IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 512 of 2016
Reserved on: 21.07.2017
.
Decided on: 03.08.2017
_
Kuldeep Singh …..Appellant.
Versus
State of Himachal Pradesh ……Respondent.
_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? No.
_
For the appellant: Mr. G.R. Palsra, Advocate.
For the respondent: Mr. V.S. Chauhan, Addl. AG, with
Mr. J.S. Guleria, Asstt. AG.
Chander Bhusan Barowalia, Judge.
The present appeal has been preferred by the
appellant/accused/convict (hereinafter referred to as “the accused”)
challenging the judgment dated 02.11.2016, passed by the learned
Special Judge, Bialspur, H.P. in Sessions Trial No. 20/7 of 2015,
whereby he was convicted for the commission of offence punishable
under Sections 376 and 506(ii) of Indian Penal Code, 1860
(hereinafter referred to as “IPC”) and under Sections 4 and 8 of
Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as “POCSO Act”).
1
Whether reporters of Local Papers may be allowed to see the judgment?
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2. The factual matrix of the case, as per the prosecution
story, are that on 12.08.2015, around 03:30 p.m., when the
.
prosecutrix, a minor girl (name withheld), was returning from school,
in Chowgan area, near village Panol, the accused pounced upon her,
dragged her to fields, broke the string of her salwar and started
inserting his fingers into her vagina, thus in this manner the
accused committed rape upon the prosecutrix by penetrative sexual
assault. The accused also threatened the prosecutrix that he will
eliminate her in case she divulges the incident to anyone.
r It has
further come in the prosecution story that on 17.08.2015, around
06:30 a.m., when the prosecutrix was sleeping in her house, the
accused pressed her breasts, thus he committed sexual assault
upon the prosecutrix. The father of the prosecutrix, by medium of a
complaint, reported the matter to the police, whereupon police
registered an FIR against the accused under Sections 376, 506(ii)
IPC and Sections 4 and 8 of POCSO Act. The investigation ensued
and the police took into possession ‘salwar’ of the prosecutrix, which
was sealed in a parcel having seal impression ‘M’. The statement of
the prosecutrix, under Section 164 Cr.P.C., was recorded before the
learned Additional Chief Judicial Magistrate, Ghumarwin. The
prosecutrix was medically examined and her medico legal certificate
was obtained. The record qua date of birth of the prosecutrix was
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also obtained from Government High School, Bhager. The spot of
occurrence, i.e., where the accused dragged the prosecutrix, was
.
photographed. The case property was sent for Regional Forensic
Science Laboratory, Mandi, for chemical analysis and report
therefrom was obtained. The medical examination of the accused
and his medico legal certificate was also procured by the police. Site
plans of the spot of occurrences were prepared and the statements of
the witnesses, under Section 161 Cr.P.C., were also recorded. After
completion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as
many as fourteen witnesses. Statement of the accused was recorded
under Section 313 Cr.P.C., wherein he denied the prosecution case
and claimed innocence. The accused while replying to Question No.
21 stated as under:
“A:21. Do you want to say anything else?
Ans. Path leading to the house of the prosecutrix
goes from the court yard of my house. Shri
Ramesh chand used to visit the house of the
prosecutrix during odd hours. Since ShriRamesh Chand used to pass through my
court yard during odd hours, I objected to it.
He threatened to teach me a lesson in future
and got involved me in this false case after
joining hands with the complainant party. I
am innocent.
In defence, the accused did not examine any witness.
4. The learned Trial Court, vide impugned judgment dated
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02.11.2016, convicted the accused for the offence punishable under
Sections 376, 506(ii) IPC and Sections 4 and 8 of POCSO Act, and
.
sentenced him to undergo imprisonment as under:
Under Rigorous imprisonment for a
Section period of ten years and fine of
376 of IPC `25,000/-. In default of payment
of fine, to undergo further
imprisonment for one year.
Under Simple imprisonment for a period
Section of one year.
