State of Haryana Vs Vishal

The instant application, seeking grant of leave, is� directed against the order of acquittal dated 31.07.2019 rendered by learned Additional Sessions Judge, (Exclusive Court for Heinous Crime against Women), Kurukshetra, whereby, the respondent has been acquitted from the charges framed against him, under Sections 363, 336-A of Indian Penal Code (hereinafter referred to as “IPC”), Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”) and Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “SC/ST Act”), in case FIR No. 190 dated 02.06.2018, registered at Police Station Ladwa, District Kurukshetra.

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DEVINDER YADAV 2022.12.19 11:19 I attest to the accuracy and authenticity of this order/judgment

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FACTUAL MATRIX

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The prosecution agency was set into motion, upon a complaint (Ex. P35) being moved, on 02.06.2018, by the father of the prosecutrix, wherein, he stated that he belongs to Scheduled Caste and his younger daughter, aged about 17 years, has been enticed away by the respondent/accused, in the night of 31.05.2018, by alluring her, and, that the respondent/accused has abducted her. It was further stated therein that by doing the aforesaid act, the respondent/accused defamed his family

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DEVINDER YADAV 2022.12.19 11:19 I attest to the accuracy and authenticity of this order/judgment

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and the people of Scheduled Caste in the society, and, he requested for legal action against the respondent/accused. Accordingly, on the basis of aforesaid complaint, the present FIR was registered under sections 363, 336-A of IPC and Section 3 of the SC/ST Act, at P.S. Ladwa, District Kurukshetra. The investigation was carried out thereupon. Thereafter, on 07.06.2018, the prosecutrix was recovered from the house of PW12, Bala Devi wife of Jaipal, resident of Village Manoharpur (Biharigarh), District Saharanpur, Uttar Pradesh, and she was brought back to P.S. Ladwa. On the next day, her statement was recorded before the learned Illaqa Magistrate. The prosecutrix, in her statement recorded before the Magistrate under Section 164 Cr.P.C., did not point any accusing finger at the respondent/accused, and, stated that she went to the respondent/accused in the night of 31.05.2018, out of her own volition. She further stated that she stayed with the respondent/accused for three hours, and, at about 03:30 a.m. the same night, when she was returning to her house, she found the gate of her house open, whereupon, she got anxious and returned to the respondent/accused and requested him to take her with him to save her life at the hands of her family members. It is apposite to reproduce the relevant extract of her statement (supra):-

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DEVINDER YADAV 2022.12.19 11:19 I attest to the accuracy and authenticity of this order/judgment

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Thereafter, the prosecutrix was medico-legally examined.

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The accused was arrested on 07.06.2018. The certificate with regard to the age as well as caste of the prosecutrix was also secured by the investigation agency, and, finally, challan was filed against the respondent/accused before the learned Special Court.

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PROCEEDINGS OF TRIAL COURT

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The respondent/accused was charge-sheeted for commission of offence punishable under Sections 363, 336 of IPC, Section 5(1) of the POCSO Act, which is punishable under Section 6 of POCSO Act, and Section 3(1)(xi) of the SC/ST Act. The prosecution, in order to prove its case, examined as many as 14 witnesses, and, proved on record the age as well as the caste of the prosecutrix, by leading oral as well as documentary evidence. However, the learned trial Court did not find the statement made by the prosecutrix credible and recorded the order of acquittal, which is now under challenge before this Court.

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With the able assistance of learned counsel for the State, we have examined the entire record of the learned trial Court and have also perused the order of acquittal.

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In order to prove the age of the prosecutrix, the prosecution

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examined PW1, Shishpal, Computer Clerk, Office of Civil Surgeon, LNJP Hospital, Kurukshetra, who brought the original birth record pertaining to the year 2001 and proved the birth certificate of the prosecutrix as Ex.P1. The prosecution also examined PW3, Balbir Singh, Headmaster, Government High School, Village Ban, who proved on record the secondary examination certificate of prosecutrix as Ex.P6. Therefore, from the aforesaid two certificates, we can safely conclude that the date of birth of the prosecutrix is 28.09.2001, and, on the date of occurrence, she was, to be precise, 16 years 8 months and 3 days of age.

