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Himachal Pradesh High Court · body

2019 DIGILAW 12 (HP)

Kuldeep Singh v. State Of Himachal Pradesh

2019-01-02

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. By way of the present appeal, the appellant has challenged the judgment passed by the Court of learned Special Judge, Chamba Division Chamba, H.P. in Sessions Trial No.45 of 2014, dated 30.5.2017, whereby the appellant/accused/convict (for short ‘the accused’) was convicted for the commission of the offence punishable under Section 376 of the Indian Penal Code (for short “IPC”) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”). 2. The factual matrix of the case, as set out by the prosecution, are that on 10.5.2014, there was a dham in the neighbourhood, on the occasion of marriage of Bittu, son of Shri Jakhu. Roop Singh, husband of the complainant-Rekha Devi, gone to prepare dham on that day, while she had gone to the fields early in the morning to graze cattle. Brahmi, mother-in-law of the complainant gone to attend a marriage at Village Kunda. Banti, her paternal mother-in-law (bua) and children stayed at home. At about 9:30 a.m, when the complainant returned with cattle, she was informed by Banti that accused took the victim for a stroll. Since, the accused and the victim were not there in marriage, search was made. Thereafter, the complainant gone to the house, where the marriage was being solemnized and made inquiries from her husband. She was told by her husband that they were also searching for the victim. Thereafter, she gone towards the fields in search of the victim, where she met with Chhabli Devi and Semlata, who were bringing back the victim. Chhabli Devi informed her that the victim was found lying naked in the field of Hoshiaru. The victim disclosed that around 9/9:15 a.m, when she was playing with pebbles alongwith Sakshi and Mukesh in the courtyard of their house, accused came there and started playing with them. Thereafter, the accused allured her friend to sit in his lap and when she started weeping, he left her. The accused told that her mother is his aunt and he is related to her. At that time, the bride had been brought to the water source for prayer. When, the victim gone there, accused followed her, near the water source, the accused forcibly caught hold of the victim from her arm and took her to the field, from the place where the marriage function was going on. At that time, the bride had been brought to the water source for prayer. When, the victim gone there, accused followed her, near the water source, the accused forcibly caught hold of the victim from her arm and took her to the field, from the place where the marriage function was going on. The victim raised an alarm, but her cries for help could not be heard by anyone on account of the loud music of DJ and dhol. The victim was taken for some distance by the accused by holding her hand and thereafter, by lifting her in his lap. Thereafter, he forcibly removed the clothes of the victim. The accused by removing his pants, mounted on the victim and committed rape upon her. When she cried for help, the accused fled away from the spot. He was chased by Satish. The victim was found wearing the clothes from the wrong side, she was made to change her clothes by Chhabli Devi. The accused was apprehended by Tarun, Satish, Narinder and was brought to the house, where the function was going on and the accused was given beatings by the persons, who were attending the function. Bhagat Ram, Pradhan, saved the accused from their clutches and reported the matter to the police at Police Station, Tissa, on the basis of which, FIR was registered. The victim, as well as the accused, were medically examined. The victim was found to have undergone sexual intercourse, whereas the accused was opined fit to perform sexual intercourse. The clothes of the victim, which she was wearing at the time of incidence, were recovered and sealed. Site plans of the place of incidence, as well as the field of Hoshiaru, were prepared. Spot was also photographed. During the course of investigation, record pertaining to the age of the victim was also obtained from the Panchayat authorities, as per which, her age was nine years, on the date of offence. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as nineteen witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he pleaded not guilty. The accused did not lead any evidence in his defence. 4. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as nineteen witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he pleaded not guilty. The accused did not lead any evidence in his defence. 