Vivek Singh vs State Of H.P on 22 September, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.

Cr. Appeal No. 31 of 2017.

.

Reserved on: 10.7.2017.

Decided on: 22.9.2017.

Vivek Singh ……Appellant.

Versus
State of H.P. …….Respondent.

_
Coram
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1. Yes.

For the appellant: Mr. Sat Prakash, Advocate.

For the respondent: Mr. D.S,Nainta, Addl. AG with Mr. Virender
r Verma, Addl. AG.

———————————————————————————-

Justice Dharam Chand Chaudhary, J

In this appeal, judgment dated 12.04.2016, passed by

learned Special Judge, Chamba (H.P.), in Sessions Trial No.21 of

2015, whereby the appellant (hereinafter referred to as the accused)

has been convicted for commission of offence punishable under

Section 376 of the Indian Penal Code and Section 4 of the Protection

of Children from Sexual Offences Act (hereinafter referred to as

POCSO Act in short) and sentenced to undergo rigorous

imprisonment for ten years and also to pay Rs.5,000/- as fine, has

been challenged on the grounds, inter-alia, that the evidence

available on record has not been appreciated in its right perspective.

The highly interesting evidence produced by the prosecution has

been given undue weightage and the evidence produced by the

1 Whether reporters of the local papers may be allowed to see the judgment?

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accused has been erroneously brushed aside and to the contrary the

impugned judgment has been based upon surmises and

.

conjectures.

2. The inconsistencies and contradictions in the

prosecution evidence which have rendered the prosecution story

highly doubtful were erroneously ignored and the findings of

conviction recorded against the accused were passed on the story

which was engineered and concocted. The accused had not

committed the alleged offence. On the other hand, the child already

suffering from infection, was under treatment in NHPC Hospital at

Karian, District Chamba. The complainant, none-else but the wife of

accused as well as her mother were not in cordial relations with him

and other members of his family as she (complainant) even had

implicated his brother with the allegations that he raped her. The

testimony of DW-3 Rajesh Kumar that the complainant PW-1 Anju

was previously married to his brother and when he went to bring her

to matrimonial home, she got him beaten up from 5-6 hired Gundas

and after that he expired within 10-15 days, has not at all been

taken into consideration. Therefore, the involvement of the accused

in the alleged offence is not at all established and the impugned

judgment has been sought to be quashed.

Facts of the Case:

3. If coming to the factual matrix, the prosecution case

discloses a sorrow state of affairs because PW-1 Anju, the

complainant, none-else but the wife of accused has levelled

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allegations against him in the application Ext.PW-1/B to the Deputy

Commissioner, Chamba, that her husband, the accused, has

.

committed sexual intercourse with her daughter less than two years

of age. The complainant PW-1 Anju, has levelled the allegations in

Ext.PW-1/B that her husband, the accused, has subjected her

minor daughter below two years of age to sexual intercourse while

under the influence of liquor about 1 ½ months ago. This fact came

to her notice when the victim child was got medically examined in

the hospital from a lady doctor. The doctor disclosed that her

daughter was subjected to sexual intercourse. The Additional

District Magistrate, Chamba, District Chamba, H.P., had forwarded

the application Ext.PW-1/B to S.H.O. Police Station Sadar, Chamba,

for necessary action. Consequently, FIR Ext.PW-1/A came to be

registered on 10.02.2015 under Section 376 of the Indian Penal

Code and under Section 4 of POCSO Act.

4. The police swung into action. The investigation was

conducted by PW-10 Inspector/SHO Tilak Raj of Police Station

Sadar, Chamba. The application Ext.PW-7/B was made to Medical

Officer, Regional Hospital, Chamba, for medical examination of the

victim. The MLC is Ext.PW-7/A. The application Ext.PW-4/A was

made to the Executive Officer, Municipal Committee, Chamba, for

obtaining date of birth certificate Ext.PW-4/B of the prosecutrix.

The statement of the complainant Ext.PW-1/C was got recorded

under Section 164 of the Code of Criminal Procedure. The

application Ext.PW-8/A for medical examination of the accused, was

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made to Medical Officer, Regional Hospital, Chamba. The MLC is

Ext.PW-8/B. The site plan Ext.PW-10/B was also prepared by the

.

