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2019 DIGILAW 152 (HP)

Rakesh Kumar @ Raka v. State of Himachal Pradesh

2019-01-11

CHANDER BHUSAN BAROWALIA, DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Appellant Rakesh Kumar alias Raka, a resident of Vill. Kandla, PO Surangani, Tehsil Salooni, Distt. Chamba, (hereinafter referred to as the accused) is a convict. He has been convicted and sentenced by learned Special Judge Chamba, Session Division at Chamba, for the commission of offence punishable under Sections 376 (2)(f) and 506 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” in short). He has been sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs. 25,000/- for the commission of the offence punishable under Section 376 (2) (f) whereas 2 years and to pay Rs. 5,000/- as fine for the commission of the offence punishable under Section 506 IPC. He has also been sentenced to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 25,000/- for the commission of offence punishable under Section 4 of the POCSO Act. 2. Aggrieved by the findings of conviction and the order whereby he has been sentenced, the appellant-convict has assailed the impugned judgment on the grounds inter alia that material contradictions, discrepancies and infirmities in the prosecution evidence have been ignored without assigning any reason. The weightage has been given to the evidence highly unreliable, inconsistent and contradictory. The factum of the incident reported to the police after a period over 8 months has been ignored in a cursory manner. No plausible and reasonable explanation is forthcoming to substantiate such inordinate delay as occurred in lodging the FIR. The prosecution story on the face of it leads to the only conclusion that the same has been cooked up by his wife PW-10 Reeta Devi who as per the overwhelming evidence on record is inimical to him. This aspect of the matter, however, has not been taken into consideration by learned trial Judge and has rather erred in laws while placing reliance on her testimony. The statement of PW-8 Shashikala, sister-in-law (Bhabhi) of PW-10 Reeta Devi and maternal Aunt of the alleged victim hence interested witness has also been erroneously relied upon. Their statements otherwise also reveal that at the most the evidence having come on record thereby is merely hearsay, hence not admissible in the eyes of law. The statement of PW-8 Shashikala, sister-in-law (Bhabhi) of PW-10 Reeta Devi and maternal Aunt of the alleged victim hence interested witness has also been erroneously relied upon. Their statements otherwise also reveal that at the most the evidence having come on record thereby is merely hearsay, hence not admissible in the eyes of law. The proof of the commission of the alleged sexual assault/rape by the accused upon the child victim is completely missing. Even the victim has also not stated anything in this regard and as PW-10 Reeta Devi, her mother had not consented for medical examination of the victim, therefore, there is no tangible material available on record to show that she was assaulted sexually. As a matter of fact, no case is stated to be made out against the accused who allegedly is innocent and has been falsely implicated in this case. The present is stated to be a case where the learned trial Court has failed to appreciate that the witnesses relied upon by the prosecution were not credible and rather interested to implicate the appellant-convict falsely in a criminal case. The prosecution allegedly failed to bring home the guilt to the appellant-convict beyond reasonable doubt. He, therefore, deserves acquittal in this case. 3. Now, if coming to the facts of the case, the accused and PW-10 Reeta Devi are husband and wife in relation. The child victim is born to them out of the wedlock. Besides her, a son has also been born to PW-10 Reeta Devi from the loins of the accused. The relations between them are not cordial because both are suspecting the chastity of each other. It is on account of the strained relations between them, PW-10 Reeta Devi mostly used to reside at the place of her parents. It has come in her own statement that she had been residing with her parents for the last 4-5 years prior to the incident and subsequently also i.e. during the investigation of the case and she was residing there even on the day when appeared in the witness-box. The evidence has also come on record qua a complaint the wife of the accused PW-10 Reeta Devi made against him on 17.10.2016 to Anti-Human Trafficking Unit, Chamba. The evidence has also come on record qua a complaint the wife of the accused PW-10 Reeta Devi made against him on 17.10.2016 to Anti-Human Trafficking Unit, Chamba. The allegations in the complaint were gone into by the said Unit and on finding that the dispute, if any, falls under the provisions of the Domestic Violence Act, 2005, the complaint along with the findings of the Unit were forwarded to Child Development Project Officer, Salooni Block, Distt. Chamba for necessary action vide letter dated 25.10.2016 Ext. DW-1/A. The statements of the accused and PW-10 Reeta Devi as well as other persons recorded by the Inquiry Officer to enquire into the allegations in the complaint levelled against the accused are Ext. DW-1/B, DW-1/C, DW-1/D, DW-1/E and DW-1/F. This complaint, admittedly was lodged by PW-10 Reeta Devi before she filed application Ext. PW-10/A on 16.11.2016 under Section 156(3) Cr.P.C. for registration of a case under the POCSO Act against the accused in the Court of learned Special Judge, Chamba. In the complaint, however, the incident finds no mention, which as per the prosecution story pertains to the month of March, 2016. 