Dismissed

State of Hp v. Naresh Kumar

Himachal Pradesh HC12 Jul 2024CRMPM/1173/2024

Case brief

AI extract

What is this about?

State sought leave to appeal against acquittal for kidnapping and sexual offences under POCSO. Court found no evidence of coercion or inducement, noting the prosecutrix travelled voluntarily and discrepancies in recovery memo, bed sheet evidence and delayed complaint. Findings held plausible; leave to appeal dismissed.

What the court decided

AI extract

State of Hp Vs Naresh Kumar — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No. 1173 of 2024 Date of decision: 12.07.2024

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________________________________________________ State of H.P. …..Applicant-Appellant. Versus Naresh Kumar ……Respondent.

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_______________________________________________ Coram_ The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

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The Hon'ble Mr. Justice Sushil Kukreja, Judge.

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1Whether approved for reporting?

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________________________________________________ For the applicant/appellant: Ms. Sharmila Patial and Mr. Navlesh Verma, Additional Advocates General with Mr. Raj Negi, Deputy Advocate General. For the respondent: None.

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Tarlok Singh Chauhan, Judge. (Oral)

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Aggrieved by the acquittal of the respondent under Sections 363, 366, 376(n) of the Indian Penal Code (hereinafter referred to as the “IPC”) and Sections 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act”), the State has filed the instant application seeking leave to appeal.

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The case of the prosecution is that on 31.12.2018, the respondent and his brother met the

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

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prosecutrix (PW-1) at Ghagus at about 6:30 p.m. He agreed to drop her at her home at Village Bhagar. The brother of the respondent dropped them at bus stand, Bilaspur. The respondent persuaded the prosecutrix to accompany him to Jawalamukhi with a promise that he would drop her at home on the next date. However, further they boarded the bus of Jammu (Katra), from where they proceeded to Riyasi, Mohar and then to Village Chasana, where the father of the respondent had been residing. The prosecutrix stayed in the house of the respondent at Chasana for about 40 days, where the respondent developed physical relations with her and repeatedly committed sexual assault on her during her stay in his house for these 40 days.

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In the meanwhile, on 25.01.2019, the father of the prosecutrix (PW-2) filed an application Ext. PW-2/A in the Women Police Station, Bilaspur, on the basis of which, FIR, Ext. PW-13/G came to be registered. On 4^th or 5^th February, 2019, PW-2 received a call from the mobile phone of Tilak Raj, father of the respondent, who disclosed the whereabouts of the prosecutrix. PW-2 also talked to his daughter on the mobile phone of Tilak Raj and it is then that he came to know that his daughter was in Jammu and

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Kashmir. On 08.02.2019, PW-2 disclosed the whereabouts of his daughter to the police. In the meanwhile, the Investigating Officer ASI Jogesh Kumar (PW-23), after having procured the CDRs of the mobile phones carried by the prosecutrix found one of the mobiles to be operating in Jammu.

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Accordingly, on 09.02.2019, the police team headed by ASI Jogesh Kumar (PW-23) accompanied by the father of the prosecutrix (PW-2) and her brother reached Village Chasana and recovered the prosecutrix from the house of the respondent. Thereafter investigation was carried out and medical examination of the prosecutrix was got conducted and after collecting material evidence, the challan was filed in the trial Court.

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Finding a prima facie case for the commission of offence punishable under Sections 363, 366, 376(n) of IPC and Sections 3 & 4 of the POCSO Act against the respondent, charges were framed against him, to which he pleaded not guilty and claimed trial.

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The prosecution in order to establish its case, examined as many as 24 witnesses. During the course of the trial, father of the respondent, Tilak Raj, died, thus,

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proceedings against him stood abated. The statement of the respondent was recorded under Section 313 Cr.P.C., wherein, he denied the allegations and the incriminating circumstances adduced against him, however, he did not choose to lead any evidence in his defence.

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The learned trial Court, after evaluating the oral as well documentary evidence, acquitted the respondent, constraining the State to file the instant appeal.

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It is vehemently argued by the learned Additional Advocate General that since findings rendered by the learned trial Court are perverse, therefore, leave to file the present appeal be granted.

