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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Criminal Appeal No. 364 of 2020.
Reserved on: 26.09.2023.
Decided on : 06.10.2023.
Pardeep Kumar @ Dimple …..Appellant.
Versus
State of Himachal Pradesh ….Respondent.
Coram:
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting?1 No
For the Appellant : Mr. Kul Bhushan Khajuria,
Advocate.
For the Respondent: Mr. Yashwardhan Chauhan Senior
Additional Advocate General with
Ms. Sharmila Patial, Additional
Advocate General.
Tarlok Singh Chauhan, Judge
The appellant has been convicted and sentenced by
the learned Special Judge, Fast Track Court (under POCSO
Act), Kangra at Dharamshala, District Kangra, H.P. to undergo
rigorous imprisonment for 10 years and to pay a fine of
Rs.10,000/ and in default of payment of fine, to undergo
rigorous imprisonment for a period of one year, for the
1
Whether reporters of the local papers may be allowed to see the judgment? Yes.
2
commission of an offence punishable under Section 6 of
Protection of Children from Sexual Offences Act, 2012 (for short
‘POCSO Act’).
2. In brief, the prosecution story is that on 10.05.2015,
the complainant Puran Chand moved an application to the
police at Police Station, Palampur in which it was alleged that
the appellant had allured his daughter, who was 17 years old
and giving false assurances on the pretext of marriage had been
committing sexual assault upon her for the last many months
and had threatened her not to disclose the same to anyone and
all these facts were disclosed to him by his wife. When he
talked with the mother of that boy whether she was ready to
marry his daughter, she refused and told that she could not
bring the daughter of a caste. The victim was got medically
examined. Her samples were preserved. Statement of mother
of the victim was recorded and the appellant was also
associated in the investigation and his MLC was also obtained
and his undergarments were also taken into possession.
Statement of the victim was also got recorded before Ld. ACJM,
Palampur. On the identification of the victim, the places where
sexual intercourse had taken place, were identified by her. The
spot maps were prepared and the caste certificate of the victim
was taken after moving an application to Tehsildar. On the
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identification of the appellant, the spot map was prepared.
Copy of ‘Parivar’ register was also taken into possession.
3. On completion of the investigation, the I.O.
presented the challan in the Court and on finding a prima facie
case, the appellant was charged for the commission of offence
punishable under Section 376 (1) of IPC, under Section 6 of
POCSO Act and under Section 3(1)(XII) of SC ST (Prevention of
Atrocities) Act, 1989, to which he pleaded not guilty and
claimed trial.
4. In order to prove its case, the prosecution examined
19 witnesses in all. Thereafter, the appellant was examined
under section 313 Cr.P.C. in which he denied the case of the
prosecution and pleaded his innocence and stated that he had
already told the victim that he would marry her after she turned
18 years of age and he had given a mobile phone to the victim
which came in the hands of mother of the victim, who
thereafter gave beatings to her. Later, the victim had also cut
veins of her hands and on that day, he and his mother had been
called and the villagers had also gathered there and he was
asked to marry the victim, but he told that he would marry her
after she turned 18 years of age and thereafter they returned to
their home, but after one week, he came to be arrested.
3A
4(a). The learned Special Judge, Fast Track Court (under
POCSO Act) after evaluating the evidence on record convicted
and sentenced the appellant to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.10,000/ (Rs. Ten
Thousand) and in default of payment of fine to further undergo
rigorous imprisonment for a period of one year for the
commission of an offence punishable under Section 6 of the
Act. It was further directed that the period, if any, during which
the appellant had been in judicial/police custody would be set
off under Section 428 Cr.P.C. against the substantive sentence
only and not against the sentence in default.
4(b). As regards the charge framed against the appellant
for the offence punishable under Section 3(1)(XII) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, the appellant was acquitted and, as such,
acquittal has attained finality.
4(c). Aggrieved by the judgment of conviction and
sentence as passed by the learned Special Judge, the appellant
has filed the instant appeal.
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5. It is vehemently argued by Shri Kul Bhushan
Khajuria, learned counsel for the appellant that the findings
recorded by the learned Special Judge are totally perverse,
whereby an innocent young man has been sent to gallows, and,
therefore, the same deserve to be set aside.
6. On the other hand, Shri Yashwardhan Chauhan,
learned Senior Additional Advocate General, would argue that
since the prosecution has established its case beyond
reasonable doubt, therefore, the findings rendered by the
learned Special Judge warrants no interference.
7. We have heard the learned counsel for the parties
and have gone through the material placed on record.
