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Gorkha Ram vs State Of Himachal Pradesh on 5 December, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 545 of 2017.
Reserved on: November 30, 2018.
Decided on: December 5, 2018.

.
Gorkha Ram ……Appellant.

Versus
State of Himachal Pradesh ……Respondent.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Lakshay Thakur, Advocate.

For the respondent : Mr. Vikas Rathore and Mr.
Narinder Guleria, Addl. AGs
r with Mr. Kunal Thakur, Dy. AG.

Dharam Chand Chaudhary, J.

Gorkha Ram, a convict (hereinafter referred to as the

accused) is in appeal before this Court. He is aggrieved by the

judgment dated 17.8.2017 passed by learned Special Judge, Kangra

at Dharamshala in Sessions Case No. 41-D/VII of 2016, whereby he

has been convicted for the commission of offence punishable under

Section 5(m) and 5(n) of the Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as “POCSO Act” in short)

and sentenced to undergo rigorous imprisonment for a period of 10

years and also to pay a fine of Rs. 20,000/-.

2. A case, vide FIR No. 9 of 2016 dated 9.7.2016 came to be

registered against the accused on the basis of an application Ext.

PW-14/A made by PW-6 Komal Parihar, allegedly Health Worker in

“Jagori” a NGO, PW-4 Asha, Para Legal Volunteer and one Raveena,

amicus curaie to President, Child Welfare Committee Kangra at

1
Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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Dharamshala, H.P. A copy thereof was also forwarded to Ms. Shalini

Agnihotri, Addl. Superintendent of Police, Kangra at Dharamshala.

The Addl. Superintendent of Police forwarded the same to Women

.

Police Station, Dharamshala for registration of the case against the

accused. The allegations, in a nut shell, against the accused are that

PW-6 Komal Parihar was apprized in the meeting of Mahila Mandal

at Bhali on 25.6.2016 by some women of the village present there

that the accused had been torturing mentally and physically his

minor daughters after the death of his wife. The accused allegedly

tried to develop physical relations with his elder daughter. In order

to verify such allegations when she went on 8.7.2016 to the house of

the accused, his elder daughter, the victim herein told that on that

day also, she was beaten up by her father and during night time, he

used to do wrong acts with her. She also came to know that cries of

the minor girls could be heard every day from the house of the

accused. PW-7 Rekha Devi, Aunt (Tai) of the minor girls allegedly

disclosed to PW-6 Komal Parihar that the accused under the

influence of liquor had been exploiting his minor daughters, mentally

and physically.

3. On registration of the FIR Ext. PW-14/B, SI Kiran Bala,

I.O., Women Cell, Dharamshala has conducted the investigation. On

the application Ext. PW-1/A she moved, the medical examination of

the victim(s) was conducted by PW-1 Dr. Manju. She issued the

MLCs Ext. PW-1/B, PW-1/C and PW-1/D. The statement of the

victim was recorded and photographed also vide CD Ext. PY. The

statements of PW-4 Asha Ext. PW-14/C and PW-6 Komal Parihar

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under Section 161 Cr.P.C. were also recorded. The accused was

arrested on that very day and got subjected to medical examination

qua which application Ext. PW-10/A was made to the Medical

.

Officer, Zonal Hospital, Dharamshala. The MLC is Ext. PW-10/B.

The articles preserved by PW-1 Dr. Manju and PW-10 Dr.

Kulbhushan Sharma, for scientific investigation were deposited with

MHC Police Station Dharamshala. The site plan Ext. PW-14/D was

also prepared in the presence of PW-4 Asha, LC Sonia and PW-7

Rekha Devi.

In their presence, a local mattress (Khind) was also

taken into possession vide seizure memo Ext. PW-4/A.

supplementary statement of PW-4 Asha Ext. PW-14/E was also
The

recorded. Photograph Ext. PW-4/C-1 was also clicked by the I.O

with her cell phone. On the demarcation given by the accused, memo

Ext. PW-9/E was prepared. The photograph Ext. PW-4/C-2 was also

clicked by the I.O. Site plan Ext. PW-14/E was prepared. On the

same day i.e. 11.7.2016, PW-14 SI Kiran Bala has made an

application with a prayer to record the statement of the victim under

Section 164 Cr.P.C. and on the basis thereof, learned JMIC (I),

Dharamshala has recorded her statement Ext. PW-5/A. The case

property was forwarded to Forensic Science Laboratory for analysis.

On the receipt of report of Chemical Examiner ( Ext. PX) and on

completion of the investigation, report under Section 173 Cr.P.C. was

filed against the accused.

4. Learned trial Judge, on appreciating the police report

and documents annexed thereto and finding a case under Section

5(m) and 5(n) of the POCSO Act made out against the accused,

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framed charge against him accordingly. The accused, however,

pleaded not guilty and claimed trial. The prosecution, as such, has

produced the evidence in support of the charge so framed against the

.

accused.

