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Himachal Pradesh High Court · body

2018 DIGILAW 2153 (HP)

Gorkha Ram v. State of Himachal Pradesh

2018-12-05

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

body2018
JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. Gorkha Ram, a convict (hereinafter referred to as the accused) is in appeal before this Court. He is aggrieved by the judgment dated 17.8.2017 passed by learned Special Judge, Kangra at Dharamshala in Sessions Case No. 41-D/VII of 2016, whereby he has been convicted for the commission of offence punishable under Section 5(m) and 5(n) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” in short) and sentenced to undergo rigorous imprisonment for a period of 10 years and also to pay a fine of Rs. 20,000/-. 2. A case, vide FIR No. 9 of 2016 dated 9.7.2016 came to be registered against the accused on the basis of an application Ext. PW-14/A made by PW-6 Komal Parihar, allegedly Health Worker in “Jagori” a NGO, PW-4 Asha, Para Legal Volunteer and one Raveena, amicus curaie to President, Child Welfare Committee Kangra at Dharamshala, H.P. A copy thereof was also forwarded to Ms. Shalini Agnihotri, Addl. Superintendent of Police, Kangra at Dharamshala. The Addl. Superintendent of Police forwarded the same to Women Police Station, Dharamshala for registration of the case against the accused. The allegations, in a nut shell, against the accused are that PW-6 Komal Parihar was apprized in the meeting of Mahila Mandal at Bhali on 25.6.2016 by some women of the village present there that the accused had been torturing mentally and physically his minor daughters after the death of his wife. The accused allegedly tried to develop physical relations with his elder daughter. In order to verify such allegations when she went on 8.7.2016 to the house of the accused, his elder daughter, the victim herein told that on that day also, she was beaten up by her father and during night time, he used to do wrong acts with her. She also came to know that cries of the minor girls could be heard every day from the house of the accused. PW-7 Rekha Devi, Aunt (Tai) of the minor girls allegedly disclosed to PW-6 Komal Parihar that the accused under the influence of liquor had been exploiting his minor daughters, mentally and physically. 3. On registration of the FIR Ext. PW-14/B, SI Kiran Bala, I.O., Women Cell, Dharamshala has conducted the investigation. On the application Ext. PW-1/A she moved, the medical examination of the victim(s) was conducted by PW-1 Dr. Manju. 3. On registration of the FIR Ext. PW-14/B, SI Kiran Bala, I.O., Women Cell, Dharamshala has conducted the investigation. On the application Ext. PW-1/A she moved, the medical examination of the victim(s) was conducted by PW-1 Dr. Manju. She issued the MLCs Ext. PW-1/B, PW-1/C and PW-1/D. The statement of the victim was recorded and photographed also vide CD Ext. PY. The statements of PW-4 Asha Ext. PW-14/C and PW-6 Komal Parihar under Section 161 Cr.P.C. were also recorded. The accused was arrested on that very day and got subjected to medical examination qua which application Ext. PW-10/A was made to the Medical Officer, Zonal Hospital, Dharamshala. The MLC is Ext. PW-10/B. The articles preserved by PW-1 Dr. Manju and PW-10 Dr. Kulbhushan Sharma, for scientific investigation were deposited with MHC Police Station Dharamshala. The site plan Ext. PW-14/D was also prepared in the presence of PW-4 Asha, LC Sonia and PW-7 Rekha Devi. In their presence, a local mattress (Khind) was also taken into possession vide seizure memo Ext. PW-4/A. The supplementary statement of PW-4 Asha Ext. PW-14/E was also recorded. Photograph Ext. PW-4/C-1 was also clicked by the I.O with her cell phone. On the demarcation given by the accused, memo Ext. PW-9/E was prepared. The photograph Ext. PW-4/C-2 was also clicked by the I.O. Site plan Ext. PW-14/E was prepared. On the same day i.e. 11.7.2016, PW-14 SI Kiran Bala has made an application with a prayer to record the statement of the victim under Section 164 Cr.P.C. and on the basis thereof, learned JMIC (I), Dharamshala has recorded her statement Ext. PW-5/A. The case property was forwarded to Forensic Science Laboratory for analysis. On the receipt of report of Chemical Examiner ( Ext. PX) and on completion of the investigation, report under Section 173 Cr.P.C. was filed against the accused. 4. Learned trial Judge, on appreciating the police report and documents annexed thereto and finding a case under Section 5(m) and 5(n) of the POCSO Act made out against the accused, framed charge against him accordingly. The accused, however, pleaded not guilty and claimed trial. The prosecution, as such, has produced the evidence in support of the charge so framed against the accused. 5. The material prosecution witnesses are victim of the occurrence PW-5 (name withheld), PW-4 Asha, Para Legal Volunteer, PW-6 Komal Parihar, Health Worker in “Jagori”, Raveena (not examined) and PW-7 Rekha Devi. The accused, however, pleaded not guilty and claimed trial. The prosecution, as such, has produced the evidence in support of the charge so framed against the accused. 5. The material prosecution witnesses are victim of the occurrence PW-5 (name withheld), PW-4 Asha, Para Legal Volunteer, PW-6 Komal Parihar, Health Worker in “Jagori”, Raveena (not examined) and PW-7 Rekha Devi. The remaining prosecution witnesses are PW-1 Dr. Manju who has conducted the medical examination of all the three minors, including the victim, PW-10 Dr. Kulbhushan Sharma who has medically examined the accused, PW- 11 Dr. Surender Kumar, Asstt. Director, RFSL, Dharamshala who has proved the report Ext. PX. PW-2 Harshvardhan Vaidya is the Chairman, Child Welfare Committee and PW-3 Ramesh Mastana is the Coordinator. The remaining witnesses are police officials, hence formal. 6. Learned trial Judge, on appreciation of the oral as well as the documentary evidence produced by the prosecution and hearing learned Public Prosecutor as well as learned defence counsel has concluded that the prosecution case against the accused stands established beyond all reasonable doubt. He, as such, has been convicted and sentenced as pointed out at the outset. 