Investigating Officer.

The Outcome of the Investigation Conducted:

5. On completion of the investigation, it transpired that it

is somewhere in the month of December, 2014, the accused

subjected his own minor daughter (name withheld), aged one year

eight months, to sexual intercourse. The victim child was born to

her in April, 2013. She gave birth to her second child (son) in the

year 2014. At the time of delivery, she shifted to the house (rented

accommodation) of her mother PW-2 Chino Devi at village Karian

and started residing there. She used to sleep with her newly born

son and her mother on the bed, whereas the accused and the victim

child used to sleep on floor by spreading mattress thereon. In

December, 2014, in the midnight, on hearing cries of the victim

child she asked from the accused as to what happened to her. He

allegedly told that his arm got struck against the victim child.

However, the child cried again on the next night also and came to

her on the bed. When she asked her husband, the accused as to

what had happened, he told that the child is searching for her. She

made the victim child to sleep with her. On the following morning

when her mother (PW-2) was getting the child bathed, noticed blood

stains and white stains on her thigh. She asked the accused about

it, who told that child was suffering from some infection. However,

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when the complainant Smt. Anju (PW-1) asked him, he told that he

committed a mistake and will not repeat the same in future.

.

6. With such allegations, the final report came to be filed

against the accused in the Court. Learned Special Judge on

appreciation of the record and finding a prima-facie case having

been made out against the accused, framed charge against him for

the offence punishable under Section 376 of the Indian Penal Code

and Section 4 of POCSO Act. The accused, however, pleaded not

guilty and claimed trial.

Evidence in a nut shell:

7. The prosecution in order to sustain the charge against

him, has examined 10 witnesses in all. The material prosecution

witnesses are PW-1 Anju, the complainant, her mother Smt. Chino

Devi (PW-2) and Dr. Minakshi (PW-7). The remaining prosecution

witnesses are formal. According to PW-3 Darshan Kumar, PW-2

Chino Devi had hired one room accommodation from one Mushafir

at Karian and PW-4 Yogesh Sharma has proved the date of birth

certificate Ext.PW-4/B of the prosecutrix. PW-5 Satish Kumar, Peon

in the office of Deputy Commissioner, Chamba, has delivered the

complaint Ext.PW-1/B in Police Station Sadar, Chamba, whereas

PW-6 Constable Vinod Kumar, has videographed the proceedings

qua recording of statement of complainant in the Police Station.

PW-8 Dr. Kamaljeet has examined the accused and proved the MLC

Ext.PW-8/B. PW-9 ASI Ashok Kumar, the then SHO Police Station

Sadar, Chamba, had taken the photographs of the spot on the

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demarcation given by the complainant. PW-10 Inspector Tilak Raj is

the Investigating Officer.

.

8. On the other hand, the accused in his statement

recorded under Section 313 Cr.P.C., has denied the entire

prosecution case either being wrong or for want of knowledge. His

medical examination was got conducted by the police. It is pleaded

in his defence that he has been falsely implicated by the

complainant in this case. Earlier also, she had implicated his

brother in a false case of commission of rape by him with her. The

complainant and her mother (PW-2), according to him, are the ladies

of easy virtue. He has also examined DW-1 Smt. Usha Devi, real

sister of complainant and DW-2 Rajesh Kumar, his brother, to

prove that the complainant and her mother, both are ladies of easy

virtue and the complainant is in habit of making such false

complaints. DW-3 Sh. Pritam is brother of deceased Narian Singh to

whom the complainant was earlier married, whereas DW-4 Baljinder

Singh is former Vice President of Gram Panchayat, Baror.

9. As already stated, learned trial Judge on appreciation of

the evidence available on record, has convicted and sentenced the

accused for the commission of offence punishable under Section 376

of the Indian Penal Code and Section 4 of POCSO Act.

