Punjab-Haryana High Court
Avnish Kumar Sharma @ Avinish vs State Of Haryana on 9 August, 2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-1833-DB-2014 (O&M)
Reserved on : 20.07.2022
Pronounced on : 09.08.2022
Avnish Kumar Sharma @ Avinish ... Appellant
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MR.JUSTICE VIKAS SURI
Present: Mr. Vikram Singh Punia, Advocate, for the appellant.
Mr.Hitesh Pandit, Addl.A.G., Haryana.
G.S. Sandhawalia, J.
The appellant is aggrieved against the order of conviction
passed against him by the learned Addl.Sessions Judge, Jind in FIR
No.738 dated 10.09.2013 under Sections 376 (2) (f) (i) IPC and Section 6
of the Protection of Children from Sexual Offences Act, 2012 (for short,
'POCSO Act'). The sentence awarded to the appellant is to the tune of 14
years of rigorous imprisonment and Rs.20,000/- as fine and in default, 2
years of rigorous imprisonment under Section 376(2)(f)(i) and Section 6
of the POCSO Act whereas under Section 506 IPC, it is for a period of 2
years along with Rs.5000/- as fine and default clause is of one year.
2. The victim in the present case is none else but a child in the
school and was a student of 11th class where the appellant was teaching as
a Maths Teacher. The Trial Court found that there was medical evidence
in support of the case of the prosecution since there was an opinion of
PW-5, Manju on seeing the FSL report that the possibility of rape upon
the prosecutrix cannot be ruled out. Keeping in view the fact that the
date of birth of the victim was 15.03.1998, as per the Admission &
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Withdrawal Register and the fact that the victim had been admitted in
school by her sister, it was held that the age of the victim had been
proved to be 15.03.1998. She being less than 16 years and being a minor
at the time of the registration of the FIR and since she had supported the
case in affirmative about the sexual exploitation under threat by the
accused-appellant and the medical evidence corroborated the same,
weighed with the Trial Court. The defence taken qua the dispute of
seniority inter-se school teachers and that he had been falsely implicated
was rejected since neither the uncle of the prosecutrix who was teaching
in the same school nor Ram Niwas Bhardwaj were going to be the
Principal for which the appellant was in line for. It was noticed that the
victim had reiterated her version which had already been recorded by the
Illaqa Magistrate on 13.09.2013 at the initial point of time under Section
164 Cr.P.C. (Ex.PB). Merely because no date of the incident had been
mentioned and only the month and year had been mentioned and since
nothing in contradiction had come on record to falsify the allegations, by
applying the provisions of Section 29 of the POCSO Act, presumption
was raised that the accused could not prove to the contrary, while
convicting the appellant. The delay of 6 months in lodging the FIR was
also brushed aside on the ground that the appellant was Class In-charge
of the victim at the time of lodging of the FIR and that he was threatening
her that he would get her brother killed and uncle removed from the
school and fail her in the subject of Maths. He had also tried to spread
rumours against her in school and it was only on that account the incident
had come to light and the present case had been registered. Resultantly,
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while placing reliance upon the judgment of the Apex Court in Ashok
Surajlal Uike Vs. State of Maharashtra, 2011 (2) RCR (Crl.) 63, it
was held that the delay was of little significance.
3. Mr.Punia has taken us through the records and vehemently
contended that the testimony of the victim is not reliable as there are
contradictions in her statements, to the extent that neither the appellant
was her teacher or directly In-charge of her or her class and neither was
teaching her Maths, and neither was the Examination-in-charge and
therefore, the reasoning adopted by the Trial Court was not justified.
There was discrepancy in the date and time of the occurrence and there
was a delay of 6 months in lodging the FIR and no reasonable
explanation had been given if such a incident had taken place. There was
reason for false implication as some incident had happened in school
which was in September, 2013 and she had been sent back on account of
the suspicion having been raised of her character. Thereafter,
deliberations had taken place and on account of the fact that her uncle
was teaching in the school and was close friend of Ram Niwas Bhardwaj
who was aggrieved on account of the fact that the appellant was to
become Principal after retirement of the incumbent Principal who was
already holding the said post, the issue had been raked up. The age of the
prosecutrix could not be said to be conclusively proved to be 15.03.1998
since there was no evidence in the form of certificate from the Registrar
(Births & Deaths) and no attempt had been made by the Investigating
Officer to get the same. The admission in school had been made by her
sister and she herself was not in a position to give the exact date of birth
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and thus, reliance was placed upon the radiology report and the fact that
she was about 16-17 years of age and therefore, the benefit of 2 years was
sought to argue that she was not a minor at the time of incident.
4. It was submitted that the medical report was not conclusive
proof of rape since admittedly the incident had taken place 6 months
earlier and it was highly strange that as per the MLR human semen was
detected on the underwear of the victim but no DNA profile had been
done. It was accordingly submitted that even the matter had been taken
to the Sub-Judicial Magistrate, Jind and the said fact had not been
brought before the Court as to what was the background of the incident
which had allegedly taken place. The conduct of the victim was held to
be strange to the extent that she had never confided even to her uncle who
was teaching in the same school and residing along with the victim nor to
her friends and parents for a period of 6 months. It was accordingly
contended that there were sufficient discrepancies to give the benefit of
acquittal and the Trial Court was not justified in convicting the appellant.
5. Mr.Pandit, counsel for the State, on the other hand, justified
the reasoning given to point out that the appellant was the Vice-Principal
and therefore, overall supervision was there and it could not be said that
he was not her teacher. It was pointed out that admittedly she was below
18 years of age and therefore, the consent was also of no value and there
was no reason to doubt the veracity of the certificates issued by the
school. It is submitted that one of the teachers, Hemlata, PW-7 had also
deposed that the appellant was spreading lies about the victim which
would go on to show that there was some involvement and there was no
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plausible reason as to why she should implicate him and there was
nothing to show that he was going to be promoted as Principal and was
being falsely involved on that account. It was accordingly contended that
the statement of the victim must be treated as an injured witness and there
was no reason to disbelieve her and the offence under Section 376 I.P.C.
is made out even if the age factor is to be discounted on account of the
fact that she had been subjected to sexual intercourse against her will and
by coercing her.
