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Nikka Ram vs State Of H.P on 5 January, 2019

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 321 of 2017
Reserved on: 14.11.2018

.

Decided on: 05.01.2019

Nikka Ram …….Appellant

Versus
State of H.P. ……Respondent

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon’ble Mr. Justice Chander Bhushan Barowalia, Judge
Whether approved for reporting?1 Yes
For the appellant:

r Mr. Manoj Pathak, Advocate.

For the respondent: Mr. Narinder Guleria, Addl. A.G
with Mr. Kunal Thakur, Dy. A.G.

Dharam Chand Chaudhary, Judge

Convict Nikka Ram (hereinafter referred to as

the ‘accused’) has preferred this appeal against the

judgment dated 16/29.12.2016 passed by learned Special

Judge, Shimla in Sessions Trial No. 30-S/7 of 2015, whereby

he has been convicted for the commission of offence

punishable under Section 376 of the Indian Penal Code and

Section 6 of The Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as the ‘POCSO

Act’ in short) and while holding that the punishment under

Section 6 of the POCSO Act is greater in degree as

compared to the punishment under Section 376 IPC, has

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

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convicted him to undergo rigorous imprisonment for a

period of 12 years under Section 6 of the POCSO Act and

.

also to pay Rs.1,00,000/- and simple imprisonment for a

period of three months for the commission of offence

punishable under Section 506 IPC.

2. The accused has been tried, convicted and

sentenced for the commission of offence stated

hereinabove with the allegations that he belongs to village

Sawala and the child victim (name withheld) allegedly

aged about 12 years ravished by him 13-14 days prior to

3.8.2015 at Siyalta Nallah is also the resident of same

village. Prior to that also, she was subjected by him to

sexual intercourse on 3-4 occasions. It is on 3.8.2015, in

the evening she disclosed about her ravishment sexually

by the accused to her mother PW-2. She disclosed that

accused had been taking her to Siyalta Nallah and ravished

her sexually there on 3-4 occasions by removing her

clothes. He allegedly had been paying Rs.10/- and giving

some toffees to her on such occasions. He had been

alluring her at the pretext of giving more money. When

she told him that she will disclose her ravishment by him to

her parents, he threatened to expose her in eyes of the

school teachers and students. According to PW-2 and also

PW-1, the parents of the victim, apprehending that their

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daughter, the victim may not be telling lie and to rule-out

the false implication of the accused, asked from her

.

repeatedly about the correctness of the disclosure she

made against him, but she remained firm on the facts she

disclosed. Therefore, PW-1 and PW-2 went to police

station, Nerwa, Tehsil Chopal, District Shimla. The victim

also went there with them. The father of the victim PW-1

has made an application Ext.PW-1/A to the Station House

Officer, Police Station, Nerwa stating whatever the victim

disclosed therein. On the basis of application Ext.PW-1/A,

FIR Ext.PW-14/A was registered.

3. The investigation was conducted by SI/SHO

Narinder Singh PW-14. An application Ext.PW-6/A was

made to the Medical Officer, Civil Hospital, Nerwa for

getting the medico legal examination of the victim

conducted, however, no female doctor was available at

Nerwa on that day, therefore, the child victim was referred

to D.D.U. Zonal Hospital, Shimla for her medical

examination. She was examined by PW-8 Dr. Shalini

Bhardwaj, who issued MLC Ext.PW-8/A. The I.O. visited the

spot on 4.8.2015 itself and prepared the spot map Ext.PW-

14/C. The spot was videographed and photographed vide

CDs mark X-1 to X-3. The statement of child victim

Ext.PW-14/B was recorded as per her version. An

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application Ext.PW-14/E was made to JMIC, Chopal, District

Shimla with a prayer to record the statement of child

.