Rival Submissions:

10. Mr. Sat Prakash, Advocate learned counsel has argued

with all vehemence that learned trial Judge in a case of no evidence

has not only held a father (the accused) guilty of the commission of

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sexual intercourse with his own daughter aged less than 2 years,

but also convicted him to undergo rigorous imprisonment for 10

.

years and to pay a fine of Rs. 5,000/-. The highly interested

evidence as has come on record by way of testimony of the

complainant PW-1 (wife of the accused), who in view of the evidence

available on record was inimical to the accused has erroneously

been relied upon. The overall conduct of the complainant and that

of her mother PW-2, the so called star prosecution witnesses itself

speaks in plenty about their modus operandi to involve the accused

in a false case so that not only his property may be grabbed by them

but he being only hurdle in her way could also be removed. The

evidence on record i.e. own admission of the complainant that

Rajesh (DW-2), the brother of accused and his wife used to quarrel

with her and that she had lodged false complaint qua her alleged

molestation and having assaulted sexually by said Rajesh, goes to

show that she is in the habit of making false complaints. Therefore,

according to learned counsel, the accused has also been implicated

by the complainant falsely in this case. Learned trial Court, while

brushing aside the cogent and reliable evidence having come on

record by way of testimony of DWs 1 to 4, has not assigned any

plausible reason and to the contrary disbelieved the same at its

whims and fancies. The accused, as such, has been sought to be

acquitted of the charge framed against him.

11. On the other hand, Sh. D.S.Nainta, learned Addl.

Advocate General has supported the impugned judgment while

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arguing that the same is well reasoned and based upon proper

appreciation of the evidence available on record.

.

Our findings:

12. The present is a case where the allegations against the

accused if proved are not only grievous and heinous in nature but

constitute a gruesome and brutal act attributed to noneelse but

father of the victim child. Looking to the sensitivity of the matter

and the gravity as well as seriousness of the allegations as leveled,

the law casts an onerous duty upon this Court to separate grain

from the chaff and find out the truth with the help of evidence

available on record.

13. The very first version qua the manner in which the

occurrence allegedly took place is the application Ext. PW-1/B made

by PW-1, the complainant to Dy. Commissioner, Chamba against

her husband, the accused. The allegations against him in this

document are that her husband, the accused has subjected her

daughter less than 2 years of age to sexual intercourse about 1 ½-2

months ago while under the influence of liquor and she came to

know about it when the victim child was got medically examined

from Gynecologist (lady doctor), who in her opinion found the victim

child having been subjected to sexual intercourse. The application

Ext. PW-1/B was forwarded by Addl. District Magistrate Chamba to

SHO Police Station Sadar, Chamba and it is PW-5 Satish Kumar,

Peon in Dy. Commissioner’s Office who accompanied by the

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complainant delivered the same in the Police Station. The FIR Ext.

PW-1/A, therefore, is replica of the application Ext. PW-1/B.

.

14. The another material piece of evidence is the statement

of the complainant Ext. PW-1/C recorded under Section 164 Cr.P.C.

She in her statement Ext. PW-1/C has introduced a different story

that about 4 months ago when she delivered a male child, she used

to sleep along with newly born baby and her mother on the bed

whereas her husband, the accused used to sleep with her minor

daughter on the floor by spreading a mattress thereon. As per her

version, about 2 months ago in the mid-night i.e. 1:30 AM, the

victim child cried very loudly. On this, she (the complainant) woke

up and enquired from her husband as to what had happened. He

told that the arm of the victim got pressed from him. She, however,

was made to sleep by them thereafter. However, during the next

night also, the victim again cried and on this her mother brought

her to the bed and made her to sleep with her. On the following

morning when her mother PW-2 was getting the victim child bathed,

she noticed blood and whitish stains on her private part. When she

(complainant) asked strictly from her husband about it, he

confessed the mistake he committed and felt sorry for that. He

threatened her that if she got the child medially examined, the

reputation of the entire family would be spoiled and when the child

would grow up, it would cast a stigma throughout during her

lifetime. As per her further version, when the condition of her

daughter did not improve, she brought this matter to the notice of

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the other family members, including Rajinder, the brother of the

accused and his wife Jyoti. They, however, did not believe her and

.

told that in case the matter is reported by her to the police the

reputation of the child would be maligned. When the condition of the

child deteriorated, she had taken the victim to Govt. Hospital,

Chamba on 5.2.2015 where the child was examined by male doctor.

