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Pardeep Kumar @ Dimple vs State Of Himachal Pradesh on 6 October, 2023

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
3

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.

4

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.

5

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
6

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
7
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.”

8

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.

9

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.

10

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
11

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.

12

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
13

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
14

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
15

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
16

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
17

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
18

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.

19

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
20

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
21

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
22

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.

23

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)

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