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Dharamvir vs State Of Punjab on 27 March, 2018

CRA-S-3310-SB of 2013(OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRA-S-3310-SB of 2013(OM)
Date of Decision: March 27 , 2018

Dharamvir …… Appellant

Versus

State of Punjab …… Respondent

CORAM:- HON’BLE MRS.JUSTICE LISA GILL

Present: Mr.Aman Sharma, Advocate
for the appellant.

Ms. Rajni Gupta, Sr. DAG, Punjab.

*****

LISA GILL, J (Oral).

Appellant has been convicted for the offences punishable under

Sections 6 and 10 of the Protection of Children from Sexual Offences Act, 2012

(for short ‘POCSO Act’) by the learned Additional Sessions Judge-cum-Special

Judge under POCSO Act, Rupnagar, vide impugned judgment dated 09.07.2013

and by a separate order of even dated i.e. 09.07.2013 he has been sentenced as

under:-

Offence u/s Sentence
6 POCSO Act Rigorous imprisonment for 10 years; besides pay a
fine of `5,000/- and in default thereof to further
undergo SI for six months.

10 POCSO Rigorous imprisonment for 5 years; besides pay a
Act fine of `2500/- and in default thereof to further
undergo SI for three months.

Aggrieved therefrom, the present appeal has been filed by the

appellant.

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Brief facts necessary for the adjudication of this matter are that FIR

No. 17 dated 03.02.2013 (Ex.PW5/B), was registered on the statement of the

complainant-PW-1 (mother of the prosecutrix). As per the complainant’s

statement Ex.PW1/A, it is revealed that her first husband died about four years

ago. She had two daughters from her first marriage. The complainant

solemnized second marriage with the appellant about three years prior to the

occurrence and was presently residing with the appellant alongwith her two

daughters aged 8 years and 7 years. It is stated that the complainant’s husband

had been harassing her daughters physically for the last one year and in her

absence he even tried to commit rape upon them. It is further stated that her

daughters revealed that the appellant used to threaten them at that time. He was

committing indecent acts with the children. It was thus prayed that action be

taken against the present appellant.

Statement of the victims under Section 164 Cr.P.C. could not be

recorded on 05.02.2013, as it was opined by the learned Judicial Magistrate Ist

Class, Anandpur Sahib that they are not competent to suffer a statement due to

their tender age. PW-5-ASI Raghbir Singh, the Investigating Officer, revealed

that after recording of the statement of the complainant, rough site plan

Ex.PW5/C was prepared after proceeding to the spot. Appellant was arrested.

Statements of the witnesses were recorded. Medical examination of the victims

was conducted on 04.02.2013 by Dr.Jatinder Kaur, Medical Officer, BBMB,

Hospital, Nangal. No injury – external or internal was detected on the person of

any of the two victims. However, it was opined that possibility of molestation

and sexual assault cannot be ruled out. Final report under Section 173 of the

Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) was presented against the

present appellant after completion of investigation.

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The case was committed to the Court of Sessions, Rupnagar, on

13.02.2013. Charge under Sections 376, 511, 354 IPC was framed against the

appellant on 20.02.2013, who pleaded not guilty and claimed trial.

Amended charge was framed on 08.07.2013 under Section 6 of the

POCSO Act read with Section 376 IPC and Section 10 of the POCSO Act read

with Section 354 IPC against the appellant, who pleaded not guilty and claimed

trial.

The prosecution examined as many as six witnesses to prove its

case.

The accused-appellant in his statement under Section 313 Cr.P.C.,

denied all the incriminating evidence put to him while claiming innocence and

false implication. The appellant specifically stated that he was innocent. A false

case had been planted upon him at the instance of the complainant, his wife,

because she wanted to live with one Sunny and wanted to marry him. It is stated

that the appellant opposed the same and due to this reason, he was falsely

implicated in the present matter. No evidence was led in defence.