7. The legality and validity of the impugned judgment has been questioned on the grounds inter alia that there is no iota of evidence to suggest the involvement of the accused in the commission of the offence. The impugned judgment, on the other hand, is based on conjectures, surmises and hypothesis. The evidence as has come on record by way of testimony of PW-4 to PW-7 is stated to be wrongly appreciated which has resulted in miscarriage of justice to the accused. When PW-1 Dr. Manju on the basis of clinical examination of the victim she conducted had not noticed any injury on her face, chest and abdomen, in pubic region, labia majora and there being no finding of penetrative sexual assault, the findings to the contrary are stated to be not legally sustainable. PW- 7 Rekha Devi allegedly is not trustworthy, being inimical to the accused as per her own admission. In case, the victims’ were being tortured physically and mentally by the accused (their father), why this witness has not reported the matter either to police or complained to the local residents. PW- 7 Rekha Devi allegedly is not trustworthy, being inimical to the accused as per her own admission. In case, the victims’ were being tortured physically and mentally by the accused (their father), why this witness has not reported the matter either to police or complained to the local residents. The statement of PW-5 victim, could have not been relied upon because after the registration of FIR on 9.7.2016, the accused was arrested and she remained in the custody of PW-4 Asha and PW-6 Komal Parihar. Therefore, the possibility of the victim being tutored by them cannot be ruled out. It has also been pointed out that in a case of this nature, it is not safe to place reliance on the testimony of a child witness. The prosecution, as such, is stated to have failed to prove its case against the accused beyond all reasonable doubt, hence, the accused deserves to be acquitted of the charge framed against him. 8. Against this backdrop, while Mr. Lakshay Thakur, Advocate, learned defence counsel has sought the impugned judgment to be quashed and set aside, learned Addl. Advocate General has come forward with the version that the impugned judgment, being well reasoned and based upon cogent and reliable evidence produced by the prosecution calls for no interference. 9. The machinery has been set into motion by PW-6 Komal Parihar, who claims herself to be a volunteer of ‘Jagori’, a NGO. Whether any NGO, namely ‘Jagori’ exists and is a registered body, there is no evidence on record. As a matter of fact, in normal course, a NGO is required to be registered and acts to the knowledge and notice of the Government department, such like Women and Social Welfare and Social Justice and Empowerment which generally remains in touch with welfare of the people. Therefore, any NGO, namely ‘Jagori’ in existence is not at all proved. 10. The very first version qua the alleged sexual assault committed by the accused on his own daughter finds mention in the application Ext. PW-14/A submitted by PW-6 Komal Parihar, the so called Health Worker of “Jagori”, PW-4 Asha, Para Legal Volunteer and one Raveena allegedly (Nyay Sakhi) an amicus curiae to Chairman, Child Welfare Committee, Kangra District. 10. The very first version qua the alleged sexual assault committed by the accused on his own daughter finds mention in the application Ext. PW-14/A submitted by PW-6 Komal Parihar, the so called Health Worker of “Jagori”, PW-4 Asha, Para Legal Volunteer and one Raveena allegedly (Nyay Sakhi) an amicus curiae to Chairman, Child Welfare Committee, Kangra District. As per this document, it is PW-6 Komal Parihar, who for the first time came to know about the physical and mental harassment of the victim and her sisters by their father, the accused in the meeting of Mahila Mandal Bhali on 25.6.2016 from its members (women of village Bhali). Since the meeting of Mahila Mandal must be a regular feature during each and every month, therefore, it can reasonably be believed that PW-6 Komal Parihar was knowing the names etc. of those members of Mahila Mandal. She, however, did not disclose their names in the application Ext. PW-14/A. Therefore, it remains mystery as to who were those women of Village Bhali and members of Mahila Mandal, who disclosed the alleged mal-treatment and sexual exploitation of the victim and her sisters by the accused to PW-6 Komal Parihar. In case said PW-6 Komal Parihar was present in the meeting of Mahila Mandal on that day at Bhali, and the victims were residing in the same village, she would have met them and taken the stock of the situation at their house and verified the allegations of their mal-treatment by the accused. As per this document, PW-6 Komal Parihar went to Bhali to the house of accused on 8.7.2016. Though on the reverse of this document she allegedly informed PW-4 Asha and Raveena over cell phone and they also came to Village Bhali to the house of the accused, however, this part of the application seems to be introduced later on because the first part of the application gives a clear indication that Asha and Raveena were not there and it is rather PW-6 Komal Parihar who alone had gone to the house of the accused at Village Bhali on that day. Nothing has come in this document that the accused had been opening the trouser of the victim and used to kiss as well as lick private part of the victim. Therefore, if the contents of the application Ext. Nothing has come in this document that the accused had been opening the trouser of the victim and used to kiss as well as lick private part of the victim. Therefore, if the contents of the application Ext. PW-14/A are believed to be true, the has victim only revealed to PW-6 Komal Parihar that her father had been beating her and doing wrong act with her during every night. This document also introduces another prosecution witness PW-7 Rekha Devi. She as per the record is none else but the wife of the step brother of the accused. She allegedly disclosed before PW-6 Komal Parihar that the accused under the influence of liquor had been exploiting his daughters physically and also mentally on each and every day. Therefore, Rekha revealed something new which the victim had not disclosed to PW-6 Komal Parihar. The application Ext. PW-14/A perhaps was closed with a request to the Chairman, Child Welfare Committee, Kangra to save all the three minor girls from their maltreatment by initiating proceedings in accordance with law in the matter at once on its first page and as noticed supra, the second part of this application on its reverse that PW-6 Komal Parihar informed PW-4 Asha and Raveena also and that they reached at Village Bhali is an afterthought, may be with malafide intention to create false evidence. 