8. At the outset, it needs to be observed that rape is
the most morally and physically reprehensible crime in a
society, as it is an assault on the body, mind and privacy of the
victim. While a murderer destroys the physical frame of the
victim, a rapist degrades and defiles the soul of a helpless
female. Rape reduces a woman to an animal, as it shakes the
very core of her life. By no means can a rape victim be called an
accomplice. Rape leaves a permanent scar on the life of the
victim, and therefore a rape victim is placed on a higher
pedestal than an injured witness.
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9. Rape is the most hated crime, which tantamounts to a
serious blow to the supreme honour of a woman, and offends
both, her esteem and dignity. It causes psychological and physical
harm to the victim, leaving upon her indelible marks. Gang rape is
all the more a serious and heinous offence.
10. The committal of rape is a beastly act and takes out
the life from the life of victim. The scars of rape always remain
engraved in her mind and she cannot overcome throughout her
life. Rape leaves physical as well as mental scars on the victim.
Physical wounds may heal up, but the mental scars, though less
visible are more difficult to treat.
11. Rape is a crime not against an individual but a
crime which destroys the basic equilibrium of the social
atmosphere. “Rape” not only lowers the dignity of a woman but
also mars her reputation. The plight of the woman and shock
suffered by the victim can be well visualized. The victim of rape
grows with traumatic experience and an unforgettable shame
haunted by the memory of the disaster forcing her to a state of
terrifying melancholia. The torment on the victim has the
potentiality to corrode the poise and equanimity of any civilized
society. It has been rightly said that whereas a murderer
destroys the physical frame of a victim, a rapist degrades and
defiles the soul of a helpless female. The offence of “Rape” is
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grave by its nature, which warrants a strong deterrent by
judicial hand.
12. In State of Punjab vs. Ramdev Singh, AIR 2004
SC 1290, the Hon’ble Supreme Court held as under:
This Court dealt with the issue and held that rape is
violative of victim’s fundamental right under Article 21 of
the Constitution. So, the courts should deal with such
cases sternly and severely. Sexual violence, apart from
being a dehumanizing act, is an unlawful intrusion on the
right of privacy and sanctity of a woman. It is a serious
blow to her supreme honour and offends her selfesteem
and dignity as well. It degrades and humiliates the victim
and where the victim is a helpless innocent child or a
minor, it leaves behind a traumatic experience. A rapist
not only causes physical injuries, but leaves behind a
scar on the most cherished position of a woman, i.e. her
dignity, honour, reputation and chastity. Rape is not only
an offence against the person of a woman, rather a crime
against the entire society. It is a crime against basic
human rights and also violates the most cherished
fundamental right guaranteed under Article 21 of the
Constitution.”
13. In Jugendra Singh Vs. State of UP, (2012) 6 SCC
297, the Hon’ble Supreme Court has held:
“Rape or an attempt to rape is a crime not against an
individual but a crime which destroys the basic
equilibrium of the social atmosphere. The consequential
death is more horrendous. It is to be kept in mind that an
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offence against the body of a woman lowers her dignity
and mars her reputation. It is said that one’s physical
frame is his or her temple. No one has any right of
encroachment. An attempt for the momentary pleasure of
the accused has caused the death of a child and had a
devastating effect on her family and, in the ultimate
eventuate, on the collective at large. When a family
suffers in such a manner, the society as a whole is
compelled to suffer as it creates an incurable dent in the
fabric of the social milieu. The cry of the collective has to
be answered and respected and that is what exactly the
High Court has done by converting the decision of
acquittal to that of conviction and imposed the sentence
as per law.”
14. In Shyam Narian Vs. The State of NCT Delhi ,
(2013) 7 SCC 77, the Hon’ble Supreme Court has elaborately
dealt with the issue as discussed in Madan Gopal Kaakar Vs.
Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra
Pradesh Vs. Bodem Sundra Rao, AIR 1996 SC 530 and
State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and
has held that :
“It is an assault on the individuality and inherent dignity
of a woman with the mindset that she should be elegantly
servile to men. Rape is a monstrous burial of her dignity
in the darkness. It is a crime against the holy body of a
woman and the soul of the society and such a crime is
aggravated by the manner in which it has been
committed.”
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15. Equally settled is the proposition of law that
conviction can be based on the sole testimony of the victim of
sexual assault without corroboration from any other evidence.
The statement of the victim is more reliable than any other
witness. Where the testimony of victim of sexual assault instills
the confidence in court, the same can be relied upon for
conviction of the accused. It is also a well settled principle of
law that corroboration as a condition for judicial reliance on the
testimony of the victim is not a requirement of law but a
guidance to prudence under the given circumstances.
16. In Vijay @ Chinee vs. State of Madhya Pradesh,
(2010) 8 SCC 191, the Hon’ble Supreme Court has dealt with
the issue and held that :
“Thus, the law that emerges on the issue is to the effect
that the statement of the prosecutrix if found to be worthy
of credence and reliable, requires no corroboration. The
Court may convict the accused on the sole testimony of
the prosecutrix.”
