Himachal Pradesh High Court

Gurdev Alias Golu vs State Of Himachal Pradesh on 30 September, 2024

Bench: Tarlok Singh Chauhan, Sushil Kukreja

Neutral Citation No. ( 2024:HHC:9344 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Criminal Appeal No.362 of 2022.

Judgment Reserved on: 26.09.2024.

Date of decision: 30.09.2024.

Gurdev alias Golu                                 ...Appellant.

                          Versus

State of Himachal Pradesh                      ...Respondent.



Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting? No

For the Appellant : Mr. Rakesh Kumar and Mr. Panku Chaudhary, Advocates.

For the Respondent: Mr. Tejasvi Sharma, Additional Advocate General.

Tarlok Singh Chauhan, Judge

The appellant has been convicted and

sentenced by the learned Special Judge vide

judgment/order dated 15.07.2022 to undergo rigorous

imprisonment for 20 years and to pay a fine of

Rs.10,000/- for the commission of offence punishable

under Section 376(3) of the Indian Penal Code (for

short, 'IPC') and in default of payment of fine to further

Neutral Citation No. ( 2024:HHC:9344 )

undergo rigorous imprisonment for six months and he

was further directed to undergo simple imprisonment

for 20 years and to pay a fine of Rs.10,000/- for the

commission of offence under Section 4 of the Protection

of Children from Sexual Offences Act, 2012 (for short,

'POCSO Act') and in default of payment of fine further

directed to undergo simple imprisonment for six

months. However, both the sentences were directed to

be run concurrently. The period of detention already

undergone by the appellant during inquiry,

investigation and trial of the case was ordered to be set

off from the substantive sentence of imprisonment as

prescribed under Section 428 of Cr.P.C.

2. The case of the prosecution is that the child

victim along with her parents visited the Police Station,

Karsog, on 16.03.2021 and lodged a complaint wherein

it was averred that the appellant was known to the child

victim for the last 7-8 months. After having established

acquaintance with the appellant on facebook, they used

to chat with each other on phone. On 15.03.2021, the

appellant met her outside her school from where she

accompanied him upto Nabhidhar. On the way, there

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was 'Jungle' where the appellant asked her to sit down

and they talked about for one hour and thereafter the

appellant committed wrong act with her forcibly. When,

she resisted, the appellant threatened to kill her.

Thereafter, she went to home and in the morning

disclosed the entire occurrence to her parents. She also

disclosed that she had not disclosed all these things to

her parents on 15.03.2021 as she was under fear.

3. On the basis of this complaint, FIR No.35 was

registered against the appellant under Sections 376,

506 of IPC and Section 4 of the POCSO Act, in Police

Station, Karsog, District Mandi, H.P.

4. After registration of FIR Ext. P-1/PW15, the

investigation of this case was conducted by PW15 SHO

Ranjan Sharma, who got conducted the medical

examination of the child victim and procured her MLCs

Ext. PW7/B and Ext. PW7/C along with preservatives.

The appellant was interrogated and arrested on

16.03.2021 itself. The appellant was also got medically

examined and his MLC Ext. PW8/B was procured along

with preservatives.

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5. The statement Ext. PW1/E of the child victim

was got recorded under Section 164 Cr.P.C. before JMIC,

Karsog. The Investigating Officer inspected the spot on

the identification of the child victim and prepared spot

map Ext. P-6/PW15. Photographs of the spot were

clicked vide Ext. PW5/A to Ext. PW5/F. The clothes of

the child victim that were worn by her at the time of

commission of the alleged offence were taken into

possession by the police vide Ext. PW1/B. Statement of

the child victim was videographed. The appellant also

identified the spot before the police. The date of birth

certificate Ext. PW2/B of the child victim was procured

from concerned Gram Panchayat as per which her

date of birth was 02.01.2006 and, in this way, she was

found to be of the age of 15 years 2 months and 13

days. The date of birth certificate Ext. PW4/A of the

appellant was also procured as per which he was found

to be major. The preserves of the appellant and child

victim were sent to RFSL, Mandi, for chemical analysis.

