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2023 DIGILAW 647 (UTT)

Bharat Thapa v. State of Uttarakhand

2023-11-28

VIVEK BHARTI SHARMA

body2023
JUDGMENT : Vivek Bharti Sharma, J. The criminal appeal is directed against the judgment and order dated 06.11.2023 passed by the Special Sessions Judge (POCSO)/Additional District Judge, Dehradun in Special Sessions Trial No.102 of 2021, “State vs. Bharat Thapa”, whereby the appellant/convicted has been convicted under Section 363 of IPC and has been sentenced to undergo three years rigorous imprisonment with fine of Rs.10,000/-. 2. Counsel for the appellant would submit that the prosecutrix was examined as PW1 in the trial court and she has specifically stated in her testimony in the examination in chief she had left her home with her own volition due to fear of her parents and the appellant/convict had not done any wrong with her. 3. The appeal is admitted for hearing. 4. Counsel for the appellant/convict would submit that certified copies of the statements of all the witnesses examined in the trial court have been filed along with the appeal and the appeal may be heard on merit today itself. 5. Counsel for the State would submit that he has no objection if the appeal is heard finally today itself. 6. Heard learned counsel for the appellant/convict as well as the State Counsel on merit. 7. Counsel for the appellant/convict reiterated his arguments made for the admission with further submission that there is no evidence against the appellant/convict and the impugned judgment is based on surmises and conjectures. He would further submit that the trial court has not applied its mind and in stereotype manner has recorded the judgment of conviction against the appellant/convict without there being any cogent evidence on record. 8. Per contra, counsel for the State would submit that, though there is no evidence whatsoever regarding any suggestion made by the appellant/convict for eloping with him, but the age of the prosecutrix at the time of the incident was 16 years. Therefore, it cannot be said that the impugned judgment is bad in the eyes of law. 9. In light of the respective submissions made by the counsel for the respective parties, this Court perused the record, the memo of appeal and statements of witnesses filed along with the memo of appeal. 10. Therefore, it cannot be said that the impugned judgment is bad in the eyes of law. 9. In light of the respective submissions made by the counsel for the respective parties, this Court perused the record, the memo of appeal and statements of witnesses filed along with the memo of appeal. 10. The evidence of the prosecutrix recorded as PW1 (Annexure No.2) reveals that she stated in the examination-in-chief that the appellant/convict was known to her as he was her neighbour; that, she used to meet him and they used to like each other; that, on 10.04.2021 because of the fear of the family members they left for visiting Mussoorie, however, as the rent of the rooms at Mussoorie was exorbitant, therefore, they left for Haridwar where there was Kumbh ongoing and they could get free food and shelter; that, the appellant/convict purchased clothes for the prosecutrix and when the money they were having was finished they came back to their home. 11. As the statement of prosecutrix was not as per the case of prosecution, therefore, the opportunity was given to the prosecution to cross examine her. In the cross-examination by the State, she unequivocally denied the fact that she had stated anything to the Investigating Officer or the Magistrate that physical relationship were made by the appellant/convict and she also denied the suggestion that it was the appellant/convict who had seduced her go with him to Mussoorie and thereafter to Haridwar. 12. In the cross-examination by the defence, she reiterated the same facts and further testified that on 08.04.2021 her father had beaten her and therefore in anguish and fear she left her home; that, in Haridwar in a tented colony there were separate tents for men and women and no physical relationship was established between her and the appellant/convict. She further testified in her cross-examination by defence that the statement under Section 164 Cr.P.C. was made on the instructions of the police and she further testified that she herself had instructed the appellant/convict to take her Mussoorie. 13. Counsel for the State would admit at Bar that the Magistrate who had recorded the statement of the prosecutrix u/s 164 Cr.P.C. was not summoned in the trial court to prove the statements of the prosecutrix recorded u/s 164 Cr.P.C. recorded by her. 13. Counsel for the State would admit at Bar that the Magistrate who had recorded the statement of the prosecutrix u/s 164 Cr.P.C. was not summoned in the trial court to prove the statements of the prosecutrix recorded u/s 164 Cr.P.C. recorded by her. Thus, the veracity and truthfulness of the statement recorded u/s 164 of Cr.P.C statement of the prosecutrix is not proved. 14. The Counsel for the State would further submit that in the evidence of PW2 Dr. Rita Bhandari the hymen of the prosecutrix were found torn. 15. In view of the submissions, the statement of PW2 Dr. Rita Bhandari was perused and in her cross examination by defence she has admitted the fact that the tearing of the hymen could take place because of the intense physical work or exercise. She also admitted that there was no injury on the private parts of the prosecutrix when she was examined by her. 16. The age of the prosecutrix is not under any doubt and was not disputed by any of the party before the Trial Court. 17. PW3, the father of the prosecutrix in examination in chief, has stated that he had lodged report against the appellant/convict as he was mislead by the people to lodge the report against him. 18. PW5, the mother of the prosecutrix in examination-in-chief itself, has stated that she did not state anything that the appellant/convict had seduced her daughter and committed any sexual assault upon her. 19. Having re-appreciated the entire evidence available on file, in the considered view of this Court, the prosecution has miserably failed to prove the case against the appellant/convict. The impugned judgment is against the facts and evidence on record and the same is not sustainable in the eyes of law. It is evidently clear that the Trial Court Judge has not applied his judicial mind. The impugned judgment of conviction is without any judicious appreciation of evidence. Rather the evidence is that there was no seduction or enticement by appellant/convict. 20. Hon’ble Supreme Court in “S. Varadarajan Vs. State of Madras” 1965 AIR 942; 1965 (1) SCR 243 ” has observed that it should be borne in mind that there is distinction between “taking” and allowing a minor to accompany a person; that, these two expressions are not synonymous. 21. 20. Hon’ble Supreme Court in “S. Varadarajan Vs. State of Madras” 1965 AIR 942; 1965 (1) SCR 243 ” has observed that it should be borne in mind that there is distinction between “taking” and allowing a minor to accompany a person; that, these two expressions are not synonymous. 21. In considered view of this Court, it is apparent from testimony of the prosecutrix that no seduction or enticement was made by the appellant/convict to her for leaving the house. 22. Accordingly, criminal appeal is allowed. Impugned judgment and order dated 06.11.2023 passed by the Special Sessions Judge (POCSO)/Additional District Judge, Dehradun in Special Sessions Trial No.102 of 2021, “State vs. Bharat Thapa”, is hereby set aside. 23. The appellant is in jail. Let the appellant be released forthwith if not wanted in any other case.