IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. Appeal No. 640 of 2017.
Reserved on: 27th June , 2018.
.
Date of Decision: 6th July, 2018.
Dilbagh Singh alias Ashu …..Appellant.
Versus
State of H.P. ….Respondent.
Coram
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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2penetrative 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.”
2.
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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3
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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4
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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5
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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6
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)
th
6 July, 2018. Judge.
(jai)
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