5. The material prosecution witnesses are victim of the

occurrence PW-5 (name withheld), PW-4 Asha, Para Legal Volunteer,

PW-6 Komal Parihar, Health Worker in “Jagori”, Raveena (not

examined) and PW-7 Rekha Devi. The remaining prosecution

witnesses are PW-1 Dr. Manju who has conducted the medical

examination of all the three minors, including the victim, PW-10 Dr.

Kulbhushan Sharma who has medically examined the accused, PW-

11 Dr. Surender Kumar, Asstt. Director, RFSL, Dharamshala who

has proved the report Ext. PX. PW-2 Harshvardhan Vaidya is the

Chairman, Child Welfare Committee and PW-3 Ramesh Mastana is

the Coordinator. The remaining witnesses are police officials, hence

formal.

6. Learned trial Judge, on appreciation of the oral as well

as the documentary evidence produced by the prosecution and

hearing learned Public Prosecutor as well as learned defence counsel

has concluded that the prosecution case against the accused stands

established beyond all reasonable doubt. He, as such, has been

convicted and sentenced as pointed out at the outset.

7. The legality and validity of the impugned judgment has

been questioned on the grounds inter alia that there is no iota of

evidence to suggest the involvement of the accused in the

commission of the offence. The impugned judgment, on the other

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hand, is based on conjectures, surmises and hypothesis. The

evidence as has come on record by way of testimony of PW-4 to PW-7

is stated to be wrongly appreciated which has resulted in miscarriage

.

of justice to the accused. When PW-1 Dr. Manju on the basis of

clinical examination of the victim she conducted had not noticed

any injury on her face, chest and abdomen, in pubic region, labia

majora and there being no finding of penetrative sexual assault, the

findings to the contrary are stated to be not legally sustainable. PW-

7 Rekha Devi allegedly is not trustworthy, being inimical to the

accused as per her own admission. In case, the victims’ were being

tortured physically and mentally by the accused (their father), why

this witness has not reported the matter either to police or

complained to the local residents. The statement of PW-5 victim,

could have not been relied upon because after the registration of FIR

on 9.7.2016, the accused was arrested and she remained in the

custody of PW-4 Asha and PW-6 Komal Parihar. Therefore, the

possibility of the victim being tutored by them cannot be ruled out.

It has also been pointed out that in a case of this nature, it is not

safe to place reliance on the testimony of a child witness. The

prosecution, as such, is stated to have failed to prove its case against

the accused beyond all reasonable doubt, hence, the accused

deserves to be acquitted of the charge framed against him.

8. Against this backdrop, while Mr. Lakshay Thakur,

Advocate, learned defence counsel has sought the impugned

judgment to be quashed and set aside, learned Addl. Advocate

General has come forward with the version that the impugned

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judgment, being well reasoned and based upon cogent and reliable

evidence produced by the prosecution calls for no interference.

9. The machinery has been set into motion by PW-6 Komal

.

Parihar, who claims herself to be a volunteer of ‘Jagori’, a NGO.

Whether any NGO, namely ‘Jagori’ exists and is a registered body,

there is no evidence on record. As a matter of fact, in normal course,

a NGO is required to be registered and acts to the knowledge and

notice of the Government department, such like Women and Social

Welfare and Social Justice and Empowerment which generally

remains in touch with welfare of the people. Therefore, any NGO,

namely ‘Jagori’ in existence is not at all proved.

10. The very first version qua the alleged sexual assault

committed by the accused on his own daughter finds mention in the

application Ext. PW-14/A submitted by PW-6 Komal Parihar, the so

called Health Worker of “Jagori”, PW-4 Asha, Para Legal Volunteer

and one Raveena allegedly (Nyay Sakhi) an amicus curiae to

Chairman, Child Welfare Committee, Kangra District. As per this

document, it is PW-6 Komal Parihar, who for the first time came to

know about the physical and mental harassment of the victim and

her sisters by their father, the accused in the meeting of Mahila

Mandal Bhali on 25.6.2016 from its members (women of village

Bhali). Since the meeting of Mahila Mandal must be a regular

feature during each and every month, therefore, it can reasonably be

believed that PW-6 Komal Parihar was knowing the names etc. of

those members of Mahila Mandal. She, however, did not disclose

their names in the application Ext. PW-14/A. Therefore, it remains

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mystery as to who were those women of Village Bhali and members

of Mahila Mandal, who disclosed the alleged mal-treatment and

sexual exploitation of the victim and her sisters by the accused to

.