6. Thus, what falls for consideration in our lap is whether the
sole testimony of the minor would be sufficient to implicate the appellant
for the crime which he is alleged to have committed and for which there
is a delay of 6 months. It is settled proposition of law that the testimony
of the victim is not to be discarded and rather being an injured witness
has to be appreciated keeping in mind the principles of probabilities.
However, one cannot lose sight of the fact that false allegations of rape
can cause extreme distress and humiliation to the accused apart from the
consequences of such a conviction which in the present case would be of
dismissal from service. Therefore, one has to further carefully examine
whether the story set out of the prosecution at the instance of the victim
and her parents is improbable and belies logic or not. Necessarily the
discussion as to how and in what manner the whole incident has unfolded
would have to be considered, more so in the present case where there is 6
months delay in lodging of the FIR and no specific instance has been
given as to on which date and time the incidence took place. Though
delay is acceptable in lodging of the FIR after it comes to light on
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account of the fact that the family might want to protect its prestige as the
victim also has to undergo a lot of humiliation but the said delay factor is
also to be examined on account of the fact that the medical evidence has
totally diminished by then and the Courts are left grappling with only the
ocular version of the parties. It is in such circumstances the Courts have
heavily led to granting the benefit of doubt if the victim's testimony does
not stand the test of judicial scrutiny.
7. A perusal of the paperbook would go on to show that on the
statement (Ex.PA) of the victim as stated to be around 15 years of age
and had put-forth that she was studying in 12th class in S.D. Senior
Secondary School, Jind and the appellant was the Maths Teacher of 10th
class and was in-charge of the girls wing. He was reaching out towards
her and had tried to give her a watch but she refused and he used to talk
with her on one pretext or the other which she felt was on account of the
fact that her uncle was also in the same school. She stated that he had
offered her to show the paper of mathematics when she was in 10+1 and
when she would come to his residence he would introduce her with his
wife. Without suspicion she had went to his house in the month of
March, 2013 and had found that nobody was there and wanted to leave
but he did not let her go by holding out the threat that he would get her
brother killed and her uncle removed from the school and would get her
failed in the examination. Thereafter, he had sexual intercourse with her
and had then let her go by making her sit in the auto. He had been
putting pressure upon her to come to his house and when she refused to
do the same, he started using unparliamentary language against her
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amongst the teachers and students of the school and her honour had been
worsted amongst the teachers of the school. The teachers then
telephoned her mother that she should come and take her from school.
The Accounts Teacher, Mrs.Seema had stated that she would not teach
her tuition and on enquiry by her mother as to why she refuse to teach she
said that her daughter would tell. Mrs.Hemlata, In-charge of the school
told her that her daughter was not feeling well and she should take her
from the school and when they reached the house, her mother enquired
and then she narrated the entire incident. Being frightened and fearing to
go to the school, she was not studying well and her mental balance was
spoiled and thus she got lodged FIR No.738 dated 10.09.2013 at 10 PM
when she was accompanied by her mother and father.
8. Her statement was recorded by the lady Head-Constable,
Geeta in the presence of woman counsel, Pooja Verma and she had
signed the same in English. Harjit Singh, Sub-Inspector, PW-14 had
given an application of even date i.e. 10.09.2013 to the Medical Officer,
Civil Hospital, Jind (Ex.PJ) for medical examination as to whether rape
was committed upon the victim or not and the underwear handed-over to
the police was made into parcel. Medical examination was conducted in
the early morning/ the next day i.e. 11.09.2013 in which her date of birth
was mentioned as 17.09.1998 as told by her mother, Veena Rani. The
endorsement in the same was that sexual assault was by the school
teacher, Avnish Sharma and that the victim knew him since one year and
he committed sexual assault with her 3-4 times and the last time in
March, 2013 under threat. The physical examination went on to show
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that the hymen was not intact and ruptured at 3 o' clock position and
healed and admits one finger easily and tip of second finger with
difficulty and pain. No congestion and abrasion was present over the
hymen and the opinion was to be given after receipt of the chemical
examination report. Radiological and dental opinion for confirmation of
age had also been advised. The appellant was accordingly arrested on
11.09.2013 on the basis of secret information that he was standing at
House No.941, Housing Board Colony and he was sent for medical
examination (Ex.PX) after the medical opinion of the victim had been
conducted which would be clear from the statement of Harjit Singh. The
Investigating Officer thereafter on 13.09.2013 made a request for
recording the statement of the victim under Section 164 Cr.P.C. which
was accordingly done by Sh.Manpreet Singh, Duty Magistrate, Jind on
13.09.2013 (Ex.PB). A perusal of the same would go on to show that it
was stated that he was the Vice-Principal of the school and he had been
attracted to her since long and he had gifted her a watch which she
refused. One day he had asked her to come to his house on the pretext of
showing the maths paper and that he would also introduce her with his
wife and on account of her uncle being also a teacher in the school she
reached the house of the appellant but his wife was not present. She had
asked to go back but he threatened to get her brother killed. She got
frightened and then he committed rape upon her and asked her not to tell
anything about it and made her sit in the auto. After some days, he
spread rumours against her that she had boyfriends and one day,
Mrs.Seema had telephoned her mother that she would not teach her
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tuition. The In-charge, Mrs.Hemlata told her mother that her daughter
was ill and to take her back from the school. When her mother reached
the office of the Principal for obtaining permission, both Hemlata and the
appellant were sitting there. The appellant told mother of the victim that
many boys were following her daughter and the Principal asked her to
take the certificate. When the mother had named her uncle, they had
permitted her to go with her mother. On reaching home, she had narrated
the entire incident to the mother who narrated the same to other members
of the family.
9. The Investigating Officer got the radiological and dental
opinion from the concerned wards of the General Hospital, Jind on
16.09.2013 (Ex.PM) where the Dental Surgeon opined that the age of the
victim was 16-17 years and similar was the opinion of the radiologist.
