IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 512 of 2016
Reserved on: 21.07.2017

.

Decided on: 03.08.2017

_
Kuldeep Singh …..Appellant.

Versus

State of Himachal Pradesh ……Respondent.
_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? No.

_
For the appellant: Mr. G.R. Palsra, Advocate.

For the respondent: Mr. V.S. Chauhan, Addl. AG, with

Mr. J.S. Guleria, Asstt. AG.

Chander Bhusan Barowalia, Judge.

The present appeal has been preferred by the

appellant/accused/convict (hereinafter referred to as “the accused”)

challenging the judgment dated 02.11.2016, passed by the learned

Special Judge, Bialspur, H.P. in Sessions Trial No. 20/7 of 2015,

whereby he was convicted for the commission of offence punishable

under Sections 376 and 506(ii) of Indian Penal Code, 1860

(hereinafter referred to as “IPC”) and under Sections 4 and 8 of

Protection of Children from Sexual Offences Act, 2012 (hereinafter

referred to as “POCSO Act”).

1

Whether reporters of Local Papers may be allowed to see the judgment?

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2. The factual matrix of the case, as per the prosecution

story, are that on 12.08.2015, around 03:30 p.m., when the

.

prosecutrix, a minor girl (name withheld), was returning from school,

in Chowgan area, near village Panol, the accused pounced upon her,

dragged her to fields, broke the string of her salwar and started

inserting his fingers into her vagina, thus in this manner the

accused committed rape upon the prosecutrix by penetrative sexual

assault. The accused also threatened the prosecutrix that he will

eliminate her in case she divulges the incident to anyone.

r It has

further come in the prosecution story that on 17.08.2015, around

06:30 a.m., when the prosecutrix was sleeping in her house, the

accused pressed her breasts, thus he committed sexual assault

upon the prosecutrix. The father of the prosecutrix, by medium of a

complaint, reported the matter to the police, whereupon police

registered an FIR against the accused under Sections 376, 506(ii)

IPC and Sections 4 and 8 of POCSO Act. The investigation ensued

and the police took into possession ‘salwar’ of the prosecutrix, which

was sealed in a parcel having seal impression ‘M’. The statement of

the prosecutrix, under Section 164 Cr.P.C., was recorded before the

learned Additional Chief Judicial Magistrate, Ghumarwin. The

prosecutrix was medically examined and her medico legal certificate

was obtained. The record qua date of birth of the prosecutrix was

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also obtained from Government High School, Bhager. The spot of

occurrence, i.e., where the accused dragged the prosecutrix, was

.

photographed. The case property was sent for Regional Forensic

Science Laboratory, Mandi, for chemical analysis and report

therefrom was obtained. The medical examination of the accused

and his medico legal certificate was also procured by the police. Site

plans of the spot of occurrences were prepared and the statements of

the witnesses, under Section 161 Cr.P.C., were also recorded. After

completion of investigation, challan was presented in the Court.

3. The prosecution, in order to prove its case, examined as

many as fourteen witnesses. Statement of the accused was recorded

under Section 313 Cr.P.C., wherein he denied the prosecution case

and claimed innocence. The accused while replying to Question No.

21 stated as under:

“A:21. Do you want to say anything else?

Ans. Path leading to the house of the prosecutrix
goes from the court yard of my house. Shri
Ramesh chand used to visit the house of the
prosecutrix during odd hours. Since Shri

Ramesh Chand used to pass through my
court yard during odd hours, I objected to it.
He threatened to teach me a lesson in future
and got involved me in this false case after
joining hands with the complainant party. I
am innocent.

In defence, the accused did not examine any witness.

