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2023 Supreme(HP) 84
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Neeraj – Appellant
Versus
State of Himachal Pradesh – Respondent
Criminal Appeals Nos. 267, 274 of 2022
Decided On : 13-01-2023
Advocate Appeared:
For the Appellants : Rajesh Kumar Parmar, Arun Sehgal.
For the Respondents: Harinder Singh Rawat, R.P. Singh.
Point of Law : Benefit of doubt is to be given to the accused and accused cannot be convicted on basis of a sketchy evidence and for want of reliable and cogent version of the victim and her parents, matching of DNA profile is of no help to the prosecution.
Headnote:
Code of Criminal Procedure, 1973 - Section 164 - Indian Penal Code,1860 - Sections 363, 376, 506 - Protection of Children from Sexual Offences Act, 2012 -Section 7 – Offence of Rape – Criminal intimidation – Appeals - It is not a case where victim or her parents resiled from earlier statements or have made contradictory statements in Court at behest of accused persons, but for material on record it is apparent that from very beginning complainant party was making self-contradictory statements. (Para 23).
Finding of Court :
Though DNA profile obtained from the underwear and vaginal swab has matched with the DNA profile, but, in FIR, was never named and with respect to incident there was no allegation, but in statement recorded under Section 164 Cr.P.C. it was alleged visited her during night - But, it is also apparent from statement that alleged entry in the house was consensual and further that it appears to be a consensual act, but for age of victim it constituted an offence, but, at same time, it is also noticeable that nowhere in statements of prosecution witnesses it has come on record that was knowing that victim was a minor and was not having age of discretion to consent for consensual intercourse - According to prosecution, a used condom was recovered from forest, alleged spot of violation of person of victim, but why that condom was not subjected to chemical analysis or DNA profiling, there is complete silence in this regard in the entire prosecution story - In aforesaid facts and circumstances and major contradictions, rather denial of occurrence, cast great doubt about truthfulness of prosecution story - There is no reliable, cogent and convincing evidence on record to conclude, beyond reasonable doubt, that appellants had committed offence, as alleged in the prosecution case.
Result : Appeals stand disposed of
JUDGMENT :
VIVEK SINGH THAKUR, J.
1. These appeals, arising out of the same FIR, for involvement of appreciation of common facts, evidence and law, are being decided by this common judgment.
2. Appellants have been convicted, under Section 4 of POCSO Act, read with Section 376 IPC, by Additional Sessions Judge, Fast Track Special Court (POCSO), Solan, in Sessions Trial No. 106-S/7 of 2020/2015, titled State versus Makhan Singh and another, in case FIR No. 289 of 2014, dated 6.12.2014, registered in Police Station Nalagarh, District Solan, Himachal Pradesh, under Sections 363, 376, 506 of the Indian Penal Code (for short ‘IPC’) and Section 7 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).
3. Each of the appellants has been sentenced, under Section 4 of the POCSO Act, read with Section 376 IPC, for 7 years rigorous imprisonment and fine of Rs. 5,000/- each and in default payment of fine to undergo one month’s imprisonment.
4. As per prosecution case, Reeta Devi, mother of victim, alongwith minor victim, approached Police Station Nalagarh, on 6.12.2014 at 6 p.m. and lodged a report, stating therein that she was an employee in a private company and her husband was owner-cum-driver of a Truck and they had one daughter and two sons and her daughter (victim), used to stay at home, and on that day she reached home at 3 p.m. and found her daughter under fear and, on enquiry, her daughter disclosed that at about 1.30 p.m., victim had gone to bring fodder for goat and at that time Neeraj, resident of village Nangal, came alongwith two companions on a motorcycle and made her to sit on motorcycle forcibly by shutting her mouth with his one hand, whereas his two companions were already on the motorcycle and all three of them took her on the motorcycle to the forest and the motorcycle was being driven by Neeraj and both companions of Neeraj left Neeraj and victim at secluded place and went off and, thereafter, Neeraj violated her person forcibly and left the place leaving her there, wherefrom she ran towards house and on the way her neighbor Makhan met on the motorcycle, who brought her on the motorcycle to home. With aforesaid narration, prayer was made to take action and conduct the medical examination of her daughter.
5. On the basis of aforesaid report, FIR No. 289 of 2014 (Ex.PW-1/A) was registered and investigation was carried out.
6. Victim was medically examined and her MLC Ex. PW-7/B was obtained from the Medical Officer and final opinion of the Doctor (Ex. PW-7/B, was obtained thereon, after receipt of report of chemical analysis from the Forensic Science Laboratory.
7. On 07.12.2014 statement of victim, Ex. PW-16/J was recorded under Section 161 Cr.P.C. Thereafter, on 09.12.2014, statement of victim, Ex. PW-4/A, was recorded under Section 164 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) in presence of her mother, before Additional Chief Judicial Magistrate, Nalagarh, wherein victim deposed that on 5.12.2014 she received call of Makhan asking her to meet him outside her house at 1-1.30 p.m. Thereafter, she received repeated missed calls from Makhan on her mobile wheeto she responded by giving a missed call to Makhan, whereupon Makhan called back and, out of fear, she acceded to his request, and when she was feeding buffalos outside her house at 1.30 p.m. Makhan and his friend came on motorcyle and due to fear she accompanied them. At that time, she was alone at home. The motorcycle was being driven by friend of Makhan and she sat on the motorcycle behind Makhan and they took her to Kharuni forest. Further that, after parking the motorcycle on the road near jungle, Makhan accompanied her to the forest and violated her person. Thereafter, Makhan and his friend dropped her near her house on a shop of mobile phones and went away and she returned home. When she was weeping at home, her father enquired about reason, whereupon she disclosed that she had gone with Makhan because he had threatened her bu
