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2019 DIGILAW 1470 (HP)

Dharam Singh @ Dharmu v. State of H. P.

2019-09-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by, the appellant, against, the judgment, of, conviction pronounced, on 15.6.2019, by the learned Special Judge Kangra, at, Dharmshala, District Kangra, H.P, in, Session Case No. 39-B/VII/2018, where through, after convicting, the, accused, for, commission, of, offence(s) punishable, under, Section 376, of, the IPC, and, under, Section 4, of, the Protection of the Children from Sexual Offences Act, 2012, it, sentenced the accused, to, undergo rigorous imprisonment, for, 7 years, and, to pay, a, fine of Rs. 50,000/-, and, in default of payment of fine, he stood further sentenced, to, undergo simple imprisonment, for, six months. 2. The facts relevant to the case, are, that the father of the prosecutrix namely Tula Ram had solemnized two marriages and five children were born from first marriage and prosecutrix was born from second marriage. Both the wives of the father of the prosecutrix had expired. The prosecutrix was student of 8th class at the time of occurrence. The father of the prosecutrix was running a shop at Village Gunehar and he used to sleep there. Prosecutrix sometimes used to sleep with her father in the shop and sometimes at her home. It is alleged that 5-6 days before 10.4.2018, prosecutrix after having meals had gone to sleep in her house. At about 8-9 p.m. accused came to her room and took her to his house. The accused slept with the prosecutrix and after opening her pajama, accused had committed sexual intercourse with her. It is alleged that prosecutrix suffered pain and slept there. When she woke up in the morning, she found that her pajama open and she tied the string of pajama and left for her house. Due to fear and shame, she did not disclose this fact with her father. It is alleged that some days back, she fell ill and was admitted in Paprola hospital. The matter was reported to the police upon which case FIR was registered against the accused. The police had taken the prosecutrix to civil hospital, Palampur where her medical examination was got conducted and MLC was obtained. The statement of prosecutrix under Section 164 of Cr.P.C. was got recorded before learned JMIC, Baijnath. The police visited the spot and prepared the spot map and had also taken the photographs at the place of occurrence. Statements of witnesses were recorded as per their versions. The statement of prosecutrix under Section 164 of Cr.P.C. was got recorded before learned JMIC, Baijnath. The police visited the spot and prepared the spot map and had also taken the photographs at the place of occurrence. Statements of witnesses were recorded as per their versions. During investigation, the accused was arrested. The pajama of prosecutrix and the bed sheet recovered from the room of accused were sent to RFSL, Dharmshala and after analysis, the report of RFSL was procured by the police. During investigation it was found that in the house, except father, no one looked after the prosecutrix and prosecutrix felt danger to her life and by the order of the court, the prosecutrix was finally sent to Balika Ashram Pragpur, Tehsil Dehra. The birth certificate of the prosecutrix was obtained from CMO, Dharmshala, which shows that the date of birth of the prosecutrix is 2.8.2006. On conclusion of investigation, the challan was prepared and presented in the court and accused was produced to face the trial. 3. The learned trial Court, after hearing the parties and after going through the record, found, a, prima facie case, against the accused, under, Section 4 of the POCSO Act, 2012, to which the accused pleaded not guilty, and, claimed trial. In proof of the prosecution case, the, prosecution examined 16 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under, Section 313 Cr.P.C., stood, recorded by the trial Court, wherein, he made disclosures qua his false implication. However, he did not lead any defence evidence. 4. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. 5. The accused/appellant, is, aggrieved by the judgment of conviction recorded, hence by the learned trial Court. The learned Counsel appearing, for the accused/appellant has concertedly, and, vigorously hence contended qua the findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, she contends qua the findings of conviction, being reversed, by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced, by, findings of acquittal. 6. Hence, she contends qua the findings of conviction, being reversed, by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced, by, findings of acquittal. 6. On the other hand, the learned Additional Advocate General, has, with compatible force, and, vigor, also contended that the findings of conviction, as, recorded by the learned Court below, rather standing based, on a mature, and, balanced appreciation, ?by it?, of evidence on record, and, theirs not necessitating, an, interference, rather theirs meriting vindication. 7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 8. A perusal, of, the statement, borne, in, the examination-in-chief, of, PW-1, (i) makes, vivid underscoring, qua, the afore witness testifying, qua after hers receiving, the, report of the FSL concerned, hers' opining, qua, hence there being nothing, to, suggest, vis-a-vis, the prosecutrix, being not subjected, to, sexual intercourse. The afore testification, made by PW-1, has, also to be conjoined with the testification, of, the prosecutrix, who, stepped into the witness box, as, PW-2, and, who prior to her deposition, being recorded, stood queried, by the learned trial Court, for, the latter thereafter hence gauging, from, answers meted thereto, vis-a-vis, her capacity, to depose, as a witness, (ii) and, upon hers meteing satisfactory answers, to, the queries, of, the learned trial court, it, permitted her, to be examined, as