4. The learned Trial Court, vide impugned judgment dated

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02.11.2016, convicted the accused for the offence punishable under

Sections 376, 506(ii) IPC and Sections 4 and 8 of POCSO Act, and

.

sentenced him to undergo imprisonment as under:

Under Rigorous imprisonment for a
Section period of ten years and fine of
376 of IPC `25,000/-. In default of payment

of fine, to undergo further
imprisonment for one year.
Under Simple imprisonment for a period
Section of one year.
506(ii) IPC

Under Rigorous imprisonment for a
Section 4 period of seven years and fine of
of POCSO `15,000/-. In default of payment
Act of fine, to undergo further
imprisonment for six months.
Under

Rigorous imprisonment for a
Section 8 period of three years and fine of

of POCSO `10,000/-. In default of payment
Act of fine, to undergo further
imprisonment for six months.

The learned Trial Court ordered that all the sentences shall run

concurrently and out of total fine amount of `50,000/-, `40,000/-

was ordered to be paid to the prosecutrix as compensation.

Aggrieved against the impugned judgment of conviction, the

accused/convict has preferred the present appeal.

5. We have heard the learned Counsel for the

accused/appellant and the learned Additional Advocate General for

the respondent/State.

6. The learned counsel for the appellant has argued that

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the case against the appellant is the result of manipulation by one

Ramesh Kumar, who was, in fact, involved with the prosecutrix and

.

to teach a lesson to the accused, a false case has been registered

against the appellant. He has further argued that the prosecution

has failed to prove the guilt of the appellant beyond reasonable

doubt and the judgment of the learned Trial Court may be set aside.

Conversely, the learned Additional Advocate General has argued that

the prosecution has proved the guilt of the accused beyond the

shadow of reasonable doubt. He has further argued that as far as

Ramesh Kumar is concerned, he has been separately convicted in

another trial and the accused cannot take benefit of the conviction of

Ramesh Kumar. He has argued that as the prosecution has proved

the guilt of the accused beyond the shadow of reasonable doubt, so

the appeal may be dismissed.

7. In order to appreciate the rival contentions of the parties,

this Court has gone through the statements of the prosecution

witnesses in detail and also the record carefully.

8. Manifestly, the alleged offence of the first occurrence has

not been witnessed by anyone and thus, at the very outset, the

statement of the prosecutrix is being discussed. As the prosecutrix

was a minor witness, the learned Trial Court, by putting certain

questions to her, to which she replied correctly, found her

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sufficiently mature in understanding the things. She has deposed

that on 12.08.2015, around 03:30 p.m., when she was returning

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home from her school, the accused caught hold of her from her waist

and dragged her to nearby field. The accused broke the string of her

salwar and inserted his fingers in her vagina. He also threatened

that in case she divulges the incident to anyone, he will kill her

parents. She has further deposed that she wore her salwar by tying

knots in her broken string. She did not narrate the incident to her

parents due to fear.

9. On 17.08.2015, around 06:30 a.m. when she was

sleeping and her parents were not there, the accused came and

pressed her breasts. On 22.08.2015 the prosecutrix divulged the

occurrences to her parents and the matter was reported to the

police. She was medically examined and she handed over her salwar

to the police, which was taken into possession vide memo, Ex. PW-

1/A. She has further deposed that her statement, Ex. PW-2/A, was

recorded in the Court at Ghumarwin. As per the prosecutrix, when

she went to Police Station, Ghumarwin, for lodging the report,

Ramesh Kumar met her and before that on the same day, i.e. on

22.08.2015 he raped her in District Hospital, Bilaspur. She has

deposed that she had gone to hospital to bring medicines for her

mother, who was indisposed. She did not disclose to the police,

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while lodging the FIR, that she had been raped by Ramesh Kumar.

She was threatened by Ramesh Kumar that in case she divulges the

.

incident to anyone, he will kill all of them. She has further deposed

that for the first time she revealed about Ramesh Kumar, who is her

masad, before the police on 10.11.2015. The prosecutrix, in her

cross-examination, has deposed that she did not remember the time,

when she was raped by Ramesh Kumar and she did not narrate the

incident to her parents. She has further deposed that Ramesh

Kumar used to come to their house and they had amiable relations.

She denied the suggestion that fields belong to one Smt. Hakmi Devi.

