Whereas, in her cross-examination, she (PW-9) admitted that:-
"It is correct that hymen can be reptured for other reasons as well. It is correct that no external and internal injuries were observed on the prosecutrix during her medical examination. It is correct that there was no evidence suggesting forceful sexual intercourse."
The medical examination of the prosecutrix conducted on 30.04.2016, will not aid the prosecution case against the accused in respect of events alleged to have occurred on 26.02.2014 and 28.10.2015.
::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 134(iv)(e). As per prosecution, the prosecutrix had twice been taken to same hotel in Rewalsar by the accused, yet, no link evidence has been produced by the prosecution to prove that .
the accused and the prosecutrix were seen together covering distance of about 30 kilometres from 'Balle to Rewalsar' in a car, having lunch in a hotel situated in a thick locality at Rewalsar, staying there and returning from there. No person has seen them together. Hence, alleged fact of prosecutrix going to Rewalsar with accused on 26.02.2014 and 28.10.2015, went completely runnoticed by anyone, which is highly improbable considering all the facts and circumstances of the case.
PW-11 Sh. Thupten Gonpo Hara, Operation Manager of Hotel Lotus Lake, Rewalsar, in his examination-in-
chief, though admitted accused having stayed in room No.204 on 28.10.2015 but denied having seen any girl with him. In his cross-examination, he admitted the installation of CCTV Cameras across the hotel. However, footage from CCTV Cameras was not produced in evidence by the prosecution before learned trial Court.
Thus, in view of above, the allegations levelled against the accused in respect of alleged events of 28.10.2015, are not proved on record.
::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 145. Events of 11.03.2016:
5(i). According to prosecutrix, on 11.03.2016, the accused met her near Balle at 12 noon while she was returning .
home from school and insisted that she should accompany him to Rewalsar. Her further case is that on her refusal, the accused started beating her and threatened to upload her obscene photographs on the internet. Her relevant statement in this regard is reproduced hereinafter:-
"In the month of March, 2016, the accused had come on leave. On 11.3.2016 at about 12.00 PM, the accused again met me near place Balle when I was returning home from the school and again insisted to accompany him to Rewalsar. On my refusal, the accused started beating me and again threatened to upload my photographs on internet. He also threatened to do away with my life in the event of disclosure of the incidents to my parents or else."
5(ii). During cross-examination, prosecutrix admitted that on 11.03.2016, she had appeared in an exam from 09.00 a.m. to 12.00 Noon. She also admitted the suggestion that it would have taken her more than half an hour to reach 'Balle' from her school at 'Ladraur'.
5(iii). Prosecutrix (PW-1) also deposed that in her complaint (Ext.D-1), filed before the State Women Commission, ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 15 Shimla, accused was stated to be accompanied by his wife on 11.03.2016 when he met prosecutrix. Her statement in this regard is:-
.
"It is correct that as per the complaint Ext.D1, on 11.3.2016, the accused was accompanied by his wife when he allegedly met me at 12.00 PM. It is incorrect that the wife of the accused gave me beating on that day. Self stated that both of them gave me beatings."
It is highly improbable that accused admittedly accompanied by his wife on 11.03.2016, in presence of his wife, would ask the prosecutrix to accompany him to the hotel in Rewalsar or else, would threaten her with uploading her obscene photographs on the internet.
FIR:
6(i). The events projected by the prosecutrix, be it of 26.02.2014 or 28.10.2015 or 11.03.2016, are highly improbable and unbelievable on the face of facts and circumstances of the case, statements of witnesses and the documentary evidence available on record.
6(ii). As per the prosecutrix, all the events, as they happened on aforesaid three dates, were described by her to ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 16 her mother in March, 2016. This is also the version of mother of prosecutrix Smt. Usha Devi (PW-2):-
"In the month of March, 2016, I found the prosecutrix disturbed, on which I inquired about .
the reason, she disclosed that the accused indulged in teasing and troubling her while returning from the school. The accused also followed her in his car and indulged in obscene activities. She also disclosed that the accused took her to Rewalsar twice in his car. She disclosed that the accused during these visits took her hotel Lotus Rewalsar and was subjected to forcible sexual intercourse. She also disclosed that the accused had taken her obscene photographs with cell phone camera and threatened to upload these photographs on internet in case she disclosed the incident to the family. Therefore, I immediately reported the incident to the police on 30.04.2016, on which FIR was registered against the accused."
Further:- "....on disclosure of facts by the prosecutrix in the month of March, 2016, I took up the matter with the family of accused...."
A mother, who has been narrated such events by her own daughter in March, 2016, kept quiet for well over a month and lodged the FIR against the accused only on 30.04.2016. There is no deposition to the fact that these incidents were even narrated by her (PW-2) to the father of the ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 17 prosecutrix or any other relation. Delay in lodging the FIR has not been explained.