victim under Section 164 Cr.P.C. An application Ext.pW-5/A

was submitted to the Headmaster, Government Middle

School, Sawala for supplying the date of birth certificate of

the child victim. Certificate Ext.PW-5/B was prepared and

signed by the Headmaster of the school. The copy of

admission and withdrawal register Ext.PW-5/C was also

obtained from the school. All these documents were taken

in possession by the police vide recovery memo Ext.PW-

5/D. The I.O. had also made an application Ext.PW-7/A to

the Secretary, Gram Panchayat, Pujarali Block Chopal,

District Shimla for supply of certificate of date of birth of

the child victim from the birth register. PW-7 Smt. Shyama

Devi, Secretary, Gram Panchayat, Pujarli had prepared the

birth certificate Ext.PW-7/B. She had also handed over the

extract of birth register Ext.PW-7/C. The copy of parivar

register Ext.PW-7/D was also prepared and supplied by PW-

7 to the police. All these documents were taken in

possession vide recovery memo Ext.PW-7/E.

4. PW-13 ASI Kuldeep Singh while conducting the

investigation partly, arrested the accused in this case on

5.8.2015. He made an application Ext.PW-9/A with a

prayer to conduct medical examination of the accused. He

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was accordingly examined and the MLC Ext.PW-9/B

obtained. It is PW-13 who got recorded the statement of

.

the child victim under Section 164 Cr.P.C. He had also

collected the date of birth from the school and also the

Panchayat.

5. On completion of the investigation, report

under Section 173 Cr.P.C was prepared and filed in the

Court. On going through the report and also the

documents annexed therewith, charge for the commission

of offence punishable under Section 376 and 506 IPC as

well as under Section 6 of the POCSO Act was framed

against the accused. He, however, pleaded not guilty to

the charge and claimed trial. The prosecution has,

therefore, produced the evidence in support of its case

against the accused.

6. The material prosecution witnesses are the

child victim (PW-3), her mother PW-2 and her father PW-1.

PW-4 Khyali Ram has been examined to show that in the

month of July, 2015, the accused was noticed coming from

Siyalta Nallah side around 5.00-6.00 p.m. This fact was

disclosed by him to the mother of the victim, PW-2. PW-5

Vidya Nand O.T. (Shastri), Government Middle School,

Sawala and PW-7 Smt. Shyama Devi, Secretary, Gram

Panchayat, Pujarli have been examined to prove the date

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of birth certificates Ext.PW-5/B and Ext.PW-7/B

respectively, which were issued from the admission and

.

withdrawal register and also the birth register maintained

in the school/Gram Panchayat. PW-8 Dr. Shalini Bhardwaj

who had medically examined the child victim and issued

the MLC Ext.PW-8/B. Dr. Pritam Singh Thakur PW-9 has

medically examined the accused and issued the MLC

Ext.PW-9/B. The remaining prosecution witnesses are

formal as PW-6 LC Meera had accompanied the child victim

firstly to the Civil Hospital, Nerwa and thereafter to D.D.U.

Zonal Hospital, Shimla as lady Medical Officer was not

posted at Civil Hospital, Nerwa at that time. She had also

collected the birth certificate Ext.PW-5/B and the extract of

admission and withdrawal register Ext.PW-5/C, which were

taken in possession vide memo Ext.PW-5/D in her

presence. PW-10 Constable Rajinder Singh accompanied

by HHG Pankaj had taken the accused to Civil Hospital,

Nerwa for getting his medical examination conducted. PW-

11 LHC Shamim, the then MHC police station, had received

the case property and retained the same in the malkhana

after making entries Ext.PW-11/A in the malkhana register.

The case property was sent by her to the Forensic Science

laboratory vide RC Ext.PW-11/C for chemical examination.

The parcels containing the case property were taken to

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Forensic Science Laboratory by PW-12 Constable Rumail.

PW-13 and PW-14, as noticed supra, have conducted the

.

investigation of the case.

