1

HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No.136 of 2018
Reserved on: 22.08.2019
Decided on: October 16, 2019.

.

Arun Kumar ……….Appellant.

Versus

State of Himachal Pradesh ……..Respondent.

_

Coram:

Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?1 yes
For the appellant : Mr. Satyen Vaidya, Sr. Advocate,
with Mr. Vivek Sharma, Advocate.

For the respondent :

Mr. Vikas Rathore and Mr. Narender

Guleria, Addl. Advocate Generals,

with Mr. J.S. Guleria, Deputy
Advocate General and Mr. Manoj
Bagga, Asstt. Advocate General.

Jyotsna Rewal Dua, Judge.

Instant appeal has been preferred by the

appellant/accused against the judgment dated 29.03.2018,

passed by learned Special Judge (District and Sessions Judge),

Hamirpur, H.P., whereby accused has been held guilty and

convicted for the offences punishable under Sections 341, Section363,

Section328, Section376(2)(i), Section323 Section506 IPC and Section 6 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred

to as the ‘POCSO Act’). For the offence punishable under

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Section 6 of POCSO Act, accused has been sentenced to

undergo rigorous imprisonment for ten years with fine of

Rs.10,000/- and in default of payment of fine, accused has to

.

further undergo simple imprisonment for one year. Having been

sentenced under Section 6 of POCSO Act, appellant was not

imposed any sentence for the offences punishable under

Sections 328 and Section376(2)(i) IPC. Sentences of less than 10

years, in respect of other offences, were to run concurrently.

2(i). Appellant-accused was charged with offences:-

a). Punishable under Section 341 IPC having
been committed by him on 26.02.2014 and
r 28.10.2015;

b). Punishable under Section 363 IPC having
been committed on 26.02.2014 and
28.10.2015;

c). Punishable under Section 328 IPC having

been committed on 26.02.2014;

d). Under Section 6 of POCSO Act or in the
alternative under Sections 376 (2)(i) SectionIPC

having been committed by him on
26.02.2014 and 28.10.2015;

e). Under Section 323 IPC having been
committed on 11.03.2016; and

f). Under Section 506(ii) IPC having been
committed on 26.02.2014 and 28.10.2015.

2(ii). Thirty one witnesses were examined by the

prosecution for establishing its case. Accused also produced his

father, wife and Panchayat Secretary in the witness-box.

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2(iii). We have heard Mr. Satyen Vaidya, learned

senior counsel for the appellant/accused, Mr. J.S. Guleria,

learned Deputy Advocate General for the State and with their

.

able assistance, carefully gone through the record.

3. All the offences are alleged to have been

committed on three specific dates, i.e. 26.02.2014, 28.10.2015

and 11.03.2016. Therefore, we propose to discuss hereinafter

the alleged events of the case, date-wise.

Events on 26.02.2014:

3(i). Prosecutrix (PW-1), in her examination-in-chief,

deposed that while going to school on 26.02.2014, she was

forcibly taken by the accused in his car at around 08.00 a.m.

from a place called Balle to a hotel at Rewalsar where she was

subjected to sexual intercourse. Her deposition about the

events of 26.02.2014, may be noticed thus:-

“On 26.2.2014, when I was going to school, the
accused met me at place Balle at about 8.00 AM.

He came in his car and insisted to accompany him
to Rewalsar. I initially objected, but on his

repeated insistence I accompanied him. The
accused took me to Lotus Hotel at Rewalsar. On
reaching hotel, we had lunch together and
thereafter the accused took me in a room for
resting. The accused offered me cold drink and
after drinking the same, I fell unconscious. After 2-
3 hours when regained conscious, I found that my

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Salwar and underwear were lying on the side of
the bed and I was feeling pain in my private part. I
also spotted blood coming out of my private part.
The accused threatened me not to disclose the

.

incident, otherwise he would upload my

photographs and video clips on the Internet. Later,
we returned and he dropped me at my house.

I did not disclose the incident out of fear and
threat.”

3(ii). Though the case of prosecution primarily is under

POCSO Act, where the prosecutrix (with date of birth:

26.05.1999) was allegedly taken to Rewalsar perforce, yet after

going through the statements of witnesses on record, one

cannot help but notice that as per prosecutrix, accused in past

also used to indulge in minor obscene activities, which were

objected by her. Despite being aware of alleged character of

accused, she while going to school on 26.02.2014, chose to

accompany the accused in his car merely on his ‘insistence’;

prosecutrix went in accused’s car to a hotel at ‘Rewalsar’, a

place at about 30 kilometres from her home; took lunch there

with accused; and then went to a room in the hotel with

accused, where she alleges to have become unconscious after

a drink and on regaining her senses, found her cloths removed

and felt pain in her private part.