4. It is in this backdrop, the prosecution case as disclosed from the FIR Ext. PW-11/A registered in Police Station Kihar District Chamba on 20.11.2016 consequent upon the order passed by learned Special Judge on the application Ext. PW-10/A has to be discussed hereinafter. 5. The accused and PW-10 Reeta Devi, admittedly are husband and wife. The accused is a resident of village Kandla, Tehsil and District Chamba. He along with his family, including PW-10 Reeta Devi and children was residing in a joint family comprising his parents, brother and his family in the same house. As noticed supra, his wife mostly remained away from his house at Village Kandla and resided in her parents’ house at village Kundi. 6. The allegations against the accused as disclosed from the complaint under Section 156(3) Cr.P.C. Ext. PW-10/A and the statement of minor PW-7 are that she used to sleep with her great grandmother. It is in March, 2016, her mother PW-10 Reeta Devi was away to the house of her parents. She had been sleeping with her great grandmother during the night. PW-10/A and the statement of minor PW-7 are that she used to sleep with her great grandmother. It is in March, 2016, her mother PW-10 Reeta Devi was away to the house of her parents. She had been sleeping with her great grandmother during the night. Her father, the accused came there and told her that since the great grandmother is suffering from disease and that she may also have the infection of such disease, therefore, he insisted her to sleep in his room with him. She agreed to that and went with the accused to his bed-room. After watching programmes on T.V. for some time, the accused started showing her game on his cell phone. In this process, he opened some site in which boy and girl were in naked position. She objected to it and snubbed the accused as to what he was showing to her. She had thrown the cell phone and went to sleep. It is in the mid-night when she woke up all of a sudden noticed that her trouser was removed half by the accused and he touching his mouth and tongue with her vagina. On seeing all this, she cried. The accused, however, gagged her mouth and also told that a father and daughter loves each other in this very manner. He also threatened her with dire consequences in case she disclosed anything about the incident either to her mother (PW-10) and grand mother or to anyone else. Now, when she apprized her mother about the incident, he started threatening to kill her and also too now to face the consequences. 7. According to her, she could not apprize her mother about this incident for many months. There is only distinction in the statement Ext. PW-7/A under Section 164 Cr.P.C. of the child victim and the application Ext. PW-10/A that when she woke up all of a sudden in the mid-night, she noticed the accused licking her vagina with his tongue whereas as per Ext. PW-7/A he was touching his mouth and tongue with her vagina. It is with these allegations, the FIR Ext. PW-11/A came to be registered in PS Kihar, District Chamba against the accused. The investigation has been conducted by PW-9 Insp. Ajay Kumar. The child victim though was taken to hospital and her MLC is Ext. PW-7/A he was touching his mouth and tongue with her vagina. It is with these allegations, the FIR Ext. PW-11/A came to be registered in PS Kihar, District Chamba against the accused. The investigation has been conducted by PW-9 Insp. Ajay Kumar. The child victim though was taken to hospital and her MLC is Ext. PW-3/B, however, no opinion that she was sexually abused could come on record because PW-10 Reeta Devi had not consented for the internal medical examination of the child victim. The application Ext. PW-1/A was made to Principal, Sr. Secondary School Chamba (Ext. PX) for issuance of the date of birth certificate. The same was issued and taken into possession vide recovery memo Ext. PW-1/B. The application Ext. PW-2/A was made to the Medical Officer, CHC Kihar, District Chamba for medical examination of the accused. The MLC is Ext. PW-2/B. The application Ext. PW-5/A was made to Secretary, Gram Panchayat Biana, District Chamba who has supplied the date of birth certificate of the child victim Ext. PJ, which was taken into possession vide memo Ext. PW-5/B. 8. On completion of the investigation, report under Section 173 Cr.P.C. was filed. Learned Special Judge, on finding a prima-facie case made out against the accused had framed the charge against him for the commission of offence punishable under Section 376 and 506 IPC and Section 4 of the POCSO Act. The accused, however, pleaded not guilty and claimed trial. 