She has further deposed that villagers use the path which is near to

the maize field (spot of occurrence). She told to mother of one Pyare

Lal, whose house is near to maize fields, that accused is obstructing

her, who in turn advised her to go from another path, but in the

statement given to the police it is not so recorded. As per her

version, she divulged to the police that her younger sister was

sleeping with her when the accused pressed her breasts, however, in

her statement, Ex. DB, given to the police, it is not so recorded. She

has further deposed that on 22.08.2015, she alongwith her father

went to Police Station, Ghumarwin, and Ramesh Kumar had

accompanied them. On 12.08.2015, during the occurrence she cried

for help, but the accused muzzled her mouth. She has stated that

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she did not raise any alarm when the accused pressed her breasts

and the occurrence was witnessed by her sister. On 17.08.2015 she

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narrated to her parents that the accused pressed her breasts.

10. PW-2, Smt. Seema Devi, mother of the prosecutrix,

deposed that on 22.08.2015 the prosecutrix informed her that

accused used to tease her. The prosecutrix also narrated to her that

on 12.08.2015 when she was coming from school, the accused was

hiding in maize crop field. The accused pounced upon her and

dragged her to field and inserted fingers in her vagina. As per this

witness, on 17.08.2015, when she was away to fields, the accused

came in their house and pressed the breasts of the prosecutrix. The

accused also threatened the prosecutrix that in case she divulges the

incident to anyone, he would kill her. She has further deposed that

she recounted the incident to her husband and the matter was

reported to the police. Police prepared the site plans and salwar of

the prosecutrix was taken into possession, vide seizure memo Ex.

PW-1/A. This witness, in her cross-examination, deposed that there

is another path from the maize field, which leads to their house and

the same also leads to the village. She has stated that on

12.08.2015 the prosecutrix was returning home from the other path.

She feigned her ignorance that on that day Smt. Bhaga Devi met the

prosecutrix. As per this witness, on 17.08.2015, the prosecutrix

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alongwith her sister was sleeping in the house and accused came

and pressed the breasts of the prosecutrix. Her younger daughter,

.

disclosed this incident to her on the same day. She disclosed this

fact to the police, but in her statement, Ex. DA, this fact has not

been recorded. As per this witness, on 22.08.2015, one Ramesh

Kumar, who is working as Driver in District Hospital, Bilaspur, had

raped the prosecutrix. On 22.08.2015 she sent the prosecutrix to

District Hospital, Bilaspur, to bring medicines for her. The

prosecutrix left for the hospital at 08:30 a.m. and returned home at

10:00 a.m. She was informed by the prosecutrix that around 09:00

a.m. she was raped by Ramesh Kumar in the hospital. She has

further deposed that the prosecutrix used to call Ramesh Kumar as

masad. The accused and Ramesh Kumar were having hostile

relations. Ramesh Kumar met them outside the Police Station when

they lodged the FIR against the accused.

11. PW-4, Dr. Bandana Gautam, deposed that on

22.08.2015, on application Ex. PW-4/A, moved by the police, she

medically examined the prosecutrix, who was brought with the

alleged history of sexual assault. She found no scar, injury or

swelling on face, neck, both breasts and around vaginal region of the

prosecutrix. She took into possession the vaginal swabs, slides,

blood on FTA card, blood sample and pubic hair of the prosecutrix

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and sealed them with the seal of the hospital and handed over the

same to Lady Constable Sarita (PW-8). She issued Medico Legal

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Certificate, Ex. PW-4/B, which bears her signatures. After receipt of

chemical report, Ex. PW-4/C, this witness opined that the possibility

of intercourse cannot be ruled out, however, she reserved her final

opinion, which was to be given after receipt of DNA profiling. This

witness, in her cross-examination, has deposed that she did not

conduct ossification test for ascertaining the age of the prosecutrix.

She also did not conduct any test for ascertaining that the

prosecutrix has suffered any internal injury or not.