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3(iii). Though the prosecutrix alleged to have

accompanied the accused in his car to the hotel at Rewalsar

and stayed there for around 3/4 hours, yet no investigation

.

appears to have been conducted by the police with regard to

collecting any information regarding this from the hotel, its

staff, CCTV Cameras’ footage etc. No person has stepped into

the witness-box professing to have seen the prosecutrix and

accused together either at ‘Balle’ or during not so short journey

from Balle to hotel in Rewalsar or in the hotel, which as per

prosecutrix was in a thick locality or during their return journey

from Rewalsar to her home.

3(iv). Prosecutrix, during her cross-examination, has

admitted that on 26.02.2014, she attended her school and was

present there throughout. She was studying at that time in

Government Senior Secondary School, Ladraur. Her exact

deposition may be noticed hereunder:-

“It is correct that on 26.2.2014 I was studying

at Govt. Senior Secondary School, Ladraur. It is
correct that on 26.2.2014, I attended the school

and was present throughout.”

3(v). In fact, her complaint dated 30.04.2016 (Ext.D-

1), addressed to State Women Commission, Shimla, does not

contain any reference to any untoward incident on 26.02.2014.

Prosecutrix, as per her own version, attended the school on

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26.02.2014 and was present in the school throughout. In that

circumstance, her version of having been kidnapped on way to

school on 26.02.2014 at about 08.00 a.m. and forcibly taken to

.

Rewalsar by the accused and subjected to sexual intercourse

there in a hotel, cannot be believed. Ironically, police has

neither investigated nor produced any evidence in respect of

her school attendance record, hotel record or any witness in

respect of alleged incidents of 26.02.2014. The story put-

forward is unbelievable, appears to be concocted and is

certainly not established on record.

3(vi). The story of events of 26.02.2014 described by

the prosecutrix, falls absolutely flat in view of deposition of

PW-10 Shri Bala Ram, who furnished the details of leaves

availed by the accused w.e.f. February, 2014 to March, 2016

(Ext.PW-10/A). PW-10 Shri Bala Ram was posted as Deputy

Commandant, 126 Bn., C.R.P.F., Badda, Reasi (JK), where

accused was posted as driver. Perusal of Ext.PW-10/A, shows

that accused had not availed any leave during February, 2014.

3(vii). Shri Dharam Singh, father of the accused, also

stepped into the witness-box as DW-2 and produced the leave

record of the accused (Mark DX) obtained by him under the

Right to SectionInformation Act. As per this record, accused was on

duty on 26.02.2014, therefore, the story put-forward by the

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prosecutrix in respect of the events of 26.02.2014, is not

established on record.

4. Events alleged on 28.10.2015:

.

4(i). It may be noticed at this stage that no

allegation of any nature whatsoever has been levelled by the

prosecutrix against the accused for the period 27.02.2014 to

27.10.2015. Rather the prosecutrix has deposed in her

examination-in-chief that during this interregnum “the accused

got married in July 2015” and further in cross-examination she

stated:- “It is correct that the accused got married in the month

of June/July, 2014.” This version of the prosecutrix that accused

got married in June/July, 2014, has been corroborated by her

mother Smt. Usha Devi (PW-2) in following manner:-

“It is correct that the accused got married in the

month of June, 2014. It is correct that we all
attended his wedding. It is correct that our

photographs during the wedding were taken along
with video recording. It is correct that my

daughter also attended the entire wedding.”

Prosecutrix (PW-1), in her cross-examination, has

also deposed that:-

“It is correct that the accused got married in the
month of June, 2014. It is correct that me and my
family attended the wedding of the accused. It is
correct that during wedding my photographs were

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taken along with others. I also danced in the
wedding.”