506(ii) IPC
Under Rigorous imprisonment for a
Section 4 period of seven years and fine of
of POCSO `15,000/-. In default of payment
Act of fine, to undergo further
imprisonment for six months.
Under
Rigorous imprisonment for a
Section 8 period of three years and fine of
of POCSO `10,000/-. In default of payment
Act of fine, to undergo further
imprisonment for six months.
The learned Trial Court ordered that all the sentences shall run
concurrently and out of total fine amount of `50,000/-, `40,000/-
was ordered to be paid to the prosecutrix as compensation.
Aggrieved against the impugned judgment of conviction, the
accused/convict has preferred the present appeal.
5. We have heard the learned Counsel for the
accused/appellant and the learned Additional Advocate General for
the respondent/State.
6. The learned counsel for the appellant has argued that
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the case against the appellant is the result of manipulation by one
Ramesh Kumar, who was, in fact, involved with the prosecutrix and
.
to teach a lesson to the accused, a false case has been registered
against the appellant. He has further argued that the prosecution
has failed to prove the guilt of the appellant beyond reasonable
doubt and the judgment of the learned Trial Court may be set aside.
Conversely, the learned Additional Advocate General has argued that
the prosecution has proved the guilt of the accused beyond the
shadow of reasonable doubt. He has further argued that as far as
Ramesh Kumar is concerned, he has been separately convicted in
another trial and the accused cannot take benefit of the conviction of
Ramesh Kumar. He has argued that as the prosecution has proved
the guilt of the accused beyond the shadow of reasonable doubt, so
the appeal may be dismissed.
7. In order to appreciate the rival contentions of the parties,
this Court has gone through the statements of the prosecution
witnesses in detail and also the record carefully.
8. Manifestly, the alleged offence of the first occurrence has
not been witnessed by anyone and thus, at the very outset, the
statement of the prosecutrix is being discussed. As the prosecutrix
was a minor witness, the learned Trial Court, by putting certain
questions to her, to which she replied correctly, found her
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sufficiently mature in understanding the things. She has deposed
that on 12.08.2015, around 03:30 p.m., when she was returning
.
home from her school, the accused caught hold of her from her waist
and dragged her to nearby field. The accused broke the string of her
salwar and inserted his fingers in her vagina. He also threatened
that in case she divulges the incident to anyone, he will kill her
parents. She has further deposed that she wore her salwar by tying
knots in her broken string. She did not narrate the incident to her
parents due to fear.
9. On 17.08.2015, around 06:30 a.m. when she was
sleeping and her parents were not there, the accused came and
pressed her breasts. On 22.08.2015 the prosecutrix divulged the
occurrences to her parents and the matter was reported to the
police. She was medically examined and she handed over her salwar
to the police, which was taken into possession vide memo, Ex. PW-
1/A. She has further deposed that her statement, Ex. PW-2/A, was
recorded in the Court at Ghumarwin. As per the prosecutrix, when
she went to Police Station, Ghumarwin, for lodging the report,
Ramesh Kumar met her and before that on the same day, i.e. on
22.08.2015 he raped her in District Hospital, Bilaspur. She has
deposed that she had gone to hospital to bring medicines for her
mother, who was indisposed. She did not disclose to the police,
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while lodging the FIR, that she had been raped by Ramesh Kumar.
She was threatened by Ramesh Kumar that in case she divulges the
.
incident to anyone, he will kill all of them. She has further deposed
that for the first time she revealed about Ramesh Kumar, who is her
masad, before the police on 10.11.2015. The prosecutrix, in her
cross-examination, has deposed that she did not remember the time,
when she was raped by Ramesh Kumar and she did not narrate the
incident to her parents. She has further deposed that Ramesh
Kumar used to come to their house and they had amiable relations.
She denied the suggestion that fields belong to one Smt. Hakmi Devi.
