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2016 DIGILAW 531 (HP)

Pradeep Kumar v. State of H. P.

2016-04-22

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 19.1.2015 and 21.1.2015, respectively, rendered by the learned Special Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 23-ST/7 of 2014, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 363, 366A, 376, 506 IPC and Section 4 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act), has been convicted and sentenced as under: “(i) to undergo rigorous imprisonment for three years and to pay fine of Rs. 5000/- and in default of payment of fine, to undergo simple imprisonment for three months under Section 363 IPC; (ii) to undergo rigorous imprisonment for three years and to pay fine of Rs. 5000/- and in default of payment of fine, to undergo simple imprisonment for three months under Section 366-A IPC; (iii) to undergo rigorous imprisonment for seven years and to pay fine of Rs. 25000/- and in default of payment of fine, to undergo simple imprisonment for six months under Section 376 IPC; (iv) to undergo rigorous imprisonment for seven and to pay fine of Rs. 25000/- and in default of payment of fine, to undergo simple imprisonment for six months under Section 4 of the POCSO Act, 2012; and (v) to undergo rigorous imprisonment for one year and to pay fine of Rs. 1000/- and in default of payment of fine, to undergo simple imprisonment for one month under Section 506 IPC.” All the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nut shell, is that PW-6 prosecutrix (name withheld) made a complaint to S.P. Sirmaur, vide Ext. PW-6/A. According to the averments made in the complaint, the accused came to her house with a proposal to marry her. However, her family members refused their marriage as she was under age. The accused came to her house on 23.8.2013 in the absence of her family members. He kidnapped her. Her father moved an application before the Dy. S.P. Paonta Sahib. The accused was called to Dy. S.P. Paonta Sahib office. The accused used to threaten the prosecutrix and her family members. She gave statement before the Dy. The accused came to her house on 23.8.2013 in the absence of her family members. He kidnapped her. Her father moved an application before the Dy. S.P. Paonta Sahib. The accused was called to Dy. S.P. Paonta Sahib office. The accused used to threaten the prosecutrix and her family members. She gave statement before the Dy. S.P. Paonta Sahib under pressure from the accused and therefore, the father of the accused brought her back to his house where accused continuously mal treated her. She fell ill. The accused dropped her at her parents’ house. After 15-20 days, the accused again brought her to his house and kept her in his house like a prisoner. The accused also forced her to make complaint against her father. The FIR was registered. She was medically examined. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. The investigation was completed and the challan was put up in the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as 12 witnesses. The accused was also examined under Section 313 Cr.P.C. He pleaded innocence. He examined four witnesses in defence. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Sunil Chauhan, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Parmod Thakur, Addl. Advocate General for the State has supported the judgment of the learned trial Court dated 19/21.1.2015. 5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 Inder Singh testified that he was posted as Panchayat Secretary in Gram Panchayat Thontha Jakhal from September, 2008. The certificates Ext. PW-1/A and PW-1/B were prepared by him from the original records. In his cross-examination, he admitted that he has not brought the original pariwar register. The entry in the birth register was not made by him. Volunteered that he had issued certificates on the basis of original death and birth register. 7. PW-2 Ravinder Kumar deposed that on receipt of application Ext. PW-2/A, he had issued the date of birth certificate of the prosecutrix vide Ext. PW-2/B on the basis of the school records. The entry in the birth register was not made by him. Volunteered that he had issued certificates on the basis of original death and birth register. 7. PW-2 Ravinder Kumar deposed that on receipt of application Ext. PW-2/A, he had issued the date of birth certificate of the prosecutrix vide Ext. PW-2/B on the basis of the school records. As per the school records, the date of birth of the prosecutrix was 20.12.1999. In his cross-examination, he deposed that the date of birth is entered in the records of Middle School on the basis of certificate issued by Primary School. 8. PW-6 is the prosecutrix. She deposed that on 23.8.2013, accused kidnapped her from her house. No family member was present in the house at the relevant time. The accused kept her in his house for three months forcibly. During these three months, the accused committed rape with her without her consent. The accused also threatened her with dire consequences. The accused also forced her to make complaint against her father and he demanded Rs. 10,000/-. Her father was arrested by Paonta police. Thereafter, she made complaint to the police Ext. PW-6/A, on the basis of which FIR was registered. She fell sick. The accused left her in the house of her parents. The accused again took her to his house after about 15-20 days. The accused used to treat her like his wife. The accused shunted her out from his house on 20.1.2014. She approached SDPO Paonta Sahib. She was medically examined. She signed the MLC Ext. PW-6/B. Her statement was also recorded by the learned JMIC Paonta Sahib on 5.5.2014. In her cross-examination, she admitted that the accused has come on 23.8.2013 and forced her to accompany him. He gagged the mouth of the prosecutrix. There were 3-4 houses adjoining to her house. The accused took her to his village on foot. 3-4 persons met them on the way to the house of the accused. 