4(ii). Families of prosecutrix and accused are related to

.

each-other. Their grand-fathers, as per prosecutrix, were real

brothers. We may now discuss the events alleged to have

happened on 28.10.2015. Just like the happenings alleged for

the date 26.02.2014, prosecutrix has given almost repeated

version of events for 28.10.2015. To quote from her

examination-in-chief for description of events on 28.10.2015:-

“Thereafter on 28.10.2015, the accused met me
when I was going to school at about 8.00 AM near

the same place. He came in his car and again

insisted to accompany him to Rewalsar. I opposed
and resisted, but was forced to accompany as he
again threatened to upload my photographs and

videos on the Internet. The accused took me to
Mandi and thereafter to Rewalsar in the same
hotel. The accused again subjected to me forcible

sexual intercourse. The accused again threatened

me from disclosing the incident. In the evening at
about 4.00 PM, he dropped me at my home.”

4(ii)(a). The defence has endeavoured to prove that on

28.10.2015, prosecutrix was present in the school and attended

her classes, therefore, the entire story put-forward by her is

absolutely false. In furtherance to this defence, reliance has

been placed on extracts of the Attendance Register of class

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10th(A) (Ext.PW-6/C) of the school in question, produced by Sh.

Rajni Kant (PW-6), showing attendance entries of class 10 th (A),

Government Senior Secondary School, Ladraur, for the month

.

of October, 2015. It is admitted by the prosecutrix that her roll

number in class 10th (A) was 28.

4(ii)(b). Some general features in Attendance Register

(Ext.PW-6/C), may be noticed:- presence of students is marked

twice in a day, i.e. during pre-lunch session and post-lunch

session; presence of every student is denoted by mark ‘I’,

whereas absence is marked as ‘A’.

4(ii)(c). It is apparent to the naked eye that marking in

respect of presence/absence of prosecutrix on 28.10.2015 in

the Attendance Register (Ext.PW-6/C), is not clean. Though for

both sessions, i.e. the pre-lunch as well as post-lunch sessions,

she has been marked as absent, however, even to the naked

eye, it appears that mark ‘A’ has been converted from earlier

existing mark ‘I’. Prosecutrix has also been marked absent on

16th and 17th October, 2015. If she had been really absent on

28.10.2015, then total presence entries against her name

would have been 40, whereas Attendance Register (Ext.PW-6/C)

shows 42 No. of present entries against her name. Apparently,

whosoever fiddled with the record pertaining to attendance of

the prosecutrix on 28.10.2015, omitted to correct her total

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attendances during the month separately recorded in the same

register, therefore, it cannot be conclusively said that the

prosecutrix was absent from the school on 28.10.2015.

.

4(iii). Police though has taken care to obtain the

school attendance record of the prosecutrix for 28.10.2015,

however, it did not even investigate what to speak of collection

of any evidence from the school about her presence or absence

on 26.02.2014. Though we have already observed in para

supra that on 26.02.2014, the accused was discharging his

duties in his place of posting and not was on leave.

4(iv)(a). As per prosecutrix, she was in school uniform

on 28.10.2015 when she was intercepted by the accused and

taken to hotel at Rewalsar, where accused allegedly committed

sexual intercourse with her. However, during examination-in-

chief, she deposed that on 01.05.2016 she handed over her

undergarments and jeans to the police, which she was wearing

on 28.10.2015.

4(iv)(b). Prosecutrix alleged to have been taken to same

hotel in Rewalsar twice, i.e. on 26.02.2014 and 28.10.2015.

However, in her in cross-examination, she deposed:

“The police took me to hotel at Rewalsar. I did
not identify the room in the hotel. Self stated
that the police checked the record and located
the room.”

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The above is surprising considering there are

no allegations of prosecutrix having been intoxicated till the

time she was inside the hotel room on 26.02.2014. There are

.

no allegations of prosecutrix having been intoxicated at all on

28.10.2015.

4(iv)(c). There are no specific allegations that any

obscene photographs of prosecutrix were clicked by the

accused either on 26.02.2014 or 28.10.2015. In this regard,

hereinafter:-

r to
contents of SFL report Ext.PW-28/A, may be reproduced

“Recorded obscene video and clicked obscene

photographs of the girl as shown in photograph
marked as C-2 could neither be found in the
data extracted from mobile phone marked as

Ext.1 nor in the data extracted from memory
card marked as Q-1. However, clicked

photographs of the girl having face appearing
similar to the face of girl shown in photograph

marked as C-2, clicked obscene photographs of
girls and recorded obscene videos were found

to be present in the data extracted from
memory card marked as Q-1 whereas clicked
photographs of the girl having face appearing
similar to the face of girl shown in photograph
marked as C-2 and clicked obscene
photographs of girls were found to be present
in the data extracted from mobile phone

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marked as Ex.1. All the relevant photographs
videos of Ex.1 and Q-1 were exported in their
respective XRY generated reports.”