She has further deposed that villagers use the path which is near to
the maize field (spot of occurrence). She told to mother of one Pyare
Lal, whose house is near to maize fields, that accused is obstructing
her, who in turn advised her to go from another path, but in the
statement given to the police it is not so recorded. As per her
version, she divulged to the police that her younger sister was
sleeping with her when the accused pressed her breasts, however, in
her statement, Ex. DB, given to the police, it is not so recorded. She
has further deposed that on 22.08.2015, she alongwith her father
went to Police Station, Ghumarwin, and Ramesh Kumar had
accompanied them. On 12.08.2015, during the occurrence she cried
for help, but the accused muzzled her mouth. She has stated that
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she did not raise any alarm when the accused pressed her breasts
and the occurrence was witnessed by her sister. On 17.08.2015 she
.
narrated to her parents that the accused pressed her breasts.
10. PW-2, Smt. Seema Devi, mother of the prosecutrix,
deposed that on 22.08.2015 the prosecutrix informed her that
accused used to tease her. The prosecutrix also narrated to her that
on 12.08.2015 when she was coming from school, the accused was
hiding in maize crop field. The accused pounced upon her and
dragged her to field and inserted fingers in her vagina. As per this
witness, on 17.08.2015, when she was away to fields, the accused
came in their house and pressed the breasts of the prosecutrix. The
accused also threatened the prosecutrix that in case she divulges the
incident to anyone, he would kill her. She has further deposed that
she recounted the incident to her husband and the matter was
reported to the police. Police prepared the site plans and salwar of
the prosecutrix was taken into possession, vide seizure memo Ex.
PW-1/A. This witness, in her cross-examination, deposed that there
is another path from the maize field, which leads to their house and
the same also leads to the village. She has stated that on
12.08.2015 the prosecutrix was returning home from the other path.
She feigned her ignorance that on that day Smt. Bhaga Devi met the
prosecutrix. As per this witness, on 17.08.2015, the prosecutrix
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alongwith her sister was sleeping in the house and accused came
and pressed the breasts of the prosecutrix. Her younger daughter,
.
disclosed this incident to her on the same day. She disclosed this
fact to the police, but in her statement, Ex. DA, this fact has not
been recorded. As per this witness, on 22.08.2015, one Ramesh
Kumar, who is working as Driver in District Hospital, Bilaspur, had
raped the prosecutrix. On 22.08.2015 she sent the prosecutrix to
District Hospital, Bilaspur, to bring medicines for her. The
prosecutrix left for the hospital at 08:30 a.m. and returned home at
10:00 a.m. She was informed by the prosecutrix that around 09:00
a.m. she was raped by Ramesh Kumar in the hospital. She has
further deposed that the prosecutrix used to call Ramesh Kumar as
masad. The accused and Ramesh Kumar were having hostile
relations. Ramesh Kumar met them outside the Police Station when
they lodged the FIR against the accused.
11. PW-4, Dr. Bandana Gautam, deposed that on
22.08.2015, on application Ex. PW-4/A, moved by the police, she
medically examined the prosecutrix, who was brought with the
alleged history of sexual assault. She found no scar, injury or
swelling on face, neck, both breasts and around vaginal region of the
prosecutrix. She took into possession the vaginal swabs, slides,
blood on FTA card, blood sample and pubic hair of the prosecutrix
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and sealed them with the seal of the hospital and handed over the
same to Lady Constable Sarita (PW-8). She issued Medico Legal
.
Certificate, Ex. PW-4/B, which bears her signatures. After receipt of
chemical report, Ex. PW-4/C, this witness opined that the possibility
of intercourse cannot be ruled out, however, she reserved her final
opinion, which was to be given after receipt of DNA profiling. This
witness, in her cross-examination, has deposed that she did not
conduct ossification test for ascertaining the age of the prosecutrix.
She also did not conduct any test for ascertaining that the
prosecutrix has suffered any internal injury or not.
12. PW-14, Dr. Anuj Sharma, deposed that on 22.08.2015,
on receipt of application, Ex. PW-13/I, moved by the police, he
medically examined the accused and found him capable of
performing sexual act. He has further deposed that he took into
possession underwear, pubic hair, blood and nails of the accused,
which were sealed and handed over to the police for chemical
analysis. He has also issued Medico Legal Certificate, Ex. PW-14/A,
qua the accused.
