Kalicharan @ Haricharan vs State Of Uttarakhand
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      IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                Criminal Appeal No.246 of 2020


Kalicharan @ Haricharan                          ...........Appellant

                                 Versus


State of Uttarakhand                             .........Respondent

Mr. Deepak Sharma, Advocate for the appellant.
Mrs. Shivangi Gangwar, Brief Holder for the State.


Hon'ble Lok Pal Singh, J.

The present Criminal Appeal is directed against the judgment and order dated 15/17.02.2020 passed by F.T.C./Additional Sessions Judge/Special Judge, POCSO, District Haridwar, whereby, the Court has convicted the appellant under Sections 363, 366A, 328, 376 IPC & 3(a) & 4 of POCSO and sentenced him 3 years rigorous imprisonment with a fine of Rs.10,000/- under Section 363 IPC and in default of payment of fine, he shall undergo a simple imprisonment for one month, 10 years rigorous imprisonment and with a fine of Rs.10,000/- under Section 366A IPC and in default of payment of fine, he shall undergo a simple imprisonment for one month, 3 years rigorous imprisonment with a fine of Rs.5,000/- for the offence punishable under Section 328 IPC and in default of payment of fine, he shall undergo a simple imprisonment for 15 days, 10 years rigorous imprisonment with a fine of Rs.10,000/- for the offence punishable under Section 376 IPC and in default of payment of fine, he shall undergo a simple imprisonment for one month and 10 years rigorous

imprisonment with a fine of Rs.10,000/- for the offence punishable under Section 3(a) & 4 of POCSO Act and in default of payment of fine, he shall undergo a simple imprisonment for one month. All the sentences are directed to be run concurrently.

2. The prosecution story, in brief, is that the complainant made a complaint before the Station House Officer, P.S. Sidcul, District Haridwar, stating therein that he resides with his family at Denso Chawk, Haridwar and doing labour work with Goel Thekedar about 15 days ago. The accused appellant has enticed his daughter, who is about 15 years of age. On the said complaint, the Case Crime No.209 of 2017, under Sections 363 & 366A IPC was registered at P.S. Sidcul, District Haridwar. The daughter of the complainant was recovered and her statement under Section 164 Cr.P.C. was recorded by the IInd Additional Civil Judge (Sr. Division)/Judicial Magistrate, Haridwar. The investigation was carried out and charge-sheet was submitted against the appellant for the offences punishable under Sections 363, 366A, 328, 376 IPC & Section 3(Ka)/4 POCSO Act.

3. To prove the guilt of the accused appellant, the prosecution got examined as many as eight witnesses. P.W.1, victim, P.W.2, the father of the victim, P.W.3, mother of the victim, P.W.4, Dr. Alpana Khare, P.W.5, S.I. Anees Ahmad, P.W.6, Const.686 Suvardhan, P.W.7, S.I. Himani Rawat and P.W.8, Shivendra Dixit (Teacher of Primary School).

4. The statement of the accused was recorded under Section 313 Cr.P.C. Thereafter, oral and documentary evidence was put to the accused person under section 313 Cr.P.C. in reply to which he stated that he has been falsely implicated in the instant case. He denied the allegations as levelled against him. The learned Trial Court by the impugned judgment and order dated 15/17.02.2020 has convicted the appellant for the offences and sentenced him accordingly.

5. P.W.2 the father of the victim in his statement has stated that he is an illiterate person. He used to live with his family members in a hut at P.S. Sidcul, District Haridwar. The parents of the victim have also stated that the victim got married one year ago.

6. P.W.4 Dr. Alpana Khare, who conducted the medical examination of the victim, proved the medical report (Exbt.A3) has opined that no definite opinion of rape was given. She has further stated that there was no mark of external or internal injury on the private part of the victim.

7. P.W.5 S.I. Anees Ahmed in his statement has stated that he was on duty on 03.09.2017 at Haridwar, Thana Sidcul. On that date, the statement of Const. Subardhan was recorded and the statement of Kalicharan @ Haricharan was recorded in the case diary. On 05.09.2017, the lady Const. 427 had gone to Denso Chawk for searching of the victim. Thereafter, the victim has stated that Haricharan @ Kalicharan, who is mausa (uncle) of her village, called

for through phone then she went to Denso Chawk and drunken tea with him. Thereafter, she felt unconscious and he went to Meerut with her.

8. P.W.6 Const. Subardhan in his statement has stated that he was deployed as a Clerk on 03.09.2017 at Thana Sidcul, District Haridwar. He stated that the original copy of the FIR is not on record but the photocopy of the FIR is on record.

9. P.W.7 S.I. Himani Rawat in her statement has stated that on 06.05.2018, the statement of Haricharan @ Kalicharan was recorded before the Station Incharge.

10. P.W.8 Shivendra Dixit in his statement has stated that on admission form of victim of 2015-16, there is no attestation on affixed photo of victim. The seal of the principal is there on photo, but it has not been signed by the principal. He has also stated that at the time of admission, the T.C. of prior school was taken from the victim and he had not taken the birth certificate of the victim.

11. Having heard learned counsel for the parties and perused the material on record, the victim in his deposition has specifically stated that she is aged about 20 years and got married with person (name not disclosed). She also deposed that neither she was taken by the accused nor he committed wrong with her, but there was dispute between her father and the accused. The accused appellant has been implicated in this case.

12. On perusal of the statements of the record and according to the pathological report, no spermatozoa was found alive on the clothes of the victim. On perusal of the further report, it would reveal that the prosecution utterly failed to prove its case beyond reasonable doubt against the appellant. There is no whisper in the evidence which comes to the conclusion that the prosecutrix was minor on the date of incident and from another angle, the FIR was lodged after a delay of 15 days and no explanation has been given. It has come on record that the victim was not the minor on the date of incident and she has already been married with another person (name withheld).

13. A perusal of the record would further depict that no case of committing rape has been proved by the prosecution beyond reasonable doubt against the revisionist. It has also come on record that there is an enmity between the accused and the father of the victim. The complainant has also admitted the fact in his cross examination that the name of the appellant has been implicated by him due to enmity. The prosecution utterly failed to prove its case against the accused appellant for the offences punishable under Sections 363, 366A, 328, 376 IPC & Section 3(Ka)/4 POCSO Act. The learned Trial Court, without considering the material evidence and contradictions in the prosecution witness, committed illegality in convicting the appellant which is not sustainable in the eyes of law.

14. In the facts and circumstances of the case and as per the close scrutiny of the evidence available

on record, this Court is of the firm view that the prosecution utterly failed to prove its case against the appellant for the offences punishable under Sections 363, 366A, 328, 376 IPC & Section 3(Ka)/4 POCSO Act. The judgment passed by the learned Trial Court is liable to be set aside.

15. Accordingly, the present criminal appeal is allowed. Impugned judgment and order dated 15/17.02.2020 passed by the F.T.C./Additional Sessions Judge/Special Judge, POCSO, District Haridwar, is hereby set aside.

16. The appellant is in jail. Let the appellant be released forthwith, if not wanted in any other case.

17. Let a copy of this judgment be sent to the court concerned for onward compliance.

18. Lower Court Record be also sent back to the court concerned.

(Lok Pal Singh, J.) 14.01.2021 Ravi