Learned trial Court on considering the facts and circumstances of

the case as well as the evidence on record concluded that the prosecution

successfully proved its case beyond reasonable doubt against the appellant.

Consequently, the appellant was convicted for the offence punishable under

Sections 6 and 10 of the POCSO Act and sentenced as detailed above.

Aggrieved therefrom, the present appeal has been filed.

Learned counsel for the appellant argues that false implication of

the appellant is apparent on the face of it. It is submitted that the complainant in

her cross-examination has admitted that she got married to one Sunny during

the subsistence of her marriage with the appellant. She even lived with him for

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about one month. While referring to the statements of both the victims recorded

on 15.04.2013, it is vehemently urged that both of them were tutored. It is

further submitted that both the victims being child witnesses were clearly under

the influence of their mother and were admittedly tutored. Therefore, their

testimonies cannot be relied upon. It is argued that the said victims were found

to be incompetent to suffer a statement under Section 164 Cr.P.C., on

05.02.2013, though surprisingly only after two months on 15.04.2013 itself,

they are certified to be capable witnesses.

Learned counsel for the appellant submits that when the victims

were brought before the learned Judicial Judicial Magistrate Ist Class,

Anandpur Sahib for recording of their statements under Sections 164 Cr.P.C. on

05.02.2013 they were found incompetent to suffer statement under Section 164

Cr.P.C. due to their tender age. In respect to the victim later examined as PW-3,

it is pointed out that she did not even know the name of place where she was

living. She stated that she was living on a hill. She initially did not respond

when asked as to which class she was studying in and after some time

responded by saying that earlier they used to be in Delhi, but then there was a

fight with her father. When asked as to why she had come to the Court, she

responded by saying that she had come to spend her holidays. The victim (later

examined as PW-2) aged 8 years on 05.02.2013 could not reveal her age

neither she could give the details of her place of residence or her school and

when asked as to why she had come to Court, she responded that a quarrel had

taken place. Due to the said reasons their statements under Section 164 Cr.P.C.

were not recorded. It is contended that merely two months after 05.02.2013, the

said witnesses have surprisingly given graphic details of the alleged offence on

15.04.2013 before the learned trial Court. It is vehemently argued that both the

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said witnesses have admitted to being tutored. Therefore, their testimonies have

been wrongly relied upon to convict the appellant.

It is further submitted that medical evidence on record does not

point out to the commission of any offence by the appellant. Learned counsel

for the appellant while pointing to the custody certificate dated 03.02.2018,

submits that the appellant has undergone actual sentence of 04 years, 11 months

and 28 days as on 02.02.2018 and in case remissions are included he has

undergone 06 years and 28 days of the sentence for no fault on his part. It is

thus prayed that conviction of the appellant be set aside and he be acquitted of

the charges against him.

Learned counsel for the State has refuted the arguments raised by

the appellant while submitting that there is sufficient evidence on record to

sustain the conviction of the appellant. It is stated that there is clear and cogent

evidence on record to prove the commission of the offence punishable under

Section 6 of the POCSO Act, by the appellant. Thus, it is submitted that there is

no ground for setting aside the well reasoned and logical judgment of

conviction and order of sentence dated 09.07.2013, which is based on a sound

appreciation of the evidence on record.

I have heard learned counsel for the parties and have gone through

the record of the case with their able assistance.

Complainant in this case is the mother of the two victims. In her

statement Ex.PW1/A, the complainant stated that her first husband died about

four years ago. She had two daughters from her first marriage. The complainant

solemnized second marriage with the appellant about three years prior to the

occurrence and was residing with the appellant alongwith her two daughters

aged 8 years and 7 years. It is stated that the complainant’s husband used to

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exploit and assault her daughters for the last one year and in her absence he

even tried to commit rape upon them. It is further stated that her daughters

revealed that the appellant used to threaten them not to disclose about his acts.

