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 otherperson,
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 makesthe 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 doso 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
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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
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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
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