4. Learned counsel appearing on behalf of the appellant has vehemently argued that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt, as there is no evidence against the accused that the alleged offence has been committed by him. He has further argued that the prosecution has remained unable to bring home the guilt of the accused, as his identity is disputed, so he may be acquitted. On the other hand, learned Additional Advocate General has strenuously argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt and thus, well reasoned judgment of learned Trial Court is not required to be interfered with. 5. In rebuttal, learned counsel appearing on behalf of the appellant has argued that there is no evidence on record with regard to penetrative sexual assault and in these circumstances, even otherwise also, the findings recorded by the learned Trial Court are against the medical evidence. 6. In order to appreciate the rival contentions of the parties, we have gone through the record carefully in detail. 7. In the present case, the victim (PW-1) at the time of incidence was about nine years of age and was studying in 5th standard, she has specifically deposed that on 10.5.2014, there was marriage of Bittu in their village. Around 9:00 a.m., when she was playing pebbles with Sakshi and Mukesh in the courtyard of the new house, her mother had gone to graze cattle, while her father was busy in preparing the food at the marriage, the accused came there and lifted her friend in his lap. She started crying, thereafter he left her. The accused told that her mother is his aunt and he is related to her. Thereafter, the bride came to the water source for prayer. People were watching the ceremony. She was also watching the marriage ceremony. The accused came there and by forcibly catching her from her hand, took her to field from the house, where the marriage function was going on. Thereafter, the bride came to the water source for prayer. People were watching the ceremony. She was also watching the marriage ceremony. The accused came there and by forcibly catching her from her hand, took her to field from the house, where the marriage function was going on. She raised a cry for help, but her voice was not heard in the loud sound of D.J. The accused carried her for some distance in the field and undressed her. He by opening his pants up till the knees, mounted on her and done wrong act with her. When she raised an alarm, Satish came there and on seeing him, the accused fled away from the spot. He was chased by Satish. She worn the clothes from the wrong side and Chhabli Devi helped her to wear them from the right side. Thereafter, she was taken back home by Chhabli Devi and Semlata. However, on the way she met her mother to whom she disclosed the entire incidence. The accused was brought to the place of marriage and when she identified him to be the same person who had committed wrong act with her, the people present there gave beatings to him. The police was informed and she identified the place of incidence. She was medically examined and her statement Ex.PW1/A, was recorded. She identified her shirt Ex.P-8 and salwar Ex.P-9, which she was wearing at the time of incidence. In her cross-examination, she deposed that on the day of occurrence, there was ‘badi dham’ in the village. She stated that the parents of her friend present in the marriage. She stated that she had seen the accused for the first time, on the date of occurrence. She also stated that when the accused lifted her in his lap, no one was present there and when the accused removed her clothes, she raised cries. She has stated that no injury was sustained by her, when the accused did wrong act with her nor any blood oozed out. 8. Pw-2, mother of the victim deposed that on 10.5.2014, there was marriage of Bittu in the village. She has gone to graze cattle at about 7:00 a.m, while her husband gone to prepare food in the marriage. Her mother-in-law gone to village Kunda, to attend a marriage, whereas her paternal mother-in-law (bua) was present in the house. 8. Pw-2, mother of the victim deposed that on 10.5.2014, there was marriage of Bittu in the village. She has gone to graze cattle at about 7:00 a.m, while her husband gone to prepare food in the marriage. Her mother-in-law gone to village Kunda, to attend a marriage, whereas her paternal mother-in-law (bua) was present in the house. At about 9/9:30 a.m, when she returned back home, she was informed by her bua that the victim was not there. She was also told that a boy had been seen with her, who was also missing. She gone to the house of Bittu and made inquires from her husband, who told her that he was also looking for the victim. Thereafter, she went towards the fields in search of the victim and on the way, she met with Chhabli Devi and Semlata so also her daughter. Her daughter was scared and crying. She was informed by Chhabli Devi that the victim was lying naked in the field and she helped her to change the clothes, as she was wearing them from the wrong side. She also told that the accused after committing wrong act with the victim fled away and he was being chased by Satish and Tarun. Thereafter, she brought the victim back home, where the victim narrated the entire incidence to her. The accused was brought to the house, where the marriage function was going on and given beatings by the people present there. During her cross-examination, she has stated that prior to the incidence, she had seen the accused near her