17. There are catena of judgments passed by the
Hon’ble Supreme Court wherein it has been held that only the
deposition of the prosecutrix by itself is also sufficient to record
conviction for the offence of rape if that testimony inspires
confidence and has complete link of truth.
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18. In Md. Ali Vs. State of UP, 2015 (3) SCALE 274,
the Hon’ble Supreme Court has held that “Be it noted, there
can be no iota of doubt that on the basis of the sole testimony
of the victim, if it is unimpeachable and beyond reproach, a
conviction can be based and in Mohd. Iqbal v. State of
Jharkhand reported in (2013) 14 SCC 481, the Hon’ble
Supreme Court has held that “there is no prohibition in law to
convict the accused of rape on the basis of sole testimony of the
victim and the law does not require that her statement be
corroborated by the statements of other witnesses”.
19. Minor contradictions or insignificant discrepancies
should not be a ground for throwing out an otherwise reliable
prosecution case. A victim complaining of having been a victim
of the offence of rape is not an accomplice after the crime. Her
testimony has to be appreciated on the principle of probabilities
just as the testimony of any other witness; a high degree of
probability having been shown to exist in view of the subject
matter being a criminal charge. However, if the court finds it
difficult to accept the version of the victim on its face value, it
may search for evidence, direct or substantial, which may lend
assurance to her testimony.
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20. After all, the Court cannot overlook where the victim
or a girl is subjected to sexual assault, she is not accomplice to
the crime, but is victim of another’s lust.
21. The victim appeared as PW7 and stated that her
date of birth was 27.08.1998. She was learning sewing and
cutting course in the year 2014 at Panchrukhi Centre. At that
time her father was working at Hamirpur and prior to her
joining the Sewing Centre at Panchrukhi, she was studying in
Govt. High School, Andretta. When she used to go to the school,
the appellant, who belonged to their village used to harass her
on the way and asked her for marriage with him, but she
refused. Appellant assured that he was definitely going to marry
with her and he made sexual intercourse with her under the
pretext of marriage and committed sexual intercourse with her
on 14.02.2014 at the place outside her cowshed which was
situated at the back side of their house and he had also
committed sexual intercourse, for the second time, with her on
the same pretext on 25.01.2015 in the tea garden at the back of
university in the bushes. When she refused for sexual
intercourse, then the appellant had threatened to defame and
kill her. She did not disclose this fact to anyone, but her family
members came to know about her relationship with the
appellant and then her parents had asked her about such
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happenings and then she disclosed about these occurrences to
her parents. She had not disclosed about these occurrences to
her family members earlier of her own as she was under fear
from the accused.
22. On 06.05.2015, when the victim’s parents had come
to know about these occurrences, then they called the appellant
and his mother to their house and asked them for her marriage.
However, the parents refused and rather the mother of the
appellant told them that she will not marry her son with the
daughter of ‘Chamaar’ as they belonged to Scheduled Caste
category and the appellant belonged to Chaudhary community.
On their refusal for marriage, she alongwith her father and
mother went to Police Station Palampur and reported the
matter to the police. Her medical examination was also got
done and her statement was also got recorded by Ld. ACJM,
Palampur.
23. The victim disclosed before Ld. ACJM, Palampur
that the appellant had brought one ‘dori’ and some ‘sindhoor’
from some hollyfaith (Chela) and asked her to tie ‘dori’ around
her waist and apply ‘sindhoor on her forehead. When she had
done so, then she used to feel as if her parents were not saying
good to her and whatever the appellant used to say, she used to
like and follow.
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24. The police had taken the victim to the places where
the appellant had committed sexual intercourse with her and
she had identified the same. The accused who had committed
sexual intercourse with her was present today in the Court.
The doctor had taken her ‘pajami’ and bra into possession at
the time of her examination and her statement was recorded by
the police in Rest House, Palampur and videography was also
done. The accused had committed sexual intercourse with her 8
to 10 times in between the aforesaid occasions i.e. between
14.02.2014 and 25.01.2015 under the pretext of marrying her.
25. In crossexamination, the victim stated that her
statement was recorded by the police twice; one statement in
the police station and another in Rest House and she visited the
police station twice. Police had taken her to the court on the
next day and when her statement was recorded before the
Magistrate, her mother was also with her. She stated that she
disclosed to the police in her statement that the accused used
to tease her on her way to school. When confronted with
statement Mark D1 wherein it was not so recorded. She had not
disclosed to the police the date of sexual intercourse with her
by the accused. She volunteered to state that the accused
committed sexual intercourse with her in February, 2014. She
denied that she had falsely stated the date of occurrence as
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14.02.2014. She had also disclosed in her statement to the
police that the accused had threatened her to do away with her
life and to defame her in case she did not have intercourse with
him. She was then confronted with statement mark D1 wherein
it was not so recorded. She also disclosed to the police that the
mother of the accused had told that she will not get her son
married with a daughter of ‘Chamaar’. She admitted that at
the time of her medical examination, the doctor had told for her
dental age and xray examination and these examinations were
conducted thereafter. She denied that her age was 18 plus at
the time of her medical examination. She denied that in
February, 2014 she was above the age of 18 years. She did not
disclose such facts to the police that the accused had brought
‘dori’ and ‘sindhoor’ from ‘chela’ and had asked her to tie ‘dori’
around her waist and apply ‘sindhoor’ on her forehead.
