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State of Himachal Pradesh Vs. Sham Lal

Judgement

 
Court: Himachal Pradesh High Court

Bench: JUSTICE Sanjay Karol and Ajay Mohan Goel

State of Himachal Pradesh vs. Sham Lal On 12 April 2017

Law Point:
Protection of Children from Sexual Offences Act, 2012 – Glaring inconsistencies found in statement of prosecutrix and her mother about occurence of alleged incident, which has not satisfactorily explained by by prosecution. There are major contradictions in the statements of mother and father of the prosecutrix. Accused rightly acquitted.

 

 

JUDGEMENT

 

1. By way of this appeal, State has challenged the judgment passed by the Court of learned Special Court Una, in SCST Case No. 5-VII/2013 decided on 07.01.2015, vide which, learned Court below while convicting the respondent/accused for commission of offence punishable under Section 363 of Indian Penal Code, has acquitted him for commission of offences punishable under Section 6 of Protection of Children from Sexual Offences Act, Sections 366, 376(2), 506(I) of Indian Penal Code and Section 3(2) of SCST Act.

2. The case of the prosecution in brief was that on 18.10.2013 victim (PW-1), whose age was 15 years, lodged a complaint Ext. PW1/A at Police Station, Haroli, in which it was mentioned that she belongs to scheduled caste community and was a student of +1 class in Government Girls S.S.S. Santokhgarh, District Una, Himachal Pradesh. As per the victim, accused Sham Lal used to harass her on her way to school and back to her house and in the month of August while she was coming to her house from Santokhgargh after attending her class, accused took her to a room at Tahliwal and made her drink a bottle of slice cold drink. According to the victim, accused had taken her to the said place on his motorcycle under threat. After consuming cold drink she became unconscious and regained her conscious after 2-3 hours. As she found accused lying alongwith her, she raised hue and cry as the accused had outrage her modesty. However, accused told her not to do so, otherwise it may bring bad name to the victim. According to the victim, accused started blackmailing her and he started calling her to meet him alone. When she refused to do so, accused threatened to kill her and her family members. Again on 10.09.2013 accused took her to the same room at Tahliwal. At the said place, accused played the recorded conversation of the victim and he again committed sexual intercourse with her. Accused threatened her that in case she reported the matter then he will make public her recordings. Further, according to the victim, on 15.10.2013 at around 4.00 P.M., when she and her sister were alone at their house, accused alongwith one boy came there and threatened her, upon which she raised alarm. On this, public gathered there. However, in the meanwhile accused fled away. She also reported to the police that she apprehended danger to her life from the accused as the accused had threatened her to do away with her life on the phone. It was further stated by the victim that the accused had threatened her that as they belong to lower caste, they cannot cause any harm to him. Victim had narrated all these facts to her mother and she came to the Police Station alongwith her parents and Pradhan Kanwar Krishan Rana. Further, as per the prosecution on the basis of the said complaint FIR Ext. PW19/A was registered at Police Station Haroli and victim was got medically examined. Investigation was carried out and accused was arrested and was also got medically examined. Statement of the victim was also recorded under Section 164 Cr.P.C. before learned JMIC(1), Una. The mobile phone as well as motorcycle were taken in possession. Investigation revealed that the accused had destroyed the recordings of the voice of the victim. Birth certificate of the victim Ext. PW8/A demonstrated that her date of birth was 06.09.1998.

3. After completion of the investigation, challan was presented in the Court and as a prima facie case was found against the accused, accordingly, he was charged for commission of offences punishable under Section 6 of Protection of Children from Sexual Offences Act, 2012, hereinafter referred to as POCSO Act and Sections 366, 376(2), 506(I) of Indian Penal Code and Section 3(2)(V) of SCST Act, to which he pleaded not guilty and claimed trial.

4. Learned trial Court on the basis of evidence produced on record by the prosecution convicted the accused for commission of offence punishable under Section 363 of Indian Penal Code. However, insofar as the remaining charges framed against the accused were concerned, learned trial Court concluded that the guilt of the accused was not proved for commission of offences punishable under Section 6 of Protection of Children from Sexual Offences Act, Sections 366, 376(2), 506(I) of Indian Penal Code and Section 3(2) of SCST Act. Accordingly, learned trial Court acquitted the accused as far as the commission of said offences was concerned.

