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Himachal Pradesh High Court · body

2020 DIGILAW 638 (HP)

AJAY KUMAR ALIAS GANJU v. STATE OF H. P.

2020-09-23

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

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ORDER : 1. The accused/appellant herein, became charged for commission of an offence punishable, under, Section 363 of the IPC, and, also became charged, for, commission of an offence punishable, under, Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO" Act). The learned trial Court concerned, made an order of conviction, vis-a-vis, the afore charged offences, and, also sentenced the convict, to, undergo simple imprisonment for a period of three years, and, to pay a fine of Rs.10,000/-, for commission, of, an offence punishable under Section 363 of the IPC, and, in default of payment of fine amount, he was sentenced to further undergo simple imprisonment for a term of six months. He was further sentenced by the learned trial Court, to, undergo rigorous imprisonment, for a period of 10 years, and, to pay a fine of Rs.30,000/-, for commission, of, an offence punishable, under, Section 6 of the POCSO Act, and, in default of payment of fine amount, he was sentenced, to, undergo simple imprisonment for one year. Both the sentences are ordered to run concurrently, and, the fine amount of Rs.40,000/-, was, ordered by the learned trial Court, to be paid as compensation, to, the victim. 2. The convict/accused/appellant herein, becomes aggrieved therefrom, hence, through, casting the extant appeal before this Court, has strived to beget reversal(s) of the afore made conviction, and, the afore consequent therewith sentence(s) hence imposed, upon him, under the afore verdict. 3. The genesis of the prosecution story, is, embodied in Ex.PW1/A, exhibit whereof, is, a complaint made by the mother of the victim, to, the SHO Police Station Dharamshala, wherein, she alleges commission, of, offence(s) punishable under Section 363 of the IPC hence by the accused. On anvil of the afore complaint, an FIR came to be recorded by the SHO Police Station, Dharmshala, FIR whereof is embodied, in, Ex.PW8/A. The incriminatory site plan, is, borne in Ex.PW13/D. During the course of investigations into the allegations, carried in the afore alluded FIR, the Investigating Officer concerned, produced the victim/prosecutrix, before the medical practitioner concerned, and, the latter, in, the apposite MLC, and, as becomes embodied in Ex.PW5/B, made an opinion thereon, vis-a-vis, there being a possibility of the victim becoming subjected to sexual intercourse. However, an endorsement is also borne therein, (i) vis-avis, the apposite final opinion qua therewith being made only after, the report of the FSL concerned, is, received. However, after the author of Ex.PW5/B became purveyed, with, the report of the FSL concerned, and, as, embodied in Ex.PW5/Bl, hence, on reading(s) thereof, he made a firm, and, final opinion, vis-a-vis, the victim/prosecutrix becoming subjected to sexual intercourse(s). Moreover, therein echoings are borne, vis-a-vis, the report of the Radiologist disclosing, vis-a-vis, radiological age of the prosecutrix being between 14 to 17 years, and, the dental age of the victim being above 12 years, and, less than 18 years. 4. Primarily, with the accused/convict, through his counsel before the learned trial Court, projected the defence, of his marrying, the prosecutrix at Shiv Temple, Chintpurani, and, also thereafter he obviously made a defence, vis-a-vis, his, with his married spouse, the victim/prosecutrix, hence, entering into valid sexual intercourses with her, and, also the afore defence became partly accepted by the prosecutrix. Though, in her examination-in-chief, the victim/prosecutrix accepted qua the accused marrying her, at, Shiv Temple, Chintpurani, (i) yet she therein rather in consonance with her previous statement recorded in writing, ascribes the charged penal misdemeanors, vis-a-vis, the convict/accused. However, before proceeding to determine the tenacity, of, the afore penal ascriptions, made by the prosecutrix qua the accused, it is imperative for this Court, to, analyse the legal capacity of the prosecutrix/victim, to purvey her valid consent to the accused/victim, to enable him to enter into sexual intercourses with her. Indubitably, it is suffice, and, a well accepted legal expostulation, vis-a-vis, the birth certificate of the prosecutrix hence comprising the best documentary evidence, for, making, a, firm determination, vis-a-vis, the valid consenting age of the victim. However, the investigating Officer failed to collect the birth certificate of the victim/prosecutrix. Contrarily, there