6. After completion of the investigation, the

police submitted the charge-sheet on 24.05.2021 and

thereafter supplementary challan, after receiving the

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report from RFSL, Mandi, Ext. PY, was presented on

17.01.2022 against the appellant.

7. On finding a prima facie case, the appellant

was charged under Section 376(3) IPC and Section 4 of

the POCSO Act, to which he pleaded not guilty and

claimed trial.

8. In order to prove its case, the prosecution

examined as many as 19 witnesses and thereafter the

appellant was examined under Section 313 Cr.P.C.

wherein he claimed his innocence and denied having

committed any wrong act with the child victim and

claimed to have been falsely implicated in this case.

9. After recording evidence and evaluating the

same, the learned Special Judge convicted and

sentenced the appellant, as aforesaid and aggrieved

thereby, the appellant has filed the instant appeal.

10. It is vehemently argued by the learned

counsel for the appellant that the findings recorded by

the learned Special Judge are absolutely perverse and,

therefore, deserve to be set aside.

11. On the other hand, learned Additional

Advocate General has supported the judgment and

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would contend that the findings rendered by the

learned Special Judge are based upon the evidence that

was available on record.

12. We have heard the learned counsel for the

parties and have also gone through the material

available on record.

13. The child victim was examined as PW1, who

stated that her date of birth was 02.01.2006 and in

March, 2021, she was a student of 10 th class. Her father

is a farmer and mother is housewife. She knew the

appellant, who is present in the Court through

facebook. The appellant became facebook friend 7-8

months prior to the alleged occurrence. They used to

talk on phone also. On 15.03.2021, she came back

from her school, reached home and nothing happened

with her. At this stage, PW1 was declared hostile and

the learned SPP permitted to put leading questions to

the witness.

14. On being cross-examined, PW1 denied that

appellant on 15.03.2021 met her outside the school and

then she accompanied him upto Nabhidhar and further

denied that in the 'Jungle' the appellant asked her to sit

Neutral Citation No. ( 2024:HHC:9344 )

and chat on the upper side of the road. She further

denied that the appellant took her to upper side of the

road and they remained there for one hour and then the

appellant committed 'galat kam' with her forcibly and

threatened to kill her. She also denied that due to fear,

she did not disclose the occurrence to any one in the

house and denied that in the morning she had revealed

entire occurrence to her mother. She admitted that

thereafter she along with her parents came to the

Police Station, Karsog, where she moved an application

Ext.PW1/A and identified her handwriting and

signatures upon the same. However, volunteered to

state that this application was scribed by the police at

the instance of her father as her father on 15.03.2021

had seen her with the appellant. PW1 admitted that

she had been medically examined with her consent at

C.H., Karsog on the application moved by the police.

She identified her signatures on the MLCs and also

stated that doctor had taken into possession her clothes

i.e. 'kurta', 'salwar' and white 'baniyan' besides

samples and blood on FTA card. She admitted that her

statement was recorded by the police and it was

Neutral Citation No. ( 2024:HHC:9344 )

videographed also. She admitted that her statement

was also recorded by the JMIC, Karsog. She denied

having given portion 'A' to 'A' and 'B' to 'B' of the

statement Mark A to the police. She also denied that

application Ext. PW1/A was written on her giving the

detail of the occurrence which had actually happened

with her on 15.03.2021. PW1 admitted that on

18.03.2021, she had identified the spot to the police in

the presence of her mother and ward member and the

police had also clicked photographs Mark A-1 and A-2

in which her mother and ward member could be seen

with her. PW1 admitted that on the spot, she also

handed over 'salwar' and 'shirt' which were worn by her

on 15.03.2021 and the same were taken into

possession by the police after sealing in a parcel.