5. Feeling aggrieved by the acquittal of the accused for commission of offences punishable under Section 6 of Protection of Children from Sexual Offences Act, Sections 366, 376(2), 506(I) of Indian Penal Code and Section 3(2) of SCST Act, State has filed this appeal.

6. We have heard learned counsel for the parties and have also gone through the records of the case as well as judgment passed by learned trial Court.

7. In order to prove its case, the prosecution in all examined 20 witnesses. Balwant Singh was examined as a defence witness.

8. We will refer to the statements of relevant witnesses in order to examine as to whether the findings of acquittal returned by learned trial Court in favour of the accused are borne out from the records or the same are perverse.

9. Prosecutrix entered the witness box as PW-1 and she deposed in the Court that her date of birth was 06.09.1998 and they were two brothers and two sisters. She further stated that she belongs to scheduled caste, whereas the accused was Bahti by caste. She further deposed that the accused used to tease and threaten her while she used to go to her school. This witness further deposed that in August, 2013 when she was returning from school, in the afternoon accused had taken her to his room at Tahliwal village on his motorcycle and there he made her consume cold drink ‘slice’ and after consuming the same, she became unconscious and when she regained consciousness, she found the accused lying with her and he had sexually molested her while she was in an unconscious state. This witness further deposed that she raised cries but the accused advised her not to make the matter public as the same would bring disrepute to the prosecutrix. She further deposed that thereafter accused dropped her at her house in village Gurplah and later on, he started blackmailing her and also used to call her. This witness further deposed that the accused used to threaten her that in case she did not join him then he would make public the factum of her having developed physical relations with the accused and that the family members of the prosecutrix would be done to death. This witness further deposed that on 10th September accused took her from her house. Then she deposed that accused took her from Santokhgarh to the same room and in the said room, accused played to her the recordings of her talks with the accused. She further deposed that after hearing the said recordings, she became afraid and accused again raped her. She further deposed that thereafter accused again called her, however, on her refusal accused came to her house on 15.10.2013 at 04.00 P.M. with one boy named Gorakh and started teasing her. She further deposed that on this she and her sister started crying and she also raised hue and cry as a result of which people assembled at the spot and the accused absconded but Gorakh was nabbed on the spot itself. She further deposed that on 19.10.2013 she lodged the FIR at Police Station, Haroli, and thereafter she was also taken to a lady Doctor by the police. She further deposed that the room where she was sexually assaulted by the accused was opposite to K.P. Hotel. She also admitted that her statement recorded under Section 164 Cr.P.C. was Ext. PW1/B. In her cross-examination, this witness deposed that she had not mentioned the factum of her being teased by the accused on 15.10.2013 in her application Ext. PW1/A and her statement Ext. PW1/B. She admitted that she had disclosed the said fact for the first time in the Court itself. She was also confronted with her statement Ext. PW1/B wherein it was not recorded that in August, 2013 accused had taken her on his motorcycle. She further admitted in her cross-examination that the accused had not clicked any photograph of her. She further deposed that she could not recollect her own cell number. She also stated that she had mentioned the factum of accused dropping her twice on his motorcycle at her house in her application Ext. PW1/A and statement Ext. PW1/B. She was confronted with both wherein it was not so recorded. She also admitted it to be correct that the name of the person accompanying the accused was not mentioned in Ext. PW1/A and Ext. PW2/B. She also admitted it to be correct that she had divulged the name of other boy for the first time in Court itself. She also admitted it to be correct that she had not mentioned any date, time or day regarding the incident which took place in the month of August in her application Ext. PW1/A and statement Ext. PW1/B. She stated in her cross-examination that on 15.10.2013 police from Haroli had reached their house and thereafter police again came on 16th, 17th and 18th October, 2013. She also stated that she had not made any complaint to the police between 15.10.2013 to 18.10.2013 despite police having visited her house in between these dates. She admitted it to be correct that in her statement Ext. PW1/B recorded under Section 164 Cr.P.C. it was not mentioned that when she regained consciousness, she noticed that the accused had sexually assaulted her. She stated that she had mentioned the factum of accused telling her that the prosecutrix could not cause any harm to her as the prosecutrix belong to scheduled caste category in her statement Ext. PW1/B. She was confronted with her statement wherein it was not so recorded. She further deposed in her cross-examination that in her statement under Section 164 Cr.P.C. she had lied that she narrated the incident to her mother on 15.10.2013. She further stated that she had narrated the incident to her mother in the morning of 18.10.2013. She stated that on 15.10.2013 at around 04.15 P.M. witness K.K. and one Kukki, husband of Pradhan had come to her house and her father had called the police. She further deposed that police reached at around 05.30 P.M. and Gorakh was made to sit in their house till the arrival of police and later on he was taken away by the police. She admitted it to be correct that on each side of her house there were residences of her real uncles. She mentioned that she had stated before the Magistrate that the accused had done wrong act with her and she was confronted with her statement Ext. PW1/B, wherein it was not so recorded. She further deposed that Roopan resident of village Bathu was her friend as well as her sister’s friend. She denied that she told Roopan that the accused had not done anything wrong with her and that Gorakh had not committed any wrong act with Meena. She admitted it to be correct that she scribed application Ext. PW1/A after consultation with K.K., Kukki and police officials. She admitted it to be correct that in the application which was moved by Meena at the instance of her parents, name of Raj Kumar was also written.