9. The prosecution in order to prove its case has examined 11 witnesses in all. The material prosecution witnesses are the child victim (PW-7), her maternal Aunt PW-8 Shashikala and her mother PW-10 Reeta Devi. The remaining prosecution witnesses are formal as PW-1 Partap Chand, Drawing Teacher, Govt. Sr. Secondary School Salooni has proved the certificate Ext. PX. PW-2 Dr. Uttam Singh has medically examined the accused vide MLC Ext. PW-2/B whereas PW-3 Dr. Rupika has examined the victim vide MLC Ext. PW-3/B. PW-4 HC Surinder Kumar had video graphed and photographed the spot whereas PW-5 Const. Sanjay Kumar is witness to seizure memo Ext. PW-5/B. PW-6 Hoshiar Singh is the Secretary, Gram Panchayat Biana, who issued the date of birth certificate Ext. P-5, the extract of family register Ext. P-6 and copy of birth report Ext. P-7. PW-9 Insp. Ajay Kumar and PW-11 Insp. Jagdish Chand are the Investigating Officers who have partly investigated the case. 10. PW-5/B. PW-6 Hoshiar Singh is the Secretary, Gram Panchayat Biana, who issued the date of birth certificate Ext. P-5, the extract of family register Ext. P-6 and copy of birth report Ext. P-7. PW-9 Insp. Ajay Kumar and PW-11 Insp. Jagdish Chand are the Investigating Officers who have partly investigated the case. 10. The statement of the accused was also recorded under Section 313 Cr.P.C. He has admitted the prosecution case while answering question Nos. 2 to 8 that PW-10 Reeta Devi is his wife and victim his daughter. He has also admitted the date of birth of the victim as 15.11.2003. He has also admitted that his wife is working as tailoring instructor in Gram Panchayat Biyana and residing with her parents. He has also admitted that he is not having cordial relations with his wife and in the month of March, 2016 his wife had gone to her parents house along with her son as her father was ill. He also admitted that the victim stayed with her grandparents at home. The rest of the incriminating circumstances appearing against him in the prosecution evidence have been denied either being wrong or for want of knowledge. In his defence, he has examined DW-1 LHC Sunita who has proved enquiry report Ext. DW-1/A and also the statements of Maina Devi, Rakesh Kumar the accused in this case, one Deepa, Hans Raj and Reeta Devi (PW10) vide Ext. DW-1/B to Ext. DW-1/F. 11. Learned Special Judge, Chamba on completion of the record and on hearing the parties on both sides and on arriving at a conclusion that the prosecution has been able to prove its case against the accused beyond all reasonable doubt has convicted and sentenced him for the commission of offence punishable under Sections 376 (2)(f) and 506 IPC and Section 4 of the POCSO Act, as pointed out at the outset. 12. We have heard Mr. R.M. Bisht, Advocate, learned counsel representing the appellant-convict and Mr. Vikas Rathore, learned Addl. Advocate General for the respondent-State. 13. Mr. R.M. Bisht, Advocate, has strenuously contended that the complainant PW-10 Reeta Devi, the wife of accused in order to wreck vengeance against the accused and also to satisfy her ego has not spared even her minor daughter. R.M. Bisht, Advocate, learned counsel representing the appellant-convict and Mr. Vikas Rathore, learned Addl. Advocate General for the respondent-State. 13. Mr. R.M. Bisht, Advocate, has strenuously contended that the complainant PW-10 Reeta Devi, the wife of accused in order to wreck vengeance against the accused and also to satisfy her ego has not spared even her minor daughter. She, in order to implicate her husband, the accused, falsely in this case made her minor daughter a scapegoat, forgetting that her character and reputation would be at stake by doing so. The minority of the victim and her weak sense to understand the consequences of the allegations has been exploited by PW-10 Reeta Devi in order to take revenge against her husband with whom her relations are strained. The enmity between the two, according to Mr. Bisht, is writ large on the face of the record. It is also pointed out that had the alleged occurrence been taken place, in the manner as claimed, the complainant would have reported the matter to the police and not taken support of the order of the Court by filing the complaint under Section 156(3) Cr.P.C. for registration of the FIR against the accused. It is also pointed out that the minor victim residing with her parents in joint family comprising her grandparents, great grandmother, Uncle and Aunty, the accused could not have assaulted her sexually. The complainant in a clever move has levelled the allegations in such a manner so as to bring the case within the ambit of Section 376(2) (f) IPC and also under Section 4 of the POCSO Act skipping thereby the allegations of penetrative sexual assault against the child victim and to the contrary succeeded in her illegal designs to implicate the accused in the commission of a heinous offence and also to put him behind bars with the help of the evidence which even to her own knowledge was false and fabricated. The threatening to put the accused behind bar she had given as per the evidence available on record also stood falsified. Mr. R.M. Bisht, as such, has urged that the present is a false and concocted case, engineered by PW-10 Reeta Devi, the complainant in connivance with the police against the accused who is stated to be innocent. 