12. PW-14, Dr. Anuj Sharma, deposed that on 22.08.2015,

on receipt of application, Ex. PW-13/I, moved by the police, he

medically examined the accused and found him capable of

performing sexual act. He has further deposed that he took into

possession underwear, pubic hair, blood and nails of the accused,

which were sealed and handed over to the police for chemical

analysis. He has also issued Medico Legal Certificate, Ex. PW-14/A,

qua the accused.

13. PW-3, Shri Inderjit (father of the prosecutrix) deposed

that on 22.08.2015, his wife (PW-1) informed him that accused

teased the prosecutrix. He has further stated that his wife had also

informed him that on 12.08.2015 when the prosecutrix was

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returning home from the school, the accused, who was hiding,

caught hold of the prosecutrix from her back, dragged her to fields,

.

broke the string of her salwar and inserted fingers in her vagina. He

made complaint, Ex. PW-3/A, to the police, which bears her

signatures. This witness, in his cross-examination, deposed that

only one path leads to their house from chaugan. He has denied that

on 12.08.2015 the prosecutrix was returning home through another

path. He has admitted that Ramesh Kumar accompanied them to

the police station, as he met them outside the police station.

14. PW-5, Shri Laxman Singh, Head Master, Government

High School, Bhager, deposed that as per the school record the date

of birth of the prosecutrix is 04.06.2002. He handed over the copy of

admission and withdrawal register of the school to the police, which

is Ex. PW-5/A. This witness, in his cross-examination, did not

depose anything which is contrary to the prosecution case. PW-6,

Smt. Sunita Mehta, Junior Assistant, Municipal Council, Bilaspur,

deposed that as per the Municipal records, the prosecutrix was born

on 04.06.2002 and qua this fact an entry had been made at Sr. No.

756 of the register and Certificate, Ex. PW-6/A, was prepared, as per

the records. She handed over the certificate to the police vide memo

Ex. PW-6/B. In cross-examination of this witness nothing averse to

the prosecution has come.

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15. Now, the statements of the official prosecution witnesses,

is to be seen. PW-7, HC Mohinder Singh, MHC, Police Station,

.

Ghumarwin, deposed that on 22.08.2015 PW-13, S.I./SHO Ashok

Chauhan deposited with him a sealed parcel alongwith facsimile

seal. He has further deposed that on the same day, Lady Constable

Sarita Devi (PW-8) also deposited a sealed parcel, which was sealed

with seals of hospital. On the same day, Constable Raj Kumar also

deposited with him four sealed parcels and an envelope. He made

relevant entries in the malkhana register qua deposit of the aforesaid

case property. The relevant abstract of the malkhana register is Ex.

PW-7/A. As per the version of this witness, on 28.08.2015, he had

sent, through Lady Constable Usha Kumari, vide RC No. 204 of

2015, all the parcels, sample seals, docket, copy of FIR and MLCs to

Regional Forensic Science Laboratory, Mandi, for chemical analysis

and RC, Ex. PW-7/B, was handed over to him. Ex. PW-4/C is

chemical report received in the police station and in the malkhana

register entries in this regard were made by him. The case property

remained intact under his custody. He issued CIPA certificate,

which is Ex. PW-7/C. PW-8, Lady Constable Sarita Devi, deposed

that on 22.08.2015 she accompanied S.I../SHO Ashok Chauhan

(PW-13) to village Amarpur. The prosecutrix produced her salwar,

which was taken into possession vide memo, Ex. PW-1/A, which

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bears her signatures. She took the prosecutrix to Civil Hospital,

Ghumarwin, for her medical examination and after the examination

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the doctor handed over to her the medico legal certificate of the

prosecutrix and a sealed parcel. On the same day, she deposited the

same with MHC Mohinder Singh (PW-7). As per her version, birth

certificate, Ex. PW-6/A, was taken into possession vide memo Ex.

PW-6/B, which also bears her signatures. This witness, in her

cross-examination, deposed that she did not remember the time

when she went to the spot on 22.08.2015 alongwith SHO.