The said doctor advised the complainant to get her medically

examined from Gynecologist. The child was as such brought to

Gynecologist on 10th who told that there was struggle with the child

and that firstly a report is to be lodged with the police and it is only

thereafter she could be examined. Thereafter, she made an

application to Addl. District Magistrate who forwarded the same to

PS Sadar Chamba where FIR was registered and ultimately medical

examination of the victim was got conducted.

15. Now, if coming to the statement of the complainant

while in the witness box as PW-1, she has deviated from her

statement Ext. PW-1/C recorded under Section 164 Cr.P.C. on

material aspects because instead of 1:30 AM, she has deposed that

the child cried during first night around 2- 2:30 AM. On the next

night, the child allegedly cried around 1-1:30 AM though it was not

found to be recorded so by her in Ext. PW-1/C. In Ext. PW-1/C,

nothing has come that on enquiry as to why the child is crying, her

husband told that she is looking for her (the complainant), however,

while in the witness box as PW-1 has stated so. Not only this, but

as per Ext. PW-1/C it is her mother PW-2 who made the child to

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sleep with her when cried on the next night, however, while in the

witness-box it is stated that it is she (the complainant) who made

.

the child to sleep with her. As per her version in the witness-box, it

is her mother who asked the accused about the cause of there being

blood stains and whitish coloured stains on thighs of the victim

child who in turn told that she is suffering from infection. However,

in Ext. PW-1/C, she has stated that the cause of such stains when

she strictly asked from her husband, he admitted the mistake and

ensured her not to repeat the same. In her statement in the Court,

it is stated that lady doctor on examination of the child told that she

was subjected to sexual intercourse, however, as per Ext. PW-1/C,

the doctor had told PW-1 that force has been applied against her

daughter.

16. The critical analysis of the two statements leaves no

manner of doubt that the same are inconsistent, discrepant and this

witness has improved her version considerably, which goes to the

very root of the prosecution case. Though she has denied the

suggestion that her statement is inconsistent, however, in view of

the above discussion, her version is false. She further improved her

version in cross-examination while stating that since her husband

used to take medicines and liquor to enhance capacity to have

sexual intercourse, she had the reason to believe that he may have

done wrong act with the victim. Though the complainant has stated

that she did disclose that her daughter cried during two nights to

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the police, however, when confronted with her statement Ext. D-1, it

was not found to be so recorded therein.

.

17. Now, if coming to the immediate version qua the manner

in which the incident has taken place as recorded in the application

Ext. PW-1/B addressed to Deputy Commissioner, Chamba, nothing

of the sort as mentioned in Ext. PW-1/C and the statement of the

complainant in the witness-box as PW-1 has come there. The story

that the victim child used to sleep on the floor of the room with the

accused and cried during two successive nights and that the victim

child was examined by a male doctor on 5.2.2015, does not find

mention in Ext. PW-1/B.

18. It is, thus seen that the three statements made by the

complainant at three different occasions do not match at all with

each other and as such, it would not be improper to conclude that

she has implicated the accused falsely, may be due to their inimical

relations with each other, just to wreck vengeance against him

forgetting that there exists a pious relation between a father and

daughter. We have reason to make such observations as living

separately from the accused with her mother that too in one room

accommodation taken on rent at Village Karian itself speak in plenty

that the complainant was not interested to live in the company of

her husband, the accused, of course to the reasons best known to

her. The conclusion so drawn by us is supported by the own

admission of the complainant in her cross-examination as she has

admitted that they used to quarrel off and on. Interestingly enough,

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even her mother PW-2, admittedly was residing away from her

family i.e. husband and other members of family to the reasons best

.

known to her. The mother of the complainant has admitted that she

was residing separately on account of being tortured by her

daughter-in-law. We are, however, not satisfied with any such

explanation which to our mind is false. On the other hand, the

accused in his statement recorded under Section 313 Cr.P.C. has

pleaded that the complainant and her mother both were women of

easy virtue. The complainant when cross-examined, has admitted

that her mother PW-2 was residing separately at Village Karian for

the last 5-6 years whereas her father in his own house at Village

Gagla.