PW-6 Komal Parihar. In case said PW-6 Komal Parihar was present

in the meeting of Mahila Mandal on that day at Bhali, and the

victims were residing in the same village, she would have met them

and taken the stock of the situation at their house and verified the

allegations of their mal-treatment by the accused. As per this

document, PW-6 Komal Parihar went to Bhali to the house of

accused on 8.7.2016. Though on the reverse of this document she

allegedly informed PW-4 Asha and Raveena over cell phone and they

also came to Village Bhali to the house of the accused, however, this

part of the application seems to be introduced later on because the

first part of the application gives a clear indication that Asha and

Raveena were not there and it is rather PW-6 Komal Parihar who

alone had gone to the house of the accused at Village Bhali on that

day. Nothing has come in this document that the accused had been

opening the trouser of the victim and used to kiss as well as lick

private part of the victim. Therefore, if the contents of the

application Ext. PW-14/A are believed to be true, the has victim only

revealed to PW-6 Komal Parihar that her father had been beating her

and doing wrong act with her during every night. This document

also introduces another prosecution witness PW-7 Rekha Devi. She

as per the record is none else but the wife of the step brother of the

accused. She allegedly disclosed before PW-6 Komal Parihar that the

accused under the influence of liquor had been exploiting his

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daughters physically and also mentally on each and every day.

Therefore, Rekha revealed something new which the victim had not

disclosed to PW-6 Komal Parihar. The application Ext. PW-14/A

.

perhaps was closed with a request to the Chairman, Child Welfare

Committee, Kangra to save all the three minor girls from their mal-

treatment by initiating proceedings in accordance with law in the

matter at once on its first page and as noticed supra, the second part

of this application on its reverse that PW-6 Komal Parihar informed

PW-4 Asha and Raveena also and that they reached at Village Bhali

is an afterthought, may be with malafide intention to create false

evidence.

11. PW-6 allegedly came to know about the torture and

maltreatment as well as sexual abuse of the victim (PW-5) by none

else but her father in a meeting of Mahila Mandal in Village Bhali

from some women present there. She, however, has not disclosed

the names of those women. It has also not been proved that on what

date, month and time the Mahila Mandal meeting was convened.

PW-6 Komal Parihar has also not disclosed the names of those

women. As per the normal human conduct, had she been present in

the meeting, she would have been in the knowledge of the names of

those women or if not, should have tried to ascertain their names so

that being a social activist, she would have been in a position to give

authentic information qua the so called torturing to the authorities,

including the police. She having not disclosed the names of so called

women from whom she came to know about the torturing of the

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victim, including her sexual harassment by the accused, this part of

the prosecution story seems to be false.

12. Otherwise also, on 8.7.2016 when PW-6 Komal Parihar

.

went to the house of the victim at village Bhali and enquired from the

victim about the plaster/band aid in her leg, she revealed that her

father had beaten her with burning firewood when she could not

manage to cook the food on account of wet firewood. Also that, on

an occasion, he had assaulted her with the lid of cooker and he had

been pressurizing her to cook food. Had she been beaten up and

tortured, she should have stated that also in her statement recorded

under Section 164 Cr.P.C. Therefore, the statement of PW-6 Komal

Parihar, the so called volunteer of NGO, that the accused on one

occasion had administered beatings to her with burning firewood

and on another with lid of cooker and was also pressurizing and

terrorizing her as and when found to have not cooked food by her,

hardly inspire any confidence. Even nothing of the sort the victim

has stated in her statement recorded under Section 164 Cr.P.C.

Above all, when on 9.7.2016, the victim was taken to hospital after

registration of the FIR and arrest of her father for medical

examination, no injury could be detected on her person as is

apparent from the perusal of the MLC Ext. PW-1/B. There is nothing

in the statement of PW-6 Komal Parihar that the victim had also

revealed that her father, the accused rubs his penis with her vagina

and also kisses her vagina. As per the statement of PW-6 Komal

Parihar, rather it is Rekha PW-7 who revealed that on the previous

night the victim and her sisters when tortured by their father, the

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accused, were crying loudly. Also that, the accused had been

committing the alleged immoral act with his daughter, the victim.

Although, as per PW-6 Komal Parihar, she got verified the facts so

.

disclosed by PW-7 Rekha from the victim and she admitted the same

as correct. Yet, had it been so, the victim should have revealed to

PW-6 Komal Parihar at that very moment when she apprized her

about the alleged mal treatment and torturing at the hands of her

father, the accused.

13.

Now, if coming to the statement of the victim Ext.

PW-5/A recorded under Section 164 Cr.P.C., the accused had been

opening the zip of his pants and touching his Penis and tongue with

her vagina. Such, however, was not her version before PW-6 Komal

Parihar on 8.7.2016 when she visited the house of the accused to

meet the victims at Village Bhali. Such version of the victim in Ext.

