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Dilbagh Singh Alias Ashu vs State Of H.P on 6 July, 2018


Cr. Appeal No. 640 of 2017.

Reserved on: 27th June , 2018.


Date of Decision: 6th July, 2018.

Dilbagh Singh alias Ashu …..Appellant.


State of H.P. ….Respondent.


The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr. N.S. Chandel, Advocate.
For the Respondent: Mr. Hemant Vaid, Addl. A.G.

with Mr. Y.S. Thakur and Mr.
Vikrant Chandel, Dy. A.Gs.

Sureshwar Thakur, Judge

The instant appeal is directed, against, the

verdict of conviction pronounced, upon, the

accused/apepllant, by the learned Special Judge, Kangra

at Dharamshala, upon, Sessions Trial No. 20-K/VII/2014,

vis-a-vis, the hereinafter extracted charges:-

“That in the month of September, 2012

and March, 2013, you committed

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penetrative sexual assault with the victim

at Jassaur Tika Pali, at different times and

thereby committed an offence punishable


under Section 4 Protection of Children

from Sexual Offences Act, 2012 and

within the cognizance of this Court.

And I hereby direct that you be tried for

the aforesaid offences.”


A reading of the charge, does bring forth, the

trite factum, qua, the penally inculpable misdemeanors,

as, ascribed therein qua the accused, being, qua his, in,

the month of September, 2012, and, in the month of

March, 2013, hence subjecting the minor prosecutrix, to

penetrative sexual assault, thereupon, his committing an

offence punishable under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter

referred to as the POCSO Act). The aforesaid forthright

disclosures, hence, occurring in the charge, thereupon,

enjoins, this Court, to allude, to the notification,

whereunder, the POCSO Act, is brought into force. A

reading of the notification bearing No. S.O.2705(E) of 9 th

November, 2012, makes a clear display qua the

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provisions of the Protection of Children From Sexual

Offences Act, 2012, being brought into force w.e.f.

14.11.2012, and, with no explicit retrospectivity, being


according to the provisions, of POCSO Act, (i) thereupon,

the charge framed qua the penal misdemeanors,

allegedly committed by the accused, upon, the minor

prosecutrix, especially, the ones committed prior, to, the

coming into force of the mandate, of, POCSO Act, being

obviously hereat neither drawable nor theirs attracting,

the mandate, of, Section 4, of the POCSO Act. Even, the

ascription of penal misdemeanors, in the apposite charge,

vis-a-vis, the accused, qua his, in the March, 2013,

subjecting the minor prosecutrix, to penetrative sexual

assault, is, in gross dis-concurrence to her statement,

borne in Ex.PW1/B, (ii) statement whereof stands

recorded, by her, before the Judicial Magistrate

concerned, wherein there, is no, ascription qua the

accused qua his on 6.4.2013, subjecting her to

penetrative sexual assault, rather an echoing occurs qua

thereat merely a frustrated attempt being made, by the

accused. Consequently, in respect of the latter event also

even if it stood assumingly committed, at a time, when

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the provisions of POCSO Act , were in force, yet any

charge qua it, of hence, the accused subjecting the minor

prosecutrix, to penetrative sexual assault, is amenable to


falter, it visibly bearing dis-concurrence with the recitals,

borne in Ex.PW1/B.

3. Contrarily, when the accused was amenable for

his being charged, for his committing, offences, borne, in

the provisions of the Indian Penal Code, (I) whereas, his

being charged, under, thereat inapplicable provisions,

inasmuch, of the POCSO Act, (ii) thereupon, his being

charged, under, the inappropriate penal provisions,

besides his being tried, and, convicted, and, sentenced,

also hence all are legal phenomena, which are enjoined to

be quashed and set aside, (iii), given all being tainted,

with, pervasive jurisdictional infirmities.

4. In summa, for the reasons stated hereinabove,

the appeal is allowed, and, verdict impugned before this

Court, is, quashed and set aside. The learned trial Court

is directed to hold a denovo trial of the accused, vis-a-vis,

the apposite offences, upon charges standing drawn

under the apt therewith provisions borne, in, the Indian

Penal Code. It is clarified that the evidence which is

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adduced, in respect of, inappropriately charged offences,

though, may be discardable, yet it is open to the learned

Public Prosecutor, and, also to the learned defence


counsel concerned, to, upon the prosecution witnesses

concerned, hence re-stepping into the witness box, upon

the learned trial Court, holding, a denovo trial, and, theirs,

during the course, of, rendering their testification, hence,

reneging therefrom, to, hence confront them, with, their

earlier statements recorded before the learned trial Court,

upon, the latter holding the accused to trial qua

inappropriate charges. The learned trial Court is directed

to within six months from today, hence conclude the trial,

upon, apposite charge(s) framed against the accused,

under, the provisions of the Indian Penal Code, and, if

deemed fit vis-a-vis, a charge qua the subsequent event

of March, 2013, framed, under the POCSO Act. The

parties are directed to appear before the learned Special

Judge, Kangra at Dharamshala on 25th July, 2018.

5. Since, during the course of the trial, the

accused/appellant herein was released on bail by this

Court in pursuant to the orders rendered on 21.06.2013,

in Cr.MP(M) No. 11032 of 2013, hence, when, there is no

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evidence on record that the accused/convict during the

course of trial, whereat he was on bail, his hence

tampering with prosecution evidence, hence, he is


ordered to be released on bail subject to his furnishing

personal bond, in the sum of Rs. one lac with one surety

in the like amount to the satisfaction of the learned

Sessions Judge, Kangra at Dharamshala, with, a further

condition that she shall not tamper with the prosecution

evidence, in any manner. Records be sent back forthwith.

(Sureshwar Thakur)
6 July, 2018. Judge.


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