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We have given our thoughtful consideration to the submissions made at the Bar and have also gone through the judgment of the learned trial Court as well as the evidence on record.

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It is more than settled that the conviction can be based on the sole testimony of the prosecutrix provided that she can be termed to be a sterling witness and her testimony inspires confidence.

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Now adverting to the testimony of the prosecutrix, she while appearing in the witness box as PW-1

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deposed that her date of birth is 30.04.2001 and in the year 2018, she was undergoing training of Security Guard. On 31.12.2018, she was coming to her home from Mandi with three friends and alighted from the bus at Ghagus at around 6:30 p.m. The respondent and his brother met her there, as she was already in talking terms with the respondent, having known him for the last one year. The friends of the prosecutrix left for their homes and the respondent promised to drop her at her home at Village Bhagar. The brother of the respondent dropped both of them at Bilaspur, bus stand in his car, from where the respondent asked the prosecutrix to accompany him to Jawalamukhi and told that he would drop her at home on the next day. The prosecutrix called her mother and told that she would be staying in the house of her friends and would be reaching home next day.

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As per the prosecutrix herself, she then boarded a bus and reached Jammu next morning, from where, they boarded a bus to Katra, then again changed the bus and left for Riyasi. From Riyasi, they went to Mohar and from Mohar, they went to Chasana, where the father of the respondent and his grand-mother met her in the house. On asking of the father of the respondent, he disclosed that he wanted to

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solemnize marriage with the prosecutrix. The prosecutrix disclosed that she was 17 years of age. She further deposed that both the respondent and his father kept her in their house after threatening her with dire consequences, where the respondent developed physical relations with her and he repeatedly committed penetrative sexual assault during her stay in that house for about 40 days. She further deposed that after the father of the respondent came to know about the registration of case, he inquired about the mobile number of her parents and he thereafter talked to her father. He also wanted to compromise the matter and even offered to solemnize marriage of the prosecutrix with his son. She disclosed the exact location to her parents and on 09.02.2019, her brother, father and the police officials reached the house of the respondent and recovered her. Her custody was handed over to her father and brother. She was brought to Bilaspur and was then taken to Regional Hospital, Bilaspur for medical examination. Initially, she refused to get herself medically examined, however, on the counseling of her parents, she lateron agreed for the medical examination. Her statement was also recorded under Section 164 Cr. P.C.

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in the Court on 11.02.2019, vide Ext. PW-1/B. On

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16.03.2019, the police took her to Village Chasana and on her identification, police took into possession the bed sheet.

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On being cross-examined, the prosecutrix admitted that she was knowing the respondent since the time she was studying in 10^th Class. She also admitted that they like each other. She did not know the caste of the respondent when she developed friendship with him and came to know about the same when she reached Chasana, where she learnt that the respondent belonged to the Scheduled Caste community. As per the prosecutrix, her marriage was solemnized in the month of May, 2019, though she was engaged in the month of August, 2018.

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The father of the prosecutrix, appeared in the witness box as PW-2 and as per him, in the year, 2018, his daughter was undergoing training of Security Guard at Mandi and her date of birth is 30.04.2001. On 31.12.2018, he had information that his daughter would be coming home. The family had information that the prosecutrix had alighted from the bus at Ghagus and she thereafter was going to her friend’s house at Ghumarwin. On 01.01.2019, when the prosecutrix did not return home, he tried calling her on her mobile phone, but her mobile phone was switched off. He

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searched for his daughter in his relations and also inquired from her friends, but could not found her. He only knew that she had alighted at Ghagus on 31.12.2018 at 6:00 p.m.

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As per this witness, he had gone to the house of respondent Naresh Kumar and it is then he came to know that even the respondent was missing from his house since 21.12.2018. He suspected foul play as he knew about the proximity of his daughter with the respondent. He then on 25.01.2019, went to Women Police Station, Bilaspur and lodged a complaint vide Ext. PW-2/A, on the basis of which, FIR came to be registered. He further deposed that in the month of February around 4^th and 5^th , he received a call from Tilak Raj, father of the respondent, who in turn disclosed the whereabouts of the prosecutrix. He also talked to his daughter on the mobile phone of Tilak Raj, when she disclosed that she had been fraudulently taken to Jammu and Kashmir by the respondent. On 08.02.2019, he disclosed the whereabouts of the prosecutrix to the police and thereafter he proceeded to Village Chasana with the police officials. During the search of the house of Tilak Raj, the prosecutrix was recovered and he identified her.