PW-5/A in the considered opinion of this Court is tutored one. Now,

if coming to the statement of the victim while in the witness-box, she

tells us that the accused had been rubbing his private part with her

private part during night. Therefore, there are three different

versions of her alleged exploitation given by the victim i.e. first as in

the application Ext. PW-14/A; second in her statement Ext. PW-5/A

recorded under Section 164 Cr.P.C. and third in her statement

recorded while in the witness-box as PW-5. Above all, PW-5 a minor

aged approximately 9 years at the relevant time, is not expected to

speak the language deployed in the statement recorded under

Section 164 Cr.P.C. (Ext. PW-5/A). A girl of her age can only speak

so if tutored by someone and the degree of the tutoring is also very

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high. According to her, two volunteers of the so called NGO were

accompanying her on that day to the Court. Therefore, it is doubtful

that she had made such statement voluntarily and without any

.

undue influence. There is another aspect that the statement of the

victim under Section 164 Cr.P.C. was got recorded on 11.7.2016 i.e.

after the arrest of the accused in this case on 9.7.2016. Had she

been residing in the company of her father, the possibility of tutoring

her could have been ruled out. The statement, therefore, when

recorded at a stage when her father was already taken into custody,

the possibility of she being minor girl, could have been motivated in

one way or the other being ignorant of the consequences of such

statement, including that in case any such statement is made by her

against the accused none else but her father, what would be the

implications thereof cannot be ruled out. Any such girl cannot also

be expected to understand the values of relations i.e. between father

and a daughter and on being allured for petty things like sweets,

toys, shoes or dress may fall prey to it and depose in a particular

manner and fashion as required by the person motivating the minor

to make a particular statement of his/her choice.

14. Though, as per the version of the victim in her cross-

examination, she was not tutored either by PW-4 Asha or PW-6

Komal Parihar at any point of time, however, her admission that they

were present in the Court the day when her statement Ext. PW-5/A

under Section 164 Cr.P.C. recorded and on the day of her

examination in the Court also, it can reasonably be believed that

some sort of tutoring was there because otherwise a girl of tender age

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i.e. 10 years old on the day when appeared as a witness in the Court

and approximately 9 years when allegedly assaulted mentally and

physically by the accused, cannot be accepted to have an

.

understanding to recognize the private parts like Penis or vagina or

making such statement as one can expect either from an adult or at

least a girl having attained the age of discretion.

15. Interestingly enough, the entire family comprising the

accused, the victim and her two sisters as well as grandmother used

to reside in a single room.

to The victim has admitted in the cross-

examination that her grandmother lived with them in that very room

till the arrest of her father, the accused. How, it was possible for the

accused to have assaulted his own daughter that too in the presence

of his mother in the manner as claimed by the prosecution is not

understandable. Above all, the mother of the accused who may have

thrown some light qua this aspect of the matter has not been

examined as a witness by the prosecution for the reasons best

known to it nor even associated also in the investigation of the case.

16. Not only this, but PW-4 Asha had also given different

version qua the manner in which the accused had allegedly been

assaulting the victim, as it has come in her statement Ext. PW-14/C

recorded under Section 161 Cr.P.C. that when she met the victim at

Village Bhali, the latter told her that her father, the accused had

been touching her private parts and simultaneously enjoying sex by

way of masturbation (ह तमैथन
ु ) (to enjoy sex otherwise than in natural

way). It was not even the case of the prosecution also nor anyone,

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including the victim has stated so during the course of investigation.

Even PW-4 Asha has also not stated so while in the witness-box.

17. It is worthwhile to mention here that the evidence as has

.

come on record by way of the testimony of PW-7 Rekha Devi, the

aunt (Tai) of the victim is altogether contrary to the prosecution case

because nothing has come during the course of the investigation of

the case that the victim used to weep on the “Samadhi” of her

deceased mother and that PW-7 Rekha Devi noticed injury on her

private part at one occasion when she had been urinating and that

on asking from the victim about the injury she revealed that her

father had been kissing her private part and also inserting his finger

therein. PW-7 Rekha Devi, therefore, has introduced a new story. If

her statement under Section 161 Cr.P.C. available in the police

record is seen, it has come therein that the accused in the

courtyard of the house had been touching his daughters in a

highly objectionable manner which looked very bad to her. She,

however, said nothing of the sort when examined in the witness box

as PW-7. Nothing is also there in the prosecution case that the

accused had been insisting the victim to sleep with him and making

his two other minor daughters to sleep separately as has come in the

statement of PW-7 Rekha Devi. This witness in her cross-

examination tells us that her husband was born to her father-in-law

from the second marriage. Also that they have only one house in

which one room is with the accused and the other with her and that

the courtyard is common. They both used to quarrel with each other

and the Panchayat also visited their house when the accused

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quarreled with her. The version of PW-7 Rekha Devi, therefore,

amply demonstrates that her relations with the accused were not

cordial and rather inimical. Not only this, but she tells us that her

.

mother-in-law started residing with her only since last one month,

meaning thereby that earlier she had been residing with the accused

and his daughters in the same room which is in his share.