11. PW-6 allegedly came to know about the torture and maltreatment as well as sexual abuse of the victim (PW-5) by none else but her father in a meeting of Mahila Mandal in Village Bhali from some women present there. She, however, has not disclosed the names of those women. It has also not been proved that on what date, month and time the Mahila Mandal meeting was convened. PW-6 Komal Parihar has also not disclosed the names of those women. As per the normal human conduct, had she been present in the meeting, she would have been in the knowledge of the names of those women or if not, should have tried to ascertain their names so that being a social activist, she would have been in a position to give authentic information qua the so called torturing to the authorities, including the police. She having not disclosed the names of so called women from whom she came to know about the torturing of the victim, including her sexual harassment by the accused, this part of the prosecution story seems to be false. 12. Otherwise also, on 8.7.2016 when PW-6 Komal Parihar went to the house of the victim at village Bhali and enquired from the victim about the plaster/band aid in her leg, she revealed that her father had beaten her with burning firewood when she could not manage to cook the food on account of wet firewood. Also that, on an occasion, he had assaulted her with the lid of cooker and he had been pressurizing her to cook food. Had she been beaten up and tortured, she should have stated that also in her statement recorded under Section 164 Cr.P.C. Therefore, the statement of PW-6 Komal Parihar, the so called volunteer of NGO, that the accused on one occasion had administered beatings to her with burning firewood and on another with lid of cooker and was also pressurizing and terrorizing her as and when found to have not cooked food by her, hardly inspire any confidence. Even nothing of the sort the victim has stated in her statement recorded under Section 164 Cr.P.C. Above all, when on 9.7.2016, the victim was taken to hospital after registration of the FIR and arrest of her father for medical examination, no injury could be detected on her person as is apparent from the perusal of the MLC Ext. PW-1/B. There is nothing in the statement of PW-6 Komal Parihar that the victim had also revealed that her father, the accused rubs his penis with her vagina and also kisses her vagina. As per the statement of PW-6 Komal Parihar, rather it is Rekha PW-7 who revealed that on the previous night the victim and her sisters when tortured by their father, the accused, were crying loudly. Also that, the accused had been committing the alleged immoral act with his daughter, the victim. Although, as per PW-6 Komal Parihar, she got verified the facts so disclosed by PW-7 Rekha from the victim and she admitted the same as correct. Also that, the accused had been committing the alleged immoral act with his daughter, the victim. Although, as per PW-6 Komal Parihar, she got verified the facts so disclosed by PW-7 Rekha from the victim and she admitted the same as correct. Yet, had it been so, the victim should have revealed to PW-6 Komal Parihar at that very moment when she apprized her about the alleged mal treatment and torturing at the hands of her father, the accused. 13. Now, if coming to the statement of the victim Ext. PW-5/A recorded under Section 164 Cr.P.C., the accused had been opening the zip of his pants and touching his Penis and tongue with her vagina. Such, however, was not her version before PW-6 Komal Parihar on 8.7.2016 when she visited the house of the accused to meet the victims at Village Bhali. Such version of the victim in Ext. PW-5/A in the considered opinion of this Court is tutored one. Now, if coming to the statement of the victim while in the witness-box, she tells us that the accused had been rubbing his private part with her private part during night. Therefore, there are three different versions of her alleged exploitation given by the victim i.e. first as in the application Ext. PW-14/A; second in her statement Ext. PW-5/A recorded under Section 164 Cr.P.C. and third in her statement recorded while in the witness-box as PW-5. Above all, PW-5 a minor aged approximately 9 years at the relevant time, is not expected to speak the language deployed in the statement recorded under Section 164 Cr.P.C. (Ext. PW-5/A). A girl of her age can only speak so if tutored by someone and the degree of the tutoring is also very high. According to her, two volunteers of the so called NGO were accompanying her on that day to the Court. Therefore, it is doubtful that she had made such statement voluntarily and without any undue influence. There is another aspect that the statement of the victim under Section 164 Cr.P.C. was got recorded on 11.7.2016 i.e. after the arrest of the accused in this case on 9.7.2016. Had she been residing in the company of her father, the possibility of tutoring her could have been ruled out. There is another aspect that the statement of the victim under Section 164 Cr.P.C. was got recorded on 11.7.2016 i.e. after the arrest of the accused in this case on 9.7.2016. Had she been residing in the company of her father, the possibility of tutoring her could have been ruled out. The statement, therefore, when recorded at a stage when her father was already taken into custody, the possibility of she being minor girl, could have been motivated in one way or the other being ignorant of the consequences of such statement, including that in case any such statement is made by her against the accused none else but her father, what would be the implications thereof cannot be ruled out. Any such girl cannot also be expected to understand the values of relations i.e. between father and a daughter and on being allured for petty things like sweets, toys, shoes or dress may fall prey to it and depose in a particular manner and fashion as required by the person motivating the minor to make a particular statement of his/her choice. 