On the investigation being complete, the appellant was charge-sheeted
under Sections 376 (2) (f) (i) IPC and Section 6 of the POCSO Act on
08.11.2013 and the charge was amended on 10.10.2014 at the defence
stage to the extent that separate charge was specifically framed under
Section 376 (2) (f) and Section 376 (2) (i) IPC.
10. A perusal of the FSL report (Ex.PI) dated 12.12.2013 would
go on to show that human semen was detected on Ex.1 which was the
underwear of the victim whereas semen could not be detected on the rest
of the exhibits which were vaginal swabs, pubic hairs and also the
underwear of the appellant. The sample had also been taken from the
glans penis of the appellant. On the basis of the FSL report, Dr.Manju,
Medical Officer, Jind, PW-5 submitted her affidavit (Ex.PK) which has
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already been discussed earlier and stated that as per the FSL report
(Ex.PI), the possibility of rape upon the prosecutrix cannot be ruled out.
In cross-examination, it was put to her that at the time of medico-legal
examination, no finding regarding rape could be given and it was only to
be given after the receipt of the FSL report which she had done and that
the police had never taken any separate opinion regarding the alleged
rape. The semen strains on the underwear of the prosecutrix whether they
were fresh or old could not be ascertained since they had dried and
neither it could be stated as to how old they were. She admitted that she
had referred the prosecutrix for age determination. Similarly, Dr.Parveen
Kumar Boora, Dental Surgeon proved the application (Ex.PM) for
ascertaining the age of the victim that he conducted the medical
examination and gave a report as per his opinion as well as of Ortho
Surgeon, the victim was found to be aged between 16-17 years.
Similarly, PW-15, Dr.Satish Kumar Verma also deposed regarding the
ossification test which had been conducted by the members of the board.
Dr.Pankaj, Medical Officer, Jind, PW-18 proved the factum of medico
legally examining the appellant on 11.09.2013 and stated that smegma
was present and that the appellant did not perform sexual intercourse
within 24 hours and stated that it could not be ascertained that he had
committed sexual intercourse 6 months earlier and no opinion could be
given regarding the said fact.
11. The prosecution examined the victim as PW-1 wherein she
stood by her stand as given earlier in the complaint and the statement
under Section 164 Cr.P.C. and stated to the extent that when she was in
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11th class, the accused was the Class In-charge and he used to teach
Maths in the 10th class. She reiterated her version and the additional
aspect was that when she had told her mother the entire incident after
being sent back by the school and her mother had told the same to the
father and thereafter they had gone to the office of the SDM who had
advised them to approach the police and on the way they met the police at
Safidon Gate, Jind and got their statement recorded. She had further
stated that the police took her to the house of the accused on the same
very day, which would be in total contradiction to which the Investigating
Officer would have to say. Thereafter she stated that she had been taken
to the Civil Hospital, Jind where she was medico-legally examined. After
2-3 days of reporting of the matter, her statement had been recorded by
the JMIC. In the cross-examination, she could not recollect whether she
had got recorded her date of birth in her initial complaint and neither the
fact that she had mentioned the date and time of occurrence and the fact
that the accused was In-charge of the school. She admitted that she did
not mention the time of visiting the house of the accused and she did not
remember on which date she was brought back from the school by her
mother on the asking of the teacher. It was only on the asking of the
Court that she had admitted that she had been brought back from the
school on 07.09.2013. The said statement does not match with her
statement, Ex.PA and Ex.PB since there is no mention of 07.09.2013
before the police and the Magistrate.
12. She admitted that her father was not at home on the said date
and they did not report the matter on the said day. He had come back at
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night and on the next day, they had gone to the SDM, Jind who advised
them to report the matter to the police but the SHO concerned was not
present. She did not remember as to on which date they again started for
the police station when the police party met them at Safidon Gate, Jind.
She did not remember whether when her statement was got recorded
(Ex.PA) and whether she had mentioned that they had gone to the SDM,
Jind. She did not remember the date of her medico-legal examination
conducted in the Civil Hospital. However, it was stated that it was
conducted on the same day of reporting the matter to the police and it was
done at the night which is in contradiction to the statement of Dr.Manju,
PW-5 who stated to have examined her early morning on the next day
which would be clear from the MLR (Ex.PL).
13. She stated that she was taken to the house of someone at
Safidon Gate where her statement was recorded but she could not tell the
name of the owner and the location of the house and the statements of her
parents was also recorded which had taken about 1 ½ hours to complete
the proceedings in that house. She did not notice as to how many persons
gathered on seeing the police there and could not tell the name of the
colony where the house was situated. She deposed that her class teacher
was Hemlata and at that time she was studying in 10+1 and having
various subjects including mathematics and the Maths Teacher was one
Sunita Khatkar whereas the Accounts Teacher was Seema and that the
appellant used to teach Maths to the 10th class. She admitted that he was
not her class teacher. Regarding the incident of March, 2013, she stated
that she used to go to school at 8 AM for examination which was over by
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11 AM and she used to go by auto-rickshaw. She did not remember the
date when the Maths examination was held and neither the distance
between her school and the house. Her father was stated to have married
twice and she had a step sister namely Nisha and she could not tell the
exact age of her parents. There was no entry got done in the Registrar's
Office or Municipality records regarding her birth and that she was born
at home at Jind. She could not tell the age of any of the brother and
sisters and stated that there were 4 brother and sisters alive and the name
of her younger brother was Rajesh. She could not confirm whether she
was got admitted in S.D. Secondary School by her mother and whether
her mother had given birth proof at the time of getting admission and she
denied the suggestion that she was more than 19 years of age.