10. Mother of the prosecutrix Smt. Nirmala Devi entered the witness box as PW-2 and she deposed that she had two daughters, two sons and prosecutrix was her eldest daughter aged about 15 years. She further stated that she did not know the date of birth of the prosecutrix as she was illiterate. This witness further stated that on 15th day of the month about six months back at around 04.15 P.M. she and her husband were working in the field and her daughters Nisha and Meena were at the house. Neighbourers raised hue and cries and when they went to their house, accused Sham Lal ran away. She further deposed that Ajay alias Gorakh another accused, was present in their house and his motorcycle was parked outside the gate. This witness further stated that when they asked Ajay Kumar, he told that he was having relations with their daughters. She further deposed that her daughters were under fear and neighbourers Ram Kishan, Prema and ladies etc. gathered at the spot. She further deposed that on her asking her daughter Nisha told her that accused Sham Lal had brought her from the school on his motorcycle. Thereafter, this witness deposed that on 18.10.2013 it was revealed to her by Nisha that accused took her to shops at Tahliwal and committed wrong act with her after the accused had made Nisha consume a bottle of juice. She further stated that her daughter had told her that the accused had mixed some intoxicant in the juice and had committed sexual act with her in the month of June, again said in August. She further deposed that Nisha told her that the accused had committed sexual act with her twice. This witness further stated that she narrated this fact to her husband Surjit and thereafter they went to Pradhan K.K. and subsequently, their daughters Nisha and Meena were taken to Police Station, Haroli, where reports were lodged. In her cross-examination, she denied that K.K. and Kukki Pradhan had come to their house in the evening on 15.06.2013. She admitted it to be correct that police officials from Bathri Police Post had also come to their house on that day. She also stated that about 10-15 persons of the locality assembled in their house. She further deposed that the police had not taken any action despite their complaint. She also stated that police remained at the spot for about 15-20 minutes and the other villagers left the spot after about 15-20 minutes. She admitted it to be correct that the police had called them on 16th and 17th to the Police Station. She also stated that her statement was recorded on 18th October. She admitted that till 15th October, no such incident was revealed to her by Nisha or Meena. She also admitted it to be correct that from 15th to 18th October neither her daughter nor she had made any complaint either to police or Pradhan of Panchayat. She admitted it to be correct that on 13th October it was Dussehra festival and Nisha had friendship with a girl named Roopa. She also admitted it to be correct that Nisha used to go to school by bus. She also stated that her daughter had not told her the exact date and time of the occurrence.