26. The victim denied that she made the statement
before Ld. ACJM, Palampur at the instance of her parents. She
admitted that the accused belonged to her village and was
Chaudhary by caste. She denied that the accused had not
committed sexual intercourse with her in between 14.02.2014,
25.01.2015 about 810 times. Letters Ex.DA1 to Ex.DA26
were letters which had been written by her to the appellant.
Volunteered to state that the accused had also written letters to
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her. She admitted that the accused had admitted that he would
marry her on her attaining 18 years. Further, volunteered to
state that the accused refused to marry her. She denied that on
06.05.2015, when the accused and his mother had come to her
house, the accused had stated to marry her after attaining the
age of majority. She denied that accused never committed
sexual intercourse with under the garb of marriage. She denied
that a false case had been registered against the accused at the
instance of her parents on his refusal to marry her. She denied
that she had attempted to commit suicide by cutting her pulse
when her mother quarrelled with her on account of not having
her marriage with the accused due to caste considerations.
Selfstated, she never quarrelled with her mother. She denied
that she was making a false statement against the accused in
the court.
27. PW8, Smt. Kaya Devi stated that victim was her
youngest daughter and she was not aware about her date of
birth, but the month was August. Whenever her daughter used
to go to her school at Andretta, then the accused on the way
used to tease her and they had not given any mobile phone to
their children, but when she saw mobile phone with her, then
she inquired that as to from where she obtained the mobile
phone, then she disclosed that the accused had given this
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mobile to her. Thereafter, she had gone to the house of mother
of accused where she told that accused had been talking to her
daughter on phone and she asked her to make him understand
and she assured to reprimand him.
28. The witness further deposed that after leaving
school, her daughter used to go to Panchrukhi to attend sewing
and cutting course and during that period the accused used to
meet her on the way and she had seen ‘dori’ around the waist of
her daughter and ‘sindhoor’ on her forehead and when she
asked her about the same, then her daughter told that the
same were given to her by the accused and he had asked her to
tie ‘dori’ around her waist and to apply ‘sindhoor’ on her
forehead. Thereafter her daughter used to abuse them
whenever she used to tie ‘dori’ around her waist and apply
‘sindhoor’ on her forehead. Then, they got her treated from
Chela and removed the ‘dori’ from her waist and ‘sindhoor’ from
the forehead and thereafter her daughter disclosed that the
accused had committed sexual intercourse with her many
times.
29. The witness further deposed that when she came to
know about all these facts, then she asked the mother of
accused to come to their house on 06.05.2015, on which she
and her son had come to their house and asked the mother of
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the accused to marry her son with her daughter as he had
committed sexual intercourse with her many times, but she
refused to do so by saying that she will not marry her son with
daughter of a ‘Chamaar’. She had also told that for her, her son
and her daughter both were dead and that she was not having
any money for their marriage. Her daughter was below 17 years
of age when the accused had committed sexual intercourse with
her. Her husband was in service and on 10.05.2015 when he
came to the house, then she along with her husband and her
daughter had gone to Police Station, Palampur, to report the
matter. The medical examination of her daughter was got done.
Her statement was also got recorded.
30. In crossexamination, this witness admitted that her
daughter never disclosed about her sexual exploitation by the
accused. She volunteered to state that her daughter had told
that due to threatening given to her by the accused, she had
not disclosed about such facts to her. On or before 06.05.2015,
she had not reported anything to police about the threatening
of her daughter by the accused. She admitted that on
06.05.2015, when she caught her daughter talking to the
accused on phone, then she had quarrelled with her. She
denied that due to this quarrel, her daughter had tried to
commit suicide by cutting her pulse. She had disclosed to the
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police in her statement that the accused had brought ‘sindhoor’
and ‘dori’ to her daughter and had asked her to tie the ‘dori’
around her waist and to apply ‘sindhoor’ on her forehead. She
was then confronted with MarkD2, wherein it was not so
recorded. She denied that the accused had not brought the
‘dori’ and ‘sindhoor’ to her daughter and that he had not asked
her to apply the same. She denied that no witchcraft was played
by the accused with her daughter. There was no other person
except their family members in the house on 06.05.2015 when
the accused and his mother had come to their house.