7. On the other hand, the accused in his

statement recorded under Section 313 Cr.P.C while

admitting that the victim and he belongs to the same

village, he is her maternal uncle (mama) in relation and

used to visit her house off and on has, however, denied,

the remaining prosecution case either being wrong or for

want of knowledge. In his defence, a plea has been raised

while answering question No.25 that he had seen the child

victim and one Naku in an objectionable condition,

however, before he could tell their parents about it, he was

implicated falsely in this case.

8. In order to probablise the plea so taken in his

defence, the accused has examined DW-1 Smt. Sunita,

Pradhan, Gram Panchayat, who while in the witness box

has stated that in August, 2015, the accused came to her

and disclsoed that he had seen the child victim and Naku

in an objectionable condition. He wanted to disclose this

fact to the father of the child victim. Being Pradhan of the

Gram Panchayat, she also inquired from the child victim,

who told that she had friendly relations with Naku and that

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Nika Ram was innocent. These facts were disclosed by her

to the police.

.

9. Learned Special Judge on appreciation of the

given facts and circumstances and also the evidence

available on record has concluded that the prosecution

case against the accused stands proved beyond all

reasonable doubt. Consequently, he was convicted and

sentenced, in the manner, as pointed out at the very out

set.

10.

The accused aggrieved by his conviction and

sentence has assailed the impugned judgment on the

grounds inter-alia that no case is made out against him

under Section 376 and 506 IPC and under Section 6 of the

POCSO Act, however, irrespective of it, he has been

convicted erroneously. His defence that child victim

involved him falsely in this case has not been taken into

consideration and to the contrary, the findings based upon

conjectures and surmises. The evidence produced against

him by the prosecution is stated to be not only tainted but

also self-contradictory. The Court below has allegedly

brushed aside the material contradictions in the

statements of the witnesses by holding the same as minor

ones. The impugned judgment, as such, has been sought

to be quashed and set aside.

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11. Mr. Manoj Pathak, learned counsel representing

the appellant-convict has vehemently argued that for want

.

of cogent and reliable evidence, the accused could have

not been convicted for the commission of alleged offence.

The offence allegedly committed by him is neither proved

to be punishable under Section 376 IPC nor under Section 6

of the POCSO Act. Mr. Pathak while drawing our attention

to the medical evidence has argued that the same is not

suggestive of the penetrative sexual assault committed by

the accused upon the child victim. It is also contended

that bald assertions in the application Ext.PW-1/A and in

that of child victim that she was sexually ravished do not

disclose the essential ingredients required to be proved to

infer the commission of offence punishable under Section

376 IPC or under Section 6 of the POCSO Act. According to

Mr. Pathak, if in alternative, this Court believes the

prosecution story as genuine and correct, the same only

disclose the commission of offence punishable under

Section 8 of the POCSO Act. It is thus urged that findings

of conviction and sentence recorded against the accused

are not supported by the record and rather based upon

conjectures and surmises, hence not legally sustainable.

12. On the other hand, Mr. Narinder Guleria,

learned Additional Advocate General has, however, argued

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that own statement of the child victim supported by her

parents lead to the only conclusion that the accused

.

subjected her to sexual intercourse in the manner as

claimed by the prosecution. According to Mr. Guleria,

nothing tangible has come on record that the accused has

been convicted and sentenced in this case falsely. The

plea in defence that accused noticed child victim and Naku

in an objectionable condition is highly imaginary and

germane of the mind of the accused because had it been

so, it is not understandable as to why he had not disclosed

the same to her parents and chose to approach DW-1

Pradhan, Gram Panchayat. Since the accused has failed to

probablise such plea he raised in his defence, therefore,

the testimony of Pradhan is also doubtful. Learned

Additional Advocate General has, therefore, emphasized

that well reasoned judgment passed by learned Special

Judge calls for no interference in the present appeal by this

Court.

13. At the out set, it is worthwhile to mention here

that in case of this nature, the age of the victim assumes

considerable significance. In the case in hand, certificate

Ext.PW-7/B issued by the Secretary, Gram Panchayat,

Pujarli on an application made to her by the police on the

basis of entries in the birth register, the date of birth of the

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child victim has been recorded as 3.8.2003. The extract of

register is Ext.PW-7/C. Against the entries at Serial No.