14. On the other hand, learned Addl. Mr. R.M. Bisht, as such, has urged that the present is a false and concocted case, engineered by PW-10 Reeta Devi, the complainant in connivance with the police against the accused who is stated to be innocent. 14. On the other hand, learned Addl. Advocate General, while taking us to the evidence s has come on record by way of testimony of the child victim, her mother PW-10 Reeta Devi and maternal Aunt PW-8 Shashikala, has urged that the findings of conviction recorded against the accused calls for no interference. Also that, the sentence including the sentence of fine imposed upon him commensurate with the gravity and seriousness of the offence he committed. The impugned judgment, which according to Mr. Vikas Rathore, is well reasoned calls for no interference by this Court in the present appeal. 15. In a case of this nature, it is the age aspect of the victim which assumes considerable significance. However, the present is a case where the accused has not disputed the date of birth of the child victim (PW-7), which as per the date of birth certificate Ext.P-J is 15.11.2003, issued by the Secretary, Gram Panchayat, Biyana, Development Block Salloni, District Chamba, H.P. The abstract of birth register is Ext. P-7, which reveals that information qua her birth to the Gram Panchayat was given by Hans Raj, her grandfather. It is thereafter, the entries were made in the birth register qua her date of birth as 15.11.2003 on 31.12.2003. Both the documents have been proved from the statements of PW-6 Hoshiar Singh, Secretary, Gram Panchayat, Biyana. He has not been cross-examined. Similar is her date of birth which finds mention in Ext. P-X, the school leaving certificate proved by PW-1 Pratap Chand, Drawing Teacher. Since, there is no cross-examination conducted in this regard on behalf of the accused, therefore, the present is a case where the accused has also admitted the date of birth of the child victim as 15.11.2003. Therefore, on the day of alleged occurrence i.e. March, 2016, she was below 13 years of age. 16. On analyzing the rival submissions and also the evidence available on record, it is seen that PW-10 Reeta Devi, the mother of the child victim has set the machinery into motion, to prosecute the accused, her own husband. The complaint under Section 156(3) Ext. 16. On analyzing the rival submissions and also the evidence available on record, it is seen that PW-10 Reeta Devi, the mother of the child victim has set the machinery into motion, to prosecute the accused, her own husband. The complaint under Section 156(3) Ext. PW-10/A she filed in the Court of learned Special Judge, Chamba is based upon the information given to her by the child victim, hence hearsay. It is significant to note that the so called incident pertains to the month of March, 2016. The complaint Ext. PW-10/A has, however, been filed in the Court on 16.11.2016 i.e. after a period over 8 months. Although, PW-10 Reeta Devi while in the witness-box has given an impression that when the child victim apprized her about the incident, she scolded the accused who according to her confessed his guilt and sought pardon at the pretext that it might have happened under the influence of liquor. Therefore, action, according to her was dropped against him at that stage in view of he allegedly had undertaken not to repeat any such act in future. However, when he again kissed the child victim after 2-3 months in an obscene manner, she was not left with any alternative except for launching criminal proceedings against him. Nothing of the sort has, however, come in the complaint Ext. PW-10/A on the basis whereof the FIR Ext. PW-11/A came to be registered. Even if such version of PW-10 Reeta Devi is believed to be true, she must have come to know about the incident of March, 2016 somewhere in July/August because the complaint Ext. PW-10/A was lodged by her in the month of November, 2016 after the alleged incident of obscene kissing of the victim by the accused after 2-3 months of his seeking pardon with respect to the alleged incident of March, 2016. But when nothing of the sort had come in the complaint Ext. PW-10/A, the story that the accused sought pardon with respect to the incident of March, 2016 and undertaken not to involve in such obscene act in future cannot be believed to be true by any stretch of imagination and rather appears to be engineered and fabricated to implicate him in