Uttarakhand High Court
Bharat Thapa vs State Of Uttarakhand on 28 November, 2023
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.837 of 2023
Bharat Thapa ....Appellant
Versus
State of Uttarakhand .... Respondent
Present:
Mr. Abhishek Verma, counsel for the appellant.
Mr. Deepak Bisht, DAG along with Ms. Mamta Joshi, Brief Holder for the State.
Dated: 28.11.2023
Hon'ble Vivek Bharti Sharma, J. (Oral)
The criminal appeal is directed against the
judgment and order dated 06.11.2023 passed by the
Special Sessions Judge (POCSO)/Additional District
Judge, Dehradun in Special Sessions Trial No.102 of
2021, "State vs. Bharat Thapa", whereby the
appellant/convicted has been convicted under Section
363 of IPC and has been sentenced to undergo three
years rigorous imprisonment with fine of Rs. 10,000/-.
2. Counsel for the appellant would submit that
the prosecutrix was examined as PW1 in the trial court
and she has specifically stated in her testimony in the
examination in chief she had left her home with her own
volition due to fear of her parents and the
appellant/convict had not done any wrong with her.
3. The appeal is admitted for hearing.
4. Counsel for the appellant/convict would
submit that certified copies of the statements of all the
witnesses examined in the trial court have been filed
along with the appeal and the appeal may be heard on
merit today itself.
5. Counsel for the State would submit that he
has no objection if the appeal is heard finally today itself.
6. Heard learned counsel for the
appellant/convict as well as the State Counsel on merit.
7. Counsel for the appellant/convict reiterated
his arguments made for the admission with further
submission that there is no evidence against the
appellant/convict and the impugned judgment is based
on surmises and conjectures. He would further submit
that the trial court has not applied its mind and in
stereotype manner has recorded the judgment of
conviction against the appellant/convict without there
being any cogent evidence on record.
8. Per contra, counsel for the State would submit
that, though there is no evidence whatsoever regarding
any suggestion made by the appellant/convict for eloping
with him, but the age of the prosecutrix at the time of the
incident was 16 years. Therefore, it cannot be said that
the impugned judgment is bad in the eyes of law.
9. In light of the respective submissions made by
the counsel for the respective parties, this Court perused
the record, the memo of appeal and statements of
witnesses filed along with the memo of appeal.
10. The evidence of the prosecutrix recorded as
PW1 (Annexure No.2) reveals that she stated in the
examination-in-chief that the appellant/convict was
known to her as he was her neighbour; that, she used to
meet him and they used to like each other; that, on
10.04.2021 because of the fear of the family members
they left for visiting Mussoorie, however, as the rent of
the rooms at Mussoorie was exorbitant, therefore, they
left for Haridwar where there was Kumbh ongoing and
they could get free food and shelter; that, the
appellant/convict purchased clothes for the prosecutrix
and when the money they were having was finished they
came back to their home.
11. As the statement of prosecutrix was not as per
the case of prosecution, therefore, the opportunity was
given to the prosecution to cross examine her. In the
cross-examination by the State, she unequivocally denied
the fact that she had stated anything to the Investigating
Officer or the Magistrate that physical relationship were
made by the appellant/convict and she also denied
the suggestion that it was the appellant/convict who
had seduced her go with him to Mussoorie and thereafter
to Haridwar.
12. In the cross-examination by the defence, she
reiterated the same facts and further testified that on
08.04.2021 her father had beaten her and therefore in
anguish and fear she left her home; that, in Haridwar in
a tented colony there were separate tents for men and
women and no physical relationship was established
between her and the appellant/convict. She further
testified in her cross-examination by defence that the
statement under Section 164 Cr.P.C. was made on the
instructions of the police and she further testified that
she herself had instructed the appellant/convict to take
her Mussoorie.
13. Counsel for the State would admit at Bar that
the Magistrate who had recorded the statement of the
prosecutrix u/s 164 Cr.P.C. was not summoned in the
trial court to prove the statements of the prosecutrix
recorded u/s 164 Cr.P.C. recorded by her. Thus, the
veracity and truthfulness of the statement recorded u/s
164 of Cr.P.C statement of the prosecutrix is not proved.
14. The Counsel for the State would further
submit that in the evidence of PW2 Dr. Rita Bhandari the
hymen of the prosecutrix were found torn.
15. In view of the submissions, the statement of
PW2 Dr. Rita Bhandari was perused and in her cross
examination by defence she has admitted the fact
that the tearing of the hymen could take place
because of the intense physical work or exercise. She
also admitted that there was no injury on the private
parts of the prosecutrix when she was examined by
her.
16. The age of the prosecutrix is not under any
doubt and was not disputed by any of the party
before the Trial Court.
17. PW3, the father of the prosecutrix in
examination in chief, has stated that he had lodged
report against the appellant/convict as he was
mislead by the people to lodge the report against him.
18. PW5, the mother of the prosecutrix in
examination-in-chief itself, has stated that she did
not state anything that the appellant/convict had
seduced her daughter and committed any sexual
assault upon her.
19. Having re-appreciated the entire evidence
available on file, in the considered view of this Court,
the prosecution has miserably failed to prove the case
against the appellant/convict. The impugned
judgment is against the facts and evidence on record
and the same is not sustainable in the eyes of law. It
is evidently clear that the Trial Court Judge has not
applied his judicial mind. The impugned judgment of
conviction is without any judicious appreciation of
evidence. Rather the evidence is that there was no
seduction or enticement by appellant/convict.
20. Hon'ble Supreme Court in "S. Varadarajan
Vs. State of Madras" 1965 AIR 942; 1965 SCR (1) 243"
has observed that it should be borne in mind that
there is distinction between "taking" and allowing a
minor to accompany a person; that, these two
expressions are not synonymous.
21. In considered view of this Court, it is
apparent from testimony of the prosecutrix that no
seduction or enticement was made by the
appellant/convict to her for leaving the house.
22. Accordingly, criminal appeal is allowed.
Impugned judgment and order dated 06.11.2023
passed by the Special Sessions Judge
(POCSO)/Additional District Judge, Dehradun in
Special Sessions Trial No.102 of 2021, "State vs.
Bharat Thapa", is hereby set aside.
23. The appellant is in jail. Let the appellant be
released forthwith if not wanted in any other case.
(Vivek Bharti Sharma, J.)
28.11.2023
BS
