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Vivekanand Shastri vs State on 1 July, 2019

% Reserved on: 7th January, 2019
Decided on: 1st July, 2019

+ CRL.A. 389/2016

Represented by: Mr. Hemant Singh,

STATE ….. Respondent
Represented by: Mr. Ashok K. Garg, APP for
the State.

1. Vivekanand Shastri challenges the impugned judgment dated 5th
April, 2016 convicting him for offence punishable under Section 8 of
Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO
Act’) and the order on sentence dated 7th April, 2016 directing him to
undergo rigorous imprisonment for a period of three years and to pay a fine
of ₹5,000/-, in default whereof to undergo simple imprisonment for a period
of 15 days.

2. Assailing the conviction, Learned Counsel for the appellant contends
that the prosecutrix in her statement stated that there was nobody present in
the temple at the time of incident but the relatives stated that there was a
‘katha’ of nine days going on in the mandir. Mother of the prosecutrix in her
cross-examination stated that there was katha on 2 nd February, 2013 and
around 20-25 people used to gather for the katha. He contended that
moreover there were other people present in the mandir till 8:30 P.M. and no

Crl.A.389/2016 Page 1 of 7
such incident as alleged took place. Moreover, the prosecution failed to
examine any independent witness. The prosecutrix in her cross-examination
has admitted that there was no katha in the temple on the day of the said
incident rather she had gone there only to lit diyas. He further contended that
the statement of the prosecutrix before the NGO is not consistent with her
testimony before the court. Hence the appellant be acquitted.

3. Learned APP for the State on the other hand submits that there are no
contradictions in the statements of the prosecutrix and her mother with
regard to the incident. In view of the consistent deposition of the
prosecution witnesses, the conviction and order on sentence be upheld.

4. Investigation started after a PCR call was received on 2nd February,
2013 around 8:46 P.M. stating that “House No. C-2, Bhagat Singh Park,
Siraspur, Mahadev Mandir main jhagada hua hai. Mandir ke pandit ne ek
ladki ke saath galat kaam kiya hai”. Aforesaid information was recorded
vide DD No. 125B and was entrusted to SI Jai Kumar. He along with Ct.
Rakesh went to Bhagat Singh Park, House No.F-3/4, Mahadev Mandir,
Siraspur where he met the prosecutrix and her mother. Statement of the
mother of the prosecutrix was recorded wherein she stated that at about 6:00
P.M., her daughter aged about 13 years had gone to the neighboring Panch
Parmeshwar Mahadev Mandir. On her return, she informed her that the
mandir’s priest touched her on her cheek, body and private parts. On hearing
this, she immediately went to the mandir and asked priest Vivekanand
Shastri why he touched her daughter, who in turn got angry on her and asked
her to leave the place or else he would do the same to her, as he did to her
daughter. Thereafter, she came back home. Aforesaid statement was
recorded vide Ex.PW-1/A. On the basis of the aforesaid statement FIR No.

Crl.A.389/2016 Page 2 of 7
60/2013 (Ex.PW-4/A) was registered at PS Samaypur Badli for the offence
under Section 354 IPC. Thereafter, he prepared the site plan at the instance
of the prosecutrix and her mother vide Ex.PW-9/B. Vivekanand Shastri was
found at the temple and was apprehended at the instance of the mother of the
prosecutrix. He was arrested vide arrest memo Ex.PW-3/B. His personal
search was conducted vide Ex.PW-6/A.

5. On 3rd February, 2013, the prosecutrix was counselled by an NGO
official. Copy of the date of birth certificate of the prosecutrix was obtained
from her father vide Ex.P1.

6. After completion of investigation, charge sheet was filed. Vide order
dated 13th March, 2013, charge for offence punishable under Sections 8/12
POCSO Act was framed against the appellant.

7. Mother of the prosecutrix was examined as PW-1 in Court where she
deposed that her daughter was studying in the 6th standard at the time of the
incident. On 2nd February 2013, when her daughter had gone to visit Panch
Parmeshwar Mahadev Mandir, the priest Vivekanand Shastri called her
inside the room in the mandir and then he kissed her on her cheek and
touched other parts of her body including her private parts. Vivekanand
Shastri was known to her as he had been working as a priest in the mandir
for past many years. In her cross-examination, she stated that on 2nd
February, 2013, she had visited the mandir at about 10:00-11:00 A.M., for
15 minutes as Bhagwad katha was going on. She stated that Vivekanand
Shastri used to perform the katha himself and it used to start either at 4:00
P.M. or 5:00 P.M. Around 20-25 people used to gather for the katha. The
plot in which the temple is situated is about 200 sq. yards, while 50 sq. yards
of the land was donated to the temple 150 sq. yards had been grabbed by

Crl.A.389/2016 Page 3 of 7
Vivekanand Shastri. She stated that when she went to confront Appellant,
his daughters were present outside the gate of mandir. Her brother-in-law
Sushil Chaudhary had made the call to police at 7:00 P.M.

8. Father of the prosecutrix was examined as PW-2. He stated that on 2nd
February, 2013 when he returned from his duty and reached his house in the
evening, his wife informed him about the incident.