He committed indecent acts with the children. In her testimony before the

learned trial Court on 03.04.2014, while reiterating her version stated that the

appellant used to exploit and assault her daughters and even tried to commit

rape upon them. The complainant stated that the appellant committed the said

offence in her presence as well though no detail in terms of a timeline are given.

In her cross-examination, it is admitted by the complainant-PW-1

that she married the appellant after her first husband passed away about four

years ago. It is further admitted by her that she solemnized court marriage with

one Sunny though she tried to explain that it was not with her consent. There is

no explanation regarding the circumstances in which she solemnized marriage

with Sunny and the reason for the same or as to what was the undue pressure

exerted upon her or who exerted the same. It was further admitted that she

solemnized marriage with Sunny at Nangal about one year ago. The Court

marriage is stated to have been solemnized through an Advocate. The

complainant duly put her thumb impression on papers pertaining to the said

marriage. The complainant admittedly remained with said Sunny as his wife for

about one month at village Mangat near Nangal. It is further stated by the

complainant that the appellant brought a dagger to kill Sunny about a month

after her marriage. However, the matter was not reported to the police. The

complainant has denied the suggestion that the appellant had sold his land in

Uttar Pradesh for `1,50,000/- and she along with Sunny embezzled that amount

and thereafter, in connivance with Sunny, false allegations were raised against

the appellant.

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PW-2, daughter/victim aged 8 years gave details of the act

committed by the appellant. PW-2 stated that her mother told her that she was to

give a statement before the Court and policemen also told her what she was to

depose. It is further stated by PW-2 that she never quarreled with the appellant.

PW-3, another daughter/victim, recorded to be aged 4 years

narrated that the appellant did indecent acts with her as well as her sister. When

they protested, he would beat them as well as their mother. PW-3, in her cross-

examination stated that her mother had told her what to say and whatever was

told by her mother she has stated today. Though, subsequently, she stated that

none had told her what is to be deposed before the Court. It is further stated by

PW-3 that the appellant used to keep her and her sister like daughters. He even

used to chastise them when they were wrong.

PW-5-ASI Raghbir Singh, the Investigating Officer stated that on

03.02.2013, he along with the police party was present at Rajiv Gandhi Chowk,

Nangal. Statement of the complainant (Ex.PW-1/A) was recorded and thumb

marked by her in the presence of Lady Constable Kumari Neerja. Rough site

plan Ex.PW5/C was prepared on visiting the spot. The accused was arrested

vide memo Ex.PW5/E. It is stated by PW-5 that statements of the victims were

recorded under Section 164 Cr.P.C. whereas this is clearly opposed to the

record as the both the child witnesses were found incompetent to suffer a

statement by the learned Judicial Magistrate Ist Class, Anandpur Sahib on

05.02.2013. PW-5 further stated that he did not have any knowledge as to

whether the complainant was residing with one Sunny at Village Mojjowal. He

did not join any other person from the locality in investigation. It is to be noted

at this stage that no statement of the child witness/victim allegedly recorded by

PW-5 formed part of the final report under Section 173 Cr.P.C. Ex.DA was

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produced by the defence i.e. the statement of PW-3 recorded on 03.02.2013,

wherein she has stated that she was 8 years old and was living with her mother

at Chughian near Kusht Ashram, Nangal, District Ropar, along with the

appellant, who was engaged in work of scrap. She further stated that her mother

was working in the houses of other people and in the absence of her mother, the

appellant did indecent acts with her. She told her mother about it.

A perusal of the evidence on record reveals that a palpable and

substantial doubt is cast on the prosecution version. Perusal of the statement of

the complainant herself as well as of the victims does not inspire sufficient

confidence to convict the appellant solely on the basis of their statements. It is a

matter of record that no details whatsoever have been given by the complainant

in terms of even the approximate date, month or time when the alleged offence

was committed by the appellant. Moreover, it is opposed to all kind of

probabilities that once she came to know about the alleged attempt of the

appellant to exploit or rape her daughters, she would not have protested right

away. It is to be noted that PW-1 stated that the appellant attempted to commit

rape upon the victims a few times in her presence. It is opposed to all normal

probabilities and sensibilities that a mother would not have protested in such a

situation. It is reiterated that there is no detail of time or even month or year of

the alleged occurrence.