15. PW1 had thereafter been cross-examined by

the learned counsel for the appellant and stated that

she was having her mother's phone on which she used

to talk with the appellant. She admitted that her mother

had once noticed their conversation. She admitted that

on 15.03.2021 her father had noticed her conversation

on mobile. She also admitted that on that day, her

Neutral Citation No. ( 2024:HHC:9344 )

father had abused the appellant and the appellant had

also clashed with her father. She admitted that the

appellant and her father both had threatened to each

other to face dire consequences. She admitted that on

16.03.2021, her father compelled her to move

complaint against the appellant before the police at

Karsog and they visited the Police Station and lodged

the complaint. She also admitted that the police

pressurized her to write a complaint against the

appellant at the instance of her father. She admitted

that the appellant had not made any physical relations

with her. She also admitted that the appellant never

came to village Bag. She further admitted that

whatever she stated before the doctor had been stated

by her at the instance of her father. The clothes which

were taken into possession by the doctor were one worn

by her on 15.03.2021. The uniform which was shown to

her in the Court by opening a parcel Ext. PA was worn

by her on 15.03.2021. After her medical examination,

the police and her father had taken her towards

'Jungle' and she was not informed where she was being

taken. She also admitted that her photographs were

Neutral Citation No. ( 2024:HHC:9344 )

clicked at some other place. She admitted that no

place of occurrence was identified by her. She also

admitted that her signatures were obtained after

preparing the papers. She further admitted that she had

not been readover the contents of the documents

which were signed by her. She admitted that her

mother had instructed her to hand over the clothes to

the police. She denied having deposed falsely before

the Court.

16. PW2 Gulab Singh, Secretary, Gram

Panchayat, Mahog, had supplied the date of birth

certificate Ext. PW2/B of the child victim on the

application Ext. PW2/A moved by the police. As per the

record, the date of birth of the child victim was

02.01.2006.

17. PW3 is the mother of the child victim and

stated that she had three daughters. The child victim

was aged about 15 years and was the eldest and

studying in 10th Class. On 15.03.2021 the child victim

after school had returned to home at 2.00 p.m. and on

16.03.2021, she (PW1) was chatting with the appellant,

then she (PW3) scolded her. The child victim had not

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disclosed anything to her. At this stage, PW3 was

declared hostile and permitted to be cross-examined by

the Public Prosecutor.

18. On being cross-examined, PW3 denied that

the child victim had told her that on 13.03.2021, the

appellant had accompanied her to Nabhidhar and on

the way, he had asked her to sit and chat in the 'Jungle'

on the upper side. She denied that the child victim had

told her that the appellant had chatted with her for

about one hour in the 'Jungle' and thereafter committed

'galat kam' with her and had threatened to kill her if

she disclosed it to anyone. She admitted that her

statement had been recorded by the police but denied

having given portion 'A' to 'A' of Mark 'S' wherein it was

so recorded. She admitted that on 16.03.2021, she

along with her husband and child victim had gone to

the Police Station where complaint Ext. PW1/A was

moved by the child victim. She admitted that the child

victim had been got medically examined by the police.

She also admitted that the statement of the child victim

had been recorded under Section 164 Cr.P.C. in the

Court at Karsog. She further admitted that on

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18.03.2021 the child victim in her presence had

identified the spot to the police and the police had

clicked the photographs. She admitted that the police

had taken into possession 'salwar', 'kameej' and school

dress after sealing the same in a parcel in her presence

and in the presence of Usha Devi. She identified her

signatures upon memo Ext. PW1/B. She denied that the

appellant had committed 'galat kam' with the child

victim and as such they had taken the victim to the

Police Station for lodging the FIR. She admitted that

complaint Ext. PW1/A had been written by the victim in

her presence and in the presence of her husband. She,

however, denied that they had compromised the matter

with the appellant and in order to save him resiled

from her previous statement. She further stated that

she and her husband never wrote to the police at any

stage that the FIR was lodged due to suspicion created

in their mind after noticing that the appellant had been

chatting with the victim on mobile.

