Sunil v. State of Uttarakhand

Judgment

1. This Appeal is preferred by the appellant from Jail assailing the judgment and order dated 28.02.2023, passed by learned Special Sessions Judge, Chamoli (Gopeshwar) in Special Sessions Trial No.07 of 2020, State Vs. Sunil, whereby the appellant-Sunil has been convicted for the offence punishable under Section 354A(2) of the Indian Penal Code, 1860 and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012. However, he was sentenced u/s 7/8 of the POCSO Act and sentenced to undergo three years’ rigorous imprisonment with a fine of Rs.3,000/- and, with default stipulation of further one month’s additional simple imprisonment.

2. The brief facts of the prosecution case, as emerging from the record, are that on 22.11.2019, the complainant, who is the father of the victim, submitted a written report before the Revenue Sub-Inspector, Girsa, Tehsil Jilasu, District Chamoli. In the said application, he alleged that at about 6:00 a.m. on the same day, the accused Sunil came to their house and knocked on the door. When his daughter opened the door, the accused caught hold of her hand and began making obscene gestures towards her. It was further stated in the report 1 that the accused had been harboring an “evil