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Himachal Pradesh High Court · body

2019 DIGILAW 1693 (HP)

Satish Kumar v. State of H. P.

2019-11-11

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed by the convict/accused/appellant herein, vis-a-vis, his becoming convicted by the learned trial court, for, the commission, of, an, offence constituted, under, Section 8, of, the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as "POCSO Act"), and, also stands directed against the consequent therewith sentences hence becoming imposed upon him. However, though, the learned trial Court recorded an order of acquittal, vis-a-vis, the convict for the charged framed against him under Section 6 of the POCSO Act, and, also, vis-a-vis, a charge framed under Section 506 of the IPC, yet the State of Himachal Pradesh, has not reared any appeal against the acquittal, of, the convict, under, the afore charged offences, hence, the order of acquittal, vis-a-vis, the afore charged offences becomes final. 2. The facts relevant to decide the instant case are that the accused is the maternal grandfather of the victims. Relations between the parents of the victims are strained. The mother of the victims is residing with the accused due to difference with her husband. The father of the victims received a letter from his employer asking him to join the duties. He told the victims that they would have to reside in the home of the accused for some time, but they refused to go to the house of the accused. They told that the accused was sexually harassing them. They gave a note Ex.PW2/A in writing stating that the accused used to sleep with the boy victim. Once when he woke upon, the accused was removing his knicker and was doing bad act with him. The victim called his mother. The mother of the victim and the accused had quarrel regarding this incident. The situation became normal, but after some time the accused started visiting the house of the victims and again did the same thing. The girl victim was taken by the accused to his home where the accused did bad act with her as well. She was threatened that in case the incident is revealed to any person, the father of the victim would die and the victims would have to reside in the house of the accused. Hence the children requested their father not to leave them in the house of the accused. She was threatened that in case the incident is revealed to any person, the father of the victim would die and the victims would have to reside in the house of the accused. Hence the children requested their father not to leave them in the house of the accused. The matter was reported by the father of the victims to the police by means of a written application Ex.PW10/A. On the basis of which, FIR was registered against the accused in the police station, and, thereafter all the codel formalities were completed. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court. 4. The accused/appellant herein, stood charged, by the learned trial Court, for, his committing offences, punishable under Section 6, and, under Section 8, of, the POCSO Act, and, under Section 506 of the IPC. In proof of the prosecution case, the prosecution examined 12 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case, and, in his defence he examined two defence witnesses. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction, upon, the accused/appellant herein, for, his hence committing an offence punishable, under, Section 8 of the POCSO Act. 6. The appellant herein/accused, stands aggrieved, by the afore findings of conviction, recorded, by the learned trial Court. The learned counsel appearing, for, the appellant herein/accused, has concertedly, and, vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation, of, the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 7. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction, recorded, by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 8. 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. 9. The genesis of the commissions, of, the offences, and, as, perpetrated, upon, the victims, hence, by the accused, is, borne in Ex.PW6/A. Ex.PW6/A, is, alleged to be lodged at the instance of the father of the victims. However, the therein, hence echoed perpetrations, of, penal misdemeanors by the convict, the, maternal grand father of the victims, hence, upon, the victims, (i) does not carry any further articulations, with specificity, vis-a-vis, the date, and, time, of, their commissions, upon, the victims. The afore FIR, is, a sequel of Ex.PW2/A, a, writing authored by the victims, wherein both make echoings, vis-a-vis, the charged penal misdemeanors, becoming perpetrated, upon, them by their maternal grand father. However, qua one of the incidents echoed therein, there occurs, an echoing qua it becoming reported to their mother, (ii) and, thereafter an altercation ensuing inter se the mother, of, the victims, and, the convict. However, the, subsequent thereto, echoed incident, in, Ex.PW2/A, is, not articulated therein to become narrated, to their mother, by, the victims. However, therein, and, vis-a-vis, the latter incident, the victims echo qua theirs, being threatened, to, maintain silence rather, against, makings, of, further communications qua thereto, given, the convict tutoring them qua, upon, their father becoming apprised therewith, his, suffering a fatal shock. Ex.PW2/A, is, of 2nd October, 2018, and, consequent therewith, hence, FIR, has, become lodged at the instance, of, their father, rather on 4th October, 2018. 