31. The witness denied that the accused had told them
to marry the victim after two years on 06.05.2015. The police
had recorded her statement as per her version. She denied that
when the mother of accused refused to get her son married with
her daughter, then they got a false case registered against the
accused. She denied that the mother of the accused had not
used the word of caste as Chamaar against them. She denied
that she was not ready to get her daughter married with the
accused due to caste consideration. She denied that after 45
days, she and her husband had tutored their daughter to give
statement against the accused in the Court and the statement
made before ld. ACJM, Palampur by their daughter was given
as per their versions. She denied that the victim had not
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identified the places of her sexual assault by the accused to the
police in her presence and that no videography of those
proceedings had been conducted. She denied that in February,
2014 the victim was above 18 years of age. She denied that she
was making a false statement in the Court.
32. PW9, Smt. Rajni Devi stated that she was Pradhan
of Gram Panchayat, Andretta and did not remember the dates
when she was associated in the investigation. She had gone
with the victim and the police to the cowshed which was at the
back of house of victim and that place was identified by the vic
tim to be the same where the accused had committed sexual in
tercourse with her and police had also gone to a nearby field
and the victim also stated that the accused had committed sex
ual intercourse with her. The police and the victim had also
gone to Palampur with her and there in the tea garden near
the university a place was identified by the victim where the ac
cused had committed sexual intercourse with her. Another
place in the nearby fields had also been identified by the vic
tim where also the accused had committed sexual intercourse
with her. All these places were identified by the accused on
14.05.2015 to be the same places where he had committed
sexual intercourse with the victim. The memos of identification
of these places were prepared by the police.
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33. In crossexamination, this witness stated that she
did not know as to on which date the accused was arrested by
the police and whether the police had taken the accused to
those places before her joining the police as a witness. She
could not say anything as to how many times the police had
taken the victim to those places. The victim and her mother
were not related to her, but they were residents of her
panchayat and the accused was also from her panchayat. She
admitted that prior to this case, there was no complaint against
the accused or the parents of victim before the panchayat. She
denied that being from scheduled caste category she had given
the statement in favour of victim. She denied that no spot
identification was conducted at the instance of the victim. She
denied that she was making a false statement.
34. PW11, Smt. Kushma Devi @ Sunka stated that on
06.05.2015 she was cutting grass in her field near the house of
Puran Chand and heard noise from his house. Firstly, she had
witnessed the occurrence from nearby the path and thereafter
she had gone to the courtyard of Puran Chand. Many people
had gathered there. The mother of the victim had been giving
beatings to her daughter and she intervened the matter and
asked her as to why she was beating her daughter. On this,
the victim disclosed that she wanted to marry with the accused
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present in the Court. On the same day, at about 5.00/6.00
p.m., when she was busy in her field, she again heard noise
from the house of Puran Chand and thereafter she had gone
there. The mother of the accused had disclosed in her presence
that after attaining the age of majority by the victim, she would
marry her son with the victim. The mother of victim had told
that due to the nearness of place of residence, she was not
ready to get her daughter married with the accused. Nothing
was happened except the aforesaid in her presence.
35. In crossexamination, this witness admitted that she
had gone to the house of Puran Chand on 06.05.2015, where
lot of people had already gathered and out of them, she
specified the names of some of persons present there as Amar
Nath, Anu, Santosh, Parveen and Ashwani etc. She admitted
that in her presence, the mother of accused as well as accused
had not used casteist remarks to the family of victim. She also
admitted that in her presence the mother of the victim
as well as victim had not disclosed about the sexual assault
being committed by the accused with the victim. She also
admitted that the accused had agreed to marry with the victim
after attaining age of majority by her.
36. PW14 Swaroop Kumar stated that he was doing the
work of cable network. He knew Puran Chand, who was his
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uncle and his house was adjacent to his house. On 06.05.2015,
he was in his house and accused alongwith his mother came to
the house of his uncle and started quarrelling with his uncle
and he also went there, where he saw that some villagers
namely Santosh, Parveen, Amar, Ashwani etc. were also
present. They were talking about the daughter of his uncle who
had been teased and sexually exploited by accused. All the
family members of his uncle were asking the accused about the
aforesaid facts, but he did not reply. The mother of accused
continued opposing their versions regarding the aforesaid facts
and further threatened if her son would marry the daughter of
her uncle, then she would disinherit her son from the property.
His uncle was ‘Chamaar’ by caste and the accused was
Chaudhary by caste, so the mother of accused threatened that
if her son would marry the daughter of Chamaar, then she
would administer poison to both of them. Thereafter the
accused did not marry the daughter of his uncle.