6(iii)(a). Prosecutrix, in her cross-examination, deposed .
that 'she had no grievances with accused till the alleged beatings given on 11.03.2016'.
A reason for implicating the accused with the offences, has come in the statement of prosecutrix (PW-1) herself:-
"It is correct that the accused used to deposit/transfer money in my account." .......... "It is incorrect that the accused later asked me to return the money deposited by him. It is incorrect that on this point, we had a tiff. It is correct that on this score my mother and wife of accused (Jyoti) had quarrel. I do not know that in this regard Jyoti had filed complaint against my mother before Gram Panchayat, Jharlog. It is correct that regarding the above incidents, I had filed a complaint before State Women Commission, Shimla, the copy of which is Ext.D1, I identify my signature and signature of my mother over this complaint."
6(iii)(b). In view of above deposition, it cannot be ruled out that family of prosecutrix had borrowed some money from the accused and on demand of this money back by Jyoti (DW-3) wife of the accused, these false stories were concocted. The ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 18 incident relating to scuffle having taken place between the mother (PW-2) of prosecutrix and wife (DW-3) of accused, were put to mother of prosecutrix PW-2 Usha Devi. She in her cross-
.
examination, answered the same in following manner:-
"It is correct that on 22.4.2016, I had a quarrel with Jyoti regarding which she reported the matter on 23.4.2016 to Gram Panchayat, Jharlog. It is correct that I was called by the Panchayat."
PW-2 Usha Devi has not denied that she was called by Gram Panchayat, Jharlog, in connection with a complaint lodged by wife of accused against her (PW-2), regarding a quarrel, which took place between the two on 22.04.2016.
Noticeably, the FIR (Ext.PW-23/A) against the accused, was lodged only thereafter, i.e. on 30.04.2016. PW-2 Usha Devi though has denied having taken loan amount of Rs.2,00,000/-
from the accused and has also denied the suggestion of dispute between two families after the money was demanded back, yet fact remains that prosecutrix has admitted deposit of money by the accused in her bank account.
In this regard, statement of DW-3 Jyoti Kumari w/o accused, also assumes significance. She stated that:- she was married to accused on 22.06.2014; Usha Devi (PW-2) and her daughter (prosecutrix PW-1) had borrowed Rs.2,00,000/- from the accused; she (DW-3) demanded this money back, as a ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 19 result of which, on 22.04.2016 the mother of the prosecutrix Usha Devi (PW-2) quarrelled with her, gave beatings and threatened to get the accused discharged from service; she .
(DW-3) lodged the complaint mark 'DY' regarding this incident in Police Station against PW-2 Usha Devi; since no action was taken on this complaint, therefore, she filed a complaint Ext.DW-1/A before Panchayat on 23.04.2016. PW-2 Usha Devi has admitted having been summoned by Panchayat on this complaint. PW-1 Prosecutrix had also admitted of a quarrel between her mother and wife of accused regarding return of borrowed money.
6(iii)(c). From the statements of the witnesses, enmity between the family of the accused and the family of prosecutrix, on account of demand of money, is established on record. Therefore, possibility of lodging a false case against the accused by the prosecutrix, cannot be ruled out.
6(iv). An argument has been raised by learned Additional Advocate General that the accused has not explained his presence in the hotel at Rewalsar on 28.10.2015. In the facts and circumstances of the case, it was for the prosecution to prove the offence having been committed by the accused, with which he has been charged with, conclusively and beyond shadow of doubt. In our considered opinion, prosecution has ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 20 failed to establish on record that the alleged offences were committed by the accused.
6(v). In (2019) 5 SCC 628, titled Parkash Chand .
versus State of Himachal Pradesh, Hon'ble Apex Court observed following, on delay in lodging FIR and on credibility of statement of prosecutrix:-
"6. The first question we have to consider is the impact of delay of nearly 7 months in lodging the complaint with the police. The appellant seeks support mainly from the judgment of this Court in the case of Vijayan v. State of Kerala 2008 (14)SCC 763. The High court in the impugned judgment has on the other hand relied upon the judgment of this Court reported in State of Himachal Pradesh v. Shree Kant Shekari AIR 2004 SC 4404. Therein, this Court has essentially relied upon the principles about the impact of delay as noticed by it in the judgment of this Court in Tulshidas Kanolkar v. State of Goa reported in 2003 (8) SCC 590 wherein rape was committed on a girl whose mental ability was undeveloped. This is what the court had to say about the fact of delay.
"5. ..............In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 21 a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the .
catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render prosecution version brittle."
..................................................................
"23. If we do not place confidence in the deposition of PW4 and PW5 then the case would depend upon the credibility of PW2, the prosecutrix. The incident is alleged to have taken place near a path which has been admitted by the prosecutrix and her aunt PW3 as common path. If indeed the prosecutrix has raised hue and cry as in the case reported in 2013 (9) SCC 113, it is very unlikely that the labourers who are supposed to haunt the common path could not hear it. There is a case of the appellant that the evidence would make out a case of consensual sex. It is true that in the High Court, it is recorded that there is no case of consensual sexual intercourse as such argued but we have to decide the case on the basis of evidence.