19. PW3 was thereafter cross-examined by the

learned counsel for the appellant where she admitted

that father of the victim had caught the victim chatting

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on facebook with the appellant. She admitted that

thereafter father of the victim had also talked with the

appellant. She admitted that there was a hot exchange

of words between the appellant and father of victim and

they had threatened each other. She also admitted that

father of victim had compelled her to make statement

against the appellant in connivance with the police.

She admitted that the appellant had not committed

'galat kam' with the victim. She admitted that the

appellant never visited Mahog. She further admitted

that on 18.03.2021, the victim was forcibly taken by the

police to identify the spot in the 'Jungle'. She also

admitted that no clothes of the victim were taken into

possession by the police. She denied that photographs

of the spot had been taken by the police. She admitted

that all the proceedings were undertaken by the police

in the Police Station.

20. PW4 Pawan Kumar, Secretary, Gram

Panchayat, Bhanthal, has proved the date of birth

certificate of the appellant Ext. PW4/A wherein his date

of birth is recorded as 05.08.2001.

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21. PW5 ASI Chhaju Ram has proved the

photographs of the spot Ext. PW5/A to Ext. PW5/F and

the certificate Ext. PW5/G issued under Section 65-B of

the Indian Evidence Act.

22. PW6 Mehar Singh, TGT, Arts, has proved on

record the attendance certificate of the child victim

Ext. PW6/B with regard to her presence in the school on

15.03.2021.

23. PW7 is Dr. Anuradha, who stated that she

had medically examined the child victim after an

application to this effect had been received. On

examining the child victim, she had noticed that there

was history of penetration of penis into vagina but there

was no history of penetration of penis into anus, no

history of oral sex and no history of contraceptive use.

The victim had not taken bath after the episode. While

examining the child victim from head to toe, her

observations were as under:

(1) Face : No injury mark noted.

(2) Neck : Front and Back- No signs of injury noted.

(3) Chest : Front/Back-No signs of injury noted.

Neutral Citation No. ( 2024:HHC:9344 )

(4) Abdomen: Front/Back- No signs and symptoms of any injury noted.

(5) B/L Thighs: Front/Back-No sign of injury noted.

(6) B/L Knees: Front/Back- No sign of injury noted.

(7) B/L Legs: Front/Back- No sign of injury noted.

(8) B/L Arms, Hands, feet: Front/Back- No signs of injury.

On local examination, she observed as

under:

Labia majora : Normal appearance.

Labia minora : Normal appearance.

Hymen is torn, there are no signs of any inflammation, no bleeding, no discharge, no sign of injury and no struggle marks present. Perineum : No sign of any injury.

After careful examination of the subject, it was opined that there were no struggle marks on the body of the subject and according to her, opinion was preserved till the report of the chemical examiner. After perusing the report, her final opinion was as under:

Hymen was torn and semen was present on 'salwar' of victim which matches with

Neutral Citation No. ( 2024:HHC:9344 )

semen of accused Gurdev. Thus, in my opinion, sexual assault had taken place.

24. On being cross-examined, PW7 admitted

that there were no marks of any injury/violence present

on any part of the body of the child victim at the time of

medical examination conducted by her. She admitted

that hymen could be torn by sports activities also. She

also admitted that the clothes of the child victim taken

by her at the time of medical examination did not

contain semen of the appellant.

