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2024 DIGILAW 356 (HP)

Kapil Kumar v. State of H. P.

2024-09-25

SUSHIL KUKREJA, TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The appellant-Kapil Kumar has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years for the commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short the POCSO Act) and to pay a fine of Rs. 25,000/- and in default of payment of fine, he was further directed to undergo imprisonment of similar description for a period of one year. He was further sentenced to undergo simple imprisonment for a period of two years for the offence punishable under Section 506 of IPC and to pay a fine of Rs. 5,000/- and in case of default of payment of fine he was further directed to undergo imprisonment of similar description for a peHriod of one month. Both the sentences were ordered to be run concurrently. 2. Brief facts of the prosecuftion case are that on 20.03.2014 at about 11:30 a.m. Child Line Solan gave a secret information to Police Station, Kandaghat on telephone and requested that police officer be sent to GPS Silhari for recording the statement of complainant. 3. On this information, police visited the spot and recorded Cstatement of complainant master “PA” (name withheld) under Section 154 Cr.P.C. The complainant narrated that he was a student of 4th standard in Government Primary School, Silhari, gand his father was running a Rehri for selling “Chole-Kulche”. His mother was not living with them. A person named Sachida Nand @ Pandit uncle who was doing the work of plumber used to visit their house in the evening and when his father went to sleep, the Pandit uncle used to sexually abuse the complainant “PA” and his sister victim “PY” (name withheld). Complainant alleged that the said Pandit uncle used to put his finger in the anus of complainant and used to take the victim and his sister to his house where they were again sexually abused by the Pandit uncle by putting his penis into vagina of “PY” and anus of “PY” and “PA”. This act was repeatedly committed by Pandit uncle. On the day of Holi, the said Pandit uncle again came to their house and while sleeping in the night, he put his fingHer into the anus of complainant. This fact was disclosed by complainant to one Ranjeet who apprised the father of the fcomplainant. This act was repeatedly committed by Pandit uncle. On the day of Holi, the said Pandit uncle again came to their house and while sleeping in the night, he put his fingHer into the anus of complainant. This fact was disclosed by complainant to one Ranjeet who apprised the father of the fcomplainant. Due to this Ranjeet and father of complainant had beaten Pandit uncle. Complainant also alleged that one another person named Kapil, who was doing the work rof cleaning of bathroom and toilet at Kandaghat, used to take the complainant and his sister behind the bushes where he sexually assaulted them by putting his penis intoC the vagina of “PY”. He also used to lick the private part of “PY” and also give Rs. 20/- to each of the victims. Pandit uncle also used to pay Rs. 10/- to each of the victims. Pandit guncle and Kapil used to threaten the victims not to disclose these facts to anyone. 4. On the basis of the statement of complainant victim, FIR under Sections 376, 377, 506 of the Indian Penal Code (IPC) and under Section 4 of the POCSO Act was registered. 5. The police initiated investigation and medical examinations of victim “PA” and victim “PY” were got conducted at Civil Hospital Kandaghat and thereafter at IGMC Shimla. Spot map was prepared. Police took into possession a shawl, a bottle of oil, pieces of cloth, wrapper of Nirodh and wrapper of Everyday Milk from the spot which were identified by the complainant. 6. Statement of witnesses under Section 161 Cr.P.C. were recorded. The victims were produced before the Judicial Magistrate where their separate statements under Section 164 Cr.P.C. were recorded. The exhibits lifted from the spot were sent to SFSL Junga for the purpose of chemical examination and the report of SFSL Junga was received. After receiving the report of SFSL Junga opinion of the medical officer was obtained on the MLC of the victims. While recording statement under Section 164 Cr.P.C. victim “PY” had disclosed that in addition to accused Sachida Nand and Kapil one Gore Lal, Pankaj and Rajeev had also committed sexual assault on her and subsequently, these persons were impleaded as accused in the present case. While recording statement under Section 164 Cr.P.C. victim “PY” had disclosed that in addition to accused Sachida Nand and Kapil one Gore Lal, Pankaj and Rajeev had also committed sexual assault on her and subsequently, these persons were impleaded as accused in the present case. The investigation revealed that prior to 17.03.2014 accused Sachida Nand, Kapil, Gore Lal, Pankaj and Rajeev had sexually assaulted victim “PA” and victim “PY” and also threatened them and the said incidents could be attributed to a same sequence of events. 