19. The story that the victim had urinating problem or was

not in a position to pass stool as PW-1 has stated in her cross-

examination, has neither come in Ext. PW-1/B nor in Ext. PW-1/C

and rather has been introduced for the first time in her cross-

examination. The enmity of complainant stands established from

her own admission while in the witness box that she had lodged the

case against the sister of the accused and her husband. Not only

this, but as per her own version, her (devar) Rajesh Kumar DW-2

had torn her clothes and on this, she had registered a case against

him in PS Sadar Chamba. Though, in the same breath, it is denied

that she threatened her father-in-law and Rajesh Kumar to implicate

them in false cases, however, as per her own admission that she had

registered a case against DW-2 Rajesh Kumar, her denial is nothing

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but palpably false. Not only this, as per the version of PW-1 in her

cross-examination, the brother of the accused (DW-2) and his wife

.

used to threaten her with dire consequences, therefore, the

possibility of she having implicated DW-2 Rajesh Kumar by lodging

FIR against him falsely cannot be ruled out. As per the own version

of the complainant, she did not lodge any report either against DW-2

or his wife against such threatening advanced to her, therefore, it

can be reasonably believed that she has deposed falsely because had

there been any threatening given to her by them, she would have

definitely lodged the report against them.

20. The complainant has denied her first marriage with

someone else at village Mehla, however, DW-3 Pritam while in the

witness-box who belongs to Village Mehla, tells us that she was

married to his brother Narain. She deserted him and started living

with her mother at Karian. When his brother came to Karian to take

her back to matrimonial home, she not only refused to do so but

hired 5-6 persons who had beaten up his brother said Narain and

he died after 10-15 days on account of beatings given to him. Not

only this, but the photographs Ext. D-1 D-2 in which the

complainant is in the dress and ornaments of bride, is visible with

her husband (deceased Narain).

21. As per version of the complainant, the accused

supported his sister and her husband in the case she registered

against them. It is also admitted that she is residing with her

mother in village Karian for the last 7-8 months. Such evidence

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speaks in plenty about her relations with her husband, the accused.

She admitted that when the victim child was got medically examined

.

from the doctor in NHPC hospital, the said doctor told that she was

suffering from infection. Such evidence on record amply

demonstrate the plea raised by the accused in his defence that the

victim child was suffering from infection is nearer to the factual

position because it is not expected from a father that he would do

such a gruesome and brutal act with his own daughter that too

below 2 years of age. Otherwise also, we fail to understand that how

a fully grown up man like the accused can subject a child below 2

years of age to sexual intercourse. Though, it is denied by the

complainant that she has foisted a false case against the accused to

grab his property, however, the suggestion so given to her seems to

be correct.

22. Therefore, the evidence as has come on record by way of

own admission of the complainant and also the application Ext. PW-

1/B, she made to Deputy Commissioner, Chamba, her statement

Ext. PW-1/C recorded under Section 164 Cr.P.C. and while in the

witness box as PW-1 is highly contradictory and inconsistent. On

the basis of different statements she made at different occasions, it

is crystal clear that the present is a case of no evidence as the

complainant has improved her version at each and every stage

during the course of enquiry, investigation and trial.

23. The other material prosecution witness is PW-2 Chino

Devi, mother of complainant PW-1. The perusal of her statement

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makes it crystal clear that she has not uttered even a single word

qua the victim child having cried during two successive nights. She

.

has also not stated that when the child cried during second night,

she made her to sleep with her. Nothing has also come in her

statement that when the child cried on the first night, when asked

as to what had happened, the accused told that her arm got pressed

from him. She has also not said that blood or whitish stains on

thighs of the victim child were noticed by her on the following

morning when she was getting the child bathed. Therefore, PW-2

Chino Devi has not supported the testimony of PW-1 on all material

aspects.