14. It has also come forth that her uncle, Ramesh Bansal was
teaching Maths for the students of 8th to 10th class in the same school for
the last more than 10 years and was living jointly in the same house and
went to school in his own car. She rarely accompanied her uncle to the
school in the car and admitted that one Ram Niwas Bhardwaj was a friend
of her uncle and on visiting terms with them. It was put to her whether
the said teacher was there at the time of reporting the matter which she
denied. She feigned ignorance regarding the date of retirement of the
Principal Shri Rakesh Kumar in the month of July, 2014. She also denied
the fact that her uncle and his friends were inimical towards the appellant
and did not want him to be the Principal of the school and that they had
hatched a conspiracy and got him booked in the said case. She could not
confirm whether the said teacher had been suspended from the school and
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she stated that she had passed her 10+1 examination from the said school
but did not remember the marks obtained by her in the examination but
she had passed all the subjects though it has come on record as Ex.D2
that she had got 67 marks in the subject of Maths as proved by DW-4,
Sushil Kumar, Head Clerk. She further admitted that she had attended
the school regularly from March, 2013 till the reporting of the matter in
September, 2013 but she had never disclosed this fact to the teacher,
class-mate and Principal and the co-students or her parents and uncle.
15. Strangely she denied her absence from the school on
01.09.2013 for 4-5 hours or that she was beaten by her parents, which is
in sharp contradiction to what DW-2, Seema Singhal, the Commerce
teacher has to say. She could not tell the number of the auto-rickshaw on
which she went to the house of the accused. She admitted that it was in
the main street and surrounded by many other houses. She did not raise
any hue and cry as the accused had tied cloth in her mouth which
admittedly has not been stated in Ex.PA. It was put to her to which she
admitted that she visited the house of the accused 2-3 times but could not
recollect the date and time of the visits. She stated that every-time she
came back in auto-rickshaw and she did not disclose about the incident
even to the auto driver. She admitted that the Principal had asked her
mother to take the School Leaving Certificate as her mother was wishing
to take her back home.
16. A perusal of the statement of PW-2, the mother of the victim
would go on to show that on 07.09.2013, she got a telephonic message
from Seema that she would not teach tuition to her daughter and that her
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daughter would tell her everything about it. Similarly another message
had been received from the teacher, Hemlata that her daughter was not
feeling well and she should come to the school and take her back. She
had come to the school and was informed by Hemlata that her daughter
was not of good character and she had gone to the Principal of the school
and he had also advised her to take her daughter back which she had
done. Her daughter told her that the accused was threatening her and
inviting her to his house for illegal acts and he wanted to have physical
relationship with her and then she was informed about what had
happened in March, 2013. She admitted that she had informed the same
to her husband and they had consulted all other family members and they
had gone to the office of the SDM, Jind on 10.09.2013 at about 7.30
A.M. who had enquired into the matter. Thereafter they had come back
and received a call from the school that they should reach the Court
complex where their statements were recorded. They had met the police
in the evening of 10.09.2013 at Safidon Gate and got recorded their
statements in the house of someone and thereafter, they had accompanied
the police to Civil Hospital, Jind where medico-legal examination of their
daughter was conducted.
17. In cross-examination, it was put to her that the date
07.09.2013 had not come forth in Ex.DA which is her statement recorded
on 10.09.2013. It was also put to her that in the said statement she had not
mentioned that Hemlata had told her mother that her daughter was not of
good character and that in the statement it had not been recorded that the
Principal had told her to take her home and take her certificate.
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Similarly, it was also put to her in her said statement that there was no
mention regarding visit to the office of the SDM and the enquiry and
neither she could name the teacher who had asked her to reach the Court
complex. She stated that the SDM, Jind had enquired into the matter and
recorded statements of Hemlata, Seema and one master and also of the
factum that her statement was not recorded. From there they had gone to
her parental house and then received a telephonic call from the police and
reached the Safidon Road, Jind at 9.30 P.M. She did not know the owner
of the house where the statements were recorded of herself and her
husband. She stated that her daughter was admitted in the school by her
uncle, Ramesh Bansal and she did not remember whether the date of birth
was recorded in the Municipal records or in the office of the Registrar
(Births & Deaths). According to her, the admission was done by the
victim's uncle and she did not know as to what documents had been
produced. She stated that she had 3 daughters and one son and the eldest
one Preeti who had got married 7 years back and after that, Nisha was
also married 5 years earlier who was 23 years old. After Nisha was one
son who had expired and thereafter the victim had been born. She denied
the suggestion that the victim was 19 years of age and admitted that prior
to the lodging of the FIR, she had never been told about the incident by
her daughter who had neither disclosed the same to her uncle and neither
she had disclosed regarding the factum of incident to her teachers,
Principal and anyone in the family. She stated that the Class In-charge of
her daughter was Hemlata and her daughter used to go to the school in
the car of her Jeth, which is again in contradiction to what the victim had
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stated. She admitted that Ram Niwas Bhardwaj was a teacher in the same
school and a close friend of her Jeth and had brotherly relationship with
him. She denied the fact that he was suspended and admitted that Rakesh
Kumar was the Principal and the accused was the Vice-Principal of the
school and that the Principal was going to retire in the month of July,
2014 but she did not know whether the accused was to become the
Principal. She did not know whether there was any enmity between the
accused and her Jeth and Ram Niwas Bhardwaj. She stated that she never
visited the house of the accused and did not know the location of the
house.
18. The date of birth of the victim was proved by the attested
photocopy of the secondary examination certificate dated 31.05.2012
(Ex.PF) apart from the admission and withdrawal register which showed
the same as 15.03.1998. Apart from the certificate issued by Rakesh
Kumar, Principal (PW-4) on 24.09.2013 (Ex.PH) certifying the date of
birth. He admitted that he did not know who had got the victim admitted
in the school and admitted that the uncle of the victim was a Maths JBT
Teacher and Ram Niwas Bhardwaj was also teacher in the primary wing
and that he was to retire on 31.07.2014. Avnish Kumar, the appellant
was junior to him and that his promotion was due after his retirement. He
also admitted that Ram Niwas Bhardwaj was suspended once from the
school and that Hemlata was the Class In-charge in 10+2 of the victim as
was Sunita the Maths Teacher in 10+1.
19. Thus, it would be apparent that the appellant was not the
Maths Teacher of the victim even in the 11th Class when the incident is
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stated to have taken place. From the statement of the Principal also, it
would be clear that none of the family members including the uncle who
was working in the same school as a JBT Teacher had ever approached
him regarding any misconduct on behalf of the appellant at that point of
time. The Principal also admitted that proceedings were conducted by the
SDM and stated that no direct statement of his was recorded before the
SDM but the statements of Seema and Hemlata were recorded on
09.09.2013 at 10 A.M. including the father of the victim.