.

36/03 in this document, the information qua her birth has

been given to the Gram Panchayat by her father Liak Ram.

The accused has not cross-examined either the victim or

her parents that 9.8.2003 is not the correct date of birth of

the victim. Even similar is her date of birth which finds

mention in the certificate Ext.PW5/B issued by the school.

Though, the same cannot be believed to be primary

evidence qua her exact date of birth being issued from the

middle school and not from that of primary school, where

initially she was admitted in first class, yet the certificate

Ext.PW-7/B and the extract of birth certificate Ext.PW-7/C is

primary evidence qua her date of birth. Therefore, the

prosecution has proved beyond all reasonable doubt that

the victim is born on 9.8.2003. Since she allegedly was

sexually ravished by the accused 13-14 days prior to

3.8.2015 and on 3-4 occasions before that also, therefore,

the present is a case where it is established that her

ravishment was at a stage when she was below 12 years of

age.

14. Before analyzing the rival submissions and also

the evidence available on record, it is desirable to take

note as to what constitutes the offence of rape punishable

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under Section 375 IPC. For the sake of convenience, we

would like to reproduce here the provisions contained

.

under Section 375 IPC, which defines the offence of rape:-

“375-Rape. A man is said to commit “rape” if he–

(a) penetrates his penis, to any extend, into the
vagina, mouth, urethra or anus or a woman or
makes her to do so with him or any other person;
or

(b) inserts, to any extent, any object or a part of the

body, not being the penis, into the vagina, the
urethra or anus or a woman or makes her to do so
with him or any other person; or

(c) manipulates any part of the body of a woman so as

to cause penetration into the vagina, urethra, anus

or any part of body of such woman or makes her to
do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other

person,

15. We would also like to reproduce here the

offence of aggravated penetrative sexual assault defined

under Section 5 of the POCSO Act and punishable under

Section 6 thereof, which for the purpose of this case reads

as follows:-

“5. Aggravated penetrative sexual assault.-

(a) to (l)…….xxxxxxxxxxxxxx

(m) whoever commits penetrative sexual assault on a
child below twelve years; or

(n) whoever being a relative of the child through blood
or adoption or marriage or guardianship or in
foster care or having a domestic relationship with
a parent of the child or who is living in the same or
shared household with the child, commits
penetrative sexual assault on such child; or

(o) to (u)……xxxxxxxxxxxxxxxx

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16. What is aggravated penetrative sexual assault,

.

has been defined under Section 3 of the POCSO Act, which

reads as follows:-

“3. Penetrative sexual assault.- A person is said
to commit “penetrative sexual assault’ if-

(a) he penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a child or makes

the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the
urethra or anus of the child or makes the child to do

so with him or any other person; or

(c) he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra,
anus or any part of body of the child or makes the
child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to
such person or any other person.”

17. It is seen from the perusal of Section 375 IPC

and Section 3 of the POCSO Act, referred to hereinabove,

that an offender can be said to have committed the same

by way of penetrating his penis or any other object into

vagina, mouth, urethra or anus of the victim or by

manipulating any part of her body so as to cause

penetration into her vagina, urethra, anus or any other part

of her body or applies his mouth to the vagina, anus,

urethra of a woman.

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18. Now it is the turn to examine the evidence and

find out as to whether the prosecution has been able to

.