23. As per further version of PW-2 Chino Devi, the victim

child when fell ill and was taken to hospital, the doctor told that the

child had infection in her uterine. It is at this occasion, she asked

from her daughter (PW-1) to tell truth as to what had happened to

the child. On this, PW-1 told that the accused had committed

sexual intercourse with his own daughter. On 10.2.2015, when the

child was taken to doctor for her treatment, they were advised to

report the matter to the police. It is thereafter, the matter was

reported to Deputy Commissioner, Chamba by the complainant.

24. Interestingly enough, PW-2 Chino Devi tells us that

though she had three sons and two daughters, however, since her

relations were not cordial with her daughter-in-law, therefore, it is

for this reason, she is residing separately at Karian in a room taken

on rent. Though, she denied that her daughter (PW-1) was married

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in village Mehla, however, volunteered that she had only been

engaged in the said village. Her testimony is contrary to that of the

.

complainant who has flatly denied that she was married/engaged at

village Mehla. The statement of PW-2 Chino Devi that PW-1 was

engaged in the said village is nearer to the version as has come on

record by way of testimony of DW-3 Pritam Singh, who belongs to

village Mehla and as per his version, the complainant was married to

his late brother Narain. The photographs Ext. D-1 and D-2 also

substantiate this part of the case of the defence. PW-2 Chino Devi

though tells us that her daughter after marriage resided with the

accused, however, at the same time admitted that PW-1 had filed a

complainant against brother and father of accused with the

allegations of committing sexual intercourse by them with her. It is

proved satisfactorily that the complainant not only implicated her

brother-in-law Rajesh DW-2 but also her father-in-law with the

allegation that they both subjected her to sexual intercourse falsely

because had there been any truth in the allegations so levelled, at

least a case would have been made out and filed against them as

well as tried by a competent Court. No such evidence, however, was

produced by the prosecution to remove doubts qua the genuineness

and authenticity of the allegations so leveled against the accused.

The accused, according to her, was residing in her room when the

victim child was taken to hospital. At the first instance, it is the

accused who himself had taken the child to the hospital whereas on

the second occasion, the child was taken by her to the doctor at

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Karian. It is on such visit, the doctor told that the child had

infection in her utrine. The condition of the child according to PW-2

.

Chino Devi became critical and she used to cry during night

meaning thereby that the cries of the child, if any, were not on

account of the accused having committed sexual intercourse with

her but due to infection in her utrine.

25. The close scrutiny of the testimony of PW-2 Chino Devi,

therefore, leads to the only conclusion that she has demolished the

entire prosecution case. Learned Trial Judge believing her

statement and that of the complainant PW-1 as dependable, has

proceeded to record the findings of conviction against the accused

which in our opinion are erroneous.

26. The next material witness is PW-7 Dr. Minakshi, M.O.

RH Chamba. On internal examination, this witness had noticed

redness and swelling in the uterine of the victim child and hymen

was found absent. Vaginal laceration was also noticed. Therefore,

in her opinion, the child was subjected to sexual intercourse within

two months from the date of her examination. Her opinion,

however, cannot be termed as very specific and authentic

particularly when past medical history i.e. the treatment of the

victim child in the hospital(s) was neither in her knowledge nor

disclosed to her by the complainant. Above all, as per her own

version, she did not consult/refer any book on medical

jurisprudence while forming the opinion. The opinion was based

upon the medical examination of the victim child she conducted.

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She admitted that the nature of the injuries she noticed in the

vagina of the victim child could have been caused had someone

.

inserted/applied medicine through finger or thumb in vagina by way

of domestic treatment. Since as per the own admission of the

complainant and her mother PW-2 Chino Devi to the effect that

doctor when examined the child found infection in her utrine, the

possibility of the injury noticed by PW-7 Dr. Minakshi while applying

some medicine in the infected vaginal part cannot be ruled out.

Though the suggestion that the child rubbed her vagina with her

own finger due to infection were denied by PW-7 Dr. Minakshi being

wrong, however, there being infection in vagina, the possibility of the

child having rubbed the infected part of her vagina cannot be ruled

out. Therefore, the medical evidence is also not dependable so as to

believe that the victim child was subjected to sexual intercourse.