this case falsely. PW-10/A, the story that the accused sought pardon with respect to the incident of March, 2016 and undertaken not to involve in such obscene act in future cannot be believed to be true by any stretch of imagination and rather appears to be engineered and fabricated to implicate him in this case falsely. Interestingly enough, while in the witness-box as PW-10 Reeta Devi, the mother of the child victim, has stated that it is her (Bhabhi) Shashi Kala (PW-8) who told her that her husband is not a good person and that his daughter the child victim wants to tell something to her (PW-10). It is on this, she enquired from the child victim when she disclosed to her the manner in which the alleged incident of March, 2016 had taken place. It is, therefore, Shashi Kala (PW-8), who for the first time had disclosed to PW-10 Reeta Devi about something happened with the child victim. Nothing of the sort, however, finds mention in this regard also in the complaint Ext. PW-10/A. It is also not known as to when PW-8 Shashi Kala had asked PW-10 to make enquiry from the child victim qua her husband the accused was not a good person. As per the version of PW-8 Shashi Kala, the child victim came to her house at Village Kundi in the month of June, 2016 and told that her father, the accused was impressing and kissing her since long. Also that, he had been touching her private parts. According to PW-8 the incident of March, 2016 was also disclosed by the child victim to her. Nothing to this effect, however, has come either in the complaint Ext. PW-10/A or the statement of the child victim Ext. PW-7/A recorded under Section 164 Cr.P.C. 17. Since the complaint Ext. PW-10/A has been filed on 16.11.2016 whereas the statement of the child victim Ext. PW-7/A is recorded on 21.11.2016, therefore, had there been any meeting of the child victim with PW-8 Shashi Kala and any such disclosure made by the former to the latter, it would also have been mentioned in Ext. PW-10/A and Ext. PW- 7/A. The prosecution story to this effect, therefore, has again been engineered and fabricated. PW-7/A is recorded on 21.11.2016, therefore, had there been any meeting of the child victim with PW-8 Shashi Kala and any such disclosure made by the former to the latter, it would also have been mentioned in Ext. PW-10/A and Ext. PW- 7/A. The prosecution story to this effect, therefore, has again been engineered and fabricated. The alleged disclosure made by the child victim that she was threatened by her father not to disclose the incident to anyone and if she did so, he would kill her, is again germane of the mind of the complainant PW-10 Reeta Devi in connivance with PW-8 Shashi Kala and the police. PW-8 Shashi Kala has not stated as to on what date, time and place she apprized PW-10 Reeta Devi that her husband was not a good person and that she should enquire from her daughter the minor victim who wanted to disclose something to her. Similarly, PW-10 Reeta Devi has also not disclosed the date, time and place of the disclosure so made to her by PW-8 Shashi Kala. Not only this, but in the complaint Ext. PW-10/A, nothing to this effect has been mentioned which being an important circumstance in normal course should have been mentioned therein had it so happened. Anyhow, in view of the discussion hereinabove it appears to us that neither the child victim disclosed anything to PW-8 Shashi Kala nor the latter disclosed anything to PW-10 Reeta Devi and the story to this effect has been engineered and fabricated just to implicate the accused in this case falsely. Interestingly enough, in view of the alleged threatening given by the accused to her would have not chosen to take risk of making such disclosure to her maternal Aunt and rather to her mother PW-10 Reeta Devi as it would have been safe to her to disclose the incident if having taken place to her as compared to her maternal Aunt. As a matter of fact, nothing of the sort had happened and the duo i.e. PW-10 Reeta Devi and PW-8 Shashi Kala in connivance with each other implicated the accused in this case falsely because as per the admitted case of the parties, the relations between the accused and his wife PW-10 Reeta Devi were not cordial. As a matter of fact, nothing of the sort had happened and the duo i.e. PW-10 Reeta Devi and PW-8 Shashi Kala in connivance with each other implicated the accused in this case falsely because as per the admitted case of the parties, the relations between the accused and his wife PW-10 Reeta Devi were not cordial. As a matter of fact, PW-10 Reeta Devi abandoned the company of the accused and was residing in the house of her parents since long. There is contradiction in the complaint Ext. PW-10/A and the statement of the child victim recorded under Section 164 Cr.P.C. qua the manner in which the incident of March, 2016 having taken place. It is worth mentioning that the child victim when all of a sudden woke up in mid-night, found the accused licking her private parts (vagina) whereas as per her version in Ext. PW-7/A, he had been touching his mouth and tongue therewith. There is lot of difference in licking and mere touching. Therefore, such contradiction that too qua material aspect of the prosecution case also goes deep to the root of the prosecution case and render the same highly improbable. 