16. PW-9, ASI Nand Lal, deposed that he had partly

investigated the case and took into possession birth certificate,

Ex.PW-6/A, vide seizure memo Ex. Pw-6/B. He also recorded the

statements of Sunita Mehta (PW-6) and Lady Constable Sarita Devi

(PW-8). Thereafter, he handed over the case file to SHO for further

investigation. PW-10, Head Constable Lalit Kumar, deposed that in

November, 2015, he was officiating as MHC, as regular MHC was on

leave. He has proved copy of FIR No. 281 of 2015, which is Ex. PW-

10/A. PW-11, Lady Constable Usha Kumari, deposed that on

28.08.2015 MHC Mohinder Singh, vide RC No. 204/2015, handed

over him four sealed parcels, one sealed envelope, specimen of seal,

copy of FIR, medico legal certificates and docket to him, which she

deposited on the same day in Regional Forensic Science Laboratory,

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Mandi, and on return RC was given by him to MHC. As per this

witness, the case property remained intact under her custody. PW-

.

12, HC Parkash Chand, deposed that he partly investigated the case

and on 17.11.2015 he recorded the statement of PW-5, Shri Laxman

Singh, under Section 161 Cr.P.C. He handed over the case file to

SHO for further investigation.

17. PW-13, S.I. Ashok Chauhan, deposed that on 22.08.2015

the prosecutrix and her father, Shri Inder Jeet (PW-3) came to the

police station and moved complaint, Ex. PW-3/A, whereupon FIR,

Ex. PW-13/A, was registered. The prosecutrix, vide application

Ex.PW-4/A, was sent for medical examination. He prepared spot

map, Ex. PW-13/B, and photographs, Ex. PW-13/C to Ex.PW-13/G,

were taken by him with his mobile phone. Subsequently, he went to

the house of the prosecutrix and site plan, Ex. PW-13/H, was

prepared. The prosecutrix produced her salwar, which was taken

into possession, in presence of witnesses, vide seizure memo Ex. PW-

1/A. He recorded the statement of the witnesses and the accused

was arrested. The accused was medically examined and his medico

legal certificate was also obtained. The statement of the prosecutrix

was got recorded under Section 164 Cr.P.C. in the Court. As per this

witness, the parcel containing salwar of the prosecutrix was sent to

Forensic Science Laboratory, Junga, for D.N.A. test, however, no

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report has been received. This witness, in his cross-examination,

has deposed that initially he went on the spot of occurrence on

.

12.08.2015 and he did not call any villager on the spot. He has

voluntarily deposed that the spot of occurrence is a solitary place

and when he visited the same the prosecutrix and her father were

with him. He feigned his ignorance that house of one Shri Shiv

Singh is near to point ‘D’, as depicted in site map, Ex. PW-13/B and

another path leads to the house of the prosecutrix from point ‘X’, as

reflected in site plan, Ex. PW-13/B. He also feigned his ignorance

that houses of S/Shri Ramesh, Kailu and Munshi Ram are near to

point ‘F’ and houses of S/Shri Piare Lal, Jagdev, Bablu, JaiRam, Jai

Kishan, Baldev and Sita Ram are near to point ‘E’, as depicted in

spot map, Ex. PW-13/B.

18. After thoroughly discussing the entire prosecution

evidence, this Court finds that DNA reports received from State

Forensic Science Laboratory, Junga, qua the prosecutrix, accused

and Ramesh Chand are of valuable aid in deciding innocence or guilt

of the accused. Thus, the relevant portions of the reports are

extracted hereunder for ready reference:

Report qua the prosecutrix and the accused:

“Description of Parcels/Exhibits

Parcel-1: One sealed parcel bearing one seal of Biology
Serology, RFSL Mandi. The Parcel contained

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exhibit-1a and 1b.

Exhibit-1a: Two cotton swabs wrapped at one end of
each plastic stick were present in respective test
tubes. The exhibit was mentioned as vaginal
swabs of ….. (the prosecutrix).

.

Exhibit-1b: One FTA card having brown stains. The
exhibit was mentioned as blood sample of ………
(the prosecutrix).