The above report conclusively says that obscene

.

photographs/videos of prosecutrix were not recovered from the

mobile of accused.

4(iv)(d). PW-9 Dr. Sapna Dhiman, Medical Officer, C.H.,

Bhoranj, District Hamirpur (H.P.), conducted the medical

examination of the prosecutrix on 30.04.2016. In her

examination-in-chief, this witness opined that:-

“Possibility of forceful sexual intercourse cannot

be ruled out”.

Whereas, in her cross-examination, she (PW-9)

admitted that:-

“It is correct that hymen can be reptured for other
reasons as well. It is correct that no external and
internal injuries were observed on the prosecutrix

during her medical examination. It is correct that

there was no evidence suggesting forceful sexual
intercourse.”

The medical examination of the prosecutrix

conducted on 30.04.2016, will not aid the prosecution case

against the accused in respect of events alleged to have

occurred on 26.02.2014 and 28.10.2015.

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4(iv)(e). As per prosecution, the prosecutrix had twice been

taken to same hotel in Rewalsar by the accused, yet, no link

evidence has been produced by the prosecution to prove that

.

the accused and the prosecutrix were seen together covering

distance of about 30 kilometres from ‘Balle to Rewalsar’ in a

car, having lunch in a hotel situated in a thick locality at

Rewalsar, staying there and returning from there. No person

has seen them together. Hence, alleged fact of prosecutrix

going to Rewalsar with accused on 26.02.2014 and 28.10.2015,

went completely runnoticed by anyone, which is highly

improbable considering all the facts and circumstances of the

case.

PW-11 Sh. Thupten Gonpo Hara, Operation

Manager of Hotel Lotus Lake, Rewalsar, in his examination-in-

chief, though admitted accused having stayed in room No.204

on 28.10.2015 but denied having seen any girl with him. In his

cross-examination, he admitted the installation of CCTV

Cameras across the hotel. However, footage from CCTV

Cameras was not produced in evidence by the prosecution

before learned trial Court.

Thus, in view of above, the allegations levelled

against the accused in respect of alleged events of

28.10.2015, are not proved on record.

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5. Events of 11.03.2016:

5(i). According to prosecutrix, on 11.03.2016, the

accused met her near Balle at 12 noon while she was returning

.

home from school and insisted that she should accompany him

to Rewalsar. Her further case is that on her refusal, the accused

started beating her and threatened to upload her obscene

photographs on the internet. Her relevant statement in this

regard is reproduced hereinafter:-

“In the month of March, 2016, the accused had
come on leave. On 11.3.2016 at about 12.00 PM,
the accused again met me near place Balle when I

was returning home from the school and again

insisted to accompany him to Rewalsar. On my
refusal, the accused started beating me and again
threatened to upload my photographs on

internet. He also threatened to do away with my
life in the event of disclosure of the incidents to
my parents or else.”

5(ii). During cross-examination, prosecutrix admitted

that on 11.03.2016, she had appeared in an exam from 09.00

a.m. to 12.00 Noon. She also admitted the suggestion that it

would have taken her more than half an hour to reach ‘Balle’

from her school at ‘Ladraur’.

5(iii). Prosecutrix (PW-1) also deposed that in her

complaint (Ext.D-1), filed before the State Women Commission,

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Shimla, accused was stated to be accompanied by his wife on

11.03.2016 when he met prosecutrix. Her statement in this

regard is:-

.

“It is correct that as per the complaint Ext.D1, on

11.3.2016, the accused was accompanied by his

wife when he allegedly met me at 12.00 PM. It is

incorrect that the wife of the accused gave me

beating on that day. Self stated that both of them

gave me beatings.”

It is highly improbable that accused admittedly

accompanied by his wife on 11.03.2016, in presence of his wife,

would ask the prosecutrix to accompany him to the hotel in

Rewalsar or else, would threaten her with uploading her

obscene photographs on the internet.

FIR:

6(i). The events projected by the prosecutrix, be it of

26.02.2014 or 28.10.2015 or 11.03.2016, are highly improbable

and unbelievable on the face of facts and circumstances of the

case, statements of witnesses and the documentary evidence

available on record.