18. As a matter of fact, it is evident from the record that PW-10 Reeta Devi had been suspecting illicit relations of accused with another lady. It has come on record during the course of enquiry conducted by Women Cell, Chamba on the complaint that the allegations of mal treatment and torturing made by PW-10 Reeta Devi against her husband, the accused on 17.10.2016 (though no complaint is on record) was due to his illicit relations with another lady who was mother of four children. A reference in this behalf can also be made to the letter Ex.DW1/A. The enquiry Officer during the course of enquiry conducted had recorded the statement(s) of PW-10 Ext. DW-10/F, her mother Ext. DW-1/B and that of the accused Ext. DW-1/C as well as the so called lady with whom the accused had illicit relations Ext. PW-1/D. The statement of Sh. Hans Raj, the father of the accused was also recorded. The complainant PW-10 Reeta Devi has admitted the complaint having been made by her against her husband. She had also admitted that in the complaint, the allegations qua the incident of March, 2016 having taken place with her daughter were not mentioned. PW-1/D. The statement of Sh. Hans Raj, the father of the accused was also recorded. The complainant PW-10 Reeta Devi has admitted the complaint having been made by her against her husband. She had also admitted that in the complaint, the allegations qua the incident of March, 2016 having taken place with her daughter were not mentioned. She, however, failed to give any reasonable and plausible explanation as to why the same omitted to be mentioned in the complaint while in the witness-box. In her cross-examination, it is admitted that she had made the complaint dated 17.10.2016 to Women Cell, Chamba. On the complaint so made by her, the accused and other persons of his family were called by the Women Cell. She has also admitted her statement and also that of the accused and other persons recorded during the course of enquiry conducted by the Women Cell. Since the allegations are that the accused had extra-marital affairs with another lady and that he had not been maintaining her, therefore, the matter was referred to Child Development Project Officer, Chamba being the case under the Domestic Violence Act. Though, during the course of enquiry conducted in that complaint, she had narrated the alleged incident of March, 2016 having taken place with her daughter, however, the Women Cell did not conduct any enquiry in this regard. It cannot be believed by any stretch of imagination that the police had not conducted any enquiry irrespective of alleged incident was disclosed by PW-10 Reeta Devi during the course of enquiry conducted in the complaint she had filed. PW-10 Reeta Devi, therefore, is a liar. Though, as per her version, she had disclosed to the police that the accused when scolded as to why he did wrong act with the child victim, he sought pardon and undertook not to do any such unlawful act in future, however, nothing to this effect had come in her statement recorded under Section 161 Cr.P.C. She was confronted therewith while in the witness-box. On the other hand, it has been admitted by her that she did not disclose the incident either with the Ward Member or respectable persons of Village Kandla. She had admitted that earlier also, she stayed in the house of her parents for 4-5 years. It has also been admitted that after compromise, she had returned to the matrimonial home at one point of time. She had admitted that earlier also, she stayed in the house of her parents for 4-5 years. It has also been admitted that after compromise, she had returned to the matrimonial home at one point of time. 19. The child victim has also admitted while in the witness-box that the relations of her father and mother were not cordial. Except for three witnesses i.e. the child victim (PW-7), her mother PW-10 Reeta Devi and maternal Aunt PW-8 Shashi Kala who being closely related otherwise also are interested witness. The prosecution has not made any effort to seek assistance from some independent source so as to satisfy this court that the occurrence had actually taken place in the manner as claimed by the child victim and her mother. In view of the inimical relations between the accused and his wife, the complainant and the threatening she had given to implicate him in a false case as he stated in his statement Ext. DW-1/F recorded during the course of enquiry conducted by the Women Cell, Chamba, it is handy work of PW-10 Reeta Devi and her Bhabhi PW-8 Shashi Kala to implicate the accused in this case falsely. The child victim has been made the scapegoat by PW10 to fulfill her illegal design because she was living under her care and custody in the house of her parents at