11. Father of the prosecutrix Surjit Singh entered the witness box as PW-3 and he stated that on 15.10.2013 he alongwith his wife were in the fields and at around 04.15 P.M. they heard some noise from their house and they found accused Sham Lal and Gorakh in their house and thereafter accused Sham Lal ran away. He also stated that there was a motorcycle parked outside his house. He also stated that on inquiry it was revealed that accused Gorakh was known to his daughters. He further stated that his daughters Nisha and Meena did not disclose to him anything on that day. He further deposed that on 18.10.2013 Nisha told his wife that accused Sham Lal had done bad act with her. Meena also divulged about the bad act committed with her by Gorakh. He further stated that then he went to K.K. Rana Ex-Pradhan and thereafter to Haroli Police Station alongwith his daughters. In his cross-examination, he deposed that only 2-3 persons of his village had gathered at his house before they reached there from the field. He further stated that no police official had visited their house on 15th. He admitted it to be correct that K.K. Rana, Kukku Pradhan and 5-7 persons of their village had come to their house on that day. He stated that Sham Lal had run away in his presence. He also deposed that after making certain inquiries and calling the police they let of Gorakh. He further stated that the police and villagers remained at the house for about 20 minutes. He also stated that accused Sham Lal was running a clinic in their village. He also admitted it to be correct that police visited their house on 16.10.2013 and 17.10.2013 and that no complaint was made to the police during those days. He also admitted it to be correct that whatever he was deposing was on the basis of information disclosed to him by his wife and he had not verified the facts from his daughter Nisha.

12. Kanwar Krishan Rana entered the witness box as PW-6 and he deposed that on 18.10.2013 Surjit Singh came to his house and told him that accused Sham Lal had committed rape with his daughter Nisha after threatening her. He further deposed that thereafter he alongwith Surjit Singh and his wife and their daughters went to Police Station Haroli, where daughters of Surjit Singh lodged complaint with the police. In his cross-examination, he admitted it to be correct that on 15.10.2013 he went to the house of Surjit where members and Pradhan of Gram Panchayat Bathu were already there. He also stated that police was called on that day by the Pradhan. He admitted it to be correct that after making inquiries from Ajay Kumar alias Gorakh he was let off by the police. He also admitted it to be correct that from 15th to 18th October he had no talk with Nisha regarding incident.

13. PW-7 Rajinder Singh deposed that on 15.10.2013 he heard some noise at around 04.00 P.M. coming from the house of Surjit Singh, he went there and found accused Gorakh present in the house and Sham Lal ran away in his presence. In his cross-examination, he deposed that Surjit and his wife were at their house when he went there. He admitted it to be correct that K.K. Rana, Kukki and his wife had also reached at the spot and Gorakh was let off after verifying the facts by Surjit Singh and police.

14. Even without referring to the other prosecution witnesses, the testimonies of the above stated four witnesses raise a few pertinent questions which the prosecution has not been able to answer. There are glaring inconsistencies in the statements of prosecutrix PW-1 and her mother PW-2 about the occurrence of the alleged incident which have not been satisfactorily explained by the prosecution. Whereas, PW-1 has deposed in the Court that on 15.10.2013 accused had come to her house at 04.00 P.M. with one boy named Gorakh and had started teasing her and thereafter when she and her sister Meena started crying and raised hue and cry, people assembled on the spot and accused absconded, whereas Gorakh was nabbed, however, when we peruse the testimony of PW-2, she has deposed in the Court that when on hearing certain noise in their house, she and her husband rushed to their house from the field and when she asked her daughter Nisha as to what had happened, Nisha told her that accused Sham Lal had brought her from the school on his motorcycle. This contradiction in the statement of prosecutrix and her mother has not been satisfactorily explained by the State. In fact, in our considered view, this contradiction creates a grave suspicion on the veracity of the case of the prosecution per se especially keeping in view the fact that it has categorically come in the testimony of the prosecutrix that before 15.10.2013 she had not disclosed the factum of her being allegedly sexually abused by the accused to her mother. Besides this, despite the fact that the alleged incident took place on 15.10.2013, there is no cogent explanation given by the prosecution as to why no complaint was lodged with the police from 15.10.2013 to 18.10.2013. It is also a matter of record that Gorakh who was apprehended at the spot was let off by the father of the prosecutrix after making some inquiries. It has also come on record that on 15th itself police had visited the house of the prosecutrix and left after 15-20 minutes. It is also a matter of record as is evident from the statement of PW-3 Surjit Singh that the police had visited their house on 16.10.2013 as well as on 17.10.2013. PW-2 and PW-3 have admitted that no complaints were lodged between 15.10.2013 to 18.10.2013. Why was accused Gorakh let off by the father of the prosecutrix on 15.10.2013, has not been cogently explained by the prosecution. Why no complaint was lodged between 15.10.2013 to 18.10.2013 despite the police having visited the house of the prosecutrix on 15.10.2013 as well as 16.10.2013 and 17.10.2013, has also not been cogently explained by the prosecution. Why Meena, sister of the prosecutrix has not been examined, has not been satisfactorily explained by the prosecutrix. Why the prosecutrix has given a contrary version in Court as compared to her mother, has not been satisfactorily explained by the prosecution. As per the prosecution, the prosecutrix was sexually assaulted by the accused initially in the month of June, 2013 and thereafter in the month of August, 2013, but the said incidents were not disclosed by her allegedly because of trauma. In our considered view, trauma and threats are to be gathered from the facts of the case and prosecution has not been able to demonstrate as to what was the trauma that the prosecutrix was suffering in her house, which prevented her from disclosing all these facts to her mother because it is not the case of the prosecution that the prosecutrix was not putting up her with her parents either in the month of June, 2013 or August, 2013. On the contrary, it is apparent that the case of the prosecutrix was that on 15.10.2013 after threatening her, accused came to her house with one Gorakh and started teasing her, is falsified from the testimony of her mother itself, who has deposed in the Court that she was informed by the prosecutrix that on the fateful day in fact the prosecutrix had come to her house alongwith the accused on his motorcycle. The case of the accused teasing the prosecutrix is also falsified from the fact that the alleged incident of teasing is not so recorded in the FIR itself which is Ext. PW19/A. This demonstrates that the prosecutrix has made improvements in her statement. Cross-examination of the prosecutrix further demonstrates that there are lot of contradictions in her statement recorded under Section 164 Cr.P.C. and her statement recorded as PW-1. Besides this, there are major contradictions in the statements of the mother and father of the prosecutrix also. PW-2 mother of the prosecutrix has stated that K.K. and Kukki Pradhan had not come to their house on the evening of 15.06.2013, whereas PW-3 father of the prosecutrix has deposed that they had come to their house on the evening of 15.06.2013. PW-2 has admitted the suggestion that police officials from Bathri Police Post had come to their house on 15.06.2013, whereas PW-3 has stated that no police had come to their house on 15.06.2013. However, PW-3 in the same breath thereafter stated that one accused Gorakh was let off after sometime after certain inquiries were made and police was called. These are also major contradictions in the testimonies of material prosecution witnesses which contradictions have not been satisfactorily explained by the State.