25. PW8 is Dr. Kamal Dutta, who during the year

2019, was posted as General Surgeon at Civil Hospital,

Karsog, District Mandi, H.P. He deposed that on

16.03.2021 at about 10.00 p.m., appellant was brought

by Constable Anil Kumar No.461 for medical

examination, who had moved an application Ext. PW8/A

to this effect. He also deposed that after obtaining the

consent of the appellant, he conducted his medical

examination and issued MLC Ext. PW8/B. He further

deposed about taking of samples of pubic hair, semen

of appellant, blood sample on FTA card and clothes i.e.

shirt, 'pant' and inner of the appellant. On being cross-

Neutral Citation No. ( 2024:HHC:9344 )

examined, he deposed that there was no material found

on private part of the appellant which could suggest

that he had committed any sexual assault.

26. PW9 is LC Reema, who stated that she got

conducted medical examination of child victim on

16.03.2021 in Civil Hospital, Karsog and after medical

examination, Dr. Anuradha had handed over MLC Ext.

PW7/B of the child victim along with duly sealed sample

parcels, specimen seal impression which were handed

over by her to MHC, Police Station, Karsog, on return.

She further deposed that on 17.03.2021, the statement

of the child victim was recorded by the I.O. and on the

direction of the I.O., she had videographed the same.

On the same day, she accompanied the child victim for

getting her statement recorded under Section 164

Cr.P.C. before JMFC, Karsog, District Mandi, H.P. On

being cross-examined, nothing relevant could be

elicited from her cross-examination.

27. PW10 is LHC Vinod Kumar, who stated that

he along with Constable Anil Kumar No. 468, got

conducted the medical of appellant at Civil Hospital,

Karsog and doctor Kamal Dutta after conducting

Neutral Citation No. ( 2024:HHC:9344 )

medical examination of the appellant had handed over

his MLC Ext. PW8/B along with sample parcel duly

sealed, specimen seal impression and forwarding letter

which were handed over by him to MHC, Police Station,

Karsog, on return. Nothing material could be extracted

on being cross-examined this witness.

28. PW11 is Constable Pawan Kumar, who has

proved the entry of Rapat No. 22 dated 16.03.2021

Ext.PW11/A and Rapat No. 30 dated 16.03.2021 Ext.

Ext. PW1/B.

29. PW12 is Constable Anil Kumar, who

deposited the case property in RFSL, Mandi, on

20.03.2021 vide RC No. 291/20-21 and also deposited

the case property at SFSL, Junga on 05.10.2021 vide

RC No. 129/2021.

30. PW13 HC Pawan Kumar was posted as MHC

in Police Station, Karsog, during the year 2020 and

deposed about deposit of case property by LC Reema

on 16.03.2021 which he entered at Serial No. 450 in

the register No. 19 and copy of the 'Malkhana' register

is Ext. PW13/A. He also deposed about deposit of case

property by LHC Vinod Kumar which he entered at

Neutral Citation No. ( 2024:HHC:9344 )

Serial No. 451 of the 'Malkhana' register No. 19 and

proved its copy Ext. PW13/B. He also deposed about

deposit of case property by Inspector Ranjan Sharma on

18.03.2021 which he entered at Serial No. 452 in

too deposed about sending the case property by him

through Constable Anil Kumar vide RC No. 291/20-21,

the copy of which is Ext. PW13/D. On 10.05.2021, the

result of RFSL Ext. PX was brought and handed over to

him by Constable Anil Kumar and deposited the case

property with him. He further deposed that on

05.10.2021, the case property along with result of RFSL

was sent to SFSL, Junga vide RC No. 129/21 Ext.

PW13/E for DNA profiling through Constable Anil Kumar

and on 02.12.2021 HHC Ramesh Kumar brought back

the result Ext.PY from SFSL, Junga along with the case

property and deposited the same with him. He also

proved the abstracts of sending and receiving the case

property Ext. PW13/F and Ext. PW13/F1. On being

cross-examined, he denied the suggestion that case

properties were never deposited with him by the police

officials and further denied the suggestion that entries

Neutral Citation No. ( 2024:HHC:9344 )

in the 'Malkhana' register were fabricated by him at the

instance of the I.O.