It is pertinent to note that PW-1, in her cross-examination

specifically stated that during the subsistence of her marriage with the appellant

she solemnized another marriage with one Sunny about one year prior to

recording of her statement before the learned trial Court. It is admitted that it

was a Court marriage and she appended her thumb marks on the relevant

papers. Even though, PW-1 seeks to explain that her marriage with Sunny was

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not with her consent. In the very next breath, she admitted that she remained

with said Sunny as his wife for about one month at village Mangat near Nangal.

There is no explanation or narration of any compelling circumstance in which

the complainant solemnized marriage with the appelalnt. She further stated that

the appellant was enraged because of her marriage with Sunny and after about

one month of this marriage, he attempted to kill Sunny with a dagger.

Peculiarly, PW-1 stated that when the appellant was arrested on 03.02.2013, the

complainant was living with him.

At this juncture, it is relevant to note that a specific doubt arises as

to whether the complainant and the victims were even residing with the

appellant at the time of the alleged incident. It is not the case of the complainant

that she was forcibly brought back from the said Sunny by the appellant and

made to reside alongwith the appellant. It was incumbent upon the complainant

to have explained the said circumstances. It is trite that an accused can be

convicted on the sole testimony of the victim in given circumstances. However,

where the attended circumstances impinge upon the credibility of the victim-

complainant, the Court is entitled to look for corroboration. Statement of PW-5,

ASI Raghbir Singh reveals that he has not even verified the place of residence

of the complainant. He has even gone to the extent of saying that the statements

of the victims were recorded under Section 164 Cr.P.C., whereas this is totally

opposed to the record.

Another factor which requires consideration in this case is the

reliability of the evidence of the child witness/victims. A perusal of the record

indeed reveals that the learned Judicial Magistrate Ist Class, Anandpur Sahib,

had opined on 05.02.2013 that the child witnesses were not competent to

depose. However, barely two months thereafter, both the victims when

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examined gave graphic details of the alleged incident/incidents before the

learned trial Court on 15.04.2013. PW-2, the victim aged 8 years in

contradiction to PW-1 stated that her mother i.e. the complainant was not

married with any other person after her marriage to the appellant. She

specifically deposed that her mother had told her that she was to suffer a

statement before the Court and the policemen had told her what was to be

deposed. In the next breath, she says that she has never quarreled with the

appellant. It is sought to be explained that the appellant used to give filthy

abuses and her mother does not want to live with him. PW-2 stated that the

appellant used to keep them along as their earlier father Nasir used to. PW-3,

the victim aged 4 years in her cross-examination clearly stated that her mother

had told her what to say before the Court and whatever was told by her mother

was stated by her, though in the next breath, she says that no one had told her

what should be deposed before the Court. It is admitted by PW-3 that the

appellant used to keep her and her sisters like his daughters. He would even

chastise them when they were wrong.

Doubtlessly, the Evidence Act, 1872 does not prescribe a particular

age as a determining factor to prove a witness to be a competent one. A child of

a tender age can also be allowed to testify in case he is found to be capable of

understanding questions and of giving rational answers thereto. Evidence of the

child witness cannot be rejected per se, but it is a settled principle as a rule of

prudence that such evidence should be subjected to close scrutiny. The Hon’ble

Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji

and others, 2009(12) SCC 731 has observed as under:-

“The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who

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notices his manners, his apparent possession or lack of intelligence,
and the said Judge may resort to any examination which will tend
to disclose his capacity and intelligence as well as his
understanding of the obligation of an oath. The decision of the trial
court may, however, be disturbed by the higher court if from what
is preserved in the records, it is clear that his conclusion was
erroneous. This precaution is necessary because child witnesses are
amenable to tutoring and often live in a world of make-believe.
Though it is an established principle that child witnesses are
dangerous witnesses as they are pliable and liable to be influenced
easily, shaken and moulded, but it is also an accepted norm that if
after careful scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it, there is no
obstacle in the way of accepting the evidence of a child witness.”