is oral evidence, vis-a-vis, the victim/prosecutrix being a minor, in contemporaneity, vis-a-vis, the commission, of, the afore offences. Moreover, the prosecution has also placed on record Ex.PWll/B, exhibit whereof, is, a school leaving certificate of the prosecutrix, wherein, the age of the prosecutrix, is, echoed to be below the legal age of consent. Contrarily, there is oral evidence, vis-a-vis, the victim/prosecutrix being a minor, in contemporaneity, vis-a-vis, the commission, of, the afore offences. Moreover, the prosecution has also placed on record Ex.PWll/B, exhibit whereof, is, a school leaving certificate of the prosecutrix, wherein, the age of the prosecutrix, is, echoed to be below the legal age of consent. For proving the apposite reflection(s), borne in Ex.PW11/B, the author thereof, namely one Smt. Sushma Dadwhal, stepped into the witness box, as, PW-11, and, in her examination-in-chief, she proved the reflections borne, in, Ex.PW11/B, hence, appertaining to the minority of the prosecutrix. However, the school leaving certificate, is, not a valid substitute, vis-a-vis, the birth certificate, of, the prosecutrix, (ii) unless on the records of the school concerned, there exists, an affidavit of the father-cum-natural guardian or of the mother-cum-natural guardian of the prosecutrix, and, hence, tendered, in contemporaneity, vis-a-vis, the making(s) of the admission, in School, of the victim/prosecutrix, and, also the afore affidavit becomes produced in Court, and, becomes exhibited by the prosecution. However, the afore affidavit remained neither collected nor became produced, nor obviously any exhibition mark came to be made thereon. Moreover, even if, no suggestion, vis-a-vis, the afore facet, became meted by the learned defence counsel, yet omission thereof, cannot given any leverage to the prosecution, to contend, that the reflections borne, in, Ex.PW11/A are creditworthy, as, it was incumbent upon, the prosecution, to, in the absence of the birth certificate of the victim/prosecutrix, hence, ensure, vis-a-vis, its, through, the afore addcution, rather fully discharging the burden of proof, qua the victim/prosecutrix being a minor, hence, at the relevant time, (iii) and, reiteratedly for the afore purpose, it hence became enjoined to ensure adduction of the afore alluded affidavit, before the learned trial court. Consequently, its failing to tender the afore affidavit, and, also its wantings, in, ensuring its consequent exhibition there before, thereupon, this Court deems fit to conclude, vis-a-vis, in the prosecution, both omitting to produce the birth certificate, of, the prosecutrixor its omitting to produce the afore affidavit, before the learned trial Court, hence, concomitantly its abysmally failing to discharge, the, burden of clinchingly proving, qua hence, the prosecutrix being a minor at the relevant time. 5. 5. Event hough, it becomes propounded, in, a catena of decision(s), vis-a-vis, the ossification, and, radiological test(s), as, become, conducted for determining the age of the victim, hence, being not an assured evidentiary foundation, for, making a firm conclusion, vis-a-vis, the precise date of birth of the prosecutrix, (i) nonetheless, in the afore face, of, the best documentary evidence remaining unadduced by the prosecution, (ii) thereupon, the afore made determinations, as become pronounced by the doctor issuing the apposite MLC, conspicuously, vis-a-vis, the radiological age, of, the prosecution being 14 to 17 years, and, the dental age of the victim/prosecutrix being above 12 years, and, less than 18 years, (iii) and, with a catena of judgments pronouncing, that, there being permissible valid errors, of, margin(s) upto two years, on, either side, and, theirs further expostulating qua the benefit of, the, upper margin, with, an obvious addition of two years thereon, being validly bestow able, vis-a-vis, the afore relevant age determination(s), (iv) thereupon, on anvil, of, the radiological age determination(s), of, the victim, and, also the dental age determination, of, the victim/prosecutrix, the inference, as, drawable, is, vis-a-vis, the victim/prosecutrix being, a, major at the relevant time. Consequently, also with Ex.DA, vividly revealing that she was a major at the relevant time, and, also when no evidence rather surfaces hence suggestive qua the afore reflections borne in Ex.DA, being not made at the instance of the father-cum-natural guardian, or, the mother-cum natural guardian, of the prosecutrix/victim, hence, it/they acquire(s) an aura of authenticity. Moreover, when after its adduction, by, the learned defence counsel, it was incumbent , upon, the prosecution, to, seek the leave of the learned trial Court, to re-examine PW-1, for hers becoming confronted, with, Ex. DA, (v) whereas, the learned Public Prosecutor rather making the afore omission, thereupon, it becomes concluded, vis-a-vis, the reflections borne in Ex.DA, being inconsonance, with, the radiological age determination(s), and, also dental age determination hence of the victim, and, concomitantly, it/theirs enjoying probative sanctity. 