13. PW-3, Shri Inderjit (father of the prosecutrix) deposed
that on 22.08.2015, his wife (PW-1) informed him that accused
teased the prosecutrix. He has further stated that his wife had also
informed him that on 12.08.2015 when the prosecutrix was
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returning home from the school, the accused, who was hiding,
caught hold of the prosecutrix from her back, dragged her to fields,
.
broke the string of her salwar and inserted fingers in her vagina. He
made complaint, Ex. PW-3/A, to the police, which bears her
signatures. This witness, in his cross-examination, deposed that
only one path leads to their house from chaugan. He has denied that
on 12.08.2015 the prosecutrix was returning home through another
path. He has admitted that Ramesh Kumar accompanied them to
the police station, as he met them outside the police station.
14. PW-5, Shri Laxman Singh, Head Master, Government
High School, Bhager, deposed that as per the school record the date
of birth of the prosecutrix is 04.06.2002. He handed over the copy of
admission and withdrawal register of the school to the police, which
is Ex. PW-5/A. This witness, in his cross-examination, did not
depose anything which is contrary to the prosecution case. PW-6,
Smt. Sunita Mehta, Junior Assistant, Municipal Council, Bilaspur,
deposed that as per the Municipal records, the prosecutrix was born
on 04.06.2002 and qua this fact an entry had been made at Sr. No.
756 of the register and Certificate, Ex. PW-6/A, was prepared, as per
the records. She handed over the certificate to the police vide memo
Ex. PW-6/B. In cross-examination of this witness nothing averse to
the prosecution has come.
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15. Now, the statements of the official prosecution witnesses,
is to be seen. PW-7, HC Mohinder Singh, MHC, Police Station,
.
Ghumarwin, deposed that on 22.08.2015 PW-13, S.I./SHO Ashok
Chauhan deposited with him a sealed parcel alongwith facsimile
seal. He has further deposed that on the same day, Lady Constable
Sarita Devi (PW-8) also deposited a sealed parcel, which was sealed
with seals of hospital. On the same day, Constable Raj Kumar also
deposited with him four sealed parcels and an envelope. He made
relevant entries in the malkhana register qua deposit of the aforesaid
case property. The relevant abstract of the malkhana register is Ex.
PW-7/A. As per the version of this witness, on 28.08.2015, he had
sent, through Lady Constable Usha Kumari, vide RC No. 204 of
2015, all the parcels, sample seals, docket, copy of FIR and MLCs to
Regional Forensic Science Laboratory, Mandi, for chemical analysis
and RC, Ex. PW-7/B, was handed over to him. Ex. PW-4/C is
chemical report received in the police station and in the malkhana
register entries in this regard were made by him. The case property
remained intact under his custody. He issued CIPA certificate,
which is Ex. PW-7/C. PW-8, Lady Constable Sarita Devi, deposed
that on 22.08.2015 she accompanied S.I../SHO Ashok Chauhan
(PW-13) to village Amarpur. The prosecutrix produced her salwar,
which was taken into possession vide memo, Ex. PW-1/A, which
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bears her signatures. She took the prosecutrix to Civil Hospital,
Ghumarwin, for her medical examination and after the examination
.
the doctor handed over to her the medico legal certificate of the
prosecutrix and a sealed parcel. On the same day, she deposited the
same with MHC Mohinder Singh (PW-7). As per her version, birth
certificate, Ex. PW-6/A, was taken into possession vide memo Ex.
PW-6/B, which also bears her signatures. This witness, in her
cross-examination, deposed that she did not remember the time
when she went to the spot on 22.08.2015 alongwith SHO.