20. The perusal of the statement of English Lecturer, Hemlata
Sharma, PW-7 who was the In-charge of 10+2 section and teaching
English and was the Class Teacher of the victim would go on to show
that another girl Sonu had told her that the victim had taken Rs.800/-
from the appellant and he was demanding those from her. He had told
Sonu that the victim was not having good character and that she was
having many boyfriends and was addicted to intoxicant tablets. Sonu
further stated to have told her that the accused was saying that there was
something in the stomach of the victim and on hearing this, she had
called Seema and Sonu had repeated her version before the teacher.
Thereafter, the victim was stated to have come to her weeping and telling
that she was unwell and wanted to go home and thus, she had rang up her
mother to take her home since there was practice in the school that in
case of any child being unwell, the parents are informed and the child
was allowed to go home with the parents. The said facts all pertain to the
incident of 07.09.2013 and that it was brought to the notice of the
Principal who was sitting in another wing and the victim had been taken
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back home.
21. The cross-examination also go on to show that she was Class
In-charge of the victim for both 10+1 and 10+2 but did not remember
who had taught her Maths in 10+1 whereas in 10+2 Sunita Khatkar was
the Maths Teacher. Thereafter, she stated that the appellant never taught
her Maths both in 10+1 and 10+2. She admitted that before 07.09.2013,
there was never any complaint about the act and conduct by any teacher
and the victim was regularly attending the school. It was her version that
the statement was recorded before the SDM on 09.09.2013 at 10-11 AM
and she could not say that the statement of any other person was
recorded. She stated that she did not inform the police on 07.09.2013 and
could not say whether the Principal informed the police or not. She could
not admit or deny that Ram Niwas Bhardwaj was teacher in the school
but was unaware of the relationship. She did not recollect whether the
victim attended school on 01-02.09.2013 and denied the fact that there
was groupism in the school.
22. A perusal of the statement of Harjit Singh, Sub-Inspector,
PW-14 would go on to show that on the statement of the victim (Ex.PA),
the formal FIR (Ex.PC) had been recorded and the medical of the victim
was done on 11.09.2013 by moving an application (Ex.PJ). The accused
had been arrested on the basis of the information received from an
informer and as per the disclosure statement (Ex.PT), demarcation
(Ex.PU) had been done on the same day and the accused was produced in
the Court on the next day i.e. 12.09.2013 and sent to judicial custody. The
statement of the victim was recorded on 13.09.2013 under Section 164
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Cr.P.C. by moving the requisite application (Ex.PY) and the certified
copy had been obtained and thereafter the site-plan (Ex.PS) had been
prepared on 13.09.2013. The application (Ex.PM) had been moved for
getting her age confirmed and the opinion of the doctor had been given
vide Ex.PO. In cross-examination, he admitted that the statement of the
victim had been recorded at a house between Safidon Gate but he did not
know the name of the owner and the house nor the neighbour's name. He
stated that he had never visited the office of the SDM, Jind in connection
with the case and never collected copy of statement of any of the
witnesses from the office of the SDM, Jind nor it was given to him by
anyone. He stated that he could not tell the time of going to the General
Hospital, Jind for medico-legal examination of the prosecutrix but stated
that he reached prior to 12.00 midnight and remained in the hospital till
2.30/3.00 A.M. and thereafter, had gone to the place of occurrence
straightway and prepared the rough site-plan at 3.30/4.00 A.M. which
apparently is not correct. He admitted that he did not obtain the
signatures of any persons on the site-plan (Ex.PW) and denied the
suggestion that it had been prepared by him while sitting at the police
station. He admitted that he did not know the name of the owner of the
adjoining houses of both the sides and he did not join the owner of the
house in the investigation of the case. He admitted that he had not
verified who is the Maths Teacher of the victim and who was the Class
In-charge in both 11th and 12th and who was the examination In-charge.
He also admitted that he did not verify when she took her examination in
the Maths and on which date and year and whether she had failed in the
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said examination or not. He stated that he has not verified the attendance
register whether she was present on 01-02.09.2013 and during the whole
investigation, no one had told him the date of occurrence. He admitted
that he had not obtained the birth certificate of the victim from the office
of Registrar (Births & Deaths) and neither verified the siblings of the
victim and their age. He admitted that the uncle of the victim was
working as teacher in the said school and he had not verified that the
accused was the Maths Teacher and he used to teach students upto 10th
standard.
23. In the defence, the appellant in his statement recorded on
07.07.2014 under Section 313 Cr.P.C., stated that he has been falsely
implicated as the uncle of the victim was inimical towards him and he
had hatched a controversy with Ram Niwas Bhardwaj to debar him of his
due promotion as Principal of the school after the retirement of Bharat
Bhushan.
24. The Principal was also examined again as DW-1 who stated
that the appellant was senior-most teacher of the school and was due for
promotion after his retirement and had joined on 22.09.1984. Ramesh
Bansal was also working in the school as JBT Teacher and was teaching
in the higher classes and Ram Niwas Bhardwaj was also in the said
school who was suspended once. The 11th class examination was held
from 06.03.2013 to 19.03.2013 and the examination of Maths paper had
taken place on 08.03.2013. It was stated that Seema was In-charge of
10+1 and Sunita Khatkar used to teach Maths to 10+1 class during the
year 2012-13. The appellant was not the teacher of Mathematics of the
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said class and Reena Madam was the In-charge of 10+1 examination
during the said year. He also deposed in cross-examination that the
appellant was teacher upto 10th standard and the victim was student since
9th standard and he might have taken the 10th class but he could not tell
whether he had given her tuitions in the house.
25. Seema Singhal, Lecturer in Commerce, DW-2 proved the
factum of attendance of the victim till March, 2013 and stated that she
was absent on 01-02.09.2013 and she had taught English in 10+1 during
the year 2013. She did not know in which class the victim had taken the
admission in the school and admitted that she used to teach tuition to the
victim in the year 2013. She deposed that she received phone call from
the mother of the prosecutrix one or two days after Teacher's Day i.e.