24. We would think in the circumstances of this case that the appellant cannot be convicted for the offence under Section 376. It would indeed be unsafe to convict him based on the testimony of the prosecutrix. He would certainly be entitled to the benefit of doubt which is created by the very circumstances which we have referred."::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 22
In (2008) 15 SCC 133, titled Raju and others versus State of Madhya Pradesh, Hon'ble Apex Court observed as under:-
.
"10. The aforesaid judgment lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
In 2018 (3) RCR (Cri) 656, titled Ramprasad s/o Fagulal Amdare versus State of Maharashtra, Criminal Appeal Case No.579 of 2017, Hon'ble High Court of Bombay (Nagpur Bench), with regard to the statutory presumption under Section 29 of the POCSO Act, held as under:-
::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 23"21. Thus, the presumption that operates under Section 29 of the POCSO Act is not absolute and it is triggered only when the prosecution is able to prove the foundational facts in the first place. The evidence placed on record by the prosecution is to be examined to first come to the conclusion that .
the foundational facts of the prosecution case have been established. The accused can rebut the presumption which then arises, either by discrediting the prosecution witnesses by effective cross-examination or by leading defence evidence. It is in this context that the evidence of the prosecution in the present case needs to be examined."
6(vi). The upshot of above discussion is:-
a). Prosecution has not established on record that the accused was even seen with the prosecutrix either on 26.02.2014 or 28.10.2015. This assumes significance, considering the prosecution case is that prosecutrix while on her way to school at around 08.00 a.m., on repeated insistence of accused, accompanied him in his car to a hotel in a thick locality in a place called Rewalsar about 30 kilometres from her home, took lunch there, rested in a room there and returned;
b). The record establishes the fact that prosecutrix attended her classes in school on 26.02.2014;
c). Record also establishes the fact that accused was not on leave on 26.02.2014 and was actually discharging his duties at his place of posting;
::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 24d). Police has not carried out any investigation in respect of verifying school record, hotel record with regard to alleged events of 26.02.2014;
.
e). The school attendance register of 28.10.2015 does not conclusively prove the absence of prosecutrix from the school on that day. Rather, record gives the impression that it has been tampered with to show absence of prosecutrix on 28.10.2015;
f). The Manager of hotel in question at Rewalsar though admits accused staying in a room in the hotel on 28.10.2015 but does not admit seeing any girl with him. The hotel is, admittedly, located in a thick locality of Rewalsar at a distance of about 30 kilometre from home of prosecutrix. No CCTV footage from the hotel has been produced despite the fact that CCTV cameras were installed there;
g). It is highly improbable that accused in presence of his wife on 11.03.2016, would ask the prosecutrix to accompany him to the hotel at Rewalsar or else would threaten her with uploading her obscene photographs on the internet;
h). Family of prosecutrix was apparently on good terms with family of accused.
However, it is established on record that relationship between the two families ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 25 turned sour when wife of accused demanded the money deposited by accused in the bank account of prosecutrix, due to which, mother of prosecutrix (PW-2) .
quarrelled with DW-3 (wife of accused) on 22.04.2016. DW-3 lodged a complaint regarding this with police and also reported the matter to Panchayat. It is admitted by PW-2 that she was summoned by Panchayat on 23.04.2016;
i). FIR against the accused was lodged only thereafter on 30.04.2016, though it has come in the evidence that prosecutrix had narrated all the alleged incidents against the accused to her mother in March, 2016.
There is no explanation for the delay occurred in lodging the FIR.
7. In view of the above discussions and observations, we find that the prosecution has failed to establish its case against the accused beyond shadow of doubt.
Resultantly, this appeal filed by the appellant-convict, is allowed and he is acquitted for the commission of offences punishable under Sections 341, 363, 328, 376(2)(i), 323 & 506 IPC and Section 6 of the Protection of Children from Sexual Offences Act. Appellant, who is presently serving out the sentence, be released forthwith, if not required in any other case, subject to his furnishing personal bond in the sum of ::: Downloaded on - 18/10/2019 20:24:24 :::HCHP 26 Rs.50,000-, with one surety in the like amount, to the satisfaction of learned trial Court, so that in the event of any appeal being preferred against this judgment, his presence in .
the appellate Court be secured. The bond so furnished shall, however, remain in force only for a period of six months.
Release warrants be prepared accordingly. The appeal stands finally disposed of, so also the pending miscellaneous application(s), if any.
r to (Dharam Chand Chaudhary)
Judge
(Jyotsna Rewal Dua)
October 16, 2019 Judge
(yashwant)
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