Parcel-2: One sealed parcel bearing one seal of Biology

Serology, RFSL Mandi. The parcel contained
exhibit-2.

Exhibit-2: One white coloured salwar. The exhibit was
mentioned as salwar of …….. (the prosecutrix).

Parcel-3: One sealed parcel bearing one seal of Biology
Serology, RFSL Mandi. The parcel contained
exhibit-3.

Exhibit-3: Small plastic container having dried brown
rstains inside and emitted putrefaction smell. The

exhibit was mentioned as blood sample of
Kuldeep Singh.

LAB EXAMINATION Results

DNA isolation was carried out from aforesaid exhibits
through Organic method and differential extraction.
The isolated DNA was checked for quality and quantity
by 0.8% agarose gel electrophoresis and ethidium
bromide staining. The DNA was subjected to Multiplex

PCR for co-amplification of 20 STR loci and Amelogenin
using Powerplex 21® PCR Amplification Kit. The

amplified products along with controls wee run on
automated DNA sequencer (ABI 3130). DNA profiles
were prepared and analysis was carried out using Gene
Mapper ID Software v 3.2. The results were as

under:-

1. The DNA profile obtained from Exhibit-1a
(vaginal swab,……{the prosecutrix}) was of male origin
which was different from DNA profile obtained from
Exhibit-3 (Blood sample, Kuldeep Chand).

2. Exhibit-2 (salwar,……{the prosecutrix}) yielded
highly degraded DNA that did not show amplification
with Powerplex 21® PCR Amplification Kit PCR
amplification kit. Hence no DNA profile could be
generated.”

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Report qua the prosecutrix and Ramesh Kumar:

“Description of Parcels/Exhibits

Parcel-1: One sealed parcel bearing one seal of

.

Biology Serology, Division State FSL, Junga. The

parcel contained exhibit-1.

Exhibit-1: Two cotton swabs wrapped at one end of
plastic stick each and were present in the respective test
tubes. The exhibit was mentioned vaginal swabs of

……. (the prosecutrix).

Parcel-4: One sealed parcel bearing one seal of
Himachal Pradesh Kshetri Parishad Jantai Janadran.
The parcel contained exhibit-4.

Exhibit-4: One FTA card having brown stains. The
exhibit was mentioned as blood sample of Ramesh
Chand.

LAB EXAMINATION Results

DNA isolation was carried out from aforesaid exhibits

through Organic methods and differential
extraction. The isolated DNA was checked for quality
and quantity by 0.8% agarose gel electrophoresis and
ethidium bromide staining. The DNA was subjected to
Multiplex PCR for co-amplification of 20 STC loci and

Amelogenin using using Powerplex 21® PCR
Amplification Kit. The amplified products along with
controls were run on automated DNA sequencer (ABI
3130). DNA profiles were prepared and analysis was
carried out using Gene Mapper ID Software v 3.2.

The results were as under:-

1. The DNA profile obtained from Exhibit-1 (vaginal
swab,…… (the prosecutrix) matched completely with the
DNA profile obtained from Exhibit-1b (Blood sample of
same victim i.e. ……..(the prosecutrix)) received vide file

no2136 /SFSL/DNA(293)/15, docket No 8856/5a dt
30.09.15 P.S Ghumarwien.

2. The male DNA profile obtained from Exhibit-1a
(vaginal swab, ……(the prosecutrix)) received vide file
no2136 /SFSL/DNA(293)/15, docket No 8856/5a dt
30.09.15 P.S. Ghumarwien matched completely with
the DNA profile obtained from Exhibit-4 (Blood sample,
Ramesh Chand).”