37. In crossexamination, this witness admitted that
prior to 06.05.2015, he had not heard that accused had ever
teased the victim. He admitted that there were so many other
houses nearby the house of Puran Chand. He did not lodge any
complaint with the Panchayat regarding the occurrence of
06.05.2015. He denied that the mother of accused had not used
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any caste based language. He denied that in his presence there
was no talk that the accused had sexually exploited the victim.
38. PW2 Kanta Devi stated that she being ward member
of Gram Panchayat, Andretta remained associated with the
police during the investigation of this case. The police officials
had come to her house and had also taken her with them. Smt.
Rajni Devi Pradhan was also present there and the accused was
also present with the police at that time. The accused had
shown the place of occurrence to the police in her presence, but
she did not remember as to how many places had been shown
by the accused to the police in her presence.
39. This witness was declared hostile on the request of
Ld. P.P. and crossexamined, but in her lengthy cross exami
nation, nothing material could be extracted from her statement.
In crossexamination, she admitted that Rajni Devi had also
signed the memos in her presence in the police station. She
admitted that she was not aware as to when the accused was
arrested by the police and also did not remember as to where
the aforesaid photographs had been clicked by the police. She
admitted that these memos had not been read over to her by
the police and she is illiterate.
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Medical Evidence:
40. PW6 Dr. Preeti Sood had conducted the medical
examination of victim and issued the MLC EX.PW6/D and her
final opinion was PW6/G. In crossexamination, she denied
that she had advised for radiological examination of the victim
to know her dental age due to the developed sexual organs of
the victim. She volunteered to state that it was their normal
practice to get dental age determined in such like cases. She
admitted that dental examination and radiologist report was
done for determination of age of the victim. She admitted that
when the I.0. had put up the case before her for final opinion,
at that time the report of the radiologist regarding dental age of
the victim, had not been produced before her. She denied that
her opinion mentioned in MLC was not based on the scientific
reasoning.
Formal/Link evidence:
41. The other witnesses examined in this case are to
establish the link.
42. PW1, Constable Smt. Bobby, who had accompanied
the victim to the hospital and also remained present at the time
when her statement was recorded at Rest House, Palampur.
In crossexamination, she stated that the victim was identified
24
by her mother before her. She denied that the victim was not
ready for her Medical examination and she had been forced by
her family members for her medical examination and
videography. She denied that at the time of videography, she
was neither present nor the statement of victim was recorded in
her presence.
43. PW3, Parveen Kumar stated that he was doing the
work of welding at Mirgan. When he was coming back from his
work to his house at about 4:35 P.M. or 5:00 P.M. and reached
near the house of Puran Chand, he saw some people standing
in the courtyard of his house. There some talk was going on in
between the accused and victim and he had neither gone to the
house of Puran Chand nor heard anything there. This witness
was not crossexamined.
44. PW4, Constable Sarwan Singh had deposited the
case property at RFSL and handed over the RC to the MHC.
45. PW5, Constable Amit Kumar entered the
application in the computer in order to generate the FIR and
issued CIPA certificate EX.PW5/C.
46. PW10, HC Vipan Chand was MHC in Police Station,
Palampur with whom the case property was deposited and he
entered the same in the malkhana register and sent the same to
RFSL, Dharamshala.
25
47. PW12, Mittar Dev was Tehsildar, who on the
application of police Ext.PW12/A, called the report from the
field agency which was Ext. PW12/B and on the basis of the
report issued letter Ext. PW12/C. As per the record, the caste
of the victim was ‘Chamaar’ which was scheduled caste as per
notification issued by the Govt. of H.P.
48. PW13 Baldev Dutt, Dy.S.P. stated that Puran Chand
moved an application Ext. PW5/A on the basis of which, FIR
Ext. PW5/B came to be registered.
49. PW16, Smt. Bandana, Secretary of Gram Panchayat,
Andretta had issued the birth certificate Ex.PW16/B and the
copy of family register was Ex.PW16/A.
50. PW17, Dr. Jai Desh Rana had conducted medical
examination of the accused and issued the MLC EX.PW17/A.
51. PW18, Inspector Gurbachan Singh had prepared the
challan and filed the same in the court.
52. PW19, Vijay Sharma was Patwari and he had given
the report to the Naib Tehsildar and his report was
Ex.PW12/B.
Investigating Officer:
53. PW15, Shri Navdeep Singh, Dy.S.P. had investigated
the matter. According to him, the accused had committed the
26
offence. In crossexamination, he stated that before 10.05.2015,
no statements of victim and her mother were recorded by the
police. The victim was never called in the police station before
10.05.2015. He denied that during investigation the exact date
of alleged sexual assault could not be verified. Selfstated, the
victim had disclosed the exact date in her statement. He denied
that the FIR in this case was antetime and antedate. He
admitted that the statement of victim under Section 164
Cr.P.C. was not got recorded on 10.05.2015. He denied that the
statements of victim under section 161 Cr.P.C. and 164 Cr.P.C.
were the tutored versions. He denied that he had not carried
out fair investigation and accused had been falsely implicated
in this case. He denied that the victim and accused had not
identified any spot to the police. He denied that he had recorded
the statements of witnesses on his own.
