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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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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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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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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