Although, she denied the suggestion that she deposed falsely against

the accused, yet the possibility of her doing so cannot be ruled out

because after the implication of the accused in this case and removal

of his daughters to shelter home, it is she who had to enjoy the

house. The possibility of there being no Mahila Mandal at Village

Bhali cannot be ruled out because had it been so, it is Pradhan or

any other office bearer who would have been associated in the

investigation of this case. The registration number of such Mahila

Mandal with the Department of Women and Child Welfare would also

have been obtained and produced in evidence. The close scrutiny of

the statement of PW-7 Rekha Devi, therefore, renders the entire

prosecution story highly doubtful.

18. Now, if coming to the statement of PW-4 Asha to the

effect that she had visited Village Bhali along with PW-6 Komal

Parihar on 27.6.2016, is highly doubtful as it is not recorded so in

the application Ext. PW-14/A. As discussed hereinabove, she did

not at all visit Village Bhali along with PW-6 Komal Parihar and the

story to this effect was introduced later on as is apparent from the

trend of the contents of application Ext. PW-14/A. Her version that

PW-6 Komal Parihar came to know from the ladies in the meeting of

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Mahila Mandal at Village Bhali qua sexual exploitation of the victim

being hearsay is of no help to the prosecution case. PW-4 Asha

having visited Village Bhali on 8.7.2016 on being informed by the so

.

called shop keeper that the victim and her sisters had returned to

their house is also doubtful for the reasons recorded hereinabove.

Who was that shopkeeper requested by them to inform that as and

when the girls return to their house is not proved on record, being

not examined. Above all, a different story to the effect that when

they met with the victim at the house of the accused, she was found

to have applied bandage on her right leg and on enquiry she revealed

that her father had beaten her with burning wood, is also introduced

by this witness while in the witness-box. The story of the alleged

torturing of the victim on account of not cooking food is also false

and concocted one. PW-4 Asha when confronted in her cross-

examination admitted that nothing to the sort that they had given

their cell number to the shop keeper finds mention in their

statements Ext. D-1 and D-2 recorded under Section 161 Cr.P.C.

19. PW-7 Rekha Devi referred to by PW-4 Asha in her

statement has already been termed as an inimical witness for the

reasons recorded hereinabove. It appears that in order to implicate

the accused in this case falsely is the part and parcel of illegal

designs of PW-4 Asha, PW-7 Rekha Devi and PW-6 Komal Parihar.

The version of PW-4 Asha in her cross-examination that in the house

comprising two rooms, in one room the accused was residing

whereas in another his mother is again contrary to the factual

position because as per the prosecution evidence itself, in one room

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the accused was residing with his mother and children whereas in

another PW-7 Rekha Devi and her family. It was suggested to her by

the defence that on 8.7.2016, the accused had lodged missing report

.

of his daughters in Police Post Kotla and that he even visited Women

Police Station, Dharamshala also on that day, she expressed her

ignorance. Since, she has not denied the suggestion so given,

therefore, such a plea raised by the accused in his defence appears

to be nearer to the factual position. According to PW-6 Komal

Parihar, the record of this case has not been maintained. When it

has come in the statement of PW-4 Asha that the record qua the

cases discovered by the volunteers of “Jagori” is being maintained, it

is not understandable as to why the same was not maintained nor

produced in the Court. Though, the suggestion that the record was

not maintained because the victim did not disclose anything qua her

sexual exploitation is denied being wrong, however, this alone seems

to be the apparent reason of not maintaining the record of this case

by the so called NGO “Jagori”. It is quite possible that PW-4 Asha

and for that matter PW-6 Komal Parihar were afraid of taking a legal

action by the accused for leveling false allegations of sexual

exploitation against him and as such the possibility that in order to

save their skin, he has been implicated falsely in this case cannot be

ruled out.

20. PW-6 Komal Parihar, the so called Health Worker, is also

not dependable because on leveling of such serious allegations by the

women in the meeting of Mahila Mandal at Bhali, she even did not

care to ascertain the names of those women so that they could have

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been associated by the police during the course of investigation.

Above all, such women as per her version had levelled such

allegations indirectly against the accused. The story that those

.

women disclosed about swelling of private part of one of the girl child

of the accused, has come for the first time in her statement as

nothing to the sort is there in the prosecution case. Since PW-7

Rekha Devi had allegedly seen injury in the private part of the victim

as discussed supra, therefore, PW-6 Komal Parihar and PW-7 Rekha

Devi seem to be the mastermind to frame the accused in this case

falsely. Her statement that they went to the house of the accused

where his daughters were not available and given their cell phone to

the shopkeeper is again false as already discussed hereinabove in

this judgment. As per PW-4 Asha, it is she who received the call

from the so called shop keeper whereas as per PW-6 Komal Parihar,

it is she who had received the telephonic call. According to her, it is

she alone who had gone to Bhali as has come in Ext. PW-14/A.