19. As far as first incidence is concerned, it is correct that as

per the prosecutrix, she was all alone, but the fact that why the

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accused, only after allegedly inserting his fingers in her private parts,

left her. The prosecutrix could not give any plausible explanation to

.

the effect that why the accused only after inserting his fingers in her

private parts left her alone, it creates a doubt in the prosecution

story, when this Court finds that DNA on vaginal swabs matched

with the DNA of Ramesh Kumar, who remained with the prosecutrix

and her family on 22.08.2015 when FIR was lodged. As per the

prosecution evidence on 22.08.2015, at about 11:00 a.m., Ramesh

Kumar was present with the prosecutrix in the police station and the

DNA report received from State Forensic Science Laboratory, Junga,

qua the prosecutrix and Ramesh Kumar, reveals that on 22.08.2015,

in between 9-10 a.m., Ramesh Kumar has committed sexual

intercourse with the prosecutrix in the hospital, where she has gone

to bring medicines for her mother. In the present set of

circumstances, the explanation of the accused that he was falsely

roped in by Ramesh Kumar, as the accused obstructed Ramesh

Kumar to go to the house of the prosecutrix from the path, which

passes from the courtyard of the accused, seems plausible. Further,

the prosecutrix, in her cross-examination, has deposed that on

17.08.2015, in the morning, at about 06:30 a.m., the accused

pressed her breasts, when she was sleeping alongwith her sister.

However, nothing is emanating from the record that when the

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accused was pressing the breasts of the prosecutrix, what action did

the sister of the prosecutrix or prosecutrix take. The prosecution

.

evidence demonstrates that Ramesh Kumar, who was so called

masad of the prosecutrix and used to come to her house, was having

affable relations with the family of the prosecutrix and he was

instrumental in lodging the FIR against the accused, as he

accompanied the prosecutrix and her father to the police station for

lodging the FIR, thus, it cannot be ignored that Ramesh Kumar

played an active role in getting lodged an FIR against the accused.

The DNA report qua the prosecutrix and Ramesh Kumar

unambiguously demonstrates that Ramesh Kumar had sexual

intercourse with the prosecutrix just approximately 30-60 minutes

before (as the DNA profile obtained from the vaginal swab of the

prosecutrix completely matched with the DNA profile obtained from

the blood sample of Ramesh Kumar) lodging the FIR against the

accused. However, the prosecutrix did not utter any word against

Ramesh Kumar. Thus, withholding of facts by the prosecutrix

creates a doubt in the prosecution story. A symmetrical scrutiny of

the prosecution story and the available evidence raise following

suspicions:

(a) The association of Ramesh Kumar, who, as per
the DNA report, committed sexual intercourse

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with the prosecutrix on 22.08.2015 just
approximately 30-60 minutes before lodging of
the report against the accused, and his

.

remaining throughout with the prosecutrix

and her parents in the police station on that
day, coupled with the fact that for inexplicable

reasons the prosecutrix did not whisper or
murmur against Ramesh Kumar that he had
committed sexual intercourse with her, if read

in conjunction with the explanation given by
the accused in his statement recorded under
Section 313 Cr.P.C., the same creates a doubt

upon the veracity of the prosecution story and

renders it improbable.

(b) The prosecutrix portrayed the facts that on
12.08.2015 the accused dragged her in the

maize field and he left her after inserting his
fingers into her private parts, are
unconvincing and it makes the prosecution

story wholly doubtful, as the prosecutrix did

not explain that what prompted the accused to
left her without committing sexual intercourse.

Why the accused left the prosecutrix without
committing sexual intercourse, whether the
prosecutrix cried for help or someone came on
the spot, are the questions which remained
unanswered and the prosecution could not
explain these facets of the case, which
certainly go against the prosecution story

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21

rendering it highly doubtful.

(c) Likewise, the medico legal certificate of the
prosecutrix depicts no positive evidence of

.

sexual intercourse by the accused with her,

thus the medical evidence also shakes the
pillars of the edifice of the prosecution case.

(d) The mother of the prosecutrix has not stated
anything why she remained silent, when her
younger daughter told her that accused

pressed the breasts of the prosecutrix on
17.08.2015.

(e) In the complaint written by the father of the

prosecutrix, on the basis of which FIR was

registered, the alleged incidence in the maize
field is stated to have happened on 17.08.2015
and the alleged incidence in the house of the

prosecutrix is stated to have happened on
12.08.2015 and on the similar lines the FIR
was got recorded. This contradiction, when

seen alongwith the above mentioned factors,

creates a dent in the prosecution story.