In the case of Jagjit Singh @ Jagga v. State of Punjab, 2005(3)

SCC 689, the Hon’ble Supreme Court did not rely upon the testimony of a child

witness, aged 7 years who was the sole eye-witness in a matter under Section

302 IPC.

In the present case keeping in view the facts and circumstances as

discussed in the foregoing paras, it would be unsafe to solely rely upon the

evidence of both the child witnesses/victims and the testimony of the

complainant to convict the appellant. In the given set of circumstances, it is

necessary to look for necessary corroboration of the prosecution version.

PW-6-Dr. Jatinder Kaur, Medical Officer, BBMB, Hospital, Nangal

testified that she examined PW-2, aged 8 years and PW-3 aged 7 years. In

respect to PW-2, it was opined as under:-

“She was conscious, cooperative, well oriented. She bears no
marks of violence on her body and private parts. On examination,
her breast are on early developing stage. No axillary hair present.

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No pubic hair present.

Examination of genitalia: no public hair, hymen intact, no
marks of violence present, swabs were taken from introitus and
slides were made. PV examination not done. Child was frightened
and started crying.

Molestation and sexual assault possibility cannot be ruled
out. I have brought the original MLR register and carbon copy of
MLR of Rekha is Ex.PW6/A. I identify my signatures on it."

In respect to PW-3, it is opined as under:-

"On examination, she was conscious, cooperative, crying
and scare. She has no marks of violence on her body. Secondary
sexual characters were not present.

Examination of genitalia: No public hair present, hymen
intact, no marks of violence present, swabs were taken from
introitus and slides were made. PV examination not done.

Possibility of molestation and sexual assault cannot be ruled
out. I have brought the original MLR register and carbon copy of
MLR of Asha is Ex.PW6/B. I identify my signatures on it. Intact
hymen does not rule out the possibility of fingering. It if is done
violently then hymen can be torn off."

Appellant in his statement under Section 313 Cr.P.C, has

specifically stated that a false case has been planted upon him at the instance of

the complainant because she wanted to live with one Sunny and he had opposed

the same. It is due to this reason that he was falsely implicated. The complainant

as noted earlier has admitted her marriage with said Sunny thereby lending

credibility to the case of defence. Despite her admission of this marriage with

Sunny and cohabitation with him, there is no explanation for the same. As

mentioned earlier, sole reliance on the statements of the child witnesses is not

justified in this case. Credibility of the complainant has been rendered suspect.

In this situation, the learned trial Court has erred in holding the appellant guilty

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of the offences punishable under Sections 6 and 10 of the Protection of Children

from Sexual Offences Act, 2012.

There is no doubt that the appellant has been charged with an

offence of a serious nature, which need to be dealt with a great senstivity.

However, at the same time the court cannot proceed on the basis of any kind of

presumption and without there being clear and cogent evidence against the

appellant. The evidence on record is extremely sketchy and does not unerringly

point out solely to a hypothesis of guilt of the appellant beyond the shadow of

reasonable doubt.

Keeping in view the facts and circumstances of the case as

discussed in the foregoing paras, it is clear that a material and substantial doubt

is cast on the prosecution version. Appellant is indeed entitled to the benefit of

doubt in this case.

Accordingly, this appeal is accepted. Impugned judgment of

conviction and order of sentence dated 09.07.2013, passed by the learned

Additional Sessions Judge, cum-Special Judge under POCSO Act, 2012,

Rupnagar, are set aside while affording the benefit of doubt to the appellant.

Consequently, he is acquitted of the charges as against him. The appellant is in

custody. He be released forthwith, if not required in any other case.

[LISA GILL]
March 27 , 2018 Judge
s.khan/om

Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.

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