6. Be that as it may, this Court is to yet determine, vis-a-vis, the convict sustaining his defence, vis-a-vis, the victim/prosecutrix volitionally permitting him, to access her. 6. Be that as it may, this Court is to yet determine, vis-a-vis, the convict sustaining his defence, vis-a-vis, the victim/prosecutrix volitionally permitting him, to access her. The best exculpatory evidence, vis-a-vis, the afore defence, is, the statement, of, the prosecutrix, recorded under Section 164 of the Cr.P.C, before the learned Magistrate concerned, and, though the afore made statement by the prosecutrix, became not tendered, into, evidence nor any exhibition mark, became embossed thereon. Nonetheless, it yet does not render it being an inadmissible piece of evidence, rather it becomes an admissible piece, of, evidence, given it being a previous statement recorded in writing, and, also hence becomes a valid exculpatory weapon rather with the defence to, during, the course of conducting cross-examination, upon, the victim, rather confront her therewith. Nonetheless, it yet does not render it being an inadmissible piece of evidence, rather it becomes an admissible piece, of, evidence, given it being a previous statement recorded in writing, and, also hence becomes a valid exculpatory weapon rather with the defence to, during, the course of conducting cross-examination, upon, the victim, rather confront her therewith. Consequently, with the victim, during, the course of her cross-examination, becoming confronted therewith, by the accused/defence, thereupon, it assume(s) an aura, of, admissibility, and, the contents borne therein, vis-a-vis, hers volitionally establishing physical contact with the accused, acquire probative vigour, as, in consonance therewith, she makes testifications, in, court, (a) and, with the learned Public Prosecutor not thereafter seeking permission of the learned trial Court, for, conducting further cross-examination, upon, her, vis-a-vis, the afore facet, (b) especially, vis-a-vis, it being or not volitionally made, besides, his failing to seek an affirmative order, upon, an application cast under Section 311 of the Cr.P.C, for therethroughs, the learned Magistrate concerned being summoned as a witness, for, enabling him, to, ensure emanations, of, echoings, from him, to, hence, nullify, the, apposite certificate made thereon, by the learned Magistrate concerned, inasmuch, as, it being or not hence volitionally made by the prosecutrix, (c) therethroughs, obviously his afore failing(s) to seek permission of the learned trial Court, to, ensure his stepping into the witness box, (i) marshals an inference qua all the afore omissions, garnering a further inference, vis-a-vis, the prosecutrix, though in earlier parts of her cross-examination, consistently negating suggestions meted, to, her by the defence, and, appertaining to hers consensually establishing physical contact, with, the accused, (ii) yet with hers, at the end of her cross-examination, acquiescing qua hers making the afore statement, before the learned Magistrate concerned, (iii) and, reiteratedly with the learned Public Prosecutor omitting to make the afore recourses, (iv) thereupon, the effect of the afore disclosure hence occurring at the end of the cross-examination of the victim, fully override(s), and, under whelm(s), all the earlier therein contrary thereto incriminatory echoings, as, made against the accused. 7. For the fore going reason, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt(s), hence, the accused/appellant, is, acquitted of the charged offences. Consequently, the extant appeal is allowed, and, the judgment of the learned trial Court, convicting, and, sentencing the accused, is set aside. 7. For the fore going reason, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt(s), hence, the accused/appellant, is, acquitted of the charged offences. Consequently, the extant appeal is allowed, and, the judgment of the learned trial Court, convicting, and, sentencing the accused, is set aside. The accused/convict is ordered to be released forthwith from custody. Release warrants be prepared accordingly. Fine amount, if any, deposited by the accused/appellant, be released to him. Records be sent back forthwith. All pending applications also stand disposed of.