This is the entire evidence of the case on record.
54. Adverting to the testimony of victim, it would be
noticed that as per version putforth by her, the appellant
committed sexual intercourse with her that too under the
pretext of marriage, firstly, on 14.02.2014 and for the second
time on 25.01.2015. But, on both the occasions, she never
complained and rather it is the specific case that she talked
about the incident only after her mother came to know after she
27
seized the mobile phone from the victim that had been given by
the appellant to her. It has also come in the evidence that the
family of the victim had tried to impress upon the appellant to
marry their daughter and the appellant had not out rightly
refused to marry her, but had stated that he would marry the
victim after she attained the age of 18 years. The versions put
forth by the victim and her mother regarding conflict of caste
clearly appear to be an afterthought.
55. Going by the statement of the victim, she had never
disclosed to the police that the appellant used to tease her on
her way to school. She had further not disclosed to the police
that the appellant had threatened her to do away with her life
and to defame her in case she did not have sexual intercourse
with him. She further admitted that she had not disclosed to
the police in her statement that the appellant had brought ‘dori’
(thread) and ‘sindhoor’ (vermilion) from ‘chela’ and asked her to
tie ‘dori’ around her waist and apply ‘sindhoor’ on her forehead.
She admitted the letters Ext. DA1 and Ext. DA26 to have been
written by her to the appellant and further volunteered to state
that even the appellant had written letters to her. What is more
important is the clear admission of the victim regarding the
suggestion that the appellant had admitted that he would
28
marry her on attaining the age of 18 years, as would be evident
from the following version:
“It is correct to suggest that the accused had
admitted that he would marry me on my attaining
age of 18 years.”
56. From the aforesaid discussions, we find the
testimony of the victim to be not trustworthy or credible so as
to be considered as sterling witness. The sterling witness has to
be of a very high quality and caliber, whose version should be
unassailable and such statement ought to have been accepted
on its face value without any hesitation. The witness has to be
truthful and there would have been no reason for the victim to
have come up with a false version as in the instant case.
57. Therefore, we would look for other evidence which
may corroborate the evidence as has come on record.
58. Evidently, PW2 Kanta Devi, who was associated by
the police during investigation, has not supported the
prosecution case regarding the identification of the spot where
the appellant is alleged to have committed sexual intercourse
with the victim.
59. As regards PW9, Rajni Devi, who was Pradhan of
Gram Panchayat, Andhretta, no doubt, she tried to support the
case of the prosecution. But, then her testimony will have to
29
be taken with a pinch of salt as she happens to be belonging to
the same community and caste as that of the victim. This
assumes importance that when her testimony is considered
along with the testimonies of the victim and her mother and
statement of PW11 Kushma Devi @ Sunka, who clearly stated
that on 06.05.2015 she was cutting grass in her field and upon
hearing noise, she had gone to the courtyard of the father of the
victim where lot of people had gathered and she saw mother of
the victim giving her beatings and she had intervened in the
matter and asked the mother of the victim why she was giving
beatings to her daughter upon which victim disclosed that she
wanted to marry with the appellant. On the same day, at about
5.006.00 p.m., she had again heard noise from the house of
Puran Chand and thereafter went there to pacify the situation
when the mother of the appellant disclosed that after attaining
the age of majority by the victim she would be ready for the
marriage of her son with the victim. She further stated that it
was mother of the victim who told that due to nearness of place
of residence, she was not ready to get her daughter married
with the appellant and nothingelse had happened except the
aforesaid in her presence.
60. Be it stated, this witness was not even declared
hostile and upon crossexamination by the defence counsel, she
30
admitted that when she had gone to the house of Puran Chand
on 06.05.2015, there were lot of people, who had already
gathered there and named a few of them. She also admitted
that in her presence mother of the appellant as well as
appellant had not used any casteist remarks to the family of
the victim. She further admitted that even in her presence, the
mother of the victim as well as victim had not disclosed about
sexual assault being committed by the appellant with the
victim. Lastly, she admitted that the appellant had also agreed
to marry the victim after attaining the age of majority.
61. Evidently, nothing has come on record to show that
PW11 Kushma Devi was inimical to the victim or her family or
that she was in any way related to the appellant or had any
other reason to depose in favour of the appellant. Rather, her
testimony appears to be truthful and is probable for this reason
that at no stage she was turned hostile unlike PW2 and was
further permitted to complete her testimony which casts a
serious dent in the case of the prosecution.