16. PW-9, ASI Nand Lal, deposed that he had partly
investigated the case and took into possession birth certificate,
Ex.PW-6/A, vide seizure memo Ex. Pw-6/B. He also recorded the
statements of Sunita Mehta (PW-6) and Lady Constable Sarita Devi
(PW-8). Thereafter, he handed over the case file to SHO for further
investigation. PW-10, Head Constable Lalit Kumar, deposed that in
November, 2015, he was officiating as MHC, as regular MHC was on
leave. He has proved copy of FIR No. 281 of 2015, which is Ex. PW-
10/A. PW-11, Lady Constable Usha Kumari, deposed that on
28.08.2015 MHC Mohinder Singh, vide RC No. 204/2015, handed
over him four sealed parcels, one sealed envelope, specimen of seal,
copy of FIR, medico legal certificates and docket to him, which she
deposited on the same day in Regional Forensic Science Laboratory,
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Mandi, and on return RC was given by him to MHC. As per this
witness, the case property remained intact under her custody. PW-
.
12, HC Parkash Chand, deposed that he partly investigated the case
and on 17.11.2015 he recorded the statement of PW-5, Shri Laxman
Singh, under Section 161 Cr.P.C. He handed over the case file to
SHO for further investigation.
17. PW-13, S.I. Ashok Chauhan, deposed that on 22.08.2015
the prosecutrix and her father, Shri Inder Jeet (PW-3) came to the
police station and moved complaint, Ex. PW-3/A, whereupon FIR,
Ex. PW-13/A, was registered. The prosecutrix, vide application
Ex.PW-4/A, was sent for medical examination. He prepared spot
map, Ex. PW-13/B, and photographs, Ex. PW-13/C to Ex.PW-13/G,
were taken by him with his mobile phone. Subsequently, he went to
the house of the prosecutrix and site plan, Ex. PW-13/H, was
prepared. The prosecutrix produced her salwar, which was taken
into possession, in presence of witnesses, vide seizure memo Ex. PW-
1/A. He recorded the statement of the witnesses and the accused
was arrested. The accused was medically examined and his medico
legal certificate was also obtained. The statement of the prosecutrix
was got recorded under Section 164 Cr.P.C. in the Court. As per this
witness, the parcel containing salwar of the prosecutrix was sent to
Forensic Science Laboratory, Junga, for D.N.A. test, however, no
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report has been received. This witness, in his cross-examination,
has deposed that initially he went on the spot of occurrence on
.
12.08.2015 and he did not call any villager on the spot. He has
voluntarily deposed that the spot of occurrence is a solitary place
and when he visited the same the prosecutrix and her father were
with him. He feigned his ignorance that house of one Shri Shiv
Singh is near to point ‘D’, as depicted in site map, Ex. PW-13/B and
another path leads to the house of the prosecutrix from point ‘X’, as
reflected in site plan, Ex. PW-13/B. He also feigned his ignorance
that houses of S/Shri Ramesh, Kailu and Munshi Ram are near to
point ‘F’ and houses of S/Shri Piare Lal, Jagdev, Bablu, JaiRam, Jai
Kishan, Baldev and Sita Ram are near to point ‘E’, as depicted in
spot map, Ex. PW-13/B.
18. After thoroughly discussing the entire prosecution
evidence, this Court finds that DNA reports received from State
Forensic Science Laboratory, Junga, qua the prosecutrix, accused
and Ramesh Chand are of valuable aid in deciding innocence or guilt
of the accused. Thus, the relevant portions of the reports are
extracted hereunder for ready reference:
Report qua the prosecutrix and the accused:
“Description of Parcels/Exhibits
Parcel-1: One sealed parcel bearing one seal of Biology
Serology, RFSL Mandi. The Parcel contained03/08/2017 23:57:17 :::HCHP
16exhibit-1a and 1b.
Exhibit-1a: Two cotton swabs wrapped at one end of
each plastic stick were present in respective test
tubes. The exhibit was mentioned as vaginal
swabs of ….. (the prosecutrix).
.
Exhibit-1b: One FTA card having brown stains. The
exhibit was mentioned as blood sample of ………
(the prosecutrix).
