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Himachal Pradesh High Court · body

2016 DIGILAW 872 (HP)

State of H. P. v. Amit Kumar

2016-05-20

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Vivek Singh Thakur, J. In present appeal, judgment dated 6.9.2012 passed by learned Sessions Judge, Kangra at Dharamshala in Sessions Case No.41-P/VII-2010, in case FIR No.27/2010 dated 1.3.2010 registered at Police Station, Bhawarna, under Section 511 read with Section 376 IPC, acquitting the respondent/accused is under challenge. 2. Prosecution case in brief is that on 1.3.2010 at about 3.30 p.m. PW-1 prosecutrix, who 8 years old was sexually assaulted by respondent/accused Amit Kumar by touching his genital part with that of prosecutrix while she was on the way to fetch water from Bowli (water source) alongwith her 4 years old brother Ankit Kumar. It has been further alleged that respondent/accused had gagged mouth of prosecutrix with handkerchief. On her efforts to raise alarm and weeping, respondent/accused had allowed to go her. As per PW-2 Meena Devi mother of prosecutrix, prosecutrix had narrated the incident on reaching home and thereafter PW-2 Meena Devi had informed her father PW-3 Ramesh Chand who had visited Police Station alongwith prosecutrix and statement of PW-2 Meena Devi Ex.PW-2/A under Section 154 Cr.P.C. was recorded by the police. 3. During investigation, PW-1 (prosecutrix) was medically examined by PW-10 Dr. Kalpana Mahajan, Medical Officer CH, Palampur who had issued MLC Ex.PW10/A. Similarly, respondent/accused was medically examined by PW-5 Dr. Arun Gupta, Medical Officer, PHC, Dheera who after examination of the respondent /accused had issued MLC Ex.PW5/C. 4. During investigation respondent/accused was arrested. Handkerchief Ex.P1 was taken into possession and site plan Ex.PW-11/B of the place of occurrence was prepared. Clothes, vaginal swabs and handkerchief were sent to FSL, Junga vide docket Ex.PW-11/E. Copies of birth certificates and family register of the prosecutrix Ex.PW-7/A and Ex.PW-7/B as well as of the accused Ex/PW7/C and Ex.PW-7/D were issued by PW-7 Anil Kumar Secretary Gram Panchayat, Bhoda. After receiving report Ex.PW-5/B from FSL, Junga and completion of investigation, challan was put in the Court. Learned trial Court had framed charge under Section 511 read with Section 376 IPC against accused, for which he had pleaded not guilty and claimed trial. 5. During trial prosecution has examined as many as 11 witnesses to prove the case of prosecution. After completion of prosecution evidence, statement under Section 313 Cr.P.C of accused was recorded. 6. Mr. Learned trial Court had framed charge under Section 511 read with Section 376 IPC against accused, for which he had pleaded not guilty and claimed trial. 5. During trial prosecution has examined as many as 11 witnesses to prove the case of prosecution. After completion of prosecution evidence, statement under Section 313 Cr.P.C of accused was recorded. 6. Mr. M.A. Khan, learned Additional Advocate General for the appellant-State has vehemently argued that there is sufficient evidence on record to prove the guilt of respondent/accused beyond reasonable doubt to punish him under Section 511 read with Section 376 IPC and has prayed for allowing the appeal. On the other hand, Mr. Rajesh Mandhotra, learned counsel for respondent/accused has argued that there is sufficient material on record indicating that it is a case of mistaken identity and respondent/accused had been falsely implicated in this case. He has supported the findings returned by learned trial Court and has prayed for dismissal of the appeal. 7. PW-5 Dr. Arun Gupta, Medical Officer has examined respondent/accused and has opined that there is nothing to suggest that respondent/accused is in-capable of performing sexual intercourse. PW-10 Dr. Kalpana Mahajan Medical Officer has examined prosecutrix and has opined that no evidence of penetration detected on examination. Statements and opinions of both these Medical Officers have not been disputed. In fact in present case, there is no allegation of penetration, rather there is allegation that respondent/accused had touched his genital part with that of prosecutrix. It is also stated by PW-2 Meena Devi in the FIR Ex.PW2/A that she had examined her daughter at home and found that her daughter had not been subjected to intercourse but respondent/accused had attempted to do so. 8. PW-7 Anil Kumar is a Panchayat Secretary, who has issued birth certificate Ex.PW-7/A and family details Ex.PW-7/B of prosecutrix and birth certificate and family details of respondent/accused Ex.PW-7/C and Ex.PW-7/D. These certificates and family details are also not in dispute. 