prove beyond all reasonable doubt that the offence

committed by the accused is punishable under Section 376

IPC and Section 6 of the POCSO Act. What the victim has

disclosed on 3.8.2015 to her parents is that she was taken

by the accused to Siyalta Nallah 13-14 days ago,

undressed her and ravished her sexually. Also that, she

was taken there by him to ravish sexually earlier also on 3-

4 occasions at Siyalta Nallah. Although, while in the

witness box as PW-3 it is stated by her that she had been

going to Siyalta Nallah to bring grass and the accused used

to come there and ravish her sexually by removing her

clothes, yet irrespective of such version, which is contrary

to the contents of application Ext.PW-1/A and version of

her parents, PW-1 and PW-2, the prosecution story cannot

be said to be false for the reason that the accused has

miserably failed to discredit the version of PW-1, PW-2 and

PW-3 that the accused ravished the child victim in Siyalta

Nallah. The evidence as has come on record to our mind,

however, is not sufficient nor convincing that the accused

has subjected the child victim to sexual intercourse and

thereby committed the offence of rape or offence of

aggravated penetrative sexual assault because as per the

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medical evidence i.e. MLC Ext.PW-8/A, PW-8 Dr. Shalini

Bhardwaj did not notice any sign of injury on the body of

.

the victim nor any sign of commission of forcible sexual

assault with her. All her vitals were found normal. On

vaginal examination, cervix was found soft without there

being any sign of forced sexual assault. PW-8 has based

her opinion that the child victim had intercourse one or

more times, taking into consideration the condition of

cervix i.e. admitting one finger loose. PW-8 has not stated

anything about the condition of the vagina. On having

gone through the Modi’s “Medical Jurisprudence and

Toxicology” 23rd Edition, the victim is raped or not depends

upon the condition of her vagina and not cervix. We fail to

lay our hand on any other material showing that it is only

the condition of cervix to establish as to whether the

sexual intercourse has been committed or not and

condition of other genital including vagian and hymen etc.

not relevant. The cervix is the opening part of uterus,

therefore, no doubt when there is penetration in vagina, it

is obvious that there will be penetration in cervix also but

when there is no injury in the vagina and the only

abnormality noticed by PW-8 was on the cervix of the

victim i.e. admitting one finger loose, in our considered

opinion, is not sufficient to disclose the commission of the

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offence of rape punishable under Section 376 IPC nor the

offence of aggravated penetrative sexual assault

.

punishable under Section 6 of the POCSO Act. Otherwise

also, a fully grown-up male aged 52 years as the accused

in this case, could have not raped the victim nor subjected

her to aggravated penetrative sexual assault, that too, on

many a times without causing injury in her vagina. In that

event rather her health was bound to deteriorate and even

could have been fatal to her life also. She to the contrary

as per her own statement and also that of her parents had

been going to the school regularly and attending the

classes and also taking part in all activities including

sports. As a matter of fact, even after the so called sexual

assault also, she throughout remained normal, which could

have not been expected from a girl below 12 years of age,

had she been sexually abused by a fully grown-up male on

number of occasions.

19. It is also not proved that the accused is

maternal uncle (mama) of the victim because her father

while in the witness box has stated in his cross-

examination that the accused is not his relative, whereas,

PW-2, the mother of the victim has said nothing about her

relations with the accused as her brother or maternal uncle

of her daughter. The victim though has stated in her

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examination-in-chief that accused is her maternal uncle

(mama). The accused in his statement recorded under

.

Section 313 Cr.P.C has also said that he is maternal uncle

of the victim. However, the contrary version of her father

PW-1 and the silence of mother PW-2, renders this part of

the prosecution case highly doubtful and as such, it cannot

be believed by any stretch of imagination that the present

is a case of aggravated penetrative sexual assault within

the meaning of (n) of Section 5 of POCSO Act. The

prosecution case that the offence the accused has

committed is punishable under Section 376 IPC and Section

6 of the POCSO Act is not proved beyond all reasonable

doubt and rather false, appears to be fabricated to

implicate the accused in the commission of an offence

more heinous in nature, as compared to the one which he

in the given facts and circumstances and also the evidence

available on record has committed.