14. Though, as per the version of the victim in her cross-examination, she was not tutored either by PW-4 Asha or PW-6 Komal Parihar at any point of time, however, her admission that they were present in the Court the day when her statement Ext. PW-5/A under Section 164 Cr.P.C. recorded and on the day of her examination in the Court also, it can reasonably be believed that some sort of tutoring was there because otherwise a girl of tender age i.e. 10 years old on the day when appeared as a witness in the Court and approximately 9 years when allegedly assaulted mentally and physically by the accused, cannot be accepted to have an understanding to recognize the private parts like Penis or vagina or making such statement as one can expect either from an adult or at least a girl having attained the age of discretion. 15. Interestingly enough, the entire family comprising the accused, the victim and her two sisters as well as grandmother used to reside in a single room. The victim has admitted in the cross-examination that her grandmother lived with them in that very room till the arrest of her father, the accused. 15. Interestingly enough, the entire family comprising the accused, the victim and her two sisters as well as grandmother used to reside in a single room. The victim has admitted in the cross-examination that her grandmother lived with them in that very room till the arrest of her father, the accused. How, it was possible for the accused to have assaulted his own daughter that too in the presence of his mother in the manner as claimed by the prosecution is not understandable. Above all, the mother of the accused who may have thrown some light qua this aspect of the matter has not been examined as a witness by the prosecution for the reasons best known to it nor even associated also in the investigation of the case. 16. Not only this, but PW-4 Asha had also given different version qua the manner in which the accused had allegedly been assaulting the victim, as it has come in her statement Ext. PW-14/C recorded under Section 161 Cr.P.C. that when she met the victim at Village Bhali, the latter told her that her father, the accused had been touching her private parts and simultaneously enjoying sex by way of masturbation ¼gLreSFkwu½ (to enjoy sex otherwise than in natural way). It was not even the case of the prosecution also nor anyone, including the victim has stated so during the course of investigation. Even PW-4 Asha has also not stated so while in the witness-box. 17. It is worthwhile to mention here that the evidence as has come on record by way of the testimony of PW-7 Rekha Devi, the aunt (Tai) of the victim is altogether contrary to the prosecution case because nothing has come during the course of the investigation of the case that the victim used to weep on the “Samadhi” of her deceased mother and that PW-7 Rekha Devi noticed injury on her private part at one occasion when she had been urinating and that on asking from the victim about the injury she revealed that her father had been kissing her private part and also inserting his finger therein. PW-7 Rekha Devi, therefore, has introduced a new story. PW-7 Rekha Devi, therefore, has introduced a new story. If her statement under Section 161 Cr.P.C. available in the police record is seen, it has come therein that the accused in the courtyard of the house had been touching his daughters in a highly objectionable manner which looked very bad to her. She, however, said nothing of the sort when examined in the witness box as PW-7. Nothing is also there in the prosecution case that the accused had been insisting the victim to sleep with him and making his two other minor daughters to sleep separately as has come in the statement of PW-7 Rekha Devi. This witness in her cross-examination tells us that her husband was born to her father-in-law from the second marriage. Also that they have only one house in which one room is with the accused and the other with her and that the courtyard is common. They both used to quarrel with each other and the Panchayat also visited their house when the accused quarreled with her. The version of PW-7 Rekha Devi, therefore, amply demonstrates that her relations with the accused were not cordial and rather inimical. Not only this, but she tells us that her mother-in-law started residing with her only since last one month, meaning thereby that earlier she had been residing with the accused and his daughters in the same room which is in his share. Although, she denied the suggestion that she deposed falsely against the accused, yet the possibility of her doing so cannot be ruled out because after the implication of the accused in this case and removal of his daughters to shelter home, it is she who had to enjoy the house. The possibility of there being no Mahila Mandal at Village Bhali cannot be ruled out because had it been so, it is Pradhan or any other office bearer who would have been associated in the investigation of this case. The registration number of such Mahila Mandal with the Department of Women and Child Welfare would also have been obtained and produced in evidence. The close scrutiny of the statement of PW-7 Rekha Devi, therefore, renders the entire prosecution story highly doubtful. 18. The registration number of such Mahila Mandal with the Department of Women and Child Welfare would also have been obtained and produced in evidence. The close scrutiny of the statement of PW-7 Rekha Devi, therefore, renders the entire prosecution story highly doubtful. 18. Now, if coming to the statement of PW-4 Asha to the effect that she had visited Village Bhali along with PW-6 Komal Parihar on 27.6.2016, is highly doubtful as it is not recorded so in the application Ext. PW-14/A. As discussed hereinabove, she did not at all visit Village Bhali along with PW-6 Komal Parihar and the story to this effect was introduced later on as is apparent from the trend of the contents of application Ext. PW-14/A. Her version that PW-6 Komal Parihar came to know from the ladies in the meeting of Mahila Mandal at Village Bhali qua sexual exploitation of the victim being hearsay is of no help to the prosecution case. PW-4 Asha having visited Village Bhali on 8.7.2016 on being informed by the so called shop keeper that the victim and her sisters had returned to their house is also doubtful for the reasons recorded hereinabove. Who was that shopkeeper requested by them to inform that as and when the girls return to their house is not proved on record, being not examined. Above all, a different story to the effect that when they met with the victim at the house of the accused, she was found to have applied bandage on her right leg and on enquiry she revealed that her father had beaten her with burning wood, is also introduced by this witness while in the witness-box. The story of the alleged torturing of the victim on account of not cooking food is also false and concocted one. PW-4 Asha when confronted in her cross-examination admitted that nothing to the sort that they had given their cell number to the shop keeper finds mention in their statements Ext. D-1 and D-2 recorded under Section 161 Cr.P.C. 19. PW-7 Rekha Devi referred to by PW-4 Asha in her statement has already been termed as an inimical witness for the reasons recorded hereinabove. It appears that in order to implicate the accused in this case falsely is the part and parcel of illegal designs of PW-4 Asha, PW-7 Rekha Devi and PW-6 Komal Parihar. PW-7 Rekha Devi referred to by PW-4 Asha in her statement has already been termed as an inimical witness for the reasons recorded hereinabove. It appears that in order to implicate the accused in this case falsely is the part and parcel of illegal designs of PW-4 Asha, PW-7 Rekha Devi and PW-6 Komal Parihar. The version of PW-4 Asha in her cross-examination that in the house comprising two rooms, in one room the accused was residing whereas in another his mother is again contrary to the factual position because as per the prosecution evidence itself, in one room the accused was residing with his mother and children whereas in another PW-7 Rekha Devi and her family. It was suggested to her by the defence that on 8.7.2016, the accused had lodged missing report of his daughters in Police Post Kotla and that he even visited Women Police Station, Dharamshala also on that day, she expressed her ignorance. Since, she has not denied the suggestion so given, therefore, such a plea raised by the accused in his defence appears to be nearer to the factual position. According to PW-6 Komal Parihar, the record of this case has not been maintained. When it has come in the statement of PW-4 Asha that the record qua the cases discovered by the volunteers of “Jagori” is being maintained, it is not understandable as to why the same was not maintained nor produced in the Court. Though, the suggestion that the record was not maintained because the victim did not disclose anything qua her sexual exploitation is denied being wrong, however, this alone seems to be the apparent reason of not maintaining the record of this case by the so called NGO “Jagori”. It is quite possible that PW-4 Asha and for that matter PW-6 Komal Parihar were afraid of taking a legal action by the accused for leveling false allegations of sexual exploitation against him and as such the possibility that in order to save their skin, he has been implicated falsely in this case cannot be ruled out. 20. It is quite possible that PW-4 Asha and for that matter PW-6 Komal Parihar were afraid of taking a legal action by the accused for leveling false allegations of sexual exploitation against him and as such the possibility that in order to save their skin, he has been implicated falsely in this case cannot be ruled out. 20. PW-6 Komal Parihar, the so called Health Worker, is also not dependable because on leveling of such serious allegations by the women in the meeting of Mahila Mandal at Bhali, she even did not care to ascertain the names of those women so that they could have been associated by the police during the course of investigation. Above all, such women as per her version had levelled such allegations indirectly against the accused. The story that those women disclosed about swelling of private part of one of the girl child of the accused, has come for the first time in her statement as nothing to the sort is there in the prosecution case. Since PW-7 Rekha Devi had allegedly seen injury in the private part of the victim as discussed supra, therefore, PW-6 Komal Parihar and PW-7 Rekha Devi seem to be the mastermind to frame the accused in this case falsely. Her statement that they went to the house of the accused where his daughters were not available and given their cell phone to the shopkeeper is again false as already discussed hereinabove in this judgment. As per PW-4 Asha, it is she who received the call from the so called shop keeper whereas as per PW-6 Komal Parihar, it is she who had received the telephonic call. According to her, it is she alone who had gone to Bhali as has come in Ext. PW-14/A. Meaning thereby that the prosecution story qua PW-4 Asha and Reena had also come there on the call she made is false as already discussed. The story that the victim was found to have applied bandage in her leg due to the injury she received allegedly by way of her beatings with burning wood is also discarded while discussing the evidence to this effect having come on record by way of testimony of PW-4 Asha. The story that the victim was found to have applied bandage in her leg due to the injury she received allegedly by way of her beatings with burning wood is also discarded while discussing the evidence to this effect having come on record by way of testimony of PW-4 Asha. It is already said that the implication of the accused in this case appears to be the handy work of the trio i.e. PW-4 Asha, PW-6 Komal Parihar and PW-7 Rekha Devi, therefore, it is not desirable to refer to the evidence that Rekha informed this witness about the torturing of the victim and her sisters by the accused any further. In her cross-examination, it is admitted by PW-6 Komal Parihar that she had gone to District Jail, Dharamshala to meet the accused to know as to how his daughters have to be kept in the house, however, denied that she had arguments with the accused there. It is also denied that she told the accused to give his younger daughter to someone known to her and that in lieu thereof, she may help him in this case and also that on this heated exchanges had taken place between them is also though denied being wrong, however, when she admits her visit to the jail to meet the accused, the possibility of all this having taken place cannot be ruled out. They were informed by the shopkeeper, however, according to PW-6 Komal Parihar, his name was not known to her is surprising to note. Why she had not maintained the record of the proceedings of this case, she failed to explain. When as per her admission, all the three daughters of accused were brought to Dharamshala, their medical examination was got conducted, nothing including injury on their person was detected during such examination. She admitted that no enquiry was made from the local residents about the maltreatment of the minor girls by their father. When she tells us that all the ladies present in the meeting of Mahila Mandal were saying so, it is not understandable as to why she did not disclose so to the police during the course of investigation. She admitted that no enquiry was made from the local residents about the maltreatment of the minor girls by their father. When she tells us that all the ladies present in the meeting of Mahila Mandal were saying so, it is not understandable as to why she did not disclose so to the police during the course of investigation. When PW-7 Rekha Devi herself admits enmity with the accused and they both had been quarrelling with each other, to deny the suggestion that PW-7 Rekha Devi had given a false statement to her is contrary to the factual position. 21. Now, if coming to the medical evidence as has come on record by way of testimony of PW-1 Dr. Manju, when as per the findings she recorded in the MLC that there were no injuries on the face, chest, abdomen, pubic region and labia majora nor any active bleeding as well as hymn was intact, coupled with the factum of there being no allegation of penetrative sexual assault made, how this witness has ruled that there is possibility of unnatural sexual assault having been committed upon the victim, remained unexplained. According to her, the opinion so given was based upon physical examination of the victim, she conducted. In her cross-examination, it is admitted that there was no evidence of penetrative sexual assault having been committed upon the girls, including the victim. Even if it is believed that there was redness in labia minora, there is admission on the part of PW-1 Dr. Manju that such injury is possible in case of itching having been done by the victim herself. Therefore, such evidence is suggestive of that the redness in labia minora of the victim was not due to the sole reason of the accused rubbed or kissed her vagina and there may be other reason there for. The possibility of the opinion is not based on subjective satisfaction of PW-1 Dr. Manju in the given facts and circumstances of this case, therefore, cannot be ruled out. The medical evidence, as such, is not suggestive of that the accused committed penetrative sexual assault upon the victim and is guilty for the commission of the offence punishable under Section 5(m) and 5(n) of the POCSO Act. Manju in the given facts and circumstances of this case, therefore, cannot be ruled out. The medical evidence, as such, is not suggestive of that the accused committed penetrative sexual assault upon the victim and is guilty for the commission of the offence punishable under Section 5(m) and 5(n) of the POCSO Act. It is worthwhile to mention here that the report under Section 173 Cr.P.C. was filed against the accused with a prayer to convict and sentence him for the commission of the offence punishable under Section 8 of the POCSO Act. The sentence prescribed against an offender under Section 8 of the Act is imprisonment which shall not be less than 3 years but may extend to 5 years. Learned Special Judge has, however, framed the charge under Section 5(m) and 5(n) of the POCSO Act i.e commission of penetrative sexual assault by him being father of the victim. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault. It is nobody’s case that the accused had committed penetrative sexual assault upon the victim because even she herself has nowhere stated either in her statement recorded under Section 164 Cr.P.C. (Ext. PW-5/A) or in the another while in the witness box that the accused ever penetrated his penis in her vagina. In the statement under Section 161 Cr.P.C. of the victim recorded by the Investigating Officer, she, however, has completely ruled out the penetrative sexual assault. The allegations, as has come on record by way of her testimony that he had been opening the zip of his pants and taking out his penis and after kissing her private part (vagina) and rubbing his penis also has already been discarded being wrong because, no such statement was made by her either to the police or to PW-6 Komal Parihar till she was not in the custody of the said witness and also PW-4 Asha and also Raveena on 8.7.2016 when they allegedly visited the house of the accused and met the girls, including the victim there. FIR was registered on the next date i.e. 9.7.2016 and the accused was also arrested on that day itself. It is after that the kissing and rubbing his penis with vagina was introduced in her statement recorded under Section 161 Cr.P.C. i.e on 9.7.2016 and the statement recorded under Section 164 Cr.P.C. Ext. PW-5/A, though un-dated, however, the application Ext. FIR was registered on the next date i.e. 9.7.2016 and the accused was also arrested on that day itself. It is after that the kissing and rubbing his penis with vagina was introduced in her statement recorded under Section 161 Cr.P.C. i.e on 9.7.2016 and the statement recorded under Section 164 Cr.P.C. Ext. PW-5/A, though un-dated, however, the application Ext. PW-14/F filed in the Court for recording the same on 19.7.2016. In the considered opinion of this Court, the victim was tutored after being removed from the custody of father on 8.7.2016 and the statement Ext. PW-5/A is the result thereof. Why, PW-4 Asha and PW-6 Komal Parihar conducted themselves in such a manner, though no apparent reason thereof is on record, however, plea raised by the accused in his defence as emerges from the trend of cross-examination of the prosecution witnesses that they did so because he refused to give his younger daughter to someone else at their behest and on being threatened by him to be sued on account of managed to register a case with false allegations against them seems to be nearer to the factual position. Even, PW-4 Asha has introduced a new story of masturbation while kissing and touching vagina of the victim because such allegations were not there in the application (Ext. PW-14/A) nor anyone else stated so while in the witness-box. 22. The close scrutiny of the evidence in the manner as aforesaid, amply demonstrate that the prosecution has falsely implicated the accused in this case and thereby not only tarnished the reputation of the accused, who happens to be the father of the victim, but also put a question mark on the pious relations between father and a daughter. On the other hand, the prosecution story in the opinion of this Court has been engineered and fabricated to implicate the accused in this case falsely. 23. In a case having more or less identical facts, the Apex Court in Sham Singh vs. The State of Haryana, Cr. Appeal No. 544 of 2018, decided on 21.8.2018, has held that the accused cannot subject the prosecutrix to sexual intercourse in his own house that too in the presence of his wife, children, mother and sister. 23. In a case having more or less identical facts, the Apex Court in Sham Singh vs. The State of Haryana, Cr. Appeal No. 544 of 2018, decided on 21.8.2018, has held that the accused cannot subject the prosecutrix to sexual intercourse in his own house that too in the presence of his wife, children, mother and sister. Therefore, the Apex Court while setting aside the findings of conviction recorded against the accused has acquitted him of the charge under Section 376 (2) (g), 342 and 506 IPC, while arriving at a conclusion that the case was engineered and fabricated on account of enmity of the parents of the prosecutrix with that of the family of the accused, none else but her cousin. In that case also, the two families used to quarrel and like the case in hand even Panchayat was also called. In the case in hand also, the possibility of the accused having been booked falsely cannot be ruled out. 24. In a Division Bench judgment authored by one of us (Justice Dharam Chand Chaudhary, J.) on 22.9.2017 in Cr. Appeal No. 31 of 2017, titled Vivek Singh vs. State of Himachal Pradesh having more or less similar allegations against the father that he has assaulted sexually his own daughter aged 2 years, it has been observed as under: “35. Before parting, we would be failing in our duty if not point out that overall conduct of the Investigating Agency which has implicated the accused in a false case on the basis of highly interested evidence i.e. the only statement of complainant who was not only inimical to the accused but also to other members of his family. Her mother PW-2 Chino Devi, though helped her daughter, the complainant in getting the accused booked falsely, however, unsuccessfully. Anyhow, we leave it open to high ups in police department to take steps as warranted to sensitize the officers/I.Os so that any such instance does not reoccur. 36. Learned trial Judge has also failed to appreciate the evidence in its right perspective and swayed only by the severity of the allegations and the alleged incident of rape with a minor below to years of age by none else but allegedly her father. 36. Learned trial Judge has also failed to appreciate the evidence in its right perspective and swayed only by the severity of the allegations and the alleged incident of rape with a minor below to years of age by none else but allegedly her father. Since the allegations levelled against the accused were highly sensitive having repercussions in the society as a whole, an onerous duty was cast upon learned trial Judge to have examined the given facts and circumstances of the case and also evidence available on record with all circumspection and more care and caution. Due to such an approach in the matter, pious relations between a father and daughter got tarnished. We hope and trust that in a case of this nature, the Investigators, Prosecutors and Adjudicators shall discharge their respective duties in the light of the principles we settled in this judgment and also in accordance with law. With the above observations, the appeal is finally disposed of.” 25. In a case where the daughter-in-law had levelled allegations of her ravishment sexually by none else but her father-in-law, Cr. Appeal No. 96 of 2016, titled Baldev Singh vs. State of H.P., decided recently on 26.11.2018 by one of us (Justice Dharam Chand Chaudhary, J.) while in Single Bench has observed as under: “27. ………..If not shocking, it is painful to point out that in order to implicate father-in-law falsely without caring that what will be the repercussions thereof in the public at large, the FIR was registered after due deliberation to the reasons best known to the prosecutrix and her father. …….. …….. ……. 31. Therefore, the close scrutiny of the evidence, in the manner as aforesaid amply demonstrates that the prosecutrix and for that matter her father to the reasons best known to them have implicated falsely the accused in this case and thereby if not totally destroyed the social fibre has certainly weakened it and also put a big question mark on the pious relations between a father-in-law and daughter-in-law. Additionally, the prosecution story which in the opinion o this Court has been engineered and fabricated has culminated in a discussion that a father-in-law can also assault sexually his own daughter-in-law.” 26. Additionally, the prosecution story which in the opinion o this Court has been engineered and fabricated has culminated in a discussion that a father-in-law can also assault sexually his own daughter-in-law.” 26. Similar are the facts of the case in hand because PW-7 Rekha Devi is ‘Bhabhi’, that too not the wife of real brother but that of step brother of accused, hence may be interested in getting rid of the accused by implicating him in a false case so that she could have enjoyed his property and house also. She seems to have been assisted by PW-4 Asha and PW-6 Komal Parihar in fulfilling her illegal design. 27. We find the present also a case where the Investigating Agency has not made any effort to conduct investigation from different angle to rule out the possibility of false implication of accused before filing the report under Section 173 Cr.P.C. in the Court. The investigation rather has been conducted in a casual and routine manner to implicate the accused in this case by hook and crook. This Court, on noticing such type of faulty investigation and glaring discrepancies in some matters in the recent past though proceeded to close the same by leaving it open to the respondent- State/high ups in the Police Department to take remedial steps, including imparting training to the Investigating Officers so that only the truth and nothing beyond the truth is brought to the Court keeping in mind that if true facts alone are brought to the Court without there being any padding, improvements and discrepancies, the conviction rate may considerably increase. However, it appears that such observations either have been ignored or not given much importance and as a result thereof there is no improvement in the standard of investigation. We, therefore, now direct the respondent- State/Police Department as well as Prosecution Department through learned Advocate General, State of Himachal Pradesh to take remedial steps such as imparting training to the Investigators/Prosecutors and all other duty holders. In case the mechanism to provide the training is not available, the machinery and infrastructure available with the Himachal Pradesh Judicial Academy can be pressed into service. We feel that the training in right direction to all duty holders can improve the standard of investigation and would facilitate to achieve the goal of fair trial, a Constitutional right of an accused. 28. We feel that the training in right direction to all duty holders can improve the standard of investigation and would facilitate to achieve the goal of fair trial, a Constitutional right of an accused. 28. The learned trial Court also seems to have swayed merely by passion in view of the involvement of the accused in a case not only heinous but also grievous in nature, however, without caring to ascertain the genuineness and authenticity of the allegations levelled against him on appreciation of the evidence with all care, caution and circumspection, otherwise may have persuaded itself to take a view contrary to the one taken in the impugned judgment. As a matter of fact, the evidence produced by the prosecution in this case has not been appreciated in its right perspective. The present rather is a case where the prosecution has failed to prove its case against the accused beyond all reasonable doubt. 29. Being so, the findings recorded against the accused are neither legally nor factually sustainable. The impugned judgment, as such, does not stand the test of judicial scrutiny, hence, deserves to be quashed and set aside. 30. In view of what has been said hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the impugned judgment is quashed and set aside and the accused is acquitted of the charge framed under Section 5(m) and 5(n) of the POCSO Act. He presently is undergoing sentence, therefore, if not required in any other case, be set free forthwith. The release warrant be prepared accordingly. The fine amount as imposed upon the accused, if deposited, shall be refunded to him against proper receipt. Before parting, we shall be failing in our duty if not discus and pass appropriate orders qua the fate of three minor daughters of the accused, who on account of this case and as per the record have been lodged in a shelter home. The accused, after his release from the jail, consequent upon this judgment may stake his claim qua their custody, being their father and only natural guardian. Our apprehension, however, is that he may be inimical if not against two younger daughters, at least against the elder one, the victim in this case. Therefore, in the event of the custody of his minor daughters is required by the accused, he shall file an application in this regard in the trial Court. Our apprehension, however, is that he may be inimical if not against two younger daughters, at least against the elder one, the victim in this case. Therefore, in the event of the custody of his minor daughters is required by the accused, he shall file an application in this regard in the trial Court. The application, if so filed, shall be considered and decided by learned trial Judge in accordance with law after affording an opportunity of being heard to his minor daughters through Court Guardian, which is left open to be appointed by learned trial Judge. We hope and trust that in the event of the custody of the minor daughters of the accused being entrusted to him, the paramount consideration with learned trial Judge would be their welfare alone and nothing beyond it.