Village Kundi. The child even being approximately 13 years of age was not in a position to have understood the consequences of the allegations she levelled against her father, the accused. It would not be improper to observe here that had anything of the sort been taken place during that night in March, 2016, or prior and after to that and the accused having exposed his daughter the child victim by opening her trouser, licking/touching her private part (vagina) from his mouth or tongue would have attempted to commit penetrative sexual assault also and not satisfied only by licking or touching her vagina. As a matter of fact, no such incident has taken place and it is for this reason, the complainant PW-10 Reeta Devi being apprehensive of the findings to the contrary may have come on record during the internal medical examination of the child victim and it is for this reason she did not opt for the same. 20. As a matter of fact, no such incident has taken place and it is for this reason, the complainant PW-10 Reeta Devi being apprehensive of the findings to the contrary may have come on record during the internal medical examination of the child victim and it is for this reason she did not opt for the same. 20. Otherwise also, even if the child victim was living with her father and other members of the family in the absence of her mother, the complainant who was away to the house of her parents, the accused in the presence of his parents, grandparents and Uncle/Aunt who also used to sleep in the rooms adjoining to his bed room could have not indulged in any such unlawful activity in their presence in the house. Since, the prosecution story that she was threatened with dire consequences in case she disclosed this incident to anyone is palpably false and as the incident had never taken place, the story to this effect has also been engineered and fabricated. 21. In view of the discussion hereinabove, we find the present a case where the mother in order to take revenge with her husband, has not even spared her own daughter without caring for the adverse consequences thereof in the career of her daughter. It is being said that why a mother or a daughter would level false allegations that too against her husband/father and thereby tarnish the reputation and character not only of the victim but also the family, however, it is not the rule and sometime under exceptional circumstances mother or daughter also level such allegations against the husband/father. It is due to variety of reasons, such as the background, temperament and soscio economic condition and the strata of the society to which the mother or daughter belongs. In the case in hand, when PW-10 Reeta Devi considers the accused as her biggest enemy, therefore, in order to satisfy her ego and also to take revenge, the possibility of his false implication at her end cannot be ruled out. It is an exceptional case where to our mind the mother i.e. PW-10 Reeta Devi had chosen her own daughter the child victim to get her ego satisfied by implicating the accused in this case falsely. This Court in a judgment rendered recently in Gorkha Ram vs. State of H.P., Cr. It is an exceptional case where to our mind the mother i.e. PW-10 Reeta Devi had chosen her own daughter the child victim to get her ego satisfied by implicating the accused in this case falsely. This Court in a judgment rendered recently in Gorkha Ram vs. State of H.P., Cr. Appeal No. 545 of 2017, on 5.12.2018, a case involving more or less identical facts, has already expressed its concern about the implication of the near relations such as father with the allegation of molestation of minor daughters and observed as follows: “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. 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 again having more or less similar allegations against the father that he has assaulted sexually his own daughter aged 2 years, has held as under: “35. 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 again having more or less similar allegations against the father that he has assaulted sexually his own daughter aged 2 years, has held 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. 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.” 22. This Court in State of Himachal Pradesh vs. Gorkha alias Vijay Kumar, has also held as follows: “16. With the above observations, the appeal is finally disposed of.” 22. This Court in State of Himachal Pradesh vs. Gorkha alias Vijay Kumar, has also held as follows: “16. In our considered view, trauma and threats are to be gathered from the facts of the case and prosecution has not been able to demonstrate as to what was the trauma that the proseuctrix was suffering in her house, which prevented her from disclosing all these facts to her mother because it is not the case of the prosecution that the prosecutrix was not putting up her with her parents either in the either in the month of July, 2013 or October, 2013. The case of the accused teasing the prosecutrix is also falsified from