31. PW14 is S.I. Narayan Lal, who partly

investigated the case and deposed about obtaining of

attendance certificate Ext. PW6/B of the child victim on

15.03.2021 from her school by moving an application

Ext. PW6/A.

32. PW15 is Inspector Ranjan Sharma, who

investigated the case. He deposed that he remained

posted in Police Station, Karsog from the year 2018 to

2021. He deposed about lodging of FIR Ext. P-1/PW15

on the complaint Ext. PW1/A moved by child victim,

sending the child victim for medical examination

through LC Reema with request application Ext.

P-2/PW15, arrest of appellant and getting him medically

examined through LHC Vinod Kumar with request

application Ext. PW8/A and handing over of MLCs of

child victim Ext. PW7/B, Ext. PW7/C by LC Reema and

MLC of appellant Ext. PW8/B by LHC Vinod Kumar,

depositing the case property with MHC Pawan Kumar,

recording the statement of child victim under Section

164 Cr.P.C. Ext. P-3/PW15. He further deposed about

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preparing spot map Ext. P-4/PW15, getting clicked the

photographs of spot Ext. PW5/A to Ext.PW5/D from HC

Chajju Ram, taking into possession the clothes of child

victim produced by her vide memo Ext. PW1/B in the

presence of mother of the child victim and ward

member Smt. Usha Devi, clicking photographs Ext.

PW5/E and Ext. PW5/F of the spot of identification by

the appellant and preparing spot map Ext. P-6/PW15.

He also deposed about procuring birth certificate Ext.

PW2/B of child victim and birth certificate of appellant

Ext. PW4/A from Gram Panchayats Mahog and Bhanthal,

respectively. He further deposed that statements of the

witnesses were recorded as per their version, certificate

under Section 65B of the Evidence Act Ext.P-7/PW15

issued by MHC Pawan Kumar was taken on record by

him.

33. On being cross-examined, PW15 deposed

that application Ext. PW1/A was already written. He

denied the suggestion that application was got written

by police from the child victim at the instance of her

father and further denied the suggestion that appellant

neither visited the school of the child victim nor visited

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the house of the child victim. He admitted that it had

come in his investigation that child victim and appellant

were friends on facebook. He denied the suggestion

that it had not come in his investigation that father of

the child victim had caught her while talking with the

appellant on 15.03.2021 and thereafter had talked with

the appellant on mobile and also had an altercation

with the appellant and threatened him. He further

denied the suggestion that father of child victim used

her as a tool to lodge a false complaint against the

appellant on 16.03.2021 and further denied that false

FIR was registered against the appellant on the basis

of false complaint. He further denied the suggestion

that statement of the child victim was not recorded as

per her version and further denied the suggestion that

the child victim was tutored and threatened by her

father at the time of recording of her statement under

Section 164 Cr.P.C. He also denied the suggestion that

the appellant and child victim were forcibly taken to

the spot at the instance of the child victim on

18.03.2021 and further denied the suggestion that

photography and other proceedings were conducted on

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the spot at the instance of father of child victim. He,

however, admitted that clothes of the child victim were

taken into possession by the Medical Officer at the time

of medical examination on 16.03.2021. He denied the

suggestion that the appellant was forced to

masturbation and his semen was forcibly thrown upon

the 'pant' of the appellant as also on the 'salwar' of the

child victim. He also denied the suggestion that the

appellant neither met the child victim nor committed

any wrong act with her and further denied the

suggestion that the appellant had been falsely

implicated in the case.

34. PW16 is HHC Ramesh Kumar. He deposed

that he had gone to FSL, Junga and on 02.12.2021

brought back the case property along with the result

and one box stated to be containing semen sample of

appellant and handed over the same to MHC Pawan

Kumar. On being cross-examined, he denied the

suggestion that neither he brought the case property

back to the police station nor handed over the same to

MHC Pawan Kumar.