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On being cross-examined, PW-2 denied that he had fixed the marriage of his daughter before the month of December. He admitted that he had not informed the police qua missing of her daughter w.e.f. 31.12.2018 to 25.01.2019, but kept on searching her here and there. He came to know about the respondent only on 10.01.2019. He denied that his daughter had been engaged before December, 2018.

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Dr. Anupam Sharma (PW-4), had examined the prosecutrix and issued MLC, Ext. PW-4/C. On local examination, she found well healed tags of hymen present and found no injuries on the person of the prosecutrix. She took the preserves and after receiving the report of RFSL, she opined that patient may or may not have undergone sexual intercourse.

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The birth certificate of the prosecutrix, Ext. PW8/B shows her date of birth as 30.04.2001. The extract of Parivar Nakal, Ext. PW-8/C also reflects the same date and lastly, certificate issued by the Principal, Government Senior Secondary School, Kandraur also reflects the date of birth of the prosecutix as 30.04.2001.

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ASI, Jogesh Kumar (PW-23) had initially investigated the case and as per him, the police team

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headed by him had proceeded to Jammu on 09.02.2019, where the prosecutrix was found in the house of Tilak Raj (since deceased). He prepared the report in respect of the identification of the victim vide Ext. PW-1/A. He also prepared the site plan, Ext. P-1/PW-23 and arrested the respondent at the spot. However, this witness admitted that father of the prosecutrix did not accompany the police party to Chasana and further volunteered to state that father of the prosecutrix had sent some relatives with the police party.

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Now if the statement given by the prosecutrix before the learned Chief Judicial Magistrate, Bilaspur, under Section 164 Cr. P.C., Ext. PW-1/B, is examined, there the prosecutrix had given entire sequence of events as to how she landed in Chasana and categorically stated that father of the respondent had asked her about her age and the respondent had told him that she was 17 years of age. The respondent stayed in his house, while she stayed in the house of the elder paternal uncle ( Taya ) of the respondent. After one month, the respondent made her talk to her father. Noticeably, there is one line deposed by the prosecutrix before the learned Magistrate that the respondent had forced her.

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Since the other evidence is not necessary, therefore, the same need not to be discussed.

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Now adverting to the case projected by the prosecution, we really find that there is no evidence worth the name which may remotely show or indicate that the prosecutrix had either been coerced or induced or was taken away from the lawful guardianship by the respondent forcibly. As per the case of the prosecution, the prosecutrix had gone missing on 31.12.2018 after 6:00 p.m. The exact whereabouts of the prosecutrix were not known on 31.12.2018 after 6:00 p.m. She was supposed to return on 01.01.2019, but did not return and, therefore, her parents knew very well that she had gone missing. It has specifically come in the evidence that the prosecutrix of her own will and volition boarded the bus to Katra and thereafter changed three modes of transport to reach Chasana.

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The prosecutrix had stayed in the house of the respondent for about 40 days where she disclosed her age to be 17 years. Surprisingly, till 25.01.2019, i.e. after about 25 days, father of the prosecutrix (PW-2) made no endeavour to make any formal complaint against the respondent. Eventually, when PW-2 did so on 25.01.2019, he

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expressed his grave suspicion that the respondent might have enticed his daughter, as is evident from Ext. PW-2/A. This conduct, as rightly termed by the learned Special Judge, is not normal.

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Further the evidence on record shows that on 4^th and 5^th February, 2019, father of the respondent had spoken

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to father of the prosecutrix (PW-2) and so had the prosecutrix, but despite that, father of the prosecutrix did not choose to file a complaint or report the matter to the police and waited till 08.02.2019. It also needs to be noticed that as

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per the case set up by the prosecution itself, initially the prosecutrix had refused to get herself medically examined, as is evident from the deposition of PW-4, Dr. Anupam Sharma and MLC, Ext. PW-4/B.