9. PW-7 Dinesh Kumar deposed that the prosecutrix is his sister. The accused on 23.8.2013 cajoled his sister with the intention to solemnize marriage. The accused kept his sister for three months and thereafter he left her in their house. Accused committed rape with the prosecutrix. A false complaint was lodged against his father. His sister was medically examined and MLC is Ext. PW-6/B. The police also visited the spot. 10. The accused on 23.8.2013 cajoled his sister with the intention to solemnize marriage. The accused kept his sister for three months and thereafter he left her in their house. Accused committed rape with the prosecutrix. A false complaint was lodged against his father. His sister was medically examined and MLC is Ext. PW-6/B. The police also visited the spot. 10. PW-8 Nazro Devi is the mother of the prosecutrix. She deposed that her daughter was 15 years old and she had studied up to 8th standard. They had gone to cut the grass and the prosecutrix was cajoled by the accused. He took her to his house. The prosecutrix disclosed that the accused had committed rape with her. The accused took her daughter to his house only once. He never came to their house after three months. The father of the accused had left her daughter in their house after three months, since she was not feeling well. Her husband was also arrested in a false complaint of the accused. She was declared hostile and cross-examined by the learned Public Prosecutor. She denied the suggestion that after three months accused had again come to their house and took away her daughter forcibly to his house. According to her, portion “A” to A” of her statement Mark-A was not correctly recorded by the police. In her cross-examination by the learned Advocate appearing on behalf of the accused, she could not narrate the age of her son. She could not tell the difference in the age of her children. She admitted her thumb impressions over Ext. D-3 & D-4. Her thumb impressions on Ext. D-3 and D-4 were obtained under pressure by the father of the accused. 11. PW-10 Dr. Daljeet Kaur has medically examined the prosecutrix. According to her opinion, the prosecutrix was capable of doing sexual intercourse. She was habitual according to the clinical findings, however, it could not be ascertained when the last intercourse had taken place. There was no injury mark anywhere on any part of the body. 12. PW-11 Jogi Ram is the father of the prosecutrix. He deposed that the accused allured the prosecutrix and kidnapped her. He made complaint to Dy. S.P. Paonta Sahib. Thereafter, her custody was handed over to him. After some days, accused again allured his daughter. There was no injury mark anywhere on any part of the body. 12. PW-11 Jogi Ram is the father of the prosecutrix. He deposed that the accused allured the prosecutrix and kidnapped her. He made complaint to Dy. S.P. Paonta Sahib. Thereafter, her custody was handed over to him. After some days, accused again allured his daughter. In his cross-examination, he admitted that the house of the accused was at a distance of 30 kms by road and 10 kms by shortcut path. He also admitted that he knew that the prosecutrix was living in the house of the accused for about three months. He could not do anything and the matter was reported to the police. 13. PW-12 SI Mohar Singh was the I.O. He obtained the birth certificate of the prosecutrix from Gram Panchayat Thontha Jakhal vide Ext. PW-1/A. He also obtained copy of pariwar register vide Ext. PW-1/B. He recorded the statement of the prosecutrix and PW-8 Nazro Devi. The medical examination of the accused as well as the prosecutrix was got conducted. The statement of the prosecutrix was got recorded under Section 164 Cr.P.C. He also obtained birth certificate Ext. PW-2/B. In his cross-examination, he admitted that it has come during the course of the investigation that the prosecutrix was praying for protection from her father. The house of the prosecutrix was about 28 kms by road from the house of the accused, though there is a short cut which is 5 kms from the house of the accused. The houses in the village are at a distance of 20-25 feet away from the house of the prosecutrix. 14. The case of the prosecution, precisely, is that the accused had visited the house of the prosecutrix on 23.8.2013 and has allured her to marriage. He took her to his house. He kept her with him for three months. Thereafter, he dropped her in her parents’ house and then he again took her to his house. She was thrown out from his house by him on 20.1.2014. 15. PW-6 prosecutrix deposed that on 23.8.2013, accused kidnapped her from her house. He took her forcibly to his house. The accused left her in the house of her parents when she fell ill. The accused again took her to his house after 15-20 days. PW-8 Nazro Devi is the mother of the prosecutrix. 