7. After completion of investigation, the final report for the commission of offence punishable under Sections 376, 377, 506 of the IPC and under Sections 6 and 10 of the POCSO Act was prepared and produced before the trial Court. 8. The appellant alongwith co-accused was charged for the commission of offences punishable under Sections 376, 377 and 506 of the IPC and Sections 6 and 10 ofH the POCSO Act, to which he pleaded not guilty and claimed trial. 9. The prosecution examined afs many as 25 witnesses and after the closure of the evidence, all the accused persons including the appellant were examined under Section 313 Cr.P.C. All the accused persons inrcluding the appellant examined DW-1 Inspector/SHO Sunita Verma, Women Police Stattion, Solan in their defence. 10. CThe learned Trial Court after recording evidence and evaluating the same, convicted and sentenced the appellant as aforesaid. 11. Aggrieved by the judgment passed by the learned Additional District & Sessions Judge, Fast Track Special Court, Solan, District Solan, the appellant has filed the instant appeal. 12. It is vehemently contended by Mr. Anirudh Sharma, learned counsel for the appellant that the findings recorded by the learned Special Judge are totally perverse and therefore, deserve to be set aside. 13. On the other hand, Mr. I. N. Mehta, learned Senior Additional Advocate General, would argue that the appellant has been convicted and sentenced for serious and heinous crime and therefore, such findings being based on evidence on record, warrant no interference and, thus, the appeal be dismissed. We have heard learned counsel for the appellant and learned Senior Additional Advocate General and have gone through the record carefully. 14. At the outset, it needs to be noticed that out of five convicts, it is only the appellant/convict No. 2 Kapil Kumar, who has chosen to file the insrtant appeal. We have heard learned counsel for the appellant and learned Senior Additional Advocate General and have gone through the record carefully. 14. At the outset, it needs to be noticed that out of five convicts, it is only the appellant/convict No. 2 Kapil Kumar, who has chosen to file the insrtant appeal. Since, the judgment has attained finality qua the other accused, therefore, this Court would only be dealing with the aspect pertaining to the convict Kapil Kumar. 15. It is more than settled that the conviction can be based on the sole testimony of the child victim if it is found to be gcredible, truthful and is corroborated by the evidence brought on record. Needless to say, the corroboration is not must to record a conviction, but a rule of prudence, which the court thinks desirable to see from other reliable evidence placed on record. 16. The learned counsel for the appellant would argue that no credence can be given to the testimony of the child victims as they were tutored and strong reliance is placed on the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh vs. Ramesh & Anr. 2011 (4) SCC 786 , where while dealing with the testimony of a child victim, it was observed as under:- “14. In view of the above, the law Hon the issue can be summarized to the effect that the deposition of a child witness may require corroborat ion, but in case his deposition inspires the confidefnce of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection rbecause he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partloy or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.” 17. He further relied upon another judgment of the Hon’ble Supreme Court in Ranjit Kumar Ram vs. State of Bihar AIR 2015 (Suppl.) SC 1374 , wherein it was observed by the Hon’ble Supreme Court as under:- 14. At the time of occurrence, as well, while deposing in Court, Rubi Kumari (PW2) was aged only seven years. He further relied upon another judgment of the Hon’ble Supreme Court in Ranjit Kumar Ram vs. State of Bihar AIR 2015 (Suppl.) SC 1374 , wherein it was observed by the Hon’ble Supreme Court as under:- 14. At the time of occurrence, as well, while deposing in Court, Rubi Kumari (PW2) was aged only seven years. Evidence of the child witness and its credibility would depend upon the circumstances of each case. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one. Before PW2 was examined as a witness in the court during trial, her statement under Section 164 Cr.P.C. was recorded by the Judicial Magistrate (PW13). In his evidence PW13 has stated that he tested the understanding of witness Rubi Kumari (PW2) and after being satisfied about her understanding, recorded her statement under Section 164 Cr.P.C. When PW2 was examined as a witness in the court during trial, the trial judge had also put preliminary questions to the child witness Rubi Kumari (PW2) anHd satisfied that she was capable of understanding the questions put to her. When the trial court has ascertain ed the discernment of PW2 and has formed an opinion that PW2- Rubi Kumari is competent to testify and then recorded her evidence, we see no reason to discredit PW2’s testimony. PW2 though sole witness, by cotncurrent findings courts below found her evidence unrassailable and we find no ground to take a different vuiew. 18. Theo evidence of the child witness and its credibility would depend upon the circumstances of each case. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one. Obviously, there can be no dispute with the aforesaid proposition but there is a fundamental flaw in the Hargument of the learned counsel for the appellant as he has failed to draw a distinction between a child, who happens to be a victim of the offence and a child who may have witnessed the offence. It is the victim who has actually undergone the ordeal of the crime, whereas the witness has only witnessed the crime, but has not actually undergone the ordeal of the crime. 19. It is the victim who has actually undergone the ordeal of the crime, whereas the witness has only witnessed the crime, but has not actually undergone the ordeal of the crime. 19. Adverting to the facts of the case, it would be necessary to refer to the statement of the victim PA who appeared in the witness box as PW-1 and stated as under:- “The accused Pandit (Sachidanand) present in the court being friend of my father used to visit our house and used to stay for the night. The accused indulged in “Galat Kam” with me and my sister Payal .The accused viuh lwlw okyh txg gekjh ySfV~ju okyh txg eSa Mkyrk Fkk- He used to give us 10/- 20/-.The accused also used to lick my sister's ySfV~ju okyh txg . On 17.03.2014, the accused Pandit came to our house on the eve of Holi. The accused did Galat Kam with my sister during the day time. My sister disclosed this fact to Ranjeet Bhaiya twho later disclosed the same to my father . My fathrer and Ranjeet Bhaiya on that day gave beatings tuo the accused. On 20.03.2014, one female from Child Help Line came to the school and the said matter was disclosed to her. The accused persons named Rajeev, Pankaj and Gore Lal present in the court also indulged in doing Galat Kam with my sister. The accused Kapil present in the court used to take me and my sister to a place on hill near Petrol Pump, on Shimla road Kandaghat and indulged in doing Galat Kam. The accused Kapil g threatened both of us to do away with our lives in case the incident is disclosed to someone.” 20. The victim PY appeared in witness box as PW-2 and stated as under:- “The accused persons Rajeev ,Gore Lal and Pankaj used to do Galat Kam with me and my brother during the day time in absence of my father. The accused Pandit used to visit in the night and indulged in doing “Galat Kam”. The accused Gore Lal used to put his finger inside my lwlw okyh txg (Vagina). The other accused used to put their lwlw okyh txg (penis) into my lwlw okyh txg (Vagina). The accused Kapil used to take me and my brother in bushes at a place behind Petrol Pump, Kandaghat and subjected us to sexual assault. The accused Gore Lal used to put his finger inside my lwlw okyh txg (Vagina). The other accused used to put their lwlw okyh txg (penis) into my lwlw okyh txg (Vagina). The accused Kapil used to take me and my brother in bushes at a place behind Petrol Pump, Kandaghat and subjected us to sexual assault. He used to lick my lwlw okyh txg (Vagina). He used to give money to my brother for not disclosing the incident/acts. The witness has identified the accused persons.” 21. In case a child is tutored, such statement can easily be cracked down in cross-examination and in the instant case the child victims have been cross-examined at length but nothing incriminating has come in such cross-examinations. A suggestion had been put to the victim PW-1 regarding altercation having been taken place between the father and one of the accused Sachida Nand @ Pandit and there was enmity between the accused persons Sachida Nand @ Pandit and Kapil with PW-3 Narinder, the father of the victim. However, we find this plea to be unsubstantiated given the fact that the child victim (PW-1) had admitted that an altercation had taken place between the ifather of the victims and accused Sachida Nand on 17.03.2014, but denied that due to said altercation the accused had been falsely implicated. 22. PW-3 Narinder, the father of the victims, has admitted that his son PW-1 had committed theft in the house of Sachida Nand, but denied that incident occurred on 17.03.2014. He further denied that Sachida Nand had complained about the theft on 17.03.2014 though admitted that an altercation/scuffle had occurred with Sachida Nand on 17.03.2014. But then as observed above, Sachida Nand has not filed any separate appeal and as regards the appellant being falsely implicated, he has not led any evidence worth the name of being falsely implicated. 23. Learned counsel for the appellant would argue that the age of the child victims have not fbeen proved on record. Even this contention is without merit as the prosecution has examined PW-6 Kamlesh Tegta, the In-charge of Government Primary School, who has placed on record the birth certificates of the victims Ext. PW-6/A and Ext. PW-6/B, which have been issued on the basis of the school record, and the same go to show that the date Cof births of the victims are 01.02.2006 and 15.11.2007, respectively. 24. PW-6/A and Ext. PW-6/B, which have been issued on the basis of the school record, and the same go to show that the date Cof births of the victims are 01.02.2006 and 15.11.2007, respectively. 