6(ii). As per the prosecutrix, all the events, as they

happened on aforesaid three dates, were described by her to

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her mother in March, 2016. This is also the version of mother of

prosecutrix Smt. Usha Devi (PW-2):-

“In the month of March, 2016, I found the
prosecutrix disturbed, on which I inquired about

.

the reason, she disclosed that the accused
indulged in teasing and troubling her while
returning from the school. The accused also

followed her in his car and indulged in obscene
activities. She also disclosed that the accused
took her to Rewalsar twice in his car. She

disclosed that the accused during these visits took
her hotel Lotus Rewalsar and was subjected to
forcible sexual intercourse. She also disclosed that

the accused had taken her obscene photographs

with cell phone camera and threatened to upload
these photographs on internet in case she
disclosed the incident to the family. Therefore,

I immediately reported the incident to the police
on 30.04.2016, on which FIR was registered
against the accused.”

Further:- “….on disclosure of facts by the

prosecutrix in the month of March, 2016, I took up
the matter with the family of accused….”

A mother, who has been narrated such events by

her own daughter in March, 2016, kept quiet for well over a

month and lodged the FIR against the accused only on

30.04.2016. There is no deposition to the fact that these

incidents were even narrated by her (PW-2) to the father of the

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prosecutrix or any other relation. Delay in lodging the FIR has

not been explained.

6(iii)(a). Prosecutrix, in her cross-examination, deposed

.

that ‘she had no grievances with accused till the alleged

beatings given on 11.03.2016’.

A reason for implicating the accused with the

offences, has come in the statement of prosecutrix (PW-1)

herself:-

“It is correct that the accused used to
deposit/transfer money in my account.” ………. “It
is incorrect that the accused later asked me to

return the money deposited by him. It is incorrect

that on this point, we had a tiff. It is correct that
on this score my mother and wife of accused
(Jyoti) had quarrel. I do not know that in this

regard Jyoti had filed complaint against my
mother before Gram Panchayat, Jharlog. It is
correct that regarding the above incidents, I had

filed a complaint before State Women

Commission, Shimla, the copy of which is Ext.D1, I
identify my signature and signature of my mother
over this complaint.”

6(iii)(b). In view of above deposition, it cannot be ruled out

that family of prosecutrix had borrowed some money from the

accused and on demand of this money back by Jyoti (DW-3)

wife of the accused, these false stories were concocted. The

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incident relating to scuffle having taken place between the

mother (PW-2) of prosecutrix and wife (DW-3) of accused, were

put to mother of prosecutrix PW-2 Usha Devi. She in her cross-

.

examination, answered the same in following manner:-

“It is correct that on 22.4.2016, I had a quarrel
with Jyoti regarding which she reported the matter

on 23.4.2016 to Gram Panchayat, Jharlog. It is
correct that I was called by the Panchayat.”

PW-2 Usha Devi has not denied that she was called

by Gram Panchayat, Jharlog, in connection with a complaint

lodged by wife of accused against her (PW-2), regarding a

quarrel, which took place between the two on 22.04.2016.

Noticeably, the FIR (Ext.PW-23/A) against the accused, was

lodged only thereafter, i.e. on 30.04.2016. PW-2 Usha Devi

though has denied having taken loan amount of Rs.2,00,000/-

from the accused and has also denied the suggestion of dispute

between two families after the money was demanded back,

yet fact remains that prosecutrix has admitted deposit of

money by the accused in her bank account.

In this regard, statement of DW-3 Jyoti Kumari w/o

accused, also assumes significance. She stated that:- she was

married to accused on 22.06.2014; Usha Devi (PW-2) and her

daughter (prosecutrix PW-1) had borrowed Rs.2,00,000/- from

the accused; she (DW-3) demanded this money back, as a

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result of which, on 22.04.2016 the mother of the prosecutrix

Usha Devi (PW-2) quarrelled with her, gave beatings and

threatened to get the accused discharged from service; she

.

(DW-3) lodged the complaint mark ‘DY’ regarding this incident

in Police Station against PW-2 Usha Devi; since no action was

taken on this complaint, therefore, she filed a complaint

Ext.DW-1/A before Panchayat on 23.04.2016. PW-2 Usha Devi

has admitted having been summoned by Panchayat on this

complaint. PW-1 Prosecutrix had also admitted of a quarrel

between her mother and wife of accused regarding return of

borrowed money.