27. As per the prosecution case, the victim child was

examined in the hospital by a male doctor who advised the

complainant to get the child medically examined from Gynecologist.

Who was that male doctor and when the victim was got medically

examined from him; nothing has come on record. As a matter of

fact, the said doctor was a material witness in this case and to our

mind, he has been withheld initially during the course of

investigation of this case and later on during the course of trial

intentionally and deliberately and as such an adverse inference has

to be drawn against the prosecution.

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28. Now, if coming to the testimony of the I.O. Insp. Tilak

Raj (PW-10), though in his examination-in-chief he has corroborated

.

the prosecution case qua the manner in which he conducted the

investigation, however, when cross-examined, it is surprising to note

that he expressed ignorance to the suggestions put to him which

were relevant to find out truth because according to him, he did not

enquire from the complainant as to why she was not residing in her

own house. He even did not enquire from PW-2 Chino Devi as to

why she was not residing in her house. He also did not try to find

out the duration of stay of complainant with her mother at Karian

nor anything qua the previous medical history/treatment given to

the victim child. Not only this, but as per his version, the accused

was arrested from his own house, meaning thereby that he was not

residing in Karian. It is again surprising to note that the I.O. did not

enquire about the relations of the accused and his wife, the

complainant nor about the complaint she lodged against the brother

and father of the accused regarding the sexual assault they

committed on her. He even expressed his ignorance that the said

complaint ultimately had turned false. He has also expressed his

ignorance that the relations of the accused with his mother-in-law

and complainant (wife) were not cordial. He also did not investigate

the matter as to where the accused was residing at the time of the

incident. We fail to understand that when I.O. did nothing during

the course of investigation, how the allegation against the accused

that he had been residing in the room taken on rent by PW-2 Chino

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21

Devi at the time when the incident allegedly took place is proved. As

a matter of fact, he believed the version of the complainant and her

.

mother PW-2 Chino Devi before him in view of the discussion

hereinabove turned false as a gospel truth and not made any effort

to enquire into the allegations leveled against the accused by

investigating the matter further and to find out the truth by

associating independent witnesses and collect evidence through

independent source. Learned trial Judge has failed to take note of

such factual position having emerged on record and to the contrary

recorded the findings of conviction against the accused in a case

which was of no evidence.

29. Surprisingly enough, learned trial Judge has criticized

the defence evidence in sundry and without any justification thereto

because overall act and conduct of the complainant PW-1 and her

mother PW-2 Chino Devi leads to the only conclusion that PW-2

Chino Devi was residing away from other members of family in a

rented accommodation to the reasons best known to her. In her

cross-examination, she has denied that the accused used to reside

with PW-1 and PW-2 Chino Devi at Karian at the time of birth of the

second child.

30. DW-1 Usha Devi is none else but real sister of PW-1 and

daughter of PW-2 Chino Devi. She has denied the prosecution case

that the accused was not residing with the said witnesses at the

time of birth of male child. DW-2 Rajesh Kumar is none else but

real brother of the accused. He has categorically stated that not

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22

only he but his father were falsely implicated by PW-1 complainant

in a case of molestation and they were arrested. The report after

.

enquiry was, however, found false. The complainant, according to

this witness had threatened the accused to implicate him in a false

case which she managed and when he was in jail, she had taken her

ornaments and other articles from his house. He has also denied

that the accused used to reside in the company of the complainant

and her mother PW-2 Chino Devi at Karian and that he subjected

his own daughter to sexual intercourse. The complainant and her

mother PW-2 Chino Devi, both have admitted that the report was

lodged against DW-2 and his father by the complainant with the

police. The said report, however, as per the evidence available on

record had turned false. Therefore, the possibility of the

complainant having lodged a false complaint against the accused

cannot be ruled out.

31. The testimony of DW-3 Pritam has already been

discussed in para supra, hence suffice would it to say that he has

proved the previous marriage of the complainant (PW-1) with Narain,

his real brother. DW-4 Brijinder Singh is former President of Gram

Panchayat Baror. His testimony that no dispute was ever reported

to the Panchayat by them has erroneously been taken to believe that

their relations were cordial in complete departure to the evidence

having come on record because as per the own testimony of the

complainant and her mother PW-2 Chino Devi itself their relations

were not cordial. Therefore, in our considered opinion, learned trial

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23

Judge has brushed aside the evidence produced by the accused in

his defence without any justifiable reasons. The same rather was

.

criticized on flimsy grounds.