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At this stage, it also needs to be noticed that as per the prosecution, PW-2, father of the prosecutrix and LHHC, Saraswati (PW-14) on 09.02.2019 had recovered the prosecutrix from the house of the respondent and her custody was given to them. This is so stated by PW-2. However, in case testimony of ASI Jogesh Kumar (PW-23), who initially investigated the case, is perused, he categorically states that father of the prosecutrix had not

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accompanied the police party. He further went on to state that he had sent some relatives with the police party.

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It needs to be noticed that PW-23, is the same Investigating Officer, who while preparing the memo relating to the search of the house of the Tilak Raj (since deceased), which resulted in the recovery of the prosecutrix has shown the father of the prosecutrix as the identifier, as is evident from Ext. PW-1/A. In such circumstances, learned Special Judge has rightly concluded that even this document itself is fraught with serious discrepancies, because apart from the above, none of the witnesses, identifier, the respondent and the prosecutrix had appended the date on the memo. The memo itself does not bear any date. In the recital however it has been reflected to have been made on 09.02.2018 (though it ought to be 09.02.2019).

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Furthermore, if the statement of the prosecutrix recorded under Section 164 Cr. P.C., vide Ext. PW-1/B, is perused, it would be noticed that she had tried to underplay the sequence of events. She has rightly been observed by the learned Special Judge literally stopped short of implicating the respondent. She in fact had tried to portray

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that she was made to stay in the house of the uncle ( Taya ) of

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the respondent, whereas, he himself had stayed in his own house. This assumes importance because as per the prosecution one bed sheet had been taken into possession by ASI Sudarshan Kumar (PW-18) in the presence of LHHC Sarswati (PW-14) on 16.03.2019, vide memo, Ext. PW-1/C.

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As per the case of the prosecution, only one bed sheet had been taken into possession during the entire course of investigation. This bed sheet was sent to RFSL, Mandi and as per the report, Ext. P-1/PW-24, blood was not detected on the exhibit, but human semen was detected on it. The exhibit was orange, light green, light pink and white coloured faded single bed sheet. The bed sheet that was taken into possession is stated to have been further sent for DNA profiling to SFSL, Junga and as per the report, Ext. P- 2/PW-24, the bed sheet yielded highly degraded DNA and did not show amplification and hence, Y-STR DNA profile could not be generated from the exhibit.

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Now the bed sheet that was mentioned in the SFSL report instead of being orange, light green, light pink and white coloured faded single bed sheet turned out to be one dirty white (off white) bed sheet with green and yellow coloured (faded) print. Therefore, it has been rightly

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observed by the learned Special Judge that the case set up by the prosecution creates a serious doubt.

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The colossal delay in setting the criminal law into motion is yet another circumstance which cannot be ignored and the same is required to be considered in light of the background of the case where the prosecutrix was more than 17 years of age and had been seeing the respondent since Class-10 and even the family of the prosecutrix knew about their relationship. The prosecutrix was barely four months short of turning eighteen in December, 2018 and as per the prosecutrix herself, she was already engaged in the month of August, 2018 and her marriage in any case was otherwise to be solemnized in the month of May, 2019.

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The record further reveals that the prosecutrix of her own will and volition and without making any hue and cry had not only accompanied the respondent, but had also stayed with him in his house at Chasana for about 40 days. Thus, there cannot be any doubt that the prosecution had accompanied the respondent of her own will and volition and the case against the respondent had come to be registered only after the prosecutrix and her father learnt that the respondent was of different caste. But, even then, there is no

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definitive opinion that during the stay of the prosecutrix at Chasana, the respondent had committed penetrative sexual assault, as there is no definitive medical information to this effect.

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The ocular and documentary evidence does not support the case of the prosecution and there is no substantive evidence on record to prove the complicity of the respondent. The prosecution thus has failed to prove charges against the respondent beyond the shadow of reasonable doubt.

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Consequently, the findings recorded by the learned Special Judge are plausible and possible one and warrant no interference. Hence, the application seeking leave to appeal is dismissed.

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Send down the records.

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( Tarlok Singh Chauhan ) Judge

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( Sushil Kukreja ) Judge

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12^th July, 2024

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(raman)

State of Hp v. Naresh Kumar

Case brief

What is this about?

What the court decided

State of Hp v. Naresh Kumar

Case brief

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