Panna Lal vs State Of Haryana on 20 January, 2018

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

323 CRA-S-3778-SB-2014
DATE OF DECISION: 20.01.2018.

PANNA LAL ….Petitioner.

Versus

STATE OF HARYANA …Respondent.

CORAM:- HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL

Present: Mr. Satish Garg, Advocate
for the appellant.

Mr. D.R. Singla, Deputy Advocate General,
Haryana.

***

ANUPINDER SINGH GREWAL, J. (Oral)

The appeal is directed against the judgment dated

08.07.2014 whereby the appellant has been convicted under

Section 10 of the Protection of Children from Sexual Offences

Act, 2012 (hereinafter referred to as ‘the POCSO Act’). He was

sentenced on 09.07.2014 to rigorous imprisonment for a period

of 05 years and to pay a fine of Rs. 20,000/-.

It is the case of the prosecution that at around 08:05

p.m. on 15.02.2014, a telephonic message was received at

Police Station Woman Sonipat from Police Station Kharkhoda,

District Sonipat that the prosecutrix had been brought by her

aunt through the Delhi police at Police Station Kharkhoda. She

had alleged commission of rape upon her by her father, who

was also stated to have been present at Police Station

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Kharkhoda. After receiving this information, a police party

headed by SI/SHO Promila went to Police Station Kharkhoda

whereat the statement of the prosecutrix was recorded. She

had stated that she was born on 25.03.2002 and was studying

in Class VI at a private school at Bawana. As her mother had

left matrimonial house around 5-6 years back she was residing

with her aunt at Bawana. Around one and a half years ago, her

father and two elder brothers had shifted to village Firojpur

Bangar while her two younger brothers were employed at

Bawana. During Navratra holidays in the year 2013, her father

had taken her to village Firojpur Bangar and on the next day, he

committed wrongful act with her. She had started crying and he

had threatened to kill her. She also stated that thereafter he

kept on doing wrongful acts with her every second/third day.

Later, on 10.02.2014, she went alone to Bawana to her aunt’s

house and disclosed the entire episode to her, who brought her

to the police station. On the basis of her statement, a case

under Section 376 and 506 of the Indian Penal Code, 1860

(hereinafter referred to as ‘the IPC’) as well as Section 6 of the

POCSO Act was registered. She was medico legally examined.

The medical examination did not reveal the factum of her being

ravished. Her statement under Section 164 Cr.P.C. was also

recorded before the Magistrate on 16.12.2014. She had stated

before the Magistrate that her father had committed

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wrongful acts with her 6-7 times, when she had stayed with him

at the village. She also stated that she had gone to her aunt’s

house on 10.02.2014, who was informed about the incident. On

the basis of the statement and the medico legal report, offences

under Section 376 IPC and 6 of the POCSO Act were deleted

while offences under Section 354 IPC and Section 12 of the

POCSO Act were added. The accused was arrested after

completion of investigation. The investigation was completed

and challan was filed in the Court. The case was committed to

the Court of Sessions for trial. The trial Court by the order dated

15.03.2014 framed charges under Section 354A of the IPC and

Section 10 of the POCSO Act.

The prosecution in support of its case examined 09

witnesses. PW-1 HC Inder Pal deposed about the sketched site

plan Ex. PW-1/A of the place of occurrence as mentioned by

the prosecutrix. Pooja Pahal, teacher of the school, where the

prosecutrix was studying, was examined as PW-2. She proved

certificate Ex.PW2/A issued by the Principal of the school and

identified her signatures. She stated that as per entry in school

record, the date of birth of the prosecutrix was 23.03.2002. The

aunt of the prosecutrix was examined as PW-3. She had

deposed that the prosecutrix used to reside with her at Bawana

and during Navratra, she had visited her father and when she

came back, she had disclosed to her that her father had

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committed wrongful acts with her. She had then taken her to

police station Bawana and later to Police Station Kharkhoda.