10. Ex.PW2/A, is, of 2nd October, 2018, and, consequent therewith, hence, FIR, has, become lodged at the instance, of, their father, rather on 4th October, 2018. 10. Be that as it may, during, the course of investigations, into the offences, as, constituted, in, the afore FIR, hence, becoming conducted, by the Investigating Officer concerned, (i) the learned Judicial Magistrate concerned, after engaging himself, in, assessing the intelligibility, and, comprehensibility, of, the victims, besides thereto, upon, his ascertaining their capacity, to, depose as witnesses, hence, by meeting queries to them, and, upon, theirs purveying intelligible answers thereto, he hence concluded qua their competence, to, make statements, in, the proceedings launched, under, Section 164 of the Cr.P.C., (ii) Subsequent thereto, he, ensured volitional elicitations, from, them. In the proceedings drawn under Section 164 of the Cr.P.C., both the victims deposed with mutual concurrence, vis-a-vis, upon, each, hence, the, prohibited sexual assaults, becoming perpetrated, rather by their maternal grandfather. In Ex.PW1/A, the girl victim, echoes, qua the afore incidents, becoming narrated by her, to her maternal grand mother, and, thereafter her aunt (masi) holding her, from, her ears, and, hence blood oozing therefrom. Furthermore, she has also echoed in the proceedings drawn, under, Section 164 of the Cr.P.C., hence, before the learned Magistrate concerned, (iii) qua hers also unraveling the incident to her mother, and, upon, hers making revelations to her mother, the latter rather belabouring her. However, all the afore unfoldments or echoings, borne in the statement, of, the girl victim, as, recorded by the learned Magistrate, in, proceedings drawn, under, Section 164 of the Cr.P.C., and, borne in Ex.PW1/A, hence grossly improve, upon or embellish, upon, the, echoings previously made in Ex.PW2/A, in, consequence whereto, the FIR borne in Ex.PW6/A, became lodged 11. Likewise the boy victim, though disclosed, to, the learned Magistrate concerned, in proceedings drawn, under, Section 164 of the Cr.P.C., vis-a-vis, the initial incident becoming narrated, by him, to his mother, and, yet the latter threatening him, that, she would eliminate his father, rather upon, the apposite revelations being made to the latter. Likewise the boy victim, though disclosed, to, the learned Magistrate concerned, in proceedings drawn, under, Section 164 of the Cr.P.C., vis-a-vis, the initial incident becoming narrated, by him, to his mother, and, yet the latter threatening him, that, she would eliminate his father, rather upon, the apposite revelations being made to the latter. However, the afore unfoldments made in Ex.PW1/A, and, in Ex.PW2/B, remain unechoed, in, Ex.PW2/A, (a) imperatively both the penal ascriptions echoed in Ex.PW2/A, rather become echoed both in Ex.PW1/A and, in Ex.PW2/B, to, become, reported to the mother, of, the victims, (b) hence, obviously thereins, open digressions, and, embellishment, emerge(s), inter se, the echoings initially made in Ex.PW2/B, and, vis-a-vis, the ones, borne, in, subsequent thereto drawn Ex.PW1/A, and, Ex.PW1/B, (c) inasmuch, as, in the former, the latter incident, is, echoed, to, remain unreported by the victims, vis-a-vis, their mother, whereas, in both the latter exhibits, they become narrated to their mother, and, to the maternal grand mother. Since, the Magistrate concerned, has made., an, apposite certificate(s), upon, Ex.PW1/A, and, upon, Ex.PW2/B, vis-a-vis, the contents thereof being scribed by him, and, qua both containing correct, truthful, and, volitional unfoldments, made by, each before him, (a) thereupon, prima facie, the, afore accepted vitiatory hence improved, and, embellished version, inter se, the one, borne in Ex.PW2/A, and, vis-a-vis, the subsequently rendered version qua therewith, and, embodied, in, Ex.PW1/A, and, Ex.PW2/B, does carry, an, iota of solemnity, whereupon, the genesis, of, the incident(s), echoed in Ex.PW2/A, becomes jettisoned. 12. 12. Both the victims, also respectively stepped, into the witness box as PW-1, and, PW-2, and, after the learned trial Court, fathoming their comprehensibility, and, also fathoming their competence, to, depose as witnesses, upon, their meteing satisfactory answers, to, queries put, to, them, hence, concluded, them, to be befitting, to, thereafter render depositions, (i) and, therein echoing occur rather bearing tandem, with, the earlier thereto statements recorded, by each, and, respectively borne in Ex.PW1/A and, in, Ex.PW2/B, hence, before the learned Judicial Magistrate concerned, during, the drawing of proceedings, under, Section 164 of the Cr.P.C., (i)consequently, all the afore stated embellishments, and, improvements, inter se the narrations embodied, in, Ex.PW2/A, and, vis-a-vis, Ex.PW 1/A, and, Ex.PW2/B, do inevitably resurface therein, and, also hence carry, the, requisite vitiatory effects, vis-a-vis, the truthfulness, of, both the victims, and, thereupon, all the vitiatory effects thereof, hence, concomitantly stain, the, veracity, of, the penal ascriptions initially made, by them, in, Ex.PW2/A, and, thereafter embodied, in, the apposite FIR, borne in Ex.PW6/A. 13. Further there onwards, PW-3, who carried hence the medical examination of the prosecutrix, and, in sequel whereto prepared, and, has proven, the, appositely drawn MLC, embodied in Ex.PW3/A, has, in his examination-in-chief, hence failed, to, make any candid expression, vis-avis, any incident, of, penetrative sexual assault, becoming perpetrated, upon, the prosecutrix, hence, by the convict. Even though, there is, a, communication therein, vis-a-vis, the medical examination of the prosecutrix, becoming conducted, with respect to two incidents, one occurring 7- 8 months back, and, the second occurring 1 to 1 1/2 months back, (i) and, may hence constrain him to detect incidence(s), of, penetrative sexual assault, becoming perpetrated, by the convict, upon, the prosecutrix, (ii) yet the afore elapse of time, intere se, the incidences, and, the holding, of, medical examination by PW-3, of, the victims also would not detract from the efficacy, of, the deposition, made by PW-3, (iii) given, the, aforestated gross improvements, and, embellishments, inter se, the version, borne, in, Ex.PW2/A, and, in FIR Ex.PW6/A, vis-a-vis, the narrations made by the prosecutrix in Ex.PW1/A, exhibits whereof, comprises, a, statements recorded, by the learned Judicial Magistrate concerned, during, the course, of, his drawing of proceedings under Section 164 of the Cr.P.C., rather, making, the, charge, to, founder. 14. Alike therewith, the, observations adversarial to the prosecution, and, embodied in Ex.PW4/A, necessarily carry the requisite tenacity, and, erode the prosecution case. 15. 14. Alike therewith, the, observations adversarial to the prosecution, and, embodied in Ex.PW4/A, necessarily carry the requisite tenacity, and, erode the prosecution case. 15. The accused after denying the charge framed against him, in proceedings drawn under Section 313, Cr.P.C., had, availed the espoused opportunity, to, adduce defence evidence. In his defence, he enabled the stepping, into, the witness box, of, his wife Smt. Bimla Devi, as, DW1, and, she denied all the recitals borne, in, Ex.PW1/A, and, in Ex.PW2/A, and, when the afore denial made by her, vis-a-vis, the recitals embodied in Ex.PW1/A, and, appertaining to the victim/prosecutrix, making, the relevant disclosures to her, remains uneroded, vis-a-vis, its vigour, even, during the ordeal, of, the rigorous cross-examination, wheretowhich, she was subjected to, (i) thereupon, the accused/convict, apart from ensuring, qua for, improvements, and, embellishments, inter se the echoings, in, Ex.PW2/A, and, vis-a-vis, their respective statements recorded before the learned Judicial Magistrate concerned, during, the course of drawing of proceedings, under, Section 164, of, the Cr.P.C., qua hence the charge becoming blunted, and, waned, (ii) obviously also successfully establishing, vis-a-vis, all the other echoings borne therein, and, appertaining, to, the victims unfolding the incident to their maternal grand mother, also, becoming belied. 16. Furthermore, in his defence, the convict also ensured the stepping into the witness box, of, his daughter, the wife of the complainant, and, the mother, of, the victims, and, the afore witness also belied, the, echoings made respectively, in Ex.PW1/A, and, in, Ex.PW2/B, vis-a-vis, each of the victim, unveiling the incident to her, (i) and, also when she, during, the course of her rigorous cross-examination, conducted, upon her by the learned PP, for there through, her afore version, comprised in her examination-in-chief, becoming denuded, vis-a-vis, its vigour, (ii) she rather remained unscathed, (iii) thereupon, absolute vigour is to be assigned, vis-a-vis, her statement, comprised in her examination-in-chief, (iv) wherein she has completely denied all the echoings, borne in Ex.PW1/A, and, Ex.PW2/B, (v) and, when the afore exhibits are the gravamen of the prosecution case, (vi) thereupon, when all the echoings borne therein, stands, completely belied, and, hence, it is concluded, vis-a-vis, the charges framed, against, the accused, standing not, hence proven. 17. It surfaces from the evidence qua their occurring matrimonial acrimony, inter se, the, complainant (the father of the victims), and, his wife i.e. the mother of the victims besides both living separately. 17. It surfaces from the evidence qua their occurring matrimonial acrimony, inter se, the, complainant (the father of the victims), and, his wife i.e. the mother of the victims besides both living separately. Since, evidence also surfaces qua both wrangling, vis-a-vis, the custody, of, the children, who, however, reside with their father, and, hence, when they became tutored by him, thereupon, it appears qua, for, his precluding, his wife from receiving their custody, from, him, his falsely fabricating, the, apposite case, against, the convict/accused. 18. 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, hence, also suffering from gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record. 18. Consequently, the instant appeal, is, allowed, and, the judgment impugned before this Court is set aside. In sequel, the accused/convict/appellant, is, acquitted for the commission of the offences punishable under Section 6 and under Section 8 of the POCSO Act, and, under Section 506 of the IPC. Bail bonds stand cancelled, and, discharged. The fine amount, if any, deposited by the convict before the learned trial Court, be, refunded to him. All pending applications also stand disposed of. Records be sent back forthwith.