Parcel-2: One sealed parcel bearing one seal of Biology
Serology, RFSL Mandi. The parcel contained
exhibit-2.
Exhibit-2: One white coloured salwar. The exhibit was
mentioned as salwar of …….. (the prosecutrix).
Parcel-3: One sealed parcel bearing one seal of Biology
Serology, RFSL Mandi. The parcel contained
exhibit-3.
Exhibit-3: Small plastic container having dried brown
rstains inside and emitted putrefaction smell. The
exhibit was mentioned as blood sample of
Kuldeep Singh.
LAB EXAMINATION Results
DNA isolation was carried out from aforesaid exhibits
through Organic method and differential extraction.
The isolated DNA was checked for quality and quantity
by 0.8% agarose gel electrophoresis and ethidium
bromide staining. The DNA was subjected to Multiplex
PCR for co-amplification of 20 STR loci and Amelogenin
using Powerplex 21® PCR Amplification Kit. The
amplified products along with controls wee run on
automated DNA sequencer (ABI 3130). DNA profiles
were prepared and analysis was carried out using Gene
Mapper ID Software v 3.2. The results were as
under:-
1. The DNA profile obtained from Exhibit-1a
(vaginal swab,……{the prosecutrix}) was of male origin
which was different from DNA profile obtained from
Exhibit-3 (Blood sample, Kuldeep Chand).
2. Exhibit-2 (salwar,……{the prosecutrix}) yielded
highly degraded DNA that did not show amplification
with Powerplex 21® PCR Amplification Kit PCR
amplification kit. Hence no DNA profile could be
generated.”
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Report qua the prosecutrix and Ramesh Kumar:
“Description of Parcels/Exhibits
Parcel-1: One sealed parcel bearing one seal of
.
Biology Serology, Division State FSL, Junga. The
parcel contained exhibit-1.
Exhibit-1: Two cotton swabs wrapped at one end of
plastic stick each and were present in the respective test
tubes. The exhibit was mentioned vaginal swabs of……. (the prosecutrix).
Parcel-4: One sealed parcel bearing one seal of
Himachal Pradesh Kshetri Parishad Jantai Janadran.
The parcel contained exhibit-4.
Exhibit-4: One FTA card having brown stains. The
exhibit was mentioned as blood sample of Ramesh
Chand.
LAB EXAMINATION Results
DNA isolation was carried out from aforesaid exhibits
through Organic methods and differential
extraction. The isolated DNA was checked for quality
and quantity by 0.8% agarose gel electrophoresis and
ethidium bromide staining. The DNA was subjected to
Multiplex PCR for co-amplification of 20 STC loci andAmelogenin using using Powerplex 21® PCR
Amplification Kit. The amplified products along with
controls were run on automated DNA sequencer (ABI
3130). DNA profiles were prepared and analysis was
carried out using Gene Mapper ID Software v 3.2.
The results were as under:-
1. The DNA profile obtained from Exhibit-1 (vaginal
swab,…… (the prosecutrix) matched completely with the
DNA profile obtained from Exhibit-1b (Blood sample of
same victim i.e. ……..(the prosecutrix)) received vide fileno2136 /SFSL/DNA(293)/15, docket No 8856/5a dt
30.09.15 P.S Ghumarwien.
2. The male DNA profile obtained from Exhibit-1a
(vaginal swab, ……(the prosecutrix)) received vide file
no2136 /SFSL/DNA(293)/15, docket No 8856/5a dt
30.09.15 P.S. Ghumarwien matched completely with
the DNA profile obtained from Exhibit-4 (Blood sample,
Ramesh Chand).”