05.09.2013. In cross-examination, she denied the knowledge whether the
victim was taking tuition from the accused and stated that due to her
personal problems she had refused to teach her.
26. Jai Parkash, DW-3 neighbour of the appellant residing in the
Housing Board Colony stated that the wife of the appellant was also
residing in the said house and his children also used to take tuition from
the appellant including 2 daughters and vouched for his character. The
detail marks of passing the 10+1 examination by the victim (Ex.D-2)
were also brought on record by Sushil Kumar, DW-4 and the date-sheet
(Ex.D1) who stated that no birth certificate from the MC, Jind was
produced. In cross-examination he deposed that the appellant was In-
charge upto 10th class.
27. Sukhbir Singh, JBT Teacher, Jat Primary School, Jind, DW-5
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proved that the victim was admitted on 15.07.2002 in the 1st class and her
date of birth was mentioned as 12.03.1998 and in figures it is mentioned
as 15.03.1998 and she had been admitted by her sister, Nisha. As per
admission No.8481 no birth certificate had been issued by the Registrar
of Birth and Death or the Municipal authorities regarding the date of birth
and neither any record from the chowkidar had been produced regarding
the factum of age.
28. Keeping in view the above circumstances, the first thing
which comes to mind of this Court is that there is an unexplained delay of
6 months regarding the incident which is stated to have happened on
13.03.2013 till the lodging of the FIR on 10.09.2013. No plausible
explanation has been given regarding this aspect. It is highly improbable
that the minor girl who has been sexually abused by her teacher on more
than one occasion would not disclose this factum either to her parents or
her teacher or any of her class fellows. It has already been noticed that it
has come in her cross-examination that it was not a case of solitary abuse
on a particular day when she had been called and rather it was her case
that it happened on 2-3 occasions when she was called to the house where
she had voluntarily gone and returned on an auto. The factum of being
disturbed by such incident apparently never showed up at any point of
time which is highly strange. The trigger point was only in September,
2013 in the next class where there seems to be some issue raised
regarding her conduct or absence in which the appellant was also
embroiled being the Vice-Principal and being present as per the statement
under Section 164 Cr.P.C.
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29. In Ramdas & others Vs. State of Maharashtra, 2007 (2)
SCC 170, while allowing the appeals, it was noticed that there was 8 days
delay and the evidence of the victim was not of such quality to sustain the
order of conviction and the delay had to be considered in the background
of the facts and circumstances of each case and it was a matter of
appreciation of evidence by the Court of fact. Apart from that the Apex
Court also dilated on the issue of victim being witness of sterling quality
on whose sole testimony conviction could be sustained and therefore,
granted the benefit of doubt.
30. Similar view was also taken in Vijayan Vs. State of Kerala,
(2008) 14 SCC 763, wherein there was a delay of 7 months and there was
no explanation given for the delay and it was held that the accused would
be totally defenceless and it would be hazardous to convict on the sole
oral testimony.
31. In State of Punjab Vs. Gurmit Singh, 1996 (1) RCR Crl.
533, the issue of delay was examined by the Apex Court while dealing
with the acquittal by the Trial Court for offence under Section 376, 506
IPC wherein it was also noticed that delay in lodging of the FIR in sexual
offences can be due to variety of reasons and also reluctance of the victim
or family members to go to the police as the honour of the family is at
stake.
32. As noticed, in the present case, we are coming across a
situation where the delay is not after the incident as narrated to the police
for which there can be a plausible explanation since there was a delay of
around 5 days from the incident on 07.09.2013 and as to what happened
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in the school and the victim narrated the fact to her mother. This delay
would thus be covered as per the judgments of the Apex Court mentioned
above but there is no explanation as to the delay which occurred on an
earlier occasion between March to September, 2013 where the minor had
not disclosed the said fact to her mother. Neither her mother at any stage
noticed that the minor was facing any trauma or had withdrawn on
account of the fact that she had been forced to undergo sexual assault by
none other than her teacher on repeated occasions. In such cases, delay
would be of paramount consideration and importance.
33. Reliance can be placed upon the judgment of the Apex Court
in Satpal Singh Vs. State of Haryana, (2010) 8 SCC 714, wherein it
was held that the delayed report gets bereft of the advantage of
spontaneity. The danger of the introduction of a coloured version or an
exaggerated account of the incident or a concocted story as a result of
deliberations and consultations which would cast a serious doubt on its
veracity would come into play. It was thus held that FIR should be
lodged promptly and if there is a delay the prosecution has to
satisfactorily explain the same.
34. In the present case, as noticed, the delay is of 6 months and
no plausible reason has been given as to why the victim did not disclose
these facts to her parents, her teachers and her uncle who was teaching in
the same school or her friends regarding the ignominies she had
undergone.
35. In Narender Kumar Vs. State (NCT of Delhi), 2012 (6)
SCR 148, the benefit of doubt was granted while setting aside the
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judgments of the Courts below by noting that if the evidence of the victim
is considered in the totality of the circumstances, it do not inspire
confidence and the true genesis of the crime had not been disclosed by
the prosecution. In the said case, there was variation of the fact as to
whether the victim knew the accused and there was a contradiction to that
and the defence that she wanted him to reside with him in her house
which he was not agreeing to and have to have an intimacy which was
already going on.
36. In the present case, as noticed, the factum of the family
having taken the matter to the SDM, Jind and on a issue arising out of
some incident which had happened in the school in which the appellant
could be responsible for the discipline in the school as the Vice-Principal
and the factum of the victim being reprimanded on her behaviour and on
account of the uncle teaching in the school. The jealousy factor of the
impending promotions could have been the cause for falsely implicating
the appellant apart from the lack of medical evidence which we have been
confronted with for which benefit of doubt would necessarily go to him.
37. A Three Judge Bench of the Apex Court in Parkash Chand
Vs. State of Himachal Pradesh, (2019) 5 SCC 628, acquitted the
appellant when there was 7 months of delay in lodging of the FIR while
noting that it would be unsafe to convict the appellant on the sole
testimony of the victim as there were various circumstances on the basis
of which the benefit of doubt had to be granted to him.
