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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