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35. PW17 is SI Bodh Raj. He deposed that on

25.12.2021, the case file was handed over to him by

Inspector/SHO Ranjan Sharma for further investigation.

After the receipt of report Ext. PY from SFSL, Junga,

along with case property, he obtained final opinion

from Dr. Anuradha (PW7). PW17 further deposed that

he recorded the statements of the witnesses and on

completion of investigation, handed over the case file

to Inspector/SHO Shyam Lal, Police Station, Karsog, who

presented the challan before the court. In his cross-

examination, he admitted that the case property was

not resealed in his presence. He had recorded the

statements of HC Pawan Kumar, Constable Anil Kumar

and HHC Ramesh Kumar in the Police Station. He

denied the suggestion that he had not obtained the

final opinion from Dr. Anuradha.

36. PW18 is Inspector Shyam Lal. He deposed

that after receiving the report from SFSL, Junga and

after obtaining final opinion from the Medical Officer, he

prepared the challan on 05.01.2022 and presented the

same before the Court. On being cross-examined, he

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denied the suggestion that he wrongly prepared the

challan against the appellant.

37. PW19 is Smt. Madhvi Singh, who deposed

that she remained posted as JMIC, Karsog, District

Mandi, H.P. since December, 2018 to August, 2021.

She further deposed that on 17.03.2021, an application

Ext.P-3/PW15 was moved by the I.O., Police Station,

Karsog, for recording the statement of the child victim

under Section 164 Cr.P.C. She recorded the statement of

the child victim Ext. PW1/E after ensuring that the child

victim was free from fear, pressure and coercion to

make the statement. She has also proved the order

sheet Ext. PW1/D to this effect and sending the

statement of child victim to Special Court in sealed

cover Ext. PW1/C. On being cross-examined, she denied

the suggestion that the child victim had made

statement under the influence of her parents and police

as tutored to her outside the Court.

38. It would be noticed that there is no dispute

with regard to age of the victim which otherwise stands

duly proved by PW2 Gulab Singh vide Ext. PW2/B and

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as defined under Section 2(d) of the POCSO Act that she

is below the age of 18 years.

39. Now, the moot question is whether the

prosecution has been able to prove its case against the

appellant beyond reasonable doubt. Evidently, the child

victim and her mother have turned hostile and have not

supported the case of the prosecution.

40. Rape in terms of Section 376 of IPC is

defined as under:

"376. Punishment for rape.--(1)Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]

(2) Whoever,--

(a) being a police officer, commits rape--

(i) within the limits of the police station to which such police officer is appointed; or

(ii)in the premises of any station house; or

(iii)on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's custody

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or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten

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years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

Explanation.--For the purposes of this sub- section, --

(a) "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;

(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);

(d) "women's or children's institution"

means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

[(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of

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that person's natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim.]"

41. Section 4 of the POCSO Act, for which the

appellant has been convicted, reads as under:

"4. Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine."

42. Penetrative sexual assault has been defined

under Section 3 of the POCSO Act and the same reads

as under:

"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

Neutral Citation No. ( 2024:HHC:9344 )

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."

43. It would be evident from the testimony of

doctor (PW7) that she found no history of penetration of

penis into anus of victim, no history of oral sex, no

history of contraceptive use. She had further not found

any injury on the person of the child victim and had

further not found any struggle marks on the body of the

subject. Hymen of the child victim was found to be

torn but there was no sign of any injury on the body nor

hymen found to be freshly torn. If the hymen would

have been torn during the incident, then that would

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have led to some injury which PW7 could not have

missed during her examination of the child victim. It is,

therefore, quite possible that hymen might have been

torn even earlier and there can be many reasons for the

same. Therefore, this Court is not able to appreciate

that this in itself is a sufficient proof of penetrative

sexual assault on the child victim. An expert opinion

was required to be obtained to substantiate this plea of

the prosecution given the fact that no injuries or even

bruises were found on the child victim and semen was

not detected anywhere-else except 'salwar' allegedly

worn by the child victim on the date of incident and this

also is not sufficient to uphold the conviction.