6(iii)(c). From the statements of the witnesses, enmity

between the family of the accused and the family of

prosecutrix, on account of demand of money, is established on

record. Therefore, possibility of lodging a false case against the

accused by the prosecutrix, cannot be ruled out.

6(iv). An argument has been raised by learned Additional

Advocate General that the accused has not explained his

presence in the hotel at Rewalsar on 28.10.2015. In the facts

and circumstances of the case, it was for the prosecution to

prove the offence having been committed by the accused, with

which he has been charged with, conclusively and beyond

shadow of doubt. In our considered opinion, prosecution has

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failed to establish on record that the alleged offences were

committed by the accused.

6(v). In (2019) 5 SCC 628, titled Parkash Chand

.

versus State of Himachal Pradesh, Hon’ble Apex Court

observed following, on delay in lodging FIR and on credibility of

statement of prosecutrix:-

“6. The first question we have to consider is the
impact of delay of nearly 7 months in lodging the
complaint with the police. The appellant seeks
support mainly from the judgment of this Court in

the case of SectionVijayan v. State of Kerala 2008
(14)SCC 763. The High court in the impugned
judgment has on the other hand relied upon the
judgment of this Court reported in SectionState of

Himachal Pradesh v. Shree Kant Shekari AIR 2004
SC 4404. Therein, this Court has essentially relied

upon the principles about the impact of delay as
noticed by it in the judgment of this Court in
SectionTulshidas Kanolkar v. State of Goa reported in
2003 (8) SCC 590 wherein rape was committed on
a girl whose mental ability was undeveloped. This

is what the court had to say about the fact of
delay.

“5. …………..In any event, delay per se is not a
mitigating circumstance for the accused when

accusations of rape are involved. Delay in lodging
the first information report cannot be used as a
ritualistic formula for discarding prosecution case

and doubting its authenticity. It only puts the court
on guard to search for and consider if any
explanation has been offered for the delay. Once it
is offered, the Court is to only see whether it is
satisfactory or not. In a case if the prosecution
fails to satisfactorily explain the delay and there is
possibility of embellishment or exaggeration in the
prosecution version on account of such delay, it is

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a relevant factor. On the other hand, satisfactory
explanation of the delay is weighty enough to
reject the plea of false implication or vulnerability
of prosecution case. As the factual scenario
shows, the victim was totally unaware of the

.

catastrophe which had befallen her. That being

so, the mere delay in lodging of the first
information report does not in any way render
prosecution version brittle.”

…………………………………………………………
“23. If we do not place confidence in the
deposition of PW4 and PW5 then the case would

depend upon the credibility of PW2, the
prosecutrix. The incident is alleged to have taken
place near a path which has been admitted by the
prosecutrix and her aunt PW3 as common path. If

indeed the prosecutrix has raised hue and cry as
in the case reported in 2013 (9) SCC 113, it is very

unlikely that the labourers who are supposed to
haunt the common path could not hear it. There is
a case of the appellant that the evidence would

make out a case of consensual sex. It is true that
in the High Court, it is recorded that there is no
case of consensual sexual intercourse as such
argued but we have to decide the case on the

basis of evidence.

24. We would think in the circumstances of this
case that the appellant cannot be convicted for
the offence under Section 376. It would indeed be

unsafe to convict him based on the testimony of
the prosecutrix. He would certainly be entitled to
the benefit of doubt which is created by the very
circumstances which we have referred.”

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In (2008) 15 SCC 133, titled Raju and others

versus State of Madhya Pradesh, Hon’ble Apex Court

observed as under:-

.

“10. The aforesaid judgment lay down the basic

principle that ordinarily the evidence of a
prosecutrix should not be suspected and should
be believed, more so as her statement has to be

evaluated on a par with that of an injured witness
and if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and
we respectfully agree with them, but at the same

time they cannot be universally and mechanically
applied to the facts of every case of sexual assault
which comes before the court.

11. It cannot be lost sight of that rape causes the

greatest distress and humiliation to the victim but
at the same time a false allegation of rape can

cause equal distress, humiliation and damage to
the accused as well. The accused must also be
protected against the possibility of false
implication, particularly where a large number of
accused are involved. It must, further, be borne in

mind that the broad principle is that an injured
witness was present at the time when the incident
happened and that ordinarily such a witness

would not tell a lie as to the actual assailants, but
there is no presumption or any basis for assuming
that the statement of such a witness is always

correct or without any embellishment or
exaggeration.”