19. As far as first incidence is concerned, it is correct that as
per the prosecutrix, she was all alone, but the fact that why the
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accused, only after allegedly inserting his fingers in her private parts,
left her. The prosecutrix could not give any plausible explanation to
.
the effect that why the accused only after inserting his fingers in her
private parts left her alone, it creates a doubt in the prosecution
story, when this Court finds that DNA on vaginal swabs matched
with the DNA of Ramesh Kumar, who remained with the prosecutrix
and her family on 22.08.2015 when FIR was lodged. As per the
prosecution evidence on 22.08.2015, at about 11:00 a.m., Ramesh
Kumar was present with the prosecutrix in the police station and the
DNA report received from State Forensic Science Laboratory, Junga,
qua the prosecutrix and Ramesh Kumar, reveals that on 22.08.2015,
in between 9-10 a.m., Ramesh Kumar has committed sexual
intercourse with the prosecutrix in the hospital, where she has gone
to bring medicines for her mother. In the present set of
circumstances, the explanation of the accused that he was falsely
roped in by Ramesh Kumar, as the accused obstructed Ramesh
Kumar to go to the house of the prosecutrix from the path, which
passes from the courtyard of the accused, seems plausible. Further,
the prosecutrix, in her cross-examination, has deposed that on
17.08.2015, in the morning, at about 06:30 a.m., the accused
pressed her breasts, when she was sleeping alongwith her sister.
However, nothing is emanating from the record that when the
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accused was pressing the breasts of the prosecutrix, what action did
the sister of the prosecutrix or prosecutrix take. The prosecution
.
evidence demonstrates that Ramesh Kumar, who was so called
masad of the prosecutrix and used to come to her house, was having
affable relations with the family of the prosecutrix and he was
instrumental in lodging the FIR against the accused, as he
accompanied the prosecutrix and her father to the police station for
lodging the FIR, thus, it cannot be ignored that Ramesh Kumar
played an active role in getting lodged an FIR against the accused.
The DNA report qua the prosecutrix and Ramesh Kumar
unambiguously demonstrates that Ramesh Kumar had sexual
intercourse with the prosecutrix just approximately 30-60 minutes
before (as the DNA profile obtained from the vaginal swab of the
prosecutrix completely matched with the DNA profile obtained from
the blood sample of Ramesh Kumar) lodging the FIR against the
accused. However, the prosecutrix did not utter any word against
Ramesh Kumar. Thus, withholding of facts by the prosecutrix
creates a doubt in the prosecution story. A symmetrical scrutiny of
the prosecution story and the available evidence raise following
suspicions:
(a) The association of Ramesh Kumar, who, as per
the DNA report, committed sexual intercourse03/08/2017 23:57:17 :::HCHP
20with the prosecutrix on 22.08.2015 just
approximately 30-60 minutes before lodging of
the report against the accused, and his.
remaining throughout with the prosecutrix
and her parents in the police station on that
day, coupled with the fact that for inexplicablereasons the prosecutrix did not whisper or
murmur against Ramesh Kumar that he had
committed sexual intercourse with her, if readin conjunction with the explanation given by
the accused in his statement recorded under
Section 313 Cr.P.C., the same creates a doubtupon the veracity of the prosecution story and
renders it improbable.
(b) The prosecutrix portrayed the facts that on
12.08.2015 the accused dragged her in the
maize field and he left her after inserting his
fingers into her private parts, are
unconvincing and it makes the prosecution
story wholly doubtful, as the prosecutrix did
not explain that what prompted the accused to
left her without committing sexual intercourse.
Why the accused left the prosecutrix without
committing sexual intercourse, whether the
prosecutrix cried for help or someone came on
the spot, are the questions which remained
unanswered and the prosecution could not
explain these facets of the case, which
certainly go against the prosecution story
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rendering it highly doubtful.
(c) Likewise, the medico legal certificate of the
prosecutrix depicts no positive evidence of
.
sexual intercourse by the accused with her,
thus the medical evidence also shakes the
pillars of the edifice of the prosecution case.
(d) The mother of the prosecutrix has not stated
anything why she remained silent, when her
younger daughter told her that accused
pressed the breasts of the prosecutrix on
17.08.2015.