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Likewise, to prove the caste of the prosecutrix, the prosecution examined PW7, Gopal Krishan, AWBN, Office of Tehsildar, Ladwa, who brought and proved on record the Scheduled Caste certificate of the prosecutrix as Ex.P11. Therefore, the aforesaid certificate also lends support to the claim regarding the prosecutrix being a member of Scheduled Caste community.

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Now, another question which arises for consideration is that whether the prosecutrix was enticed away and subjected to sexual assault by the respondent/accused. The prosecution examined the prosecutrix as PW11. Before we take into consideration the statement of prosecutrix, which she deposed in the witness box, it is important to note here that the Investigation Officer did not record her statement under Section 161 Cr.P.C., and, only her statement under Section 164 Cr.P.C. was recorded. When the prosecutrix stepped into the witness box, she categorically levelled allegations against the respondent/accused to the effect that he

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DEVINDER YADAV 2022.12.19 11:19 I attest to the accuracy and authenticity of this order/judgment

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has committed sexual assault upon her, in the night of 31.05.2018, after taking her to a deserted house and thereafter, with the help of his friend Ravi, he forcibly took her to U.P. on a motorcycle, where she was kept in a rented house for 7 days and was repeatedly subjected there to sexual assault. Thereafter, she was recovered by police and both the prosecutrix and the respondent/accused, were brought back to P.S. Ladwa. The examination-in-chief of the prosecutrix reads as under:-

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From a conjoint reading of the statements made by the prosecutrix under Section 164 Cr.P.C., and, made before the learned trial Court, it clearly transpires that they are material contradictions in both the statements. In her statement recorded under Section 164 Cr.P.C., she did not level any allegation against the respondent/accused qua her being enticed or being sexually assaulted, whereas, her examination-in-chief narrates a completely different story. The statement of prosecutrix, under Section 164 Cr.P.C., was recorded on 8.6.2018 while being accompanied by her parents, and, the respondent/accused stood arrested on 7.6.2018, i.e. a day before the recording of her statement. The Magistrate has also given a Certificate that the statement of prosecutrix, under Section 164 Cr.P.C., was recorded at her own volition, without any fear or coercion, after ascertaining her willingness to make the statement, which makes it

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clear that she made the statement without hers being under anyone's pressure. Therefore, by no stretch of imagination, it can be assumed that she was then under any influence or threat of the respondent/accused. This fact remains undisputed from the arrest memo of respondent/accused, recovery memo of prosecutrix and the memo of handing over the prosecutrix to her parents. Therefore, the allegation that she was subjected to sexual assault by the respondent/accused, which surfaced only when the prosecutrix deposed before the learned trial Court and not prior thereto in her statement under Section 164 Cr.P.C. Thus, the statement recorded by prosecutrix in her examination-in-chief does contain visibly material improvements from the previous, made before the learned Magistrate, and, that too, without any pressure from any quarter concerned. Therefore, her examination-in-chief, as recorded before the Court does not inspire confidence and hence, cannot be relied upon.

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Even, the Investigation Officer opted not to record the statement of prosecutrix under Section 161 Cr.P.C. Although, it is not an obligation upon the investigation agency to record her statement under Section 161 Cr.P.C., however, it does affect the credibility to be attached to the evidence of the witness, more so, when there are glaring inconsistencies and contradictions in her statement under Section 164 Cr.P.C. and in her examination-in-chief, as recorded before the Court.