9. PW-8 MHC Paramjit Singh had received case property and deposited the same in malkhana by entering it in malkhana register and had sent parcel for Chemical Analysis to SFSL, Junga through PW-9 HHC Ashwani Kumar. Statements of PW-8 and PW-9 are also not in dispute. 10. 9. PW-8 MHC Paramjit Singh had received case property and deposited the same in malkhana by entering it in malkhana register and had sent parcel for Chemical Analysis to SFSL, Junga through PW-9 HHC Ashwani Kumar. Statements of PW-8 and PW-9 are also not in dispute. 10. PW-4 Ram Singh, an agriculturist by profession, associated in police investigation, has deposed that respondent/accused had identified the place of occurrence and had produced handkerchief to the police which was taken into possession vide memo Ex.PW-1/A. He has admitted that the prosecutrix is his grand daughter. He has admitted that police had already prepared the papers and he had signed the same after reaching there but again self stated that the same were prepared in his presence. 11. Prosecution is relying upon production of handkerchief by respondent/accused which was identified by PW-1(prosecutrix). Though, PW-4 Ram Singh has stated that respondent/accused had produced handkerchief Ex.P-1 to the police in his presence, however, PW-1 (prosecutrix) has admitted in her cross-examination that her mother PW-2 Meena Devi had handed over handkerchief Ex.P-1 to the police which belies the statements of PW-4, Ram Singh as well as prosecution story of production of handkerchief by respondent/accused. 12. PW-3 Ramesh Chand is maternal grand father and PW-6 Vidya Devi is maternal grand mother of prosecutrix. They were informed by PW-2 Meena Devi regarding incident. They had visited Police Station alongwith PW-2 Meena Devi. PW-3 is a retired Sub Inspector from police and PW-6 Vidya Devi has admitted that complaint was lodged at the instance of her husband. 13. PW-3 and PW-6 have stated that after receiving call from PW-2 Meena Devi, they reached the house of PW-2 Meena Devi at Ghanderaka and thereafter accompanied her daughter PW-2 Meena Devi to Police Station. PW-3 and PW-6 had acted and deposed upon information supplied by PW-2 Meena Devi. Therefore, in order to assess the prosecution case, primarily statements of PW-1 prosecutrix and PW-2 Meena Devi only are relevant. 14. PW-2 Meena Devi has supported the prosecution story. But her statement is based on information supplied by PW-1 prosecutrix as understood by her. She has also admitted that on the day of occurrence during evening time her children had not gone to water source to fetch water. 15. Therefore, there is no other witness except PW-1 prosecutrix who is also 8 years old child. But her statement is based on information supplied by PW-1 prosecutrix as understood by her. She has also admitted that on the day of occurrence during evening time her children had not gone to water source to fetch water. 15. Therefore, there is no other witness except PW-1 prosecutrix who is also 8 years old child. It is settled law that conviction can also be based on the basis of evidence of child witness as every witness is considered competent to depose unless the Court considers witness incompetent being prevented on account of some disability or infirmity from understanding the question or giving rational answers as witness. Considering admissibility of evidence by a child witness, the Hon’ble Supreme Court in the case of Raj Kumar vs. State of Madhya Pradesh (2014) 5 SCC 353 has held as under:- “18. It is a settled legal proposition of law that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age or extreme old age or disease or because of his mental or physical condition. Therefore, a court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Thus, the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. The trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting the questions to him. 19. This Court in State of Madhya Pradesh v. Ramesh & Anr., (2011) 4 SCC 786 , after considering a large number of its judgments came to the conclusion as under (SCC p. 792. para 14): “In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. para 14): “In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.” (See also: Suryanarayana v. State of Karnataka, AIR 2001 SC 482 ).” 