20. The evidence as has come on record at the

most discloses the commission of offence of sexual assault

defined under Section 7 and punishable under Section 8 of

the POCSO Act because the evidence as has come on

record by way of statement of the victim that she had been

undressed and ravished by the accused in Siyalta Nallah

13-14 days prior to 3.8.2015 and 3-4 occasions earlier

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thereto, stands proved from the evidence discussed

hereinabove. The version of the victim that the accused

.

had been undressing her and then ravishing itself is

sufficient to establish the commission of an offence of

sexual assault within the meaning of Section 7 of the

POCSO Act, and punishable under Section 8 thereof. He, to

our mind, has satisfied his lust for sex by undressing the

victim and ravishing sexually as she stated while in the

witness box. He, to our mind, must be alive to the adverse

consequences of subjecting her to penetrative sexual

assault being a child below 12 years age. It is worth

mentioning here that the accused has not seriously

disputed the allegations of ravishment of the victim against

him specifically while cross-examining the prosecution

witnesses and rather satisfied himself with mere

suggestions that he has been implicated in this case falsely

and that he has not ravished the child victim, which were

emphatically denied by them. True it is that PW-4 Khyali

Ram is a liar because, had he disclosed the factum of child

victim and the accused coming from Siyalta Nallah side to

PW-2, she should have disclosed so to her husband PW-1,

who in turn, would have disclosed the same in the

application Ext.PW-1/A, on the basis of which FIR has been

registered. However, it is proved from the own statement

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of child victim and also her parents that accused had been

taking her to Siyalta Nallah by alluring to give money and

.

toffees to her. He, as per evidence, even used to pay

Rs.10/- and some toffees to her on each and every

occasion. Therefore, his intention to exploit the child

victim to satisfy his lust for sex is established on record.

The offence, therefore, committed by the accused in the

given facts and circumstances is punishable under Section

8 of the POCSO Act and not under Section 376 IPC or under

Section 6 of the Act. It is for this reason, nothing has come

during the medical examination of the child victim

conducted by PW-8 qua commission of forcible sexual

intercourse with her. The accused has ravished the victim

by touching her vagina and other parts of her body

including rubbing his penis with her vagina. It is for this

reason, no injury on vagina and no categoric finding qua

condition of hymen etc. could be recorded by the Medical

Officer.

21. The remaining evidence as has come on record

by way of testimony of PW-6 LC Meera and PW-9 Dr.

Pritam Singh Thakur, PW-10 Constable Rajinder Singh, PW-

11 LHC Shamim, MHC Police Station, Nerwa and PW-12

Constable Rumail also supply the essential link to the

prosecution story because PW-6 LC Meera had

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accompanied the child victim firstly to Civil Hospital, Nerwa

and thereafter to D.D.U. Zonal Hospital, Shimla because

.

lady doctor was not posted at that time at Nerwa. She has

proved that the victim was subjected to medical

examination in the hospital. Similarly, PW-9 also connects

the accused with the commission of offence because on his

examination conducted by this witness, he was found

capable of performing sexual intercourse. PW-10

Constable Rajinder Singh and HHG Pankaj had taken the

accused for getting his medical examination conducted.

PW-11 Shamim and MHC has not only proved the

prosecution case qua the case property was deposited by

the I.O. with her, which she entered in the malkhana

register vide entries Ext.PW-11/A and later on sent the

same to the laboratory for chemical examination but the

receipt of report Ext.PW-14/G also. PW-12 Constable

Rumail is the person who had taken the case property to

the Forensic Science Laboratory vide RC Ext.PW-11/C and

deposited the same there for analysis.

22. The Investigating Officers in this case are PW-

13 and PW-14 the then SI/SHO Police Station, Nerwa

Narinder Singh and ASI Kuldeep Singh. They both have

proved the manner in which the investigation is conducted

by them. Nothing has come in their cross-examination

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conducted on behalf of the accused that he has been

falsely implicated or nothing of the sort had taken place.

.

23. On the other hand, the accused has admitted

the prosecution case to the extent that he belongs to the

same village of which child victim is also one of the

residents and that he is her maternal uncle (mama) in

relation, hence used to visit her house off and on. The

remaining prosecution case has either been denied by him

being wrong or for want of knowledge.