In 2018 (3) RCR (Cri) 656, titled Ramprasad

s/o Fagulal Amdare versus State of Maharashtra, Criminal

Appeal Case No.579 of 2017, Hon’ble High Court of Bombay

(Nagpur Bench), with regard to the statutory presumption

under Section 29 of the POCSO Act, held as under:-

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“21. Thus, the presumption that operates under
Section 29 of the POCSO Act is not absolute and it
is triggered only when the prosecution is able to
prove the foundational facts in the first place. The
evidence placed on record by the prosecution is to
be examined to first come to the conclusion that

.

the foundational facts of the prosecution case

have been established. The accused can rebut the
presumption which then arises, either by
discrediting the prosecution witnesses by effective
cross-examination or by leading defence

evidence. It is in this context that the evidence of
the prosecution in the present case needs to be
examined.”

6(vi). The upshot of above discussion is:-

a). Prosecution has not established on record
that the accused was even seen with the

prosecutrix either on 26.02.2014 or

28.10.2015. This assumes significance,
considering the prosecution case is that
prosecutrix while on her way to school at

around 08.00 a.m., on repeated insistence
of accused, accompanied him in his car to a

hotel in a thick locality in a place called
Rewalsar about 30 kilometres from her

home, took lunch there, rested in a room
there and returned;

b). The record establishes the fact that
prosecutrix attended her classes in school
on 26.02.2014;

c). Record also establishes the fact that
accused was not on leave on 26.02.2014
and was actually discharging his duties at
his place of posting;

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d). Police has not carried out any investigation
in respect of verifying school record, hotel
record with regard to alleged events of
26.02.2014;

.

e). The school attendance register of

28.10.2015 does not conclusively prove the
absence of prosecutrix from the school on

that day. Rather, record gives the
impression that it has been tampered with
to show absence of prosecutrix on
28.10.2015;

f). The Manager of hotel in question at
Rewalsar though admits accused staying in
a room in the hotel on 28.10.2015 but does

not admit seeing any girl with him. The

hotel is, admittedly, located in a thick
locality of Rewalsar at a distance of about
30 kilometre from home of prosecutrix. No

CCTV footage from the hotel has been
produced despite the fact that CCTV

cameras were installed there;

g). It is highly improbable that accused in

presence of his wife on 11.03.2016, would
ask the prosecutrix to accompany him to

the hotel at Rewalsar or else would
threaten her with uploading her obscene
photographs on the internet;

h). Family of prosecutrix was apparently on
good terms with family of accused.
However, it is established on record that
relationship between the two families

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25

turned sour when wife of accused
demanded the money deposited by
accused in the bank account of prosecutrix,
due to which, mother of prosecutrix (PW-2)

.

quarrelled with DW-3 (wife of accused) on

22.04.2016. DW-3 lodged a complaint
regarding this with police and also reported

the matter to Panchayat. It is admitted by
PW-2 that she was summoned by
Panchayat on 23.04.2016;

i). FIR against the accused was lodged only

thereafter on 30.04.2016, though it has
come in the evidence that prosecutrix had
narrated all the alleged incidents against

the accused to her mother in March, 2016.

There is no explanation for the delay
occurred in lodging the FIR.

7. In view of the above discussions and

observations, we find that the prosecution has failed to

establish its case against the accused beyond shadow of doubt.

Resultantly, this appeal filed by the appellant-convict, is

allowed and he is acquitted for the commission of offences

punishable under Sections 341, Section363, Section328, Section376(2)(i), Section323 Section506

IPC and Section 6 of the Protection of Children from Sexual

Offences Act. Appellant, who is presently serving out the

sentence, be released forthwith, if not required in any other

case, subject to his furnishing personal bond in the sum of

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26

Rs.50,000-, with one surety in the like amount, to the

satisfaction of learned trial Court, so that in the event of any

appeal being preferred against this judgment, his presence in

.

the appellate Court be secured. The bond so furnished shall,

however, remain in force only for a period of six months.

Release warrants be prepared accordingly. The appeal stands

finally disposed of, so also the pending miscellaneous

application(s), if any.

r to (Dharam Chand Chaudhary)
Judge

(Jyotsna Rewal Dua)
October 16, 2019 Judge
(yashwant)

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