parental house. She admitted that Satish is related to her. 9. Pw-3, Bhagat Ram, Pradhan, Gram Panchayat, Banantar, deposed that on 10.05.2014, the accused was brought before him by the villagers. The villagers were beating the accused, as he had committed wrong act with the victim. He saved the accused from the clutches of the villagers and informed the police. The police arrived in the village afternoon and on identification of the spot by the victim, spot was videographed. The police also seized the clothes of the victim. In his cross-examination, he denied that he did not save the accused from the people nor he handed over him to the police. PW-4, Sakshi, deposed that on 10.5.2014, at about 9-10:00 a.m, she was in the courtyard of victim and were playing gitties (pebbles). The police also seized the clothes of the victim. In his cross-examination, he denied that he did not save the accused from the people nor he handed over him to the police. PW-4, Sakshi, deposed that on 10.5.2014, at about 9-10:00 a.m, she was in the courtyard of victim and were playing gitties (pebbles). In the meantime, a boy came there and caught hold her hand and picked her in his lap, when he picked her in his lap, she started weeping. She stated that there was marriage in the house of Bittu Mamu, just near to the house of victim. Thereafter, the bride was taken to water source (panihara) where there was a loud noise of beat of drums. PW-5, HC Kailash Chand, deposed that on 10.5.2014, parents of the victim made statement before Investigating Officer, Dharam Singh, under Section 154 of the Code of Criminal Procedure. After recording statement of the mother of victim, the same was sent to Police Station through Constable Ajay Kumar. As per this witness, mother of the victim, produced the clothes before Investigating Officer, which the victim was wearing at the time of occurrence. Investigating Officer, put the same into a parcel and sealed the same with ten seals, having impression S, vide memo, Ex.PW2/B, which bears his signatures encircled D. PW-6, Chhabli Devi, deposed that on 10.5.2014, at about 9:15/9:30 a.m, she came to know that the victim was missing. They searched for her, when she alongwith Semlata, reached the field, Narinder gave a telephonic call that the victim was there. They went there and saw the victim to have worn the clothes from the wrong side, at that time, the victim was weeping. She made her to change the clothes. They were also informed that the accused had fled away from the spot. PW-7, Tarun Kumar, deposed that when he came to know that the victim was missing, he alongwith Narinder and Satish had gone in search of her. He deposed that near the field of Hoshiar Singh, they saw the accused was running away. He was chased and nabbed. He was told by Satish that the accused committed wrong act with the victim. He deposed that near the field of Hoshiar Singh, they saw the accused was running away. He was chased and nabbed. He was told by Satish that the accused committed wrong act with the victim. PW-8, HHC Naresh Kumar, deposed that on 16.5.2014, MHC Hakam Singh, handed over five parcels, containing clothes of the victim sealed with ten seals of seal S, one envelope sealed with two seals of seal RH, one other parcel sealed with four seals of CTH, containing the clothes of the accused and one envelope sealed with two seals of CTH, for depositing the same in Regional Forensic Science Laboratory, Dharamshala. PW-9, Banti, deposed that newly wedded wife of Bittu was taken to the water source (panihara) to perform the ceremony of marriage, accused was also there and caught hold the hand of victim, who was also standing near the water source. She deposed that the victim was missing, when her mother returned with cattle. She further deposed that the accused had taken the victim to the field and done wrong act. PW-10, Satish Kumar, uncle of the victim deposed that on 10.5.2014, at about 9:30 a.m, when marriage of Bittu was going on, he came to know that a girl child/victim was missing and when he alongwith persons went to search the victim and reached near the field of Hoshiaru, he heard the cries of child/victim and saw that she was lying naked and accused was doing wrong act with her. As per this witness, accused put off his pants upto his knees, when the accused saw him, he tried to run away from the spot. He further deposed that Chhabli Devi, also reached there and he asked her to take care of the victim. In the meanwhile, Tarun and Narinder came there, caught the accused and brought him in the house, where the marriage was being solemnized. The persons present in the marriage caught the accused and gave beatings to him, the accused was saved by Bhagat Ram, Pradhan, who also called the police. In his cross-examination, he has stated that Narinder and Tarun went to search the victim in the field. He has stated that the accused tried to run away, but Narinder and Tarun caught him and no other person was present there. In his cross-examination, he has stated that Narinder and Tarun went to search the victim in the field. He has stated that the accused tried to run away, but Narinder and Tarun caught him and no other person was present there. PW-11, Lady Constable Shivani, deposed that on 11.5.2014, the victim was brought to Regional Hospital, Chamba, for her medical examination. PW-12, Tek Chand, Secretary, Gram Panchayat, Banantar, deposed that on an application, Ex.PW5/A moved by the police, he handed over the birth certificate of victim, Ex.PW12/A to the police alongwith abstract of family register, Ex.PW12/B and the same was taken into possession, vide memo, Ex.PW3/B. PW-16, Dr. Jaswant Singh, medically examined the accused on an application, Ex.PW16/A and issued MLC Ex.PW16/B and opined that the accused is competent to perform sexual intercourse. 