32. The close scrutiny of the evidence as has come on

record by way of the testimony of the so called star prosecution

witnesses and also the defence version amply demonstrate that the

complainant party in order to wreck vengeance against the accused

did not even spared her own daughter i.e. the victim child, a minor

below two years of age and thereby not only tarnished the reputation

of the accused who happens to be the father of the victim but also

put a big question mark on the pious relations between a father and

daughter. Not only this, but the false prosecution story has

culminated in a discussion that a father can also assault his own

daughter in this manner. In the given facts and circumstances, it is

the complainant who in connivance with the local police has

implicated the accused in a false case.

33. The evidence as has come on record by way of the

testimony of Yogesh Sharma PW-4 who has issued the birth

certificate Ext. PW-4/B of the victim child, PW-5 Satish Kumar,

Peon in the office of Deputy Commissioner, Chamba who has

delivered the application Ext. PW-1/B made by the complainant to

Deputy Commissioner, Chamba in Police Station Sadar Chamba,

PW-6 Const. Vinod Kumar who had videographed the proceedings

when the statement of the complainant was being recorded in the

Police Station vide CD Ext. PW-6/A, PW-8 Dr. Kamaljeet who has

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24

examined the accused vide MLC Ext. PW-8/B and PW-9 ASI Ashok

Kumar who had investigated the case partly could have been used

.

as link evidence had the prosecution otherwise been able to prove its

case against the accused beyond all reasonable doubt.

33. The reappraisal of the evidence, therefore, leads to the

only conclusion that the complainant and her mother in connivance

with the local police has falsely implicated the accused in the

present case. The charge framed against the accused for the

foregoing reasons, therefore, fails. He, as a matter of fact is entitled

to the benefit of doubt and consequently acquittal. Being so, the

findings of conviction recorded against the accused are neither

legally nor factually sustainable. The impugned judgment, as such,

does not stand for the test of judicial scrutiny, hence, deserves to be

quashed and set aside.

34. In view of what has been said hereinabove, this appeal

succeeds and the same is allowed. Consequently, the impugned

judgment is quashed and set aside and the accused is acquitted of

the charge framed under Section 376 IPC and Section 4 of the

POCSO Act. He presently is undergoing sentence, therefore, if not

required in any other case, be set free forthwith. The release

warrant be prepared accordingly. The fine amount as imposed upon

the accused, if deposited, shall be refunded to him against proper

receipt.

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25

35. Before parting, we would be failing in our duty if not

point out the overall conduct of the Investigating Agency which has

.

implicated the accused in a false case on the basis of highly

interested evidence i.e. the only statement of complainant who was

not only inimical to the accused but also to other members of his

family. Her mother PW-2 Chino Devi, though helped her daughter,

the complainant in getting the accused booked falsely, however,

unsuccessfully. Any how, we leave it open to high ups in police

department to take steps as warranted to sensitize the officers/I.Os

so that any such instance does not reoccur.

36. Learned trial Judge has also failed to appreciate the

evidence in its right perspective and swayed only by the severity of

the allegations and the alleged incident of rape with a minor below

two years of age by none else but allegedly her father. Since the

allegations leveled against the accused were highly sensitive having

repercussions in the society as a whole, an onerous duty was cast

upon learned trial Judge to have examined the given facts and

circumstances of the case and also evidence available on record with

all circumspection and more care and caution. Due to such an

approach in the matter, pious relations between a father and

daughter got tarnished. We hope and trust that in a case of this

nature, the Investigators, Prosecutors and Adjudicators shall

discharge their respective duties in the light of the principles we

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26

settled in this judgment and also in accordance with law. With the

above observations, the appeal is finally disposed of.

.

( Dharam Chand Chaudhary ),
Judge.

September 22, 2017, ( Vivek Singh Thakur ),
(ysc/karan) Judge.

r to

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