15. PW-6 prosecutrix deposed that on 23.8.2013, accused kidnapped her from her house. He took her forcibly to his house. The accused left her in the house of her parents when she fell ill. The accused again took her to his house after 15-20 days. PW-8 Nazro Devi is the mother of the prosecutrix. She categorically deposed that the accused took her daughter to his house only once. He never came to their house after three months. According to the prosecutrix, she was taken forcibly, as discussed hereinabove, by the accused. The distance between the house of the prosecutrix and the house of the accused, as per the statement of the father of the prosecutrix PW-11 Jogi Ram is 30 kms by road and 10 km. by short cut. PW-12 SI Mohar Singh has also deposed that the house of the prosecutrix was about 28 kms by road from the house of the accused, though there is a short cut which is 5 kms from the house of the accused. The houses in the village are at a distance of 20-25 feet away from the house of the prosecutrix. There were houses in the vicinity of the house of the prosecutrix. The prosecutrix should have raised alarm if she had been forcibly taken by the accused to his house which was at a distance of 25 kms. from her house. It is not believable that the accused had gagged her mouth for 25 kms. 16. PW-10 Dr. Daljeet Kaur has deposed that she has not seen any injury marks on the part of the body of the prosecutrix. The prosecutrix was capable of doing sexual intercourse. She was habitual according to the clinical findings, however, it could not be ascertained when the last intercourse had taken place. According to the FSL report PW-12/H, blood and semen was not detected on the clothes, sample pubic hair and vaginal smear slides of the prosecutrix. 17. PW-1 Inder Singh, in his cross-examination, has admitted that he has not brought the original pariwar register. The entry in the birth register was not made by him. PW-2 Ravinder Kumar deposed that on receipt of application Ext. PW-2/A, he had issued the date of birth certificate of the prosecutrix vide Ext. PW-2/B on the basis of the school records. PW-1 Inder Singh, in his cross-examination, has admitted that he has not brought the original pariwar register. The entry in the birth register was not made by him. PW-2 Ravinder Kumar deposed that on receipt of application Ext. PW-2/A, he had issued the date of birth certificate of the prosecutrix vide Ext. PW-2/B on the basis of the school records. In his cross-examination, he deposed that the date of birth was entered in the records of Middle School on the basis of certificate issued by Primary School. 18. PW-6 prosecutrix has deposed that the accused treated her like his wife in his house. PW-11 Jogi Ram, father of the prosecutrix, deposed that the accused had approached him to solemnize marriage with the prosecutrix. He declined as his daughter was minor and studying. The prosecutrix remained in the house of the accused for about three months. However, no complaint was lodged despite the fact that PW-11 Jogi Ram admitted in his cross-examination that he knew that the prosecutrix was living in the house of the accused for three months. 19. The mother of the prosecutrix was declared hostile and cross-examined by the learned Public Prosecutor. She has denied that after three months, accused again came to their house and took her daughter forcibly. She denied portion “A” to “A” of her statement Mark-A. In her cross-examination by the learned Advocate appearing on behalf of the accused, she could not narrate the age of her son. She could not tell the difference in the age of her children. The mother is supposed to know the age difference of her children. 20. DW-1 R.S. Chauhan, deposed that Smt. Nazro Devi, wife of Jogi Ram, came to him for correction of date of birth of the prosecutrix. He attested documents Ext. D-3 and D-4. PW-8 Nazro Devi has sworn in affidavit Ext. D-3 to the effect that the date of birth of her daughter was 5.5.1995 and the entry made in the pariwar register of her daughter in Gram Panchayat Thontha Jakhal as 20.12.1999 was wrong. She has admitted her thumb impression on Ext. D-3. Similarly, she has moved an application before the SDM, Paonta Sahib seeking correction of date of birth of her daughter from 20.12.1999 to 5.5.1995, vide Ext.D-4. She has admitted her thumb impression on Ext. D-4. 21. She has admitted her thumb impression on Ext. D-3. Similarly, she has moved an application before the SDM, Paonta Sahib seeking correction of date of birth of her daughter from 20.12.1999 to 5.5.1995, vide Ext.D-4. She has admitted her thumb impression on Ext. D-4. 21. DW-4 Tara Devi of Gram Panchayat Ashyadi deposed that the prosecutrix had come to her and disclosed that her father was harassing her and demanding money for marriage from the father of the accused. The prosecutrix has also submitted an application vide Ext. DA to the effect that her father was demanding Rs. 10,000/- from the family of the accused. Though, as per the birth certificate and copies of pariwar register, the date of birth of the prosecutrix is mentioned as 20.12.1999 but in view of Ext. D-3 and D-4, the mother of the prosecutrix had sought the date of birth to be changed from 20.12.1999 to 5.5.1995. PW8 Nazro Devi, the mother of the prosecutrix has admitted her thumb impression on Ext. D-3 and Ext. D-4. Thus, the prosecution has failed to prove the case against the accused under Sections 363, 366-A, 376, 506 IPC and Section 4 of the POCSO Act, 2012. 22. Accordingly, in view of the analysis and discussion made hereinabove, the appeal is allowed. Judgment of conviction and sentence dated 19/21.1.2015, rendered by the learned Special Judge, Sirmaur District at Nahan, H.P., in Sessions trial No. 23-ST/7 of 2014, is set aside. Accused is acquitted of the charges framed against him. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 23. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.