Meaning thereby that the prosecution story qua PW-4 Asha and

Reena had also come there on the call she made is false as already

discussed. The story that the victim was found to have applied

bandage in her leg due to the injury she received allegedly by way of

her beatings with burning wood is also discarded while discussing

the evidence to this effect having come on record by way of testimony

of PW-4 Asha. It is already said that the implication of the accused

in this case appears to be the handy work of the trio i.e. PW-4 Asha,

PW-6 Komal Parihar and PW-7 Rekha Devi, therefore, it is not

desirable to refer to the evidence that Rekha informed this witness

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about the torturing of the victim and her sisters by the accused any

further. In her cross-examination, it is admitted by PW-6 Komal

Parihar that she had gone to District Jail, Dharamshala to meet the

.

accused to know as to how his daughters have to be kept in the

house, however, denied that she had arguments with the accused

there. It is also denied that she told the accused to give his younger

daughter to someone known to her and that in lieu thereof, she may

help him in this case and also that on this heated exchanges had

taken place between them is also though denied being wrong,

however, when she admits her visit to the jail to meet the accused,

the possibility of all this having taken place cannot be ruled out.

They were informed by the shopkeeper, however, according to PW-6

Komal Parihar, his name was not known to her is surprising to note.

Why she had not maintained the record of the proceedings of this

case, she failed to explain. When as per her admission, all the three

daughters of accused were brought to Dharamshala, their medical

examination was got conducted, nothing including injury on their

person was detected during such examination. She admitted that no

enquiry was made from the local residents about the maltreatment of

the minor girls by their father. When she tells us that all the ladies

present in the meeting of Mahila Mandal were saying so, it is not

understandable as to why she did not disclose so to the police during

the course of investigation. When PW-7 Rekha Devi herself admits

enmity with the accused and they both had been quarrelling with

each other, to deny the suggestion that PW-7 Rekha Devi had given a

false statement to her is contrary to the factual position.

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19

21. Now, if coming to the medical evidence as has come on

record by way of testimony of PW-1 Dr. Manju, when as per the

findings she recorded in the MLC that there were no injuries on the

.

face, chest, abdomen, pubic region and labia majora nor any active

bleeding as well as hymn was intact, coupled with the factum of

there being no allegation of penetrative sexual assault made, how

this witness has ruled that there is possibility of unnatural sexual

assault having been committed upon the victim, remained

r to
unexplained. According to her, the opinion so given was based upon

physical examination of the victim, she conducted. In her cross-

examination, it is admitted that there was no evidence of penetrative

sexual assault having been committed upon the girls, including the

victim. Even if it is believed that there was redness in labia minora,

there is admission on the part of PW-1 Dr. Manju that such injury is

possible in case of itching having been done by the victim herself.

Therefore, such evidence is suggestive of that the redness in labia

minora of the victim was not due to the sole reason of the accused

rubbed or kissed her vagina and there may be other reason therefor.

The possibility of the opinion is not based on subjective satisfaction

of PW-1 Dr. Manju in the given facts and circumstances of this case,

therefore, cannot be ruled out. The medical evidence, as such, is not

suggestive of that the accused committed penetrative sexual assault

upon the victim and is guilty for the commission of the offence

punishable under Section 5(m) and 5(n) of the POCSO Act. It is

worthwhile to mention here that the report under Section 173

Cr.P.C. was filed against the accused with a prayer to convict and

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20

sentence him for the commission of the offence punishable under

Section 8 of the POCSO Act. The sentence prescribed against an

offender under Section 8 of the Act is imprisonment which shall not

.

be less than 3 years but may extend to 5 years. Learned Special

Judge has, however, framed the charge under Section 5(m) and 5(n)

of the POCSO Act i.e commission of penetrative sexual assault by

him being father of the victim. Section 5 of the POCSO Act deals

with aggravated penetrative sexual assault. It is nobody’s case that

the accused had committed penetrative sexual assault upon the

victim because even she herself has nowhere stated either in her

statement recorded under Section 164 Cr.P.C. (Ext. PW-5/A) or in

the another while in the witness box that the accused ever

penetrated his penis in her vagina. In the statement under Section

161 Cr.P.C. of the victim recorded by the Investigating Officer, she,

however, has completely ruled out the penetrative sexual assault.

