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2018 DIGILAW 1237 (HP)

Dilbagh Singh Alias Ashu v. State Of H P

2018-07-06

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J —The instant appeal is directed, against, the verdict of conviction pronounced, upon, the accused/apepllant, by the learned Special Judge, Kangra at Dharamshala, upon, Sessions Trial No. 20-K/VII/2014, vis-a-vis, the hereinafter extracted charges:- "That in the month of September, 2012 and March, 2013, you committed penetrative sexual assault with the victim at Jassaur Tika Pali, at different times and thereby committed an offence punishable under Section 4 Protection of Children from Sexual Offences Act, 2012 and within the cognizance of this Court. And I hereby direct that you be tried for the aforesaid offences." 2. A reading of the charge, does bring forth, the trite factum, qua, the penally inculpable misdemeanors, as, ascribed therein qua the accused, being, qua his, in, the month of September, 2012, and, in the month of March, 2013, hence subjecting the minor prosecutrix, to penetrative sexual assault, thereupon, his committing an offence punishable under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act). The aforesaid forthright disclosures, hence, occurring in the charge, thereupon, enjoins, this Court, to allude, to the notification, whereunder, the POCSO Act, is brought into force. A reading of the notification bearing No. S.O.2705(E) of 9th November, 2012, makes a clear display qua the provisions of the Protection of Children From Sexual Offences Act, 2012, being brought into force w.e.f. 14.11.2012, and, with no explicit retrospectivity, being according to the provisions, of POCSO Act, (i) thereupon, the charge framed qua the penal misdemeanors, allegedly committed by the accused, upon, the minor prosecutrix, especially, the ones committed prior, to, the coming into force of the mandate, of, POCSO Act, being obviously hereat neither drawable nor theirs attracting, the mandate, of, Section 4, of the POCSO Act. Even, the ascription of penal misdemeanors, in the apposite charge, vis-a-vis, the accused, qua his, in the March, 2013, subjecting the minor prosecutrix, to penetrative sexual assault, is, in gross dis-concurrence to her statement, borne in Ex.PW1/B, (ii) statement whereof stands recorded, by her, before the Judicial Magistrate concerned, wherein there, is no, ascription qua the accused qua his on 6.4.2013, subjecting her to penetrative sexual assault, rather an echoing occurs qua thereat merely a frustrated attempt being made, by the accused. Consequently, in respect of the latter event also even if it stood assumingly committed, at a time, when the provisions of POCSO Act , were in force, yet any charge qua it, of hence, the accused subjecting the minor prosecutrix, to penetrative sexual assault, is amenable to falter, it visibly bearing dis-concurrence with the recitals, borne in Ex.PW1/B. 3. Contrarily, when the accused was amenable for his being charged, for his committing, offences, borne, in the provisions of the Indian Penal Code, (I) whereas, his being charged, under, thereat inapplicable provisions, inasmuch, of the POCSO Act, (ii) thereupon, his being charged, under, the inappropriate penal provisions, besides his being tried, and, convicted, and, sentenced, also hence all are legal phenomena, which are enjoined to be quashed and set aside, (iii), given all being tainted, with, pervasive jurisdictional infirmities. 4. In summa, for the reasons stated hereinabove, the appeal is allowed, and, verdict impugned before this Court, is, quashed and set aside. The learned trial Court is directed to hold a denovo trial of the accused, vis-a-vis, the apposite offences, upon charges standing drawn under the apt therewith provisions borne, in, the Indian Penal Code. It is clarified that the evidence which is adduced, in respect of, inappropriately charged offences, though, may be discardable, yet it is open to the learned Public Prosecutor, and, also to the learned defence counsel concerned, to, upon the prosecution witnesses concerned, hence re-stepping into the witness box, upon the learned trial Court, holding, a denovo trial, and, theirs, during the course, of, rendering their testification, hence, reneging therefrom, to, hence confront them, with, their earlier statements recorded before the learned trial Court, upon, the latter holding the accused to trial qua inappropriate charges. The learned trial Court is directed to within six months from today, hence conclude the trial, upon, apposite charge(s) framed against the accused, under, the provisions of the Indian Penal Code, and, if deemed fit vis-a-vis, a charge qua the subsequent event of March, 2013, framed, under the POCSO Act. The parties are directed to appear before the learned Special Judge, Kangra at Dharamshala on 25th July, 2018. 5. The parties are directed to appear before the learned Special Judge, Kangra at Dharamshala on 25th July, 2018. 5. Since, during the course of the trial, the accused/appellant herein was released on bail by this Court in pursuant to the orders rendered on 21.06.2013, in Cr.MP(M) No. 11032 of 2013, hence, when, there is no evidence on record that the accused/convict during the course of trial, whereat he was on bail, his hence tampering with prosecution evidence, hence, he is ordered to be released on bail subject to his furnishing personal bond, in the sum of Rs. one lac with one surety in the like amount to the satisfaction of the learned Sessions Judge, Kangra at Dharamshala, with, a further condition that she shall not tamper with the prosecution evidence, in any manner. Records be sent back forthwith.