10. Pw-17, SI Dharam Singh, deposed that on 10.5.2014, telephonic information was received in Police Station from Bhagat Ram, Pradhan. Thereafter, statement of the victim Ex.PW2/A, under Section 154 of the Code of Criminal Procedure was recorded, which was sent through Constable Ajay Kumar to Police Station, on the basis of which, FIR Ex.PW14/A, was registered. He prepared site plan Ex.PW17/A. He deposed that the victim produced her clothes i.e. shirt Ex.P-8 and salwar Ex.P-9, which was taken into possession, vide memo, Ex.PW2/B, after sealing the same with seal, having impression S, in the presence of witnesses, namely, Bhagat Ram, Roop Singh and HC Kailash Chand. He further deposed that medical examination of the accused as well as the victim were also obtained. He deposed that he took the photographs of the spot Ex.P-1 to Ex.P-6. In his cross-examination, he has stated that they went to the spot, where the accused was already caught by the local people. The accused was handed over to the police by local persons. He has stated that the house of victim is near to the water source (panihara). He also stated that the house of victim is near to the house, where the marriage was being solemnized. He stated that about 200 persons came to attend the marriage. He stated that the spot is stony and there are bushes. 11. Pw-19, Dr. Arti Sharma, conducted medical examination of the victim on 11.5.2014 at about 11:30 a.m. and issued MLC Ex.PW19/A, with the following observations : “Patient was conscious and well oriented to time, place and space. He stated that about 200 persons came to attend the marriage. He stated that the spot is stony and there are bushes. 11. Pw-19, Dr. Arti Sharma, conducted medical examination of the victim on 11.5.2014 at about 11:30 a.m. and issued MLC Ex.PW19/A, with the following observations : “Patient was conscious and well oriented to time, place and space. Her cardiovascular system and her BP and pulse were normal. Secondary sexual characters including pubic hair and breasts were absent. They was no evidence of injury over any part of the body including the private parts. Local examination: Hymen showed redness and contusion between hymen and labia manora. Hymen was intact. Discharge was present. Swabcum-discharge was taken. The victim had taken a bath and had changed her clothes, so they were not taken into possession. After chemical analysis report from RFSL, Dharamshala, she gave her final opinion that the possibility of rape with the victim could not be excluded.” 12. Now, coming to the statement of Dr. Arti Sharma (PW-19), as per her observation and report, which she prepared, it is clear that there is no penetrative sexual assault, so we have to analyze rest of the evidence only to gather, whether the prosecution has proved the guilt of the accused, under Section 376 read with Section 511 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012. 13. As far as statements of prosecution witnesses are concerned, Sakshi, PW-4, deposed that on 10.5.2014, she was playing in the courtyard of the victim. They were playing pebbles around 9-10:00 a.m, at that time, the accused came there and by catching her from her hand, picked her in his lap. When she started weeping, he left her and caught the victim. He claimed that mother of the victim was his maternal aunt. Marriage function was going on in the house of Bittu. The bride was taken to the water source. She alongwith the victim and Mukesh followed the bride to the water source. There was a loud noise due to beat of drums. She had sat there. However, the victim had gone missing, while they were going towards the water source, the accused followed the victim. PW-9, Banti, deposed that there was marriage of Bittu in their village and the accused came there. There was a loud noise due to beat of drums. She had sat there. However, the victim had gone missing, while they were going towards the water source, the accused followed the victim. PW-9, Banti, deposed that there was marriage of Bittu in their village and the accused came there. Roop Singh, her nephew was cooking the food, while his wife Rekha Devi had gone to graze the cattle. She stayed back home to look after the children. At about 9:30 a.m, when the newly wedded wife of Bittu was taken to the water source to perform a ceremony, the accused caught the victim from her