the fact that the alleged incident of teasing is not so recorded in Ex. PW1/A and Ex. PW1/C. This demonstrates that the prosecutrix has made improvements in her statement. Cross-examination of the prosecutrix further demonstrates that there are lot of contradictions in her statement recorded under Section 164 Cr.P.C. and her statement recorded as PW-1. Besides this, there are major contradictions in the statements of the mother and father of the prosecutrix also. PW-2 mother of the prosecutrix has stated that K.K. and Kukki Pradhan had not come to their house on the evening of 15.06.2013, whereas PW-3 father of the prosecutrix has deposed that they had come to their house on the evening of 15.06.2013. PW-2 has admitted the suggestion that police officials from Bathri Police Post had come to their house on 15.06.2013, whereas PW-3 has stated that no police had come to their house on 15.06.2013. However, PW-3 in the same breath thereafter stated that one accused Gorakh was let off after sometime after certain inquiries were made and police was called. These are also major contradictions in the testimonies of material prosecution witnesses which contradictions have not been satisfactorily explained by the State.” 23. If it is not shocking, it is painful to point out that learned Special Judge, though has referred to this judgment in para 57 of the impugned judgment, however, brushed aside simply with the observation that the accused cannot derive any advantage thereof without recording any reason. Such an approach on the part of learned Special Judge, is not only casual but tantamount to ignore the law laid down by this Court without assigning any reason. 24. Such an approach on the part of learned Special Judge, is not only casual but tantamount to ignore the law laid down by this Court without assigning any reason. 24. The evidence as has come on record by way of testimony of the remaining witnesses i.e. PW-2 Dr. Uttam Singh would have relevant, had the victim been subjected to penetrative sexual assault by the accused. It is not the prosecution case that he had satisfied his sexual lust by undressing his own daughter. He rather has allegedly touched her vagina and tongue which had nothing to do with the commission of sexual intercourse with her, of course, an offence within the meaning of Section 375(d) IPC and punishable under Section 376 IPC. The medical examination of the accused in the case in hand as such is a futile exercise. Similarly, PW-3 Dr. Rupika would have been a material witness had the child victim undergone the internal medical examination. However, in the case in hand, her mother the complainant had not given her consent for the same and as such her testimony is also not relevant in this case. PW-4 HC Surinder Kumar and PW-5 Constable Sanjay Kumar are police officials who remained associated in one way or the other during the course of the investigation of the case. They would have also been relevant and their evidence used as link evidence had the prosecution been otherwise able to prove its case against the accused beyond all reasonable doubt. Similarly, the investigating officers PW-9 Inspector Ajay Kumar and PW-11 Inspector Jagdish Chand are again not so relevant in the case in hand as they have deposed qua the manner in which they conducted the investigation in this case. On the other hand, the defence of the accused that he has been implicated falsely in this case due to enmity finds support from the documentary evidence i.e. Ext. DW-1/B to Ext.DW-1/F proved by DW-1 LHC Sunita, he examined in his defence. 25. For all the reasons hereinabove, we find the present a case where the prosecution has miserably failed to prove the case against the accused beyond all reasonable doubt. Learned trial Judge has convicted and sentenced him for the commission of offence punishable under Sections 376(2) (f) and 506 IPC and Section 4 of the POCSO Act on surmises and conjectures by not appreciating the evidence in its right perspective. Learned trial Judge has convicted and sentenced him for the commission of offence punishable under Sections 376(2) (f) and 506 IPC and Section 4 of the POCSO Act on surmises and conjectures by not appreciating the evidence in its right perspective. Undue weightage has been given to the testimony of the prosecution witnesses who being closely related and inimical to the accused were interested to implicate him in a false case. The impugned judgment, as such, is not legally and factually sustainable and the same deserves to be quashed and set aside and the accused acquitted of the charge. 26. In view of the above, this appeal succeeds and the same is accordingly allowed. Consequently, the accused is acquitted of the charge framed against him under Sections 376(2) (f) and 506 IPC and Section 4 of the POCSO Act. Since upon the impugned judgment, he presently is serving out the sentence, therefore, if not required in any other case, be set free forthwith. Release warrant be prepared accordingly. The appeal is finally disposed of.