15. Therefore, in our considered view, the accused cannot be convicted for commission of offence punishable under Section 6 of Protection of Children from Sexual Offences Act on the basis of the said uncogent, unreliable and untrustworthy evidence led by the prosecution. Learned trial Court has in detail gone into all these aspects of the matter and thereafter has concluded that the prosecution as not able to prove its case beyond reasonable doubt against the accused under Section 6 of Protection of Children from Sexual Offences Act. In our considered view, the findings so returned by learned trial Court are duly borne out from the records of the case and the same do not call for any interference.

16. Similarly, the findings returned by learned trial Court while acquitted the accused for commission of offence under Section 3(2)(V) of SC & ST (Prevention of Atrocities) Act, also do not warrant any interference as the prosecution has not been able to demonstrate commission of said offence by the accused and learned trial Court after appreciating the material placed on record by the prosecution has rightly acquitted the accused for commission of offence under Section 3(2)(V) of SC & ST (Prevention of Atrocities) Act.

17. In our considered view, the testimony of prosecutrix as well as that of her mother and father do not inspire confidence. These statements are not trustworthy so as to be made the basis to convict the accused. No material is available on record from which it can be inferred that the accused has committed an offence punishable under Section 3(2)(V) of SC & ST (Prevention of Atrocities) Act or Section 6 of Protection of Children from Sexual Offences Act.

18. Besides this, a perusal of the judgment of learned trial Court demonstrates that the view formed by it on the basis of the material on record is a possible and plausible view. It cannot be said that the conclusion arrived at by learned trial Court is either not borne out from the records of the same or the same is perverse. Learned trial Court has discussed the entire evidence on record and after a minute scrutiny of the same, it has returned the findings of acquittal in favour of the accused. In our considered view also, the prosecution has not been able to prove its case against the accused. The story put forth by the prosecution apparently is false and does not inspire any confidence. The statement of the prosecutrix also does not inspire any confidence. Therefore, while concurring with the findings returned by learned trial Court, we dismiss this appeal being devoid of any merit. Bail bonds, if any, furnished by the accused are discharged.

 

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