Himachal Pradesh High Court
State Of Himachal Pradesh vs Jiwan Lal Tandel on 4 January, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M). No.2830 of 2023.
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Date of decision: 04.01.2024.
State of Himachal Pradesh .....Applicant/Appellant.
Versus
Jiwan Lal Tandel .....Respondent.
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Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
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Whether approved for reporting?1 No
For the Appellant : Mr. I.N. Mehta, Senior Additional
Advocate General with Mr. Navlesh
Verma, Ms. Sharmila Patial,
Additional Advocate Generals and
Mr. J.S.Guleria, Deputy Advocate
General.
For the Respondent : Nemo
Tarlok Singh Chauhan, Judge (Oral)
Aggrieved by the acquittal of the respondent for the offences punishable under Section 376 of the Indian Penal Code (for short 'IPC') and Sections 4, 6, 7, 8, 11 and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'), the State has filed the instant application for grant of leave to appeal.
2. The case of the prosecution is that on 09.07.2018, Smt. Sunita, wife of Shri Karan Sahi, mother of the child-victim, got her statement recorded before the police stating therein that they were doing the drain work of the road under the Contractor Sandeep 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 05/01/2024 20:33:14 :::CIS 2 Kumar and while at work, she was keeping the children in a rented accommodation taken from one Sashni.
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3. On 08.07.2018, at about 8.00 a.m., as usual, she along with her husband, had gone for labour work, while, their children were there in the rented room. At about 6.30 p.m., when she returned to her home, the child-victim disclosed to her that uncle of Jiwan Lal (respondent), who was wearing a cap on his head, took her to the jungle and there he gave apples to eat to her and showed rt porn films/movies to her on his mobile. Thereafter, the respondent took off his 'pants' and removed 'pajama' of the child-victim. Then, the respondent took the child-victim on his lap and placed his penis on her private part and took out the white discharge from his penis and, thereafter, the respondent left the spot. At that time, her husband was in the bazaar. She called her husband through mobile and he reached in the room after about half an hour.
4. On 09.07.2018, at about 7.30 p.m., they disclosed the matter to the contractor Sandeep Kumar and on his advice, she along with her husband and child-victim proceeded to lodge a report at Police Post, Patli Kuhal. However, in the meantime, at 16 Miles near Rain Shelter, S.I. Daya Ram met them. On the basis of the statement of the complainant, an FIR for the commission of the aforesaid offences was registered at Police Station, Manali. During investigation, the statements of the witnesses under Section 161 ::: Downloaded on - 05/01/2024 20:33:14 :::CIS 3 Cr.P.C. were recorded and thereafter the victim-child was got medically examined and her MLC was obtained. The victim-girl was .
sent to the Medical Officer for determining her age and opinion of the Medical Officer to this effect was also obtained which revealed that the estimated age of the victim was 4 to 6 years.
5. On 09.07.2018, the respondent was interrogated and of arrested for the commission of the aforesaid offences. During police custody, the respondent produced his cell phone along with JIO SIM rt which was taken into possession. The respondent got the spot identified where he had shown obscene films to the child-victim and sexually assaulted her. The respondent was got medically examined and his MLC was also obtained. The I.O. visited the spot and prepared the spot map. The preservatives taken by the doctors were sent for analysis to R.F.S.L., Mandi. The statements of the child-victim and complainant were got recorded before the learned J.M.F.C., Manali on 10.07.2018.
6. After completion of the investigation, the challan as well as supplementary challan were prepared and presented in the Court. The copies of the challans were supplied to the respondent.
7. On finding a prima facie case for the offences punishable under Sections 4, 6, 7, 8 and 11 of the POCSO Act, charges were framed against the respondent to which he pleaded not guilty and claimed trial.
::: Downloaded on - 05/01/2024 20:33:14 :::CIS 48. The prosecution examined as many as 14 witnesses.
Thereafter, the statement of the respondent under Section 313 .
Cr.P.C. was recorded wherein he pleaded his innocence by stating that he has been falsely implicated in the case. An opportunity was afforded to the respondent to lead evidence, however, no evidence was led by the respondent in his defence.
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9. The learned Special Judge after recording evidence and evaluating the same acquitted the respondent constraining the State rt to file application for grant of leave to appeal.