62. It is in this background that one may have to fall
back to the medical evidence which again is of no avail because
the victim had alleged that the appellant had sexual intercourse
with her on 14.02.2014 and thereafter for the second time on
25.01.2015. She was medically examined on 10.05.2015 and,
31
obviously then, there could be no signs of any recent sexual
intercourse, yet, PW6 doctor Preeti Sood would give a stereo
type opinion that “the possibility of sexual assault could not be
ruled out”.
63. Here, we need to observe that as per the statement
of the victim, she had categorically stated that the appellant for
the first time had sexual intercourse with her on 14.02.2014 at
the place outside her cowshed which was situated at the back
of their house and for the second time he had committed sexual
intercourse with her on 25.01.2015. But, then she further
deposed that when she refused for sexual intercourse with the
appellant, he had been threatening her to defame her. He had
also been threatening to kill her in case she refused to have
sexual intercourse with him and also qualified that she had not
told about it to anyone.
64. We really fail to understand that even as per the
story of the victim herself, it was on two occasions that she had
sexual intercourse with the appellant and she did not even term
the same either to be forcible or without her consent. In case,
the testimony of the victim is believed, then we see no reason
why the victim should not have complained immediately to her
parents and waited for more than 3½ months.
32
65. Importantly, the victim infact never complained to
her parents and talked about the incident only after her parents
came to know about the relationship. The silence of the victim
in the given circumstances is something more than what meets
the eye.
66. The further story of the victim as well as her mother
Kaya Devi (PW8) that the appellant had given her ‘dori’ to tie
around her waist and ‘sindhoor’ to apply on her forehead
which made the victim to abuse them when she used to tie
‘dori’ around her waist and apply ‘sindhoor’ on her forehead
and then they got treated her daughter from ‘chela’, is not at
all worthy of credence. Afterall the Court cannot give credence
much less uphold any theory of black magic as was sought to
be putforth by the prosecution. Even for the sake of
arguments if the versions of the victim and her mother are read,
then there is no evidence led by them which may indicate how
and by whom the victim was treated and who removed the
‘dori’ from her waist and ‘sindhoor’ from her forehead as stated
by the victim (PW7) and PW8 Kaya Devi.
67. In absence of there being any material on record,
save and except, bald statements of victim and her mother,
regarding penetrative sexual assault with victim, which
testimonies as observed are not fully reliable, it cannot be held
33
that the prosecution has proved its case beyond reasonable
doubt, rather, the appellant is entitled to benefit of doubt.
68. Even assuming that it was the appellant, who
refused to marry with the victim that too at a stage subsequent
to the alleged incident, even the same cannot be a handle to
incriminate the appellant on the charges clamped against him,
particularly keeping in view the admitted previous relationship
between the victim and the appellant. Any other interpretation
would frustrate the purpose of the POCSO Act as well as the
jurisprudence behind the Indian Penal Code and lead to
unscrupulous abuse of the said statutes at the drop of a hat.
69. In view of the aforesaid discussions, impugned
judgment and order of conviction and sentence passed by the
learned Special Judge, which suffer from patent illegality and
being legally unsustainable, are set aside. The appellant is
acquitted of the charges framed against him after giving benefit
of doubt in his favour. Consequently, the appellant, in the
instant case, is ordered to be released immediately, if not
required in any other case.
70. The Registry is directed to prepare release warrants
of the appellant.
71. In view of the provisions of Section 437A Cr.P.C., the
appellant is directed to furnish a personal bond in the sum of
34
Rs.25,000/ with one surety of the like amount to the
satisfaction of the learned Registrar (Judicial) of this Court,
which shall be effective for a period of six months with a
stipulation that in an event of an SLP being filed against this
judgment or on grant of the leave, the appellant on receipt of
notice thereof shall appear before the Hon’ble Supreme Court.
72. The instant appeal is allowed in the aforesaid terms.
Pending application(s), if any, also stands disposed of.
Digitally signed by KHEM RAJ THAKUR (Tarlok Singh Chauhan)
KHEM DN: CIN, OHIGH COURT OF HIMACHAL
PRADESH, OUHIGH COURT OF
HIMACHAL PRADESH SHIMLA,
Phoneb3bb0330a36091c417dc6aa42212c1 Judge
RAJ
4caec7825ba4158459325bd600d273f58b,
PostalCode171001, SHimachal Pradesh,
SERIALNUMBER6aa9db3b3e85e608387fb
6f0fa0bb2ddacd2e1b82f232ca3c0adea331d
a33983, CNKHEM RAJ THAKUR
THAKUR Reason: I am approving this document
Location:
Date: 2023-10-07 09:40:05
(Ranjan Sharma)
06.10.2023. Judge
(krt)