38. The delay as such has also led to a lack of any medical
evidence in the form of proof of semenal strains from the swabs taken
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from the body of the victim. Though PW-5, Dr.Manju has only opined
regarding the aspect that the possibility of rape upon the prosecutrix
could not be ruled out on seeing the FSL report. The medical examination
report also goes on to show that though the hymen is ruptured but there is
no connection with the accused and it could not be said as to whether it
had happened on account of sexual interaction with the appellant due to
the time-lag which has occurred of 6 months. It is highly strange that the
minor girl's underwear would contain semen strains after the expiry of
said period which were also not connected by the prosecution through the
forensic lab as it admittedly had dried. The report of the FSL would also
go on to show that though there was human semen exhibited but it could
not be detected on the rest of the exhibits and neither there was any
comparison made that the same could be correlated from the smegma
samples taken from the appellant. In such circumstances, there is nothing
on record in the form of medical evidence that the appellant could be
connected with sexual assault upon the victim.
39. It is to be noticed that the victim has not specified either the
date and time of the occurrence in the month of March and the allurement
is only of showing of the examination paper of which it has come on
record that he was not her teacher in the 11th class and therefore, the
allurement also seems to be without any basis. It has also come in her
statement that she had gone not once but 2-3 times to the house of the
appellant and always came back in an auto. It is highly strange as it has
already come in evidence that the wife was also living in the house and
whether rape could have been committed upon the minor child in the
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presence of the wife. It has come on record in the form of statements of
the victim and her mother and other school teachers including the
Principal that some proceedings had taken place before the SDM on
07.09.2013. The same has not been brought before the Court to show as
to in what circumstances some incident had happened. Admittedly, the
first incident happened on 07.09.2013 and the FIR had been lodged only
on the 10.09.2013 late in the evening. Apparently, there was a trigger
point as to some incident which had happened in the school regarding the
conduct of the victim due to which her mother had been summoned and
due to which the Principal had told her to take the School Leaving
Certificate. Apparently, on account of the uncle working with the school
at that point of time, extreme steps of expulsion had not taken place
which eventually led to the lodging of the FIR 3 days later.
40. Another aspect on which no light has been thrown is that
admittedly the first statement of the victim was recorded at 10 PM at
Safidon Gate, Jind and the same was in the presence of a lady counsel,
Ms.Pooja Verma who had been called telephonically at that point of time.
As per the statement of both the victim and her mother, they had started
for the police station and the police party had met them at the said place.
The recording had been done at somebody's house as would come from
the cross-examination and even the statements of the parents were also
recorded. It is highly strange as the complainant was proceeding to the
police station since as per their own case admittedly the SHO was not
present on an earlier occasion. Even the mother in her cross-
examination-in-chief stated that she met the police party at Safidon Gate
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and her statement was recorded in the house of someone and then
accompanied the police to Civil Hospital, Jind. The Investigating
Officer, Harjit Singh, PW-14 also deposed to the same extent that the
victim along with her mother had met them there in the presence of the
lady counsel, Ms.Pooja Verma. In cross-examination, it has come that
the police party had left the Police Station at 8.15 AM and reached the
Safidon Gage at 8.30 AM and recorded the statement in somebody's
house whom the Investigating Officer did not know. No explanation has
been given as to how the lady advocate also reached the said place which
only go on to show that the FIR had been registered after due
deliberations.
41. These aspects have not been examined in proper perspective
by the Trial Court which in our considered opinion has led to casting a
doubt upon the whole case in the manner in which the appellant has been
implicated. The deliberations which have taken place and the factum that
the appellant was the Vice-Principal and was part of the disciplinary
proceedings on account of which he has been roped in as it was stated by
the victim that he was present on 07.09.2013, in her statement under
Section 164 Cr.P.C. It is thus apparent that lot of deliberations took place
before the lodging of the FIR after the incident of 07.09.2013 and the
father had also been taken into confidence later. However, the FIR
apparently was not lodged for almost 3 days and it was only on
10.09.2013 in the evening at 10 P.M., the FIR was lodged which gave
sufficient time to implicate the appellant. It is also highly strange that the
uncle was teaching in the school and on one hand, the statement of the
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mother is to the extent that the victim used to go to school with her Jeth
in the car whereas the statement of the victim is that she used to go on her
own and not with her uncle. The factum of uncle teaching Mathematics
at lower level and having a friend who was under suspension are all
grounds to show that school politics could be the basis to falsely
implicate the appellant who was in his way to succeed the outgoing
Principal.
42. The argument raised by Mr.Punia that even the age of the
victim has not been proved to be below 18 years is also one to be taken
into consideration as admittedly, it would be apparent that 15.03.1998
was taken as to be the correct date to come to a finding that the victim
was a minor. The statement of DW-5 would go on to show that the
victim was earlier studying in another school namely the Jat Primary
School, Jind. It is on that basis her date of birth has been mentioned as
15.03.1998 which got incorporated while she joined the subsequent
school. There is nothing to show that there was any certificate issued by
the Registrar (Births & Deaths) or the Municipal office regarding the date
of birth. The statement of the mother is also to the extent that the
admission was done by the uncle who was admittedly teaching in the
school and therefore, it is only on the basis of the earlier entry made.
Apparently, the date of birth has been accepted as 15.03.1998. In such
circumstances, the finding which has been recorded on the said basis that
the victim was below 18 years of age is also a mere presumption in the
absence of unimpeachable evidence in the form of certificate from the
Registrar (Births & Deaths).