The allegations, as has come on record by way of her testimony that

he had been opening the zip of his pants and taking out his penis

and after kissing her private part (vagina) and rubbing his penis also

has already been discarded being wrong because, no such statement

was made by her either to the police or to PW-6 Komal Parihar till

she was not in the custody of the said witness and also PW-4 Asha

and also Raveena on 8.7.2016 when they allegedly visited the house

of the accused and met the girls, including the victim there. FIR was

registered on the next date i.e. 9.7.2016 and the accused was also

arrested on that day itself. It is after that the kissing and rubbing

his penis with vagina was introduced in her statement recorded

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21

under Section 161 Cr.P.C. i.e on 9.7.2016 and the statement

recorded under Section 164 Cr.P.C. Ext. PW-5/A, though un-dated,

however, the application Ext. PW-14/F filed in the Court for

.

recording the same on 19.7.2016. In the considered opinion of this

Court, the victim was tutored after being removed from the custody

of father on 8.7.2016 and the statement Ext. PW-5/A is the result

thereof. Why, PW-4 Asha and PW-6 Komal Parihar conducted

themselves in such a manner, though no apparent reason thereof is

on record, however, plea raised by the accused in his defence as

emerges from the trend of cross-examination of the prosecution

witnesses that they did so because he refused to give his younger

daughter to someone else at their behest and on being threatened by

him to be sued on account of managed to register a case with false

allegations against them seems to be nearer to the factual position.

Even, PW-4 Asha has introduced a new story of masturbation while

kissing and touching vagina of the victim because such allegations

were not there in the application (Ext. PW-14/A) nor anyone else

stated so while in the witness-box.

22. The close scrutiny of the evidence in the manner as

aforesaid, amply demonstrate that the prosecution has falsely

implicated the accused in this case and thereby not only tarnished

the reputation of the accused, who happens to be the father of the

victim, but also put a question mark on the pious relations between

father and a daughter. On the other hand, the prosecution story in

the opinion of this Court has been engineered and fabricated to

implicate the accused in this case falsely.

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22

23. In a case having more or less identical facts, the Apex

Court in Sham Singh vs. The State of Haryana, Cr. Appeal No.

544 of 2018, decided on 21.8.2018, has held that the accused

.

cannot subject the prosecutrix to sexual intercourse in his own

house that too in the presence of his wife, children, mother and

sister. Therefore, the Apex Court while setting aside the findings of

conviction recorded against the accused has acquitted him of the

charge under Section 376 (2) (g), 342 and 506 IPC, while arriving at a

conclusion that the case was engineered and fabricated on account

of enmity of the parents of the prosecutrix with that of the family of

the accused, none else but her cousin. In that case also, the two

families used to quarrel and like the case in hand even Panchayat

was also called. In the case in hand also, the possibility of the

accused having been booked falsely cannot be ruled out.

24. In a Division Bench judgment authored by one of us

(Justice Dharam Chand Chaudhary, J.) on 22.9.2017 in Cr. Appeal

No. 31 of 2017, titled Vivek Singh vs. State of Himachal Pradesh

having more or less similar allegations against the father that he has

assaulted sexually his own daughter aged 2 years, it has been

observed as under:

“35. Before parting, we would be failing in our duty if
not point out that overall conduct of the Investigating
Agency which has implicated the accused in a false case
on the basis of highly interested evidence i.e. the only
statement of complainant who was not only inimical to
the accused but also to other members of his family.
Her mother PW-2 Chino Devi, though helped her

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23

daughter, the complainant in getting the accused booked
falsely, however, unsuccessfully. Anyhow, we leave it
open to high ups in police department to take steps as

.

warranted to sensitize the officers/I.Os so that any such

instance does not reoccur.

36. Learned trial Judge has also failed to appreciate
the evidence in its right perspective and swayed only by

the severity of the allegations and the alleged incident of
rape with a minor below to years of age by none else but
allegedly her father. Since the allegations levelled

against the accused were highly sensitive having
repercussions in the society as a whole, an onerous duty
was cast upon learned trial Judge to have examined the

given facts and circumstances of the case and also

evidence available on record with all circumspection and
more care and caution. Due to such an approach in the
matter, pious relations between a father and daughter

got tarnished. We hope and trust that in a case of this
nature, the Investigators, Prosecutors and Adjudicators
shall discharge their respective duties in the light of the

principles we settled in this judgment and also in

accordance with law. With the above observations, the
appeal is finally disposed of.”

25. In a case where the daughter-in-law had levelled

allegations of her ravishment sexually by none else but her father-in-

law, Cr. Appeal No. 96 of 2016, titled Baldev Singh vs. State of

H.P., decided recently on 26.11.2018 by one of us (Justice Dharam

Chand Chaudhary, J.) while in Single Bench has observed as under:

“27. ………..If not shocking, it is painful to point out
that in order to implicate father-in-law falsely without

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24

caring that what will be the repercussions thereof in the
public at large, the FIR was registered after due
deliberation to the reasons best known to the

.

prosecutrix and her father.

