Allowed

Krishan Kumar v. State of Hp

Himachal Pradesh HC6 Dec 2022CR.A/63/2022

Case brief

AI extract

What is this about?

High Court of Himachal Pradesh allowed appeals and acquitted appellants in rape and POCSO cases. The court set aside conviction, holding the prosecution failed to prove the accused's guilt due to victim denial of clothes ownership and lack of corroborative witness testimony.

What did the court decide?

Judgment of conviction and sentence set aside. Appellants acquitted. Custodians set at liberty forthwith with direction to furnish personal bonds under Section 437-A Cr.P.C.

Krishan Kumar Vs State of Hp — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Appeal Nos.48 & 63 of 2022. Date of Decision : 6^th December, 2022.

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Criminal Appeal	No.48 of 2022.
Munish Kumar	…...Appellant
Versus
State of Himachal Pradesh	…...Respondent
Criminal Appeal	No.63 of 2022.
Krishan Kumar	…...Appellant
Versus
State of Himachal Pradesh	…...Respondent

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Coram:

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The Hon’ble Ms. Justice Sabina, Judge The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting?¹

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For the appellant(s) : Mr. Ajay Kochhar, Mr. Pawan Sharma, Mr. Vivek Sharma & Ms. Avni Kochhar, Advocates. For the respondent : Mr. Ashwani Sharma, Additional Advocate General.

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Sabina, Judge (Oral)

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Vide this order, above mentioned two appeals would be disposed of as they have arisen out of common judgment of conviction/order of sentence dated 4^th February, 2022.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2. Appellants have been convicted and sentenced by the trial

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Court as under:-

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Section 363 read with Section 34 of Indian Penal Code	:	Simple imprisonm each and to pay each. In default they shall furthe imprisonment for	ent for five years a fine of`5,000/- of payment of fine, r undergo simple three months.
Section 366 read with Section 34 of Indian Penal Code	:	Simple imprison years each and `5,000/- each. payment of fine, undergo simple five months.	ment for seven to pay a fine of In default of they shall further imprisonment for
Section 376-D read with Section 34 of Indian Penal Code	:	Rigorous impriso years each and `20,000/- each. payment of fine, undergo simple twelve months.	nment for twenty to pay a fine of In default of they shall further imprisonment for
Section 6 read with Section 5(g) of Protection of Children from Sexual Offences Act	:	Rigorous impris years each and `10,000/- each. payment of fine, undergo simple six months.	onment for ten to pay a fine of In default of they shall further imprisonment for

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Prosecution story, in brief, is that on 22^nd March, 2017, the

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child victim had left her house with a view to visit Theog market. When the victim was standing with her friend, on the road, at Vegetable Market, Theog , she received a phone call from Akhil from his mobile number 94590-31100. Akhil had been talking to the child victim for the last about 2-3 weeks from the date of incident. After inquiring about the

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whereabouts of the child victim, Akhil told the child victim that he was bringing his car at the spot where she was standing. Thereafter, Akhil came in his Car bearing No.5008 and then the child victim sat on the rear seat in the car driven by Ahkhil. Another boy was also sitting on the front seat of the car and the said person was not known to the child victim. Thereafter, when they reached Chhaila Bazar , another boy also sat in the car, who was not known to the child victim. The third boy had brought one cold drink and one wine bottle with him and they all had left towards Kotkhai . After covering some distance at about 12.30 p.m., Akhil parked the car by the side of the road and all the boys consumed liquor. The liquor was also offered to the child victim and she also consumed the same and started feeling diziness. Out of the three boys, two boys, sexually assaulted the child victim. Thereafter, the child victim was dropped at Theog , on the road leading to the College and she fell unconscious by the side of the road.

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On the basis of the statement of the child victim, formal FIR No.57, dated 22^nd March, 2017 was registered against the appellants at Police Station, Theog, District Shimla, under Sections 363, 376-D of Indian Penal Code (IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

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After completion of investigation and necessary formalities, challan was presented against the appellants.

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Amended charges were framed against the appellants under Sections 363, 366, 376-D read with Section 34 IPC and Section 6 read with Section 5(g) of the POCSO Act by the trial Court. Appellants did not plead guilty to the charges framed against them and claimed trial.

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In order to prove its case, during trial, prosecution examined 37 witnesses.

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After the close of prosecution evidence, appellants when examined under Section 313 Cr.P.C., prayed that they were innocent.

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Appellants did not examine any witness in their defence.

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Learned trial Court, vide judgment/order dated 04.02.2022, ordered the conviction and sentence of the appellants as mentioned in para 2 of the judgment.

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Learned counsel for the appellants, have submitted that the prosecution has miserably failed to prove its case. The child victim, while appearing in the witness box as PW-19, had not supported the prosecution case. She had specifically stated that the accused present in the Court were not those boys who had taken her to Chhaila side nor they had committed offence of rape. In her cross-examination by the Public Prosecutor, she has stated that the wearing apparels produced in the Court did not belong to her. She also denied the suggestion that the said clothes have been taken into possession by the doctor at the

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time of her medico-legal examination. Learned counsel have further submitted that the prosecution has examined the father of the child victim as PW-2 and mother of the child victim as PW-5 and they both have not supported the prosecution case during trial. PW-3 and PW-4, who are the relatives of the child victim, have also not supported the prosecution case during trial. The female friend of the child victim has also not supported the prosecution case during trial, when she was examined as PW-6. Prosecution has based reliance on the report of Forensic Science Laboratory Ex.PW-29/Z-6, wherein it was opined that the DNA profile obtained from the underwear, slacks/Pyjami of the child victim matched with the DNA profile of appellant Munish Kumar and Krishan Kumar. Since the child victim had denied the fact that the clothes, from which the DNA profile had been matched with the DNA profile of the appellants Munish Kumar and Krishan Kumar, did not belong to her, the report of the Forensic Science Laboratory, lost its significance. So far as the DNA profile, which had been taken from the vaginal slide of the child victim, is concerned, the same did not show any amplification. PW-7, Vikram Singh, who was alleged to be one of the boys, who had travelled in the car driven by Akhil, also did not support the prosecution case during trial. Although, the child victim has not supported the prosecution case during trial, but in her initial statement, she has alleged that she had received the call from mobile

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phone number 94590-31100 and the said phone number belongs to PW-10 Hemant Kumar. However, the said witness has also not supported the prosecution case during trial.

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Learned Additional Advocate General, on the other hand, has opposed the appeals and has submitted that the trial Court had rightly ordered the conviction and sentence of the appellants as the prosecution had been successful in proving its case.

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Prosecution story is that the child victim PW-19, had been kidnapped by the appellants and thereafter offence of rape was committed.

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However, the child victim, while appearing in the witnessbox as PW-19 has not supported the prosecution case. The said witness deposed that in the year 2017, she was a student of 10^th Class. She did not remember the date on which she had left her house in order to appear in the practical examination to be conducted in the School. Her friend had also accompanied her. She received a phone call from Akhil and he disclosed his intention to meet her at Petrol Pump Theog . After about 10-15 minutes Akhil reached at the Petrol Pump in vehicle number 5008. She left with Akhil in his vehicle and he took her to Chhaila road. Another boy was sitting in the vehicle. At Chhaila , the boy purchased a bottle of wine. Thereafter, they all consumed the same. She felt giddiness after consuming liquor and

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requested the boys to drop her back at Theog. She did not know what had happened thereafter and regained her consciousness in the Police Station. The appellants were not those boys, who had taken her to Chhaila side. The appellants, present in the Court, had not committed the offence of rape. The child victim was declared hostile and thereafter was cross-examined by the learned Public Prosecutor. However, nothing fruitful could be elicited from her cross-examination by the learned Public Prosecutor. In her cross-examination, she admitted the fact that she had been medico-legally examined at Civil Hospital, Theog in the presence of her father. She also admitted that she had made a statement before the Court at Theog, but thereafter denied the contents of the said statement. When the parcel of the clothes allegedly belonging to the child victim was opened in the Court, she stated that the said wearing apparels did not belonging to her. She denied the suggestion that the said clothes were taken in possession by the doctor at the time of medical-legal examination.

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Father of the child victim, Manohar, appeared in the witness-box as PW-2 and Usha Devi, mother of the child victim, appear in the witness-box as PW-5. Both the parents of the child victim did not support the prosecution case during trial.

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PW-3 Nisha Devi and PW-4 Surinder Singh, also did not support the prosecution case during trial.

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PW-6, Priya @ Ruchi, who was the friend of the child victim, has also not supported the prosecution case during trial.

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PW-7 Vikram Singh, is one of the boys, who had allegedly travelled in the car driven by Akhil. The said witness has also not supported the prosecution case during trial.

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Mobile phone number 94590-31100 belongs to PW-10 Hemant Kumar. The said witness has also not supported the prosecution case during trial to the effect that he had given the said mobile phone number to appellant Krishan Kumar for its use.

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As per the prosecution case the boys had purchased one bottle of dew and a water bottle from PW-11 Dalip Jaswal, but the said witness also did not supported the prosecution case during trial.

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Thus, in the present case, the material witnesses have not supported the prosecution case during trial. Now, the only evidence that is left with the prosecution is the report of Forensic Science Laboratory Ex.PW-29/Z-6.

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The conclusion arrived at by the Laboratory reads as

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under:-

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CONCLUSIONS:

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On the basis of the above analysis performed on the aforesaid exhibits, it is concluded that:

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A mixed autosomal STR DNA profile was obtained from Exhibit-la (underwear, Pushpa Devi) from which two DNA profiles could be identified. Of these two DNA profiles,

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one DNA profile matches with the autosomal STR DNA profile obtained from Exhibit-7 (blood sample on FTA card, Munish Kumar) while the other DNA profile matches with the autosomal STR DNA profile obtained from Exhibit-1-2 (blood sample on FTA card, Krishan Kumar). II. A mixed autosomal STR DNA profile was obtained from Exhibit-1b (slacks/pyjami, Pushpa Devi) from which two DNA profiles could be identified. Of these two DNA profiles, one DNA profile matches with the autosomal STR DNA profile obtained from Exhibit-1-2 (blood sample on FTA card, Krishan Kumar), while the other DNA profile matches with the autosomal STR DNA profile obtained Exhibit-7 (blood sample on FTA card, Munish Kumar). III. Exhibit-2a (vaginal slide, Pushpa Devi) yielded degraded DNA that did not show amplification with Powerplex 21 PCR Amplification Kit. Hence DNA profile could not be generated from this exhibit.”

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Thus, a perusal of the above report shows that so far as the sample, which was taken from the vaginal swab of the child victim is concerned, it did not show any amplification and the DNA profile could not be generated from the said exhibit. It is only the DNA profile, which were lifted from the underwear and slacks/pyjami of the child victim, matched with the DNA profile of the appellants.

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The question that arises for consideration is as to whether the clothes from which the DNA profile of the child victim were allegedly lifted belong to the child victim.

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So far as the child victim is concerned, when she appeared in the witness-box, she has denied that the said clothes belong to her.

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PW-1 Dr. Mukta Sharma, while appearing in the witnessbox, in her statement recorded on 2^nd November, 2018, stated that she had taken in possession the wearing apparels of the child victim and got them exhibited as Ex.P-26 to P-29. The vaginal swab of the child victim was Ex.P-32. The said witness was recalled for re-examination. When her statement was recorded on 21^st October, 2019, she stated that she had handed over the samples to LC Ranjita, on the same day, for sending them to Forensic Science Laboratory. However, in her cross-examination, she admitted that in the MLC there is no reference that the samples had been handed over the LC Ranjita. The clothes, which had been changed by the child victim, were in possession of the mother of the child victim. However, when the mother of the child victim appeared in the witness-box as PW-5, she has not stated with regard to the fact that she had handed over the clothes of the child victim to PW-1.

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PW-12, LC Ranjita Thakur, when examined on 19^th February, 2018, deposed that the MLC of the child victim was handed over to her by the doctor, which was further handed over by her to MHC. In her cross-examination, she has stated that she did not

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remember as to whether parcels had been handed over to her by the doctor, after medical examination of the child victim at the time of handing over the MLC to her.

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PW-12 LC Ranjita Thakur was again examined on 27^th December, 2021, wherein she stated that after medical examination of the child victim MLC along with case property including the apparels of the child victim had been handed over to her and she had handed over the same to MHC at the Police Station. In her cross-examination, she admitted, after going through the statements recorded by the Investigating Officer, that it was not recorded in the said statements that she had been handed over the parcels by the doctor after medical examination of the child victim.

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PW-29 ASI Purshotam Chand, Investigating Officer, when examined on 27^th December, 2021, also admitted in his crossexamination, that LC Ranjita Thakur, while getting her statement recorded, had not disclosed about the handing over the parcels to her by medical officer, after medical examination of the child victim. He also stated that no case property was deposited by LC Ranjita with MHC of Police Station. He volunteered that the case property had been handed over to him by LC Ranjita and he has deposited the same with MHC.

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Thus, although, reliance has been sought to be placed by the prosecution on the report of the Forensic Science Laboratory Ex.PW-29/Z-6, but the same fails to advance the prosecution case. So far as the clothes, from which the DNA profile of the child victim was lifted, are concerned, the child victim, in her cross-examination, has deposed that the said clothes did not belong to her. Mother of the child victim has also not stated in her statement that she has handed over the clothes of her daughter to the medical officer at the time of her medical examination.

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A perusal of the medico-legal examination report Ex.PW-1/C of the child victim also shows that LC Ranjita Thakur had only received the MLC. In this regard, receipt of the medico-legal examination report has been duly signed by PW-12 LC Ranjita Thakur. It is not specifically mentioned therein that she has also received any parcel from the medical officer after medical examination of the child victim. In this factual background, it becomes doubtful as to whether the clothes belonging to the child victim had actually reached the Forensic Science Laboratory for examination with the DNA profile of the appellants.

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Thus, in the present case, the learned trial Court has erred in ordering the conviction and sentence of the appellants because the prosecution has failed to prove its case against the appellants beyond

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the shadow of reasonable doubt. It is a settled preposition of law that the prosecution is required to establish its case against an accused beyond the shadow of reasonable doubt by leading cogent and convincing evidence. Whenever, a doubt arises in the persecution story, benefit of the same has to be extended to the accused. Since in the present case, all the material prosecution witnesses have not supported the prosecution case during trial and the report of the Forensic Science Laboratory Ex.PW-29/Z-6 is also rendered doubtful, the appellants are liable to be acquitted of the charges framed against them. It was required to be established by the prosecution by leading clinching evidence that the clothes of the child victim, worn by her at the time of incident, had reached the Forensic Science Laboratory and thereafter the examination was conducted by the Laboratory with regard to the DNA profile lifted from the clothes and the blood samples of the appellants. However, the fact that the clothes, which had reached the Forensic Science Laboratory, belong to the child victim, is not duly established by the prosecution in the present case.

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After going through the entire evidence on record, we are of the opinion that the appellants are liable to be acquitted of the chrages framed against them.

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Accordingly, the appeals are allowed and the judgment of conviction and order of sentence dated 04.02.2022, passed in

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Sessions Trial No.R.B.T. 5-S/7 of 2021/17 by the Additional Sessions Judge, Fast Track Special Court (POCSO), Shimla, are set aside. Appellants are acquitted of the charges framed against them. Appellants, who are in custody, be set at liberty forthwith, if not required in any other case.

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In view of the provisions of Section 437-A Code of Criminal Procedure, 1973, appellants are directed to furnish personal bonds in the sum of Rs.25,000/- each with one surety each in the like amount, before the Registrar (Judicial) of this Court, which shall be effective for a period of six months, with stipulation that in the event of Special Leave Petition being filed against this judgment or on grant of leave, the appellants aforesaid, on receipt of notice thereof, shall appear before the Supreme Court.

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(Sabina) Judge

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(Sushil Kukreja) Judge

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December 06, 2022(ps)

Krishan Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Krishan Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

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