She had also stated that the accused was in a drunken

condition when he used to sleep with her and touch her

inappropriately. Ms. Ankita, Sharma, JMIC, Sonipat has

deposed as PW-5, wherein she had stated that the statement of

the prosecutrix PW-4/B was recorded by her on receipt of

application Ex.PW-5/A and orders passed Ex. PW-5/B. She

also deposed about the certificate Ex. PW-5/C appended to the

statement. Dr. Richa Malhan was examined as PW-6 and

tendered her affidavit PW-6/A that on 16.02.2014, she had

conducted medico legal examination of the prosecutrix and

report Ex. PW-5/B had been prepared by her. She also stated

that there were neither injuries nor any other evidence which

would suggest rape. PW-7, SI Krishan Kumar of Police Station

Samaypur Badli, Delhi had stated that the prosecutrix was

taken to Kharkhoda police station on 15.02.2014 for conducting

further proceedings after she had come to police station

Bawana along with her aunt alleging wrongful acts by her

father. PW-8 deposed about registering formal FIR Ex.PW8/A

on receipt of ruqa and making endorsement Ex.PW8/B in that

regard. Inspector Promila, who was the Investigating Officer,

deposed as PW-9 and stated that she had conducted the

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investigation and proved Ex.PW9/A with regard to proceedings

conducted by her on ruqa and Ex.PW9/B which was rough site

plan of the place of occurrence prepared by her at the instance

of the prosecutrix. The accused in his statement under Section

313 Cr.P.C. had stated that he had been falsely implicated in

the case.

Learned counsel for the appellant has stated that as

the medical evidence did not point to rape or any sexual assault

on the prosecutrix and there were no injuries or any mark of

sexual assault on the person of the prosecutrix, the accused

was entitled to acquittal.

Learned State counsel, on the other hand, states

that the statement of the prosecutrix is sufficient to sustain the

conviction of the appellant under Section 10 of the POCSO Act.

She had in her statement before the Court denied that she had

been raped by her father but she had categorically stated that

he had inappropriately touched her and therefore, a case under

Section 10 of the POCSO Act was fully established.

Heard.

The prosecturix while appearing as PW-4 had

categorically stated that during the Navratra holidays, she had

visited her father at the village as he wanted her to help in the

household work. At night, she had slept with her father and he

had removed her underwear and inappropriately touched and

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fondled her. When she resisted and tried to keep her

underwear on, he kept trying to remove it. He had done the

same the next 2-3 nights. Thereafter, she had called her aunt

on the phone and told her that she wanted to come back. She

then came back to her aunt and narrated the entire incident to

her. Her aunt had taken her to the police at Bawana and

thereafter, they went to police station Kharkhoda whereat her

statement was recorded. In cross-examination, she had stated

that it is correct that her father did not rape her but she had

categorically denied the suggestion that her father did not

remove her underwear or touch or fondle her inappropriately.

She had also denied that she was instigated by her aunt to

depose falsely against her father or that there was any

animosity between her father and her aunt uncle. She was

over 12 years of age and student of Class VI when the incident

took place and her statement was recorded shortly thereafter.

The statement of the prosecutrix appears to be truthful and

trustworthy. Despite extensive cross-examination, no material

contradiction has emerged in her statement. Even otherwise, it

would be difficult to believe that a 12 year old girl would falsely

implicate her father.

It is well settled that conviction can be based solely

on the testimony of the prosecutrix if it is trustworthy and

inspires confidence. Reference can be made to the judgment in

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the case of O.M. Baby (Dead) by L.Rs. v. State of

Kerala reported as JT 2012 (6) SC 117.

Further, the statement of the prosecution is

corroborated by the statement of her aunt, who had deposed as

PW-3. Though in cross-examination, it was put to PW-3 that

she had deposed falsely due to her animosity with the accused

but no material had been brought forth which would indicate

that there was any enmity between PW-3 and the accused.

At this stage, learned counsel for the appellant

contends that if the conviction of the appellant is being

maintained then he deserves to be accorded leniency in the

sentence as he has to take care of 02 minor children and his

wife had already deserted him. This contention of the learned

counsel for the appellant cannot be accepted as the minimum

sentence which has been provided for an offence punishable

under Section 10 of the POCSO Act is 05 years. This Court

cannot sentence the appellant to any period less than 05 years

after maintaining his conviction under Section 10 of the POCSO

Act.

Consequently, I do not find any merit in this appeal,

which stands dismissed.

(ANUPINDER SINGH GREWAL)
20.01.2018 JUDGE
SwarnjitS
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No

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