hand, who was standing nearby. She had been watching the ceremony from her house. Thereafter, she found that the victim was missing. She disclosed this fact to Rekha Devi when she returned. When the victim was brought back home by her parents, the victim was scared and it was told to her by Rekha Devi that the accused committed wrong act with the victim. In her cross-examination, she has admitted that Semlata and Tarun were their relatives. The statements of aforesaid witnesses, coupled with the statement of prosecutrix, show that the accused has sexually assaulted the prosecutrix. However, there is no penetrative sexual assault, which as stated hereinabove, is clear from the statement of PW-19, Dr. Arti Sharma, as she could not saw any injuries on the private part of the prosecutrix, but, as per her statement, the possibility of penetrative sexual assault cannot be ruled out, which accordingly to us is not correct because in a case of rape of minor aged 09 years without causing injuries to her private part, it is not possible to do so. Otherwise also a fully grown up male aged 20 years, as the accused in this case could not have raped the victim nor subjected her to aggravate penetrative sexual assault without causing injury in her vagina. The penetrative sexual assault even would have been fatal to the life of victim. Otherwise also a fully grown up male aged 20 years, as the accused in this case could not have raped the victim nor subjected her to aggravate penetrative sexual assault without causing injury in her vagina. The penetrative sexual assault even would have been fatal to the life of victim. The prosecution case that the offence, the accused has committed is punishable under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act, is not proved beyond reasonable doubt and rather is false and appears to be fabricated to implicate the accused in the commission of an offence more heinous in nature as compared to one, which, he in the given facts and circumstances and also the evidence available on record has committed. 14. The evidence as has come on record at the most discloses the commission of offence of sexual assault defined under Section 7 and Section 8 of the POCSO Act, because the statement of the victim that the accused undressed her and thereafter committed wrong act stands proved from the evidence discussed hereinabove. Such version of the victim established the commission of offence of sexual assault within the meaning of Section 7 of POCSO Act and punishable under Section 8 thereof. He, to our mind, has satisfied his lust for sex by undressing the victim and ravishing sexually, as she stated while in the witness box. The accused must be alive to adverse consequences of subjecting her to penetrative sexual assault being a child of 09 years. Therefore, his intention to exploit the child/victim to satisfy his lust for sex is established on record. The offence so committed by the accused in the given facts and circumstances of the case is punishable under Section 8 of the POCSO Act and not under Section 376 of the Indian Penal Code or under Section 6 of the Act. 15. In view of the given facts and circumstances of this case and also the evidence available on record as well as the submissions made by learned counsel representing the appellant-convict and learned Additional Advocate General, the present is a case where the commission of offence punishable under Section 376 of the Indian Penal Code and Section 6 of POCSO Act and is not made out against the accused. Consequently, his conviction for the commission of such offence deserves to be quashed and set aside. Consequently, his conviction for the commission of such offence deserves to be quashed and set aside. The evidence available on record, however, discloses the commission of offence of sexual assault defined under Section 7 of the POCSO Act and punishable under Section 8 thereof. 16. For all the reasons hereinabove, this appeal is partly allowed. Consequently, the accused is acquitted of the charge framed against him under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act. However, he is convicted for the commission of offence of sexual assault punishable under Section 8 of the POCSO Act. There is a provision of sentence i.e. imprisonment for five years and imposition of fine against the offender if held guilty for the commission of offence of sexual assault. In the matter of sentence the nature and the gravity of the offence i.e. assaulting sexually a minor aged 09 years, the accused deserves no leniency. Therefore, he is sentenced to undergo rigorous imprisonment for a period of five years and also to pay a fine of Rs.10,000 (rupees ten thousand only) as fine and in default of payment of fine, he shall undergo rigorous imprisonment for a further period of three months. On deposit of fine, the same will be paid to the mother of the victim as compensation. The impugned judgment is accordingly modified. 17. Accordingly, the present appeal stands disposed of in the aforesaid terms. Pending application (s), if any, also stand (s) disposed of.