24.
r The defence of the accused as emerges from

the trend of cross-examination of the prosecution

witnesses and his answer to the last question in his

statement recorded under Section 313 Cr.P.C that the child

victim and one Naku were noticed by him in an

objectionable condition, therefore, it is for this reason, he

has been implicated in this case falsely, is neither probable

nor plausible and rather that such plea has been raised by

him merely to get rid of this case. The prosecution

witnesses have denied any objectionable relations between

the child victim and Naku and rightly so because Naku is

cousin of the victim as has come in the statement of her

mother PW-2. Even if he had seen something

objectionable between the two, would have apprised the

parents of the victim qua the same. The plea so raised by

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the accused is also vague as he failed to disclose the day,

time and place when he noticed both of them in an

.

objectionable condition. Had he been maternal uncle of

the victim and noticed something objectionable, it was his

foremost and utmost duty to have apprised her parents

about it. It is highly doubtful that in such a situation, a

man of ordinary prudence like the accused would have

visited the Pradhan, Gram Panchayat and disclosed

something objectionable between the victim and Naku,

that too, when he was her maternal uncle. Therefore, not

only the plea raised by the accused is false and germane of

his mind, but the evidence as has come on record by way

of testimony of DW-1 is also highly imaginary and false.

Had it been so, she should have discussed the matter with

the parents of the victim and not with her. Therefore, her

testimony that the victim had admitted her relations with

Naku as correct and also informed DW-1 that accused was

innocent has no grain of truth and rather false. DW-1,

therefore, is a liar and deposed falsely to help the accused

for the reasons best known to her.

25. In view of the given facts and circumstances of

this case and also the evidence available on record as well

as the submissions made by learned counsel representing

the appellant-convict and learned Additional Advocate

09/01/2019 23:03:30 :::HCHP
23

General, the present is a case where the commission of the

offence punishable under Section 376 IPC and Section 6 of

.

the POCSO Act is not made out against the accused.

Consequently, his conviction and sentence for the

commission of such offence deserves to be quashed and

set aside. The evidence available on record, however,

discloses the commission of the offence of sexual assault

defined under Section 7 of the POCSO Act and punishable

under Section 8 thereof. The prosecution has also proved

beyond all
r reasonable doubt that the accused has

threatened her with dire consequences including exposing

her in the school before teachers and other students,

because it is not the victim alone but her parents have also

stated so while in the witness box. It has even come so in

the application Ext.PW-1/A on the basis of which the FIR

Ext.PW-14/A has been registered. The accused, as such,

has committed the offence punishable under Section 506

of the Indian Penal Code also.

26. For all the reasons discussed hereinabove, in

modification of the impugned judgment, the accused is

acquitted of the charge framed against him under Section

376 IPC and Section 6 of the POCSO Act. He, however, is

convicted for the commission of the offence of sexual

assault punishable under Section 8 of the Act. There is

09/01/2019 23:03:30 :::HCHP
24

provision of sentence i.e. imprisonment for five years and

imposition of fine against an offender, if held guilty for the

.

commission of the offence of sexual assault. In the matter

of sentence, keeping in view the gravity of the offence i.e.

assaulting sexually a minor below 12 yeas of age, the

convict deserves no leniency. Therefore, convict Nikka

Ram is sentenced to undergo rigorous imprisonment for a

period of five years and also to pay Rs.25,000/- as fine. In

default to pay the fine, he shall undergo rigorous

imprisonment for a period of six months. On deposit of the

fine, the same will be paid to the victim of the occurrence

as compensation. This appeal partly succeeds and the

same is accordingly allowed. Consequently, the impugned

judgment stands modified to the extent as indicated

hereinabove.

27. The appeal stands finally disposed of in the

above terms.

(Dharam Chand Chaudhary)
Judge

January 05, 2019 (Chander Bhusan Barowalia)
(naveen) Judge

09/01/2019 23:03:30 :::HCHP

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