(e) In the complaint written by the father of the
prosecutrix, on the basis of which FIR was
registered, the alleged incidence in the maize
field is stated to have happened on 17.08.2015
and the alleged incidence in the house of the
prosecutrix is stated to have happened on
12.08.2015 and on the similar lines the FIR
was got recorded. This contradiction, when
seen alongwith the above mentioned factors,
creates a dent in the prosecution story.
(f) Last, but not the least, non-examination of the
sister of the prosecutrix, who was sleeping
alongwith her on 17.08.2015, when the
accused allegedly pressed the breasts of the
prosecutrix in the morning, makes the
prosecution story doubtful.
20. Besides the above enumerated lacunae in the
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22
prosecution story, there are other loopholes as well. It has also come
in the prosecution story that on 12.08.2015 one Bagga Devi was also
.
there, to whom the prosecutrix complained about the accused, but
surprisingly and for unexplained reasons she was not examined by
the prosecution and the same weakens the prosecution case.
Similarly, the prosecutrix has categorically stated that on dated
17.08.2015 when the accused pressed her breasts, her sister was
also with her, but she offered no explanation that thereafter till
22.08.2015 why she did not tell anybody about the incident.
21. It has also come in the prosecution evidence that the
house of Shri Shiv Singh and other persons are adjoining to the spot
where the occurrence of 12.08.2015 allegedly took place, however,
the Investigating Officer, ASI Ashok Chauhan (PW-13), when he was
cross-examined, feigned his ignorance qua nearby houses. This also
creates a doubt in the prosecution story. At the same point of time,
the prosecutrix has stated, in her cross-examination, that on
17.08.2015 she told to mother of one Shri Pyare Lal, whose house is
near to the maize field, that accused is obstructing her way.
However, the prosecution did not bother to examine the mother of
said Shri Pyare Lal, to establish this crucial fact, as portrayed by the
prosecutrix.
22. PW-3, Shri Inderjeet Singh (father of the prosecutrix)
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23
specifically admitted in his cross-examination that Ramesh Kumar
accompanied them to the police station. He denied the suggestion
.
that accused and Ramesh Kumar are not having good relations, but
he stated that prior to 22.08.2015 they had good relations with
Ramesh Kumar. PW-1, Smt. Seema Devi (mother of the prosecutrix),
specifically stated that on 17.08.2015 the prosecutrix was sleeping
with her sister in the house and on the same day younger sister of
the prosecutrix told her about the incident, as alleged by the
prosecutrix, that accused in the morning pressed the breasts of the
prosecutrix. This witness has also admitted that on 22.08.2015
Ramesh Kumar of their village committed sexual intercourse with
her daughter (prosecutrix) and said Ramesh Kumar is working as
driver in District Hospital, Bilaspur. She has further stated that
prosecutrix told her that Ramesh Kumar has committed sexual
intercourse with her at 09:00 a.m. on 22.08.2015.
23. It is worthwhile to take note of the fact that FIR against
Ramesh Kumar was only registered on 10.11.2015 when his sperms
were found on the vaginal swabs of the prosecutrix, which were
taken on 22.08.2015.
24. In these circumstances, we conclude that the
prosecution has failed to prove the guilt of the accused under
Sections 376 and 506(ii) IPC and Sections 4 and 7 of POCSO Act
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24
beyond reasonable doubt. The suspicions qua innocence of the
accused are strong and definitely benefit of which has to be given to
.
the accused, therefore, we hold that the prosecution could not
establish and prove its case beyond reasonable doubts and the
accused is required to be acquitted after setting aside the judgment
of conviction rendered by the learned Trial Court.
25. The cumulative effect of the above discussion is that the
prosecution has failed to prove the guilt of the accused and the story
of the prosecution is full of doubts. Therefore, the judgment of the
learned Trial Court is set aside, as the same is not sustainable in the
eyes of law. Accordingly, the accused is acquitted and ordered to be
released forthwith, if not required in any other process of law. The
Registry is directed to prepare the release warrants.
26. Accordingly, the appeal, so also pending application(s),
if any, stand(s) disposed of.
(Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
3rd August, 2017
(virender)
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