9. Prosecutix was examined in Court as PW-5. After ascertaining that
she was capable of understanding the questions put to her and was also
capable of giving rational answers thereof; victim child’s deposition was
recorded. She deposed that on 2nd February, 2013 at about 6:00 P.M., she
had gone to Hanuman Mandir near her house, where the priest called her
inside his room behind the mandir. There he held her hand, kissed her on
lips and touched her private parts. She freed herself, came back to the house
and narrated the incident to her mother. In her cross-examination she stated
that on 2nd February, 2013 there was no katha in the temple and she had
gone there only to light diyas.

10. Sushil Chaudhary (PW-5), uncle of the victim stated that on 2nd
February, 2013, the mother of the prosecutrix had come to his house at about
8:45 P.M., and informed him about the incident. He called the police on 100
number from his mobile phone. Thereafter he went to the temple to talk to
Vivekanand Shastri, who justified the act by saying that whatever he did was
correct. Vivekanand Shastri and his elder daughter Shobha started quarreling
with him and after sometime the police came there. In his cross-
examination, he stated that the katha was going on in the temple from 3:00
P.M. to 6:00 P.M. from 21st January, 2013 to 4th February, 2013.

11. Ramesh Chand (DW-1), Priest in his testimony stated that he had

Crl.A.389/2016 Page 4 of 7
known Vivekanand Shastri for the last six years. He stated that he had
received information regarding katha to be held in the mandir from 27 th
January 2013 to 4th February 2013 through a pamplet. He placed the same
on record vide Ex.DW-1/A. He stated that the time of the katha was from
3:30 P.M. till 6:30 P.M. every day and there used to be an Aarti and
distribution of prasad till 7:30 P.M. On the day of the incident he was at the
mandir till 8:30 P.M. but no such incident took place.

12. Amarjeet Sharma (DW-2), stated that on the day of the incident he
reached the temple at around 3:15 P.M. and remained there until 8:30 P.M.
but no such incident took place. He further stated that on 5th February, 2013
he came to know that some associates of Amarnath (relative of the father of
the prosecutrix) had attacked the house of the Appellant and abused his

13. HC Bhim Singh (DW-3) brought DD No. 48B regarding the
complaint dated 6th February, 2013 made by Shobha Pandey. He stated that
complaint (Ex. DW-3/A) was duly investigated and closed on 30th March,
2013 vide report (Ex. DW-3/B).

14. Shobha Pandey (DW-4), daughter of Vivekanand Shastri stated that
on 2nd February, 2013, there was katha in the mandir, which started at 3:30
P.M. and continued till 6:30 P.M., after which there was an aarti and
distribution of prasad. Thereafter she went into the room behind temple and
started cooking food for the family. At about 9:15 P.M., the police arrived
and took her father to the Police Station. She further stated that on 4th
February 2013, at about 9:00 – 9:30 P.M., Amarnath, who was a property
dealer in the locality came along with 2-3 persons and threatened them by
saying that they had already falsely implicated her father and now they

Crl.A.389/2016 Page 5 of 7
should vacate the temple. She stated that again on 5th February, 2013 the
same persons came threatened them, broke the gate of their house and gave
beatings to them. She wrote an application on the dictation of some police
official but did not mention anything about Amarnath and his associates.

15. The appellant, in his statement under Section 313 Cr.P.C., stated that
he was taken by the PCR officials at about 9:15 P.M., to the Police Station
Samaypur Badli alongwith the mother of the prosecutrix, where he was
made to sit for about 6 to 7 hours before his arrest in this case. He denied the
occurrence of any such event. He stated that he had been falsely arrested in
this case on the behest of Amarnath Chaudhary who was a property dealer
and wanted to grab the property of the temple.

16. From the defence evidence as led by the appellant as also the fact
admitted by the prosecution witnesses including the mother and uncle of the
prosecutrix who admitted that the katha was going on and it used to start at
either at 4.00 p.m. or 5.00 p.m. and there used to be 20-25 people, it is
proved that at the relevant time ‘katha’ was going on daily in the temple and
even accepting the version of the uncle of the prosecutrix it was from 3.00
p.m. to 6.00 p.m., after 6.00 p.m. sometime was required to be spent in Aarti
and Prasad. Case of the prosecutrix is that the alleged incident occurred at
around 6.00 p.m. However as proved at that time the appellant who was the
pujari of the mandir, would be narrating the katha or would be busy in
performing Aarti and distributing prasad, the defence version is probablized
as the specific case of the prosecutrix is that when she went, there was no
katha going on and she went to light the diyas at 6.00 p.m. The daily
timings of the katha have been proved to be between 3.30 p.m. and 6.30
p.m. and admittedly from 3.00 p.m. to 6.00 p.m. followed by aarti and

Crl.A.389/2016 Page 6 of 7
distribution of prasad which would continue till at least 7.00 p.m., this Court
deems it fit to grant benefit of doubt to the appellant.

17. Consequently, the impugned judgment of conviction and order on
sentence are set aside.

18. Appeal is disposed of.

19. Copy of this order be sent to Superintendent, Central Jail, Tihar for
updation of the Jail record.

20. TCR be returned.

JULY 01, 2019

Crl.A.389/2016 Page 7 of 7

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