44. Noticeably, in the instant case, the appellant

has been convicted mainly on the basis of the FSL

report Ext. PY which found semen of the appellant to be

present on the 'salwar' of the victim and surprisingly

this alone forms the basis of opinion of PW7 Dr.

Anuradha.

45. The appellant has mainly been convicted on

the basis of the statement of the doctor. Neither there

are any allegations of the child victim regarding

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penetrative sexual assault upon her nor has the doctor

opined that there was any penetration or even an

attempt of penetration by the appellant so as to attract

the provisions of penetrative sexual assault or any

other allegations of the child victim that may call for

and fulfill the test of penetrative sexual assault as

defined in Section 3 of the POCSO Act. Moreover, the

child victim (PW1) and her mother (PW3) have turned

hostile.

46. In Sadashiv Ramrao Hadbe vs. State of

Maharashtra and another (2006) 10 SCC 92, it was

held by the Hon'ble Supreme Court that the presence of

semen on even the undergarments could only raise

some suspicion on the conduct of the appellant and

when no injuries were found on the body or private

parts of the prosecutrix, the appellant was entitled to

acquittal. It shall be apt to reproduce para 12 of the

judgment which reads as under:

"12.It is true that the petticoat of the prosecutrix and the underwear allegedly worn by the appellant had some semen but that by itself is not sufficient to treat that the appellant had sexual intercourse with the prosecutrix.That

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would only cause some suspicion on the conduct of the appellant but not sufficient to prove that the case, as alleged by the prosecution."

47. Furthermore, in Hem Raj vs. State of

Haryana (2014) 2 SCC 395, the prosecution had

brought on record FSL report which showed that human

semen was detected on the 'salwar' of the prosecutrix

and on the underwear of the accused. Yet, the Hon'ble

Supreme Court held that it was difficult to infer from

this fact that the prosecutrix had been raped by the

accused and the accused therein was given the benefit

of doubt.

48. Even though, the presence of injuries on the

body of the victim is not a sine qua non to prove the

charge of rape. However, in Ravindra vs. State of

Madhya Pradesh AIR 2015 SC 1369, the Hon'ble

Supreme Court was dealing with a case where the

medical examination of the prosecutrix was done on the

same day on which the alleged offence was committed

and no injuries were found on her person and held that

it was highly improbable that rape had been committed.

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49. On a consideration of the entire evidence in

this case, we are of the view that there are serious

doubts regarding the sexual intercourse allegedly

committed by the appellant with the victim. The

appellant is entitled to the benefit of those doubts and

we are of the view that the learned Special Judge has

erred in finding the appellant guilty.

50. Consequently, the appeal is allowed. We set

aside the conviction and sentence of the appellant. The

appellant is acquitted of the charges framed against

him. The appellant, who is in jail, is directed to be

released forthwith, if not required in any other case.

The fine amount if deposited by the appellant be

refunded to him.

51. The Registry is directed to prepare release

warrants of the appellant.

52. In view of the provisions of Section 437A

Cr.P.C., the appellant is directed to furnish a personal

bond in the sum of Rs.50,000/- with one surety of the

like amount to the satisfaction of the learned Trial Court

which shall be effective for a period of six months with

a stipulation that in an event of an SLP being filed

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against this judgment or on grant of the leave, the

appellant on receipt of notice thereof shall appear

before the Hon'ble Supreme Court.

53. Send down the records.

(Tarlok Singh Chauhan)

KHEM DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=b3bb0330a36091c417dc6aa42212c14c

RAJ aec7825ba4158459325bd600d273f58b, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=6aa9db3b3e85e608387fb6f 0fa0bb2ddacd2e1b82f232ca3c0adea331da339 83, CN=KHEM RAJ THAKUR

THAKUR Reason: I am approving this document Location: