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2018 DIGILAW 440 (UTT)

Bhuwan Singh Taragi v. State Of Uttarakhand

2018-09-05

ALOK SINGH, V.K.BIST

body2018
JUDGMENT : Alok Singh, J. Present appeal is filed against judgment and order dated 28.05.2016/30.05.2016 passed by Special Judge, POCSO Act, Rudrapur, Udham Singh Nagar in Special Sessions Trial No. 204 of 2015 whereby present appellant was found guilty for the offence punishable under Section 376 (2), 366 IPC and was sentenced to undergo 15 years rigorous imprisonment and to pay fine of Rs. 50000/- and in default, to undergo additional simple imprisonment of six months under Section 376 (2) IPC and to undergo 10 years rigorous imprisonment and to pay fine of Rs. 20,000/- and in default, to undergo additional simple imprisonment of three months under Section 366 IPC. 2. Brief facts of the present case are that an FIR was lodged by PW3 father of the prosecutrix to the effect that he along with his family members was residing in House No. 10, Gali No. 9, Singh Colony, Rudrapur. He has a wife and three children in his family. He is working in a company known as Roop Polymers. On 31.07.2015, at 02.30 p.m. his wife informed him on mobile phone that Bhuwan Singh Taragi did some obscene acts with their daughter and asked him to come at the earliest. When he reached home, her daughter informed him that Bhuwan uncle called her in his room. Accused put his penis in her mouth and pressed hard her mouth. When she felt pain, she screamed. Her mother reached in the room. His wife informed him that Bhuwan Singh put his penis in the mouth of prosecutrix, which she saw. Bhuwan may not flee from the spot, therefore, she bolted the door from outside. Police caught Bhuwan Singh from the spot. You are requested to do the needful. 3. Initially, investigation of the case, was handed over to PW5 SI Jai Pal Singh, however, later on, it was handed over to PW4 SI Marry Peter, who submitted a charge-sheet against the appellant on 16.10.2015. 4. Learned trial court framed charges against the appellant for the offence punishable under Section 366, 376 (2) IPC and under Section 5(v) and 6 of the pocso Act. Appellant denied charges and claimed trial. 5. In order to prove its case, prosecution examined PW1 Prosecutrix, PW2 mother of prosecutrix, PW3 father of prosecutrix, PW4 Sub Inspector Marry Peter, PW5 SI Jaipal Singh, PW6 Constable Subhash scribe of the FIR. Appellant denied charges and claimed trial. 5. In order to prove its case, prosecution examined PW1 Prosecutrix, PW2 mother of prosecutrix, PW3 father of prosecutrix, PW4 Sub Inspector Marry Peter, PW5 SI Jaipal Singh, PW6 Constable Subhash scribe of the FIR. Statements of the appellant were recorded under Section 313 Cr.P.C., 1973 6. Learned trial court, having perused the entire material made available on record, vide judgment and order under appeal convicted and sentenced the appellant, as mentioned here-in-above. Feeling aggrieved, appellant has preferred present appeal. 7. Heard Mr. Aditya Pratap Singh, Advocate for the appellant and Mr. Amit Bhatt, Deputy Advocate General with Mr. K.S. Rawal, Brief Holder for State and perused the record. 8. First of all we are of the considered opinion that learned trial Judge has wrongly framed charge Section 5 (v) of the POCSO Act against the appellant, which has nothing to do with the present case. 9. As per statement of PW1 prosecutrix, she has not named accused appellant. She did not identify the accused in the court room. She stated that obscene acts were done by brother of pathak. It is pertinent to mention here that one Pathak was also residing in the same building. Even she stated that she will not identify the accused. When question asked why she is saying so. She replied, her mother asked her to say so. In the statement recorded under Section 164 Cr.P.C., 1973 she nowhere stated the name of accused, she simply stated Bhaiya. 10. In the statement recorded under Section 164 Cr.P.C., 1973 PW2 mother of prosecutrix made a statement that she saw Bhuwan putting his penis in the mouth of her daughter and Bhuwan was holding her daughter. In the cross examination, PW2 stated that she has not witnessed the incident. Whatever she is saying, she is saying on the basis of statement made by her daughter. She nowhere stated name of the accused. She stated in her cross examination that her husband lodged the FIR on the insistence of people and he has lodged the FIR after consultation. She further stated that if accused tendered his apology then they would not lodge the FIR. 11. There is major contradiction in the statement of PW2. She nowhere stated name of the accused. She stated in her cross examination that her husband lodged the FIR on the insistence of people and he has lodged the FIR after consultation. She further stated that if accused tendered his apology then they would not lodge the FIR. 11. There is major contradiction in the statement of PW2. In statement recorded under Section 164 Cr.P.C., 1973 she stated that she saw the accused doing obscene act while in cross examination, she stated that she has not witnessed the incident. 12. PW4 SI Mary Peter stated in cross examination that Dr. Tanuja Sinha, informed her that as per pathological report, rape cannot be confirmed. Medical examination was done but doctor, who conducted the medical examination, was not produced as witness. PW5 and PW6 are formal witnesses. 13. Statements of prosecutrix and her mother are very relevant in the present case. Their statements do not inspire confidence and create doubt on the prosecution story. On the one hand, prosecutrix had not identified the accused in the court room and she stated name of accused as brother of Pathak whereas present accused is Bhuwan Singh Taragi and on the other hand, her mother nowhere stated the name of accused in her statement and she stated that she has not witnessed the incident. 14. In view of the observations made here-in-above, in the considered opinion of this Court, prosecution has miserably failed to prove prosecution version beyond reasonable doubt. Consequently, appeal is allowed. Impugned judgment and order dated 30.05.2016 passed by Special Judge, POCSO Act, Rudrapur Udham Singh Nagar in Special Sessions Trial No. 204 of 2015 is hereby set aside. Appellant stands acquitted. Appellant is languishing in the jail. Let he be released forthwith, if not wanted in any other case. 15. Let lower court record be sent back forthwith.