10. According to Mr. Navlesh Verma, learned Additional Advocate General, the findings recorded by the learned Special Judge are contrary and perverse and, therefore, deserve to be set aside and consequently leave to appeal deserves to be granted in this case.
11. We find no merit in the said submission for the simple reason that it is an admitted case of the prosecution that neither complainant/child victim has appeared in the witness box to substantiate the allegations levelled by her against the respondent nor her parents have testified in the Court. No doubt, the contractor Sandeep Kumar appeared as PW-2, but then no reliance can be placed on his testimony as he is not an eye-witness and his testimony is based on hearsay. Likewise, for the same reason, no ::: Downloaded on - 05/01/2024 20:33:14 :::CIS 5 reliance can be placed on the testimony of Hardev (PW-7) the Contractor as his statement is also based on hearsay.
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12. Now, what remains is the scientific evidence led by the prosecution. PW-1, doctor Deki Palmo Bodh, who conducted the medical examination of the child-victim on 09.07.2018 at about 12.25 p.m. in the Civil Hospital, Manali, found no marks of injury on of the body of the child-victim and her general condition was good. On local examination, no pain and tenderness were found around rt vagina. Seminal stains were not seen. Per vaginal examination, labia majora and labia minora were normal. Vagina admitted tip of little finger and finger nail scratches were not found. No signs of resistance were found and no damage to clothes was noticed.
According to PW-1, she advised the child-victim for X-ray of wrist with hand AP view, X-ray right shoulder, X-ray right elbow, A.P.and lateral view, X-ray knee A.P. view, X-ray ankle with foot A.P. View and X-ray pelvis with A.P. view. X-rays were sent to Radiologist for examination and report. On examination of X-rays and as per the ossification status of child-victim, the estimated age was between 4 to 6 years and the dental age was estimated to be six years approximately and she gave her report which is Ext. PW-1/B within red circle. On the request of the police, PW-1 had drawn the following samples and handed over the same to the police after sealing:-
::: Downloaded on - 05/01/2024 20:33:14 :::CIS 61. Three swabs(vaginal) kept in tube;
2. Nail clipping;
3. Green coloured lower;
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4. Blood on FTA Cards;
5. A letter addressed to RFSL regarding forensic examination.
Thereafter, PW-1 referred the child-victim to the Dental Surgeon for age estimation. She issued MLC Ext. PW-1/A. During cross-
of examination, she admitted that if rape is committed on a girl of tender age, then it is expected that there would be wide spread rt damages on the private part.
13. Now, in case the medical evidence is perused, it would be noticed that in absence of testimony of the child-victim, the evidence leads nowhere as it does not in any manner establish the offences for which the respondent has been charged. Even, as per the R.F.S.L. report Ext. P-3/PW-14, blood and semen were not detected on lower, vaginal swab, nail clipping of the victim, underwear, coronal sulcus swab and pubic hair of the respondent.
These reports themselves cannot be held to be sufficient to prove the allegations of sexual assault on the child.
14. In Chandrappa and others vs. State of Karnataka (2007) 4 SCC 415, State of Rajasthan vs. Kistoora Ram, 2022 SCC Online SC 984 and Ravi Sharma vs. State (Government of NCT of Delhi) and another (2022) 8 SCC 536, the Hon'ble Supreme Court has provided a clear exposition as to scope of interference in an appeal against acquittal. The same has been held ::: Downloaded on - 05/01/2024 20:33:14 :::CIS 7 to be limited. As per the aforesaid exposition, unless it is found that the view taken by the trial Court is impossible or perverse, it is not .
permissible for the Appellate Court to interfere with the findings of acquittal. It has also been held that if two views are possible, it is not permissible to set-aside an order of acquittal merely because the Appellate Court finds the way of conviction to be more probable.
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15. It is more than settled that in an appeal against acquittal, no interference is called for in case the view taken by rt learned trial Court is a possible one and its findings do not suffer from perversity. The accused always has a benefit of presumption of being innocent till proof of charges against him beyond reasonable doubt. The acquittal by the learned trial Court doubles the strength of such presumption.
16. In the given facts and circumstances of the case, we have no doubt in our mind that the view taken by the learned Special Judge to acquit the respondent is a plausible and a possible view and, therefore, warrants no interference. Accordingly, leave to appeal is rejected.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 4th January, 2024.
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