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43. Another aspect which also has to be noticed is that it has
come on record that there were other siblings also who were far older
than the victim. Rather in the first school, i.e., Jat Primary School, she
had been admitted in the 1st class by her sister, Nisha in the year 2002, as
has come on record by Sukhbir Singh, DW-5. The mother had admitted
that Nisha was 23 years of age and had married 5 years earlier and in the
intervening period, there was one son was born who had expired and
thereafter, the victim had been born. Therefore, the finding that the age of
the victim was proved to be 15.03.1998 and that she was less than 16
years and thus, by applying the provisions of Section 29 of POCSO Act
also, the Trial Court was not justified while placing reliance upon the
Secondary Examination Certificate as there was no official record of the
State which has been produced regarding the age of the victim. As
noticed, even the board of Doctors have opined that her age could be
between 16-18 years and the principles which have to be kept in mind is
that there can be a great variation on the said basis and the finding which
has been recorded by the Trial Court that she was below 16 years of age
has not been proved to the hilt by the prosecution on the basis of which
presumption under Section 29 of the POCSO Act could be raised against
the appellant.
44. It has also come on record that the father of the victim was
married earlier and was having a child from the first marriage namely
Nisha. As per the statement of the prosecutrix she had 4 brother and
sisters alive including the daughter from the earlier marriage whereas the
mother had stated that she had 3 daughters and one son and the son next
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to Nisha had expired. Thus, there is contradiction between the number of
siblings and also the argument that there was a threat perception to the
brother that he would be got killed by the appellant as admittedly nothing
has been brought on record to show that whether he was alive at that
point of time the incident happened.
45. These are sufficient instances in the gaps of the statements
and the contradictions which have come forth from the statement of the
victim herself. It is settled principle that though the victim's statement
could be the sole basis of conviction but if there is some doubt then
corroboration is required and if the statement is not of sterling quality
which in the present case does not inspire that much of confidence as it
should have. The factum of delay in the FIR is another factor which has
led to the absence of medical evidence to connect the appellant with the
crime beyond a shadow of doubt. The delay in lodging of the FIR has
wiped out all the evidence. These infirmities are of such nature which
persuade us to take a view that the benefit of doubt must go to the
accused. In such circumstances, merely because the medical of the
prosecutrix goes on to show that her hymen was absent would not
conclusively lead to the presumption that she had undergone sexual
intercourse and that also with the appellant. Another aspect which also
troubles this Court is presence of semen on the underwear of the
prosecutrix after 6 months, which shows the over-anxiety of the
prosecution somewhere but the strings were not connected with the FSL
which also does not to show that the semen strains were that of the
appellant.
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46. In similar circumstances, in Santosh Prasad @ Santosh
Kumar Vs. State of Bihar, AIR 2020 SC 985, there was dispute going
on between the parties who were closely related, allegations of rape were
levelled against the brother-in-law. The Apex Court interfered with the
concurrent orders of conviction passed by the Courts below by noting
that except the deposition of the prosecutrix which had to be corroborated
by the medical evidence, the manner in which the occurrence had taken
place was held not to be believable. Resultantly, the solitary version of
the prosecutrix was held not to be taken as gospel truth in the absence of
any substantive evidence and the conviction which has been recorded
solely on account of the evidence of the victim was set aside.
47. In Md.Ali @ Guddu Vs. State of U.P., (2015) 7 SCC 272,
while allowing the appeals, the issue of delay was considered while
noticing that the victim was missing from the house for almost 11 days.
Resultantly, it was held that where there is a mark of doubt and the
testimony of the victim is not natural, truthful and does not inspire
confidence and not of such quality which could be relied upon and there
is also delay in lodging of the FIR, then there is requirement to search for
direct and circumstantial evidence which would lead assurance to the
testimony. The said principles would also be applicable to the facts and
circumstances of the present case.
48. Reliance can also be placed upon the judgment in Rajesh
Patel Vs. State of Jharkhand, (2013) 3 SCC 791 and Rai Sandeep @
Deepu Vs. State of NCT of Delhi, (2012) 8 SCC 21 wherein it has been
held that if the said principles are to be kept in mind, the solitary version
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of the victim cannot be taken as gospel truth for its face value in the
absence of any supporting evidence.
49. In the present case also, we are of the considered opinion
that the conviction is based solely on the statement of the victim. It is
strange to notice that even the father was given up by the prosecution on
21.01.2014 and he could have thrown some light as to what had
transpired before the SDM, Jind. It is also to be noticed that the entire
motive was the allurement to show the maths paper to the victim and
nothing has come on record to show that she was poor in her studies or in
that subject which would warrant her to be tempted by this allurement.
Rather it has come on record that she obtained good marks in her 10+1
class examination which would be clear from the details of the marks
(Ex.D-2). A perusal of the marks obtained in her secondary examination
would also go on to show that she was a bright student and got 406 out of
500 with the grade point of 7.40 and her marks in the mathematics subject
was not wanting in any manner which might have been the cause for
allurement for a weak student. The factum that the teacher would call her
home when other family members were present is also highly unlikely
and all these aspects do not inspire confidence in the manner in which the
allegations have been held to be proved by the Trial Court. Thus, we are
of the considered opinion that there was something more than what has
been put-forth which was not investigated and looked into by the
investigating agency and neither brought on record by the victim and her
relatives, for which the benefit has to go to the appellant. The fact that it
could not be brought on record that the appellant was teaching her at the
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relevant point of time which could have lead taking into confidence the
victim to have gone to the house of the appellant, which is without even
disclosing these facts to her parents or other friends and that also sitting
in an auto on her own. These are various discrepancies which do not
inspire any confidence in her statement. In view of the above glaring
discrepancies, the sole deposition of the prosecution would not be of
sterling quality that could be safely relied upon. Since the conviction is
based solely on her statement and the medical evidence at that point of
time being not available to corroborate the same, we cannot confirm the
judgment of learned Trial Court in such circumstances.
50. In such circumstances, we are of the considered opinion in
the cumulative circumstances that the appellant who has already
undergone 8 years, 4 months and 25 days of sentence as per the custody
certificate is entitled for the benefit of doubt as the prosecution has not
been able to prove its case beyond the shadow of doubt. Resultantly, the
present appeal is accepted and the appellant is acquitted of the charges
forthwith. Since it is pointed out that there is no other case pending
against him and he is ordered to be released from custody.
Accordingly, the present appeal is allowed.
(G.S. SANDHAWALIA)
JUDGE
August 9, 2022 (VIKAS SURI)
sailesh JUDGE
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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