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It is a settled proposition of law that the statement made under Section 164 Cr.P.C. can never be used as substantive evidence of

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the fact stated therein, that, it can only be used to support or contradict the evidence given in Court by a person, who makes or records the same. The basic object of recording of statement of witness under Section 164 Cr.P.C. is to deter a witness from changing his/her version in future, under the fear of being involved in perjury. Here is the case, where the prosecutrix, in her statement under Section 164 Cr.P.C., totally exonerated the respondent/accused. However, when she was examined in the Court, after about 10 months, she came up with a totally new story and levelled serious allegations of kidnapping and sexual assault against the respondent/accused. This throws a doubt on the veracity of the prosecution case and has an adverse impact upon the probative value of the statement of prosecutrix.

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Further, the statement of prosecutrix stands falsified by PW12, Bala Devi. As per the examination-in-chief of prosecutrix recorded before the Court, she was taken to U.P. on a motorcycle and was kept in a rented house, belonging to PW12, Bala Devi, for 7 days, where the respondent/accused repeatedly committed rape upon her and she was not allowed to go out of the room enabling her to complain anyone. However, when Bala Devi was examined as PW12, she stated that the accused and the victim came to live in their house. In her crossexamination, she stated that the prosecutrix used to sit with them, had meals with them and the door of the house was kept open. She further stated that the prosecutrix and the respondent/accused did not enter into any quarrel while in her house and the respondent/accused used to go out

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of the house for work and their relations were cordial. She further stated that the prosecutrix and the respondent/accused used to sleep along with her family and the bathroom of rented room was at some distance, having a separate way from the rented room, and, that the kitchen was also outside. This statement of PW12, Bala Devi, clearly falsifies the allegations, as levelled by the prosecutrix, that the respondent/accused had threatened her to make her obscene video viral if she made any attempt to raise alarm in the rented house. Moreover, the allegation, inasmuch as, pertaining to the threat to viralize prosecutrix's video is concerned, the prosecution has not produced on record any obscene video to corroborate the statement of prosecutrix.

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It was further alleged by the prosecutrix that on 31.05.2018, when she was returning after a walk with her sister-in-law, she met the respondent/accused on her way, who took her to a deserted house and kept her there for three hours and committed penetrative sexual assault upon her. First of all, the prosecutrix did not allege the aforesaid events in her statement recorded under Section 164 Cr.P.C., and, secondly, the prosecution never examined the sister-in-law of prosecutrix to prove the aforesaid allegations. Therefore, the withholding of the above material evidence adds to the dents in the prosecution story.

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Furthermore, the prosecutrix was medico-legally examined by Dr. Namrata, Medical Officer, LNJP Hospital, as PW10, who proved on record her MLR Ex.P24. When PW10, Dr. Namrata, was put to crossexamination, she categorically admitted that there was no fresh mark of

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injury on the body of prosecutrix and the date of occurrence was disclosed to her, by the prosecutrix, as 02.06.2018, however, she did not disclose the name of the person, who committed penetrative sexual assault upon her. When viewed in the light of aforesaid cross-examination of PW10, Dr. Namrata, the statement of prosecutrix, as portrayed before the Court, fails to inspire confidence of this Court, for one amongst the prime reason, that there are material improvements and contradictions from her previous statement made before the learned Magistrate. Therefore, the statement of the prosecutrix lacks credibility and thus, cannot be relied upon to reverse the order of acquittal, as recorded by the learned trial Court.

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Learned counsel for the State argued that, in view of provision of Sections 29 and 30 of the POCSO Act, a statutory presumption arises against the respondent/accused, and, the onus is upon him to prove his innocence, and that, in the present case, he has failed to prove his innocence, therefore, the statutory presumptions stand against him and he is liable to be convicted for the charges framed against him. A cumulative reading of Sections 29 and 30 of the POCSO Act, would provide that, once the foundational facts have been proved by the prosecution, only then the statutory presumption is raised against the accused and the onus shifts upon the accused to prove his innocence. In the present case, as we have discussed above in detail, the prosecution has failed to prove the foundational facts, upon which statutory presumption can be raised. “Presumption” ��

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DEVINDER YADAV 2022.12.19 11:19 I attest to the accuracy and authenticity of this order/judgment