24. Learned counsel for the appellant would then argue gthat the certificate is not in consonance with the provisions contained in Section 94 of the Juvenile Justice Act. 25. Section 94 of the Juvenile Justice Act, reads as under:- “Presumption and determination of age. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining- (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Boardt, if available; and in the absence thereof; (ii) the buirth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 26. Now, once again adverting to the testimony of PW-6, it would be noticed that she had specifically stated as under:- “On the request of the police I prepared the birth certificates Ext. PW-6/A and Ext. PW-6/B on the basis of the school record. Now, once again adverting to the testimony of PW-6, it would be noticed that she had specifically stated as under:- “On the request of the police I prepared the birth certificates Ext. PW-6/A and Ext. PW-6/B on the basis of the school record. I also issued the details regarding admission of the children in the school which is Ext. PW- 6/C. The aforesaid documents are correct as per the school record.” 27. Obviously, the aforesaid statement duly proves the age of the child victims, which is strictly in consona.nce with the provisions contained in Section 94 (supra) of the Juvenile Justice Act and it is probably for this reason that none of the accused persons chose to cross-examine PWo-6. 28. As regards false implication of the appellant, as sought to be argued repeatedly by his counsel, it needs to be noticed that the child victims have in their testimonies clearly stated that the money was being paid by accused Sachida Nand @ Pandit and Kapil to the child victims and it requires no rocket science to appreciate that this is one of the persuasive methods which is generally adopted by sexual offenders to keep their misdeeds obscure as has rightly been observed by the learned Trial Court. 29. Moreover, the child victims have not only deposed about the incident against all the accused persons but have also led the police party to the spot near the petrol pump from where one bottle of oil, milk powder and wrapper of condom were recovered. They also got recovered shawl and pointed out the different places where they have been abused by the accused persons. All these proceedings have been videographed and memo Ext. PW-3/A was prepared and police also took into possession the above articles alongwith two clothes pieces and towel at the spot behind the bushes that were identified by the child victims where they had been sexually abused. The same piece of clothes was detected with human semen vide report Ext. PW-15/J. Thus, going by the description of the offence committed by the appellant Kapil with both the victims and its manner as has been narrated by the victims, further leading to the recovery of incriminating articles gives credibility to their statements. 30. The same piece of clothes was detected with human semen vide report Ext. PW-15/J. Thus, going by the description of the offence committed by the appellant Kapil with both the victims and its manner as has been narrated by the victims, further leading to the recovery of incriminating articles gives credibility to their statements. 30. It needs to be noticed that the allegations against the accused Sachida Nand and appellant Kapil Kumar were made by the victim for the first time before the members of the Child Helpline and there was no occasion for the victims to have falsely implicated the appellant and other accused persons. 31. The MLCs of both the child victims clearly disclose the commission of the offence. MLC of PA Ext. PW-8/B reveals that Medical Officer had examined PA on 29.5.2014 and opined “however, anal intercourse cannot be ruled out due to patulus anal canal tone of sphincter. There was post anal tissue also at 5 O’clock, which on examination seems to be chronic. After obtaining surgical opinion the possibility of earlier anal intercourse was not ruled out.” 32. As regards final opinion of MLC of victim PY, it is clearly mentioned that “nothing suggestive of sexual intercourse was found but as per the report Ext. PW15/J it was suggestive of detection of human blood in vaginal swab, introits swab external vaginal swab, pajami (PY) origin of which cannot be clarified.” 33. Both the child victims have made specific allegations of penetration of penis by the accused persons in the vagina, mouth and anus of the child victims. The victims have also specifically alleged that the accused persons applied their mouth to their private parts and made them to do so with the accused. There is sufficient evidence in the statements of the child victims to establish that the accused persons manipulated the body parts of the child victims and thus the contents of penetrative sexual assault specifically mentioned under Section 3 of the POCSO Act are clearly made out. 34. In view of the aforesaid discussion and for the reasons stated above, we find no merit in the instant appeal and the same is accordingly dismissed.