(f) Last, but not the least, non-examination of the

sister of the prosecutrix, who was sleeping
alongwith her on 17.08.2015, when the
accused allegedly pressed the breasts of the
prosecutrix in the morning, makes the
prosecution story doubtful.

20. Besides the above enumerated lacunae in the

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22

prosecution story, there are other loopholes as well. It has also come

in the prosecution story that on 12.08.2015 one Bagga Devi was also

.

there, to whom the prosecutrix complained about the accused, but

surprisingly and for unexplained reasons she was not examined by

the prosecution and the same weakens the prosecution case.

Similarly, the prosecutrix has categorically stated that on dated

17.08.2015 when the accused pressed her breasts, her sister was

also with her, but she offered no explanation that thereafter till

22.08.2015 why she did not tell anybody about the incident.

21. It has also come in the prosecution evidence that the

house of Shri Shiv Singh and other persons are adjoining to the spot

where the occurrence of 12.08.2015 allegedly took place, however,

the Investigating Officer, ASI Ashok Chauhan (PW-13), when he was

cross-examined, feigned his ignorance qua nearby houses. This also

creates a doubt in the prosecution story. At the same point of time,

the prosecutrix has stated, in her cross-examination, that on

17.08.2015 she told to mother of one Shri Pyare Lal, whose house is

near to the maize field, that accused is obstructing her way.

However, the prosecution did not bother to examine the mother of

said Shri Pyare Lal, to establish this crucial fact, as portrayed by the

prosecutrix.

22. PW-3, Shri Inderjeet Singh (father of the prosecutrix)

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23

specifically admitted in his cross-examination that Ramesh Kumar

accompanied them to the police station. He denied the suggestion

.

that accused and Ramesh Kumar are not having good relations, but

he stated that prior to 22.08.2015 they had good relations with

Ramesh Kumar. PW-1, Smt. Seema Devi (mother of the prosecutrix),

specifically stated that on 17.08.2015 the prosecutrix was sleeping

with her sister in the house and on the same day younger sister of

the prosecutrix told her about the incident, as alleged by the

prosecutrix, that accused in the morning pressed the breasts of the

prosecutrix. This witness has also admitted that on 22.08.2015

Ramesh Kumar of their village committed sexual intercourse with

her daughter (prosecutrix) and said Ramesh Kumar is working as

driver in District Hospital, Bilaspur. She has further stated that

prosecutrix told her that Ramesh Kumar has committed sexual

intercourse with her at 09:00 a.m. on 22.08.2015.

23. It is worthwhile to take note of the fact that FIR against

Ramesh Kumar was only registered on 10.11.2015 when his sperms

were found on the vaginal swabs of the prosecutrix, which were

taken on 22.08.2015.

24. In these circumstances, we conclude that the

prosecution has failed to prove the guilt of the accused under

Sections 376 and 506(ii) IPC and Sections 4 and 7 of POCSO Act

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beyond reasonable doubt. The suspicions qua innocence of the

accused are strong and definitely benefit of which has to be given to

.

the accused, therefore, we hold that the prosecution could not

establish and prove its case beyond reasonable doubts and the

accused is required to be acquitted after setting aside the judgment

of conviction rendered by the learned Trial Court.

25. The cumulative effect of the above discussion is that the

prosecution has failed to prove the guilt of the accused and the story

of the prosecution is full of doubts. Therefore, the judgment of the

learned Trial Court is set aside, as the same is not sustainable in the

eyes of law. Accordingly, the accused is acquitted and ordered to be

released forthwith, if not required in any other process of law. The

Registry is directed to prepare the release warrants.

26. Accordingly, the appeal, so also pending application(s),

if any, stand(s) disposed of.

(Tarlok Singh Chauhan)
Judge

(Chander Bhusan Barowalia)
Judge
3rd August, 2017
(virender)

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