a witness. In her examination-in-chief, she has, made, incriminatory ascriptions, vis-a-vis, the accused, inasmuch as, she has therein made echoings, in, concurrence, with her previous statement, recorded in writing, and, as borne in Ext. PW-2/A, and, has, also made a disclosure therein qua, (iii) the accused forcibly carrying her, towards his house, and, his thereat hence forcibly subjecting her, to, sexual intercourse, (iv) and, also, thereafter she echoes qua the afore incident occurring, during night, and, also echoes qua hers continuing to stay overnight, in, the house of the accused. Furthermore, she, in her examination-in-chief, has, testified that there being no other member of the family, of, the accused, residing, in, the house, of, the accused. Furthermore, she, in her examination-in-chief, has, testified that there being no other member of the family, of, the accused, residing, in, the house, of, the accused. Further, her testimony embodied, in her examination-in-chief, though, is, prima facie bereft of any taint, of, hers making any, contradictions therewith, during the course, of, hers being cross-examined, by the learned defence counsel, (v) however, a closest reading of her testimony, as, borne in her cross-examination, unfolds qua hers contradicting, the, afore echoings, as, comprised, in her examination-in-chief, (vi) thereupon, this court may not be inclined, to, mete any credence, to, her testimony, in inasmuch as, given hers acquiescing, to, a suggestion, qua, on the relevant date, her brother, and, grand mother, both being present in the house, and, also hers acquiescing, to, a suggestion, vis-a-vis, the house, of, accused, consisting, of, one room, (vii) wherefrom this court, is, coaxed, to, form an inference qua her version, in her examination-in-chief, vis-a-vis, the accused forcibly carrying her, from her house, to, the house of the accused, and also, reiteratedly when she, make(s) echoings, in, her cross-examination, qua, the house, of, the accused comprising, of, one room, (vii) and, importantly with afore echoing becoming corroborated, from, also alike therewith communication(s) standing borne, in, the cross-examination, of, PW-8, and, also in, the, cross-examination, of, Investigation Officer concerned, who, stepped into the witness box, as, PW-15, (viii) thereupon, her testificaiton, as, embodied in her examination-in-chief, becomes belied (ix), and, rather this court, is, reiteratedly constrained, to, make a conclusion, that, the deposition of the prosecutrix, vis-a-vis, hers being hence, in, a single room, occurring, in, the house of the accused, rather being subjected to sexual intercourse, by the accused, being unnatural, and, it inspiring no credibility, (x) as, emphatically, when the attention, of, the family members, of, the accused, obviously was enjoined, to, be attracted, to the occurrence, which happened inside, the, kaccha house, of, the accused, (xi) and, contrarily when the incident, has, remained unnoticed, by, the other family members of the accused, hence residing along with him, in the single room kaccha house, (xii) and, who were hence enjoined to witness, the, incident, and, also nor the Investigating Officer concerned, in his deposition, making, any voicing, qua, despite his making efforts, to associate them, in the relevant investigation, theirs declining, to, render cooperation, to, him, (a thereupon it is to be also concluded that, despite, theirs being the best witnesses, to, the relevant occurrence, (b) and, also when, unless, they had declined, to be, associated in the relevant investigation, rather were, to be, imperatively associated therein, (c) whereas theirs remaining unexamined, as, prosecution witnesses, (d) conspicuously, also when, hence, if they turned hostile, vis-a-vis, the prosecution case, rather yet, not precluding, the, prosecution, to, upon theirs being declared hostile, elicit from them, the truth of the occurrence, (e) contrarily, theirs being not joined, in, the relevant investigation, and, also nor theirs being cited, as, prosecution witnesses, has smothered, the emergence, of, the afore best evidence. The suppression, of, the afore best evidence, vis-a-vis, the occurrence, hence by the prosecution, rather coaxes this court, to, conclude, vis-a-vis, the prosecutrix contriving, and engineering the genesis, of, the prosecution case, and thereupon, her, testimony becoming incredible. 9. Be that as it may, the genesis of the prosecution case, is, rested upon complaints, reared before the SDM Baijnath, and, therein no ascription is made, vis-a-vis, the accused, and, when the afore factum, is, combined, along with PW-8, the Pradhan, of, the panchayat concerned, acquiescing, to, a suggestion, put to her, during, the course of her cross-examination, qua, there being a land dispute, inter-se, the, accused, and, the father of the prosecutrix, (a) thereupon it appears, that the afore dispute, inter-se, the father of the prosecutrix, and, the accused, rather generating, the, making, of, false allegations, by the prosecutrix, against the accused. 10. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on record, in, a wholesome, and, harmonious manner, apart therefrom, the analysis of the material on record, by the learned trial Court, does, suffer from, a, gross perversity, and, absurdity, of, mis-appreciation, and, non appreciation of evidence on record. Consequently, there is merit in the instant appeal, hence, it is allowed, and, the impugned verdict, is, set aside. The accused/appellant is acquitted, of, the charged offences. 11. The Registry is directed to forthwith issue release warrants of the appellant, to, the Jail Superintendent concerned, and, he be forthwith released, if not required, in, any other matter. Bail bonds, if any, furnished by the appellant, are, ordered to be forfeited and cancelled. Fine amount, if any, be refunded, to, the appellant. Records be sent back forthwith.