16. Considering the principle for evaluating evidence of child witness, the Hon’ble Apex Court in Radhey Shyam vs. State of Rajasthan (2014) 5 SCC 389 has held as under:- “12. in Panchhi, after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness’s evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. 17. In light of aforesaid principles, evidence of PW-1 prosecutrix, is to be scrutinized in the instant case. 18. As a matter of caution, the court must find adequate corroboration to the child witness’s evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation. 17. In light of aforesaid principles, evidence of PW-1 prosecutrix, is to be scrutinized in the instant case. 18. In examination-in-chief, PW-1 prosecutrix has supported prosecution story, however, in cross examination, she has stated that co-villagers used to address her father as brother and she used to call them Chhotu Chachu (Uncle). She has stated that she afraid of police and obeys command of her parents. She has admitted that on the day of occurrence she and her brother had gone to water source and had came back with water in routine manner. She has admitted that she was tutored outside the Court and was asked to depose in the Court according to the statement written by the police and she has deposed accordingly in the Court. She has also admitted that on arrival of police in her village, police had told that PW-2 Meena Devi had disclosed that some person had tried to do wrong act with her. She admitted that police had advised her to depose accordingly to statement of her mother recorded by police. As per prosecutrix, accused was named in case as disclosed by her mother. 19. On close scrutiny of PW-1, it is difficult to draw conclusion that it was respondent/accused who had assaulted PW-1 (prosecutrix). Her evidence even cast doubt on the prosecution story. The admissions of PW-1 (prosecutrix) in her cross-examination are sufficient to infer that she had been deposing under the influence of police and her mother whereas her mother lodged the complaint against respondent/accused on account of mistaken identity. It appears that once respondent/accused was named in FIR, the police and PW-2 Meena Devi stick to that fact and PW-1 (prosecutrix) was also guided and dictated to name respondent/accused in the same manner as alleged in the statement of PW-2 Meena Devi. Statement of prosecutrix has not only discredited her evidence but also evidence of her mother PW-2 Meena Devi. Therefore, we hesitate to accept credibility of statements of PW-1 and PW-2. 20. Statement of prosecutrix has not only discredited her evidence but also evidence of her mother PW-2 Meena Devi. Therefore, we hesitate to accept credibility of statements of PW-1 and PW-2. 20. Respondent/accused has taken defence of mistaken identity and questions No.24 and 25 put to him under Section 313 Cr.P.C. have been answered by him stating that the witnesses including prosecutrix are interested witnesses and had deposed falsely against him under mistaken identity. 21. It is settled law that suspicion cannot take place of proof and there must be cogent, reliable, convincing and trustworthy evidence to connect respondent/accused with the commission of offence. In the present case, PW-1 (prosecutrix) is only witness to identify the person who had assaulted her. However, in her cross-examination veracity of her evidence stands impeached and creates doubt qua the identity of the person who had committed the offence. On the basis of evidence on record, possibility of mistaken identity cannot be ruled out. 22. It is evident from the aforesaid discussion that prosecution evidence cannot be treated as cogent, reliable, credible and sufficient to prove the guilt of the respondent/accused beyond reasonable doubt. 23. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. The accused has been acquitted by the trial Court. 24. From perusal and scrutiny of evidence, it cannot be said that the learned trial court has not appreciated the evidence correctly and completely and acquittal of the accused has resulted into travesty of justice or has caused mis-carriage of justice. 25. After considering arguments of respective counsel for the parties and minutely examining the testimonies of the witnesses and other documentary evidence placed on record, we are of the considered view that no case for interference is made out. 26. The present appeal, devoid of any merit, is dismissed, as also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be sent back immediately.