……..

……..

…….

31. Therefore, the close scrutiny of the evidence, in the
manner as aforesaid amply demonstrates that the
prosecutrix and for that matter her father to the reasons
best known to them have implicated falsely the accused

in this case and thereby if not totally destroyed the
social fibre has certainly weakened it and also put a big
question mark on the pious relations between a father-

in-law and daughter-in-law. Additionally, the

prosecution story which in the opinion o this Court has
been engineered and fabricated has culminated in a
discussion that a father-in-law can also assault sexually

his own daughter-in-law.”

26. Similar are the facts of the case in hand because PW-7

Rekha Devi is ‘Bhabhi’, that too not the wife of real brother but that

of step brother of accused, hence may be interested in getting rid of

the accused by implicating him in a false case so that she could have

enjoyed his property and house also. She seems to have been

assisted by PW-4 Asha and PW-6 Komal Parihar in fulfilling her

illegal design.

27. We find the present also a case where the Investigating

Agency has not made any effort to conduct investigation from

different angle to rule out the possibility of false implication of

accused before filing the report under Section 173 Cr.P.C. in the

06/12/2018 22:56:53 :::HCHP
25

Court. The investigation rather has been conducted in a casual and

routine manner to implicate the accused in this case by hook and

crook. This Court, on noticing such type of faulty investigation and

.

glaring discrepancies in some matters in the recent past though

proceeded to close the same by leaving it open to the respondent-

State/high ups in the Police Department to take remedial steps,

including imparting training to the Investigating Officers so that only

the truth and nothing beyond the truth is brought to the Court

keeping in mind that if true facts alone are brought to the Court

without there being any padding, improvements and discrepancies,

the conviction rate may considerably increase. However, it appears

that such observations either have been ignored or not given much

importance and as a result thereof there is no improvement in the

standard of investigation. We, therefore, now direct the respondent-

State/Police Department as well as Prosecution Department through

learned Advocate General, State of Himachal Pradesh to take

remedial steps such as imparting training to the

Investigators/Prosecutors and all other duty holders. In case the

mechanism to provide the training is not available, the machinery

and infrastructure available with the Himachal Pradesh Judicial

Academy can be pressed into service. We feel that the training in

right direction to all dutyholders can improve the standard of

investigation and would facilitate to achieve the goal of fair trial, a

Constitutional right of an accused.

28. The learned trial Court also seems to have swayed

merely by passion in view of the involvement of the accused in a case

06/12/2018 22:56:53 :::HCHP
26

not only heinous but also grievous in nature, however, without

caring to ascertain the genuineness and authenticity of the

allegations levelled against him on appreciation of the evidence with

.

all care, caution and circumspection, otherwise may have persuaded

itself to take a view contrary to the one taken in the impugned

judgment. As a matter of fact, the evidence produced by the

prosecution in this case has not been appreciated in its right

perspective. The present rather is a case where the prosecution has

29.

r to
failed to prove its case against the accused beyond all reasonable

doubt.

Being so, the findings recorded against the accused are

neither legally nor factually sustainable. The impugned judgment,

as such, does not stand the test of judicial scrutiny, hence, deserves

to be quashed and set aside.

30. In view of what has been said hereinabove, this appeal

succeeds and the same is accordingly allowed. Consequently, the

impugned judgment is quashed and set aside and the accused is

acquitted of the charge framed under Section 5(m) and 5(n) of the

POCSO Act. He presently is undergoing sentence, therefore, if not

required in any other case, be set free forthwith. The release warrant

be prepared accordingly. The fine amount as imposed upon the

accused, if deposited, shall be refunded to him against proper

receipt.

Before parting, we shall be failing in our duty if not

discus and pass appropriate orders qua the fate of three minor

daughters of the accused, who on account of this case and as per the

06/12/2018 22:56:53 :::HCHP
27

record have been lodged in a shelter home. The accused, after his

release from the jail, consequent upon this judgment may stake his

claim qua their custody, being their father and only natural

.

guardian. Our apprehension, however, is that he may be inimical if

not against two younger daughters, at least against the elder one, the

victim in this case. Therefore, in the event of the custody of his

minor daughters is required by the accused, he shall file an

application in this regard in the trial Court. The application, if so

filed, shall be considered and decided by learned trial Judge in

accordance with law after affording an opportunity of being heard to

his minor daughters through Court Guardian, which is left open to

be appointed by learned trial Judge. We hope and trust that in the

event of the custody of the minor daughters of the accused being

entrusted to him, the paramount consideration with learned trial

Judge would be their welfare alone and nothing beyond it.

(Dharam Chand Chaudhary),
Judge.

December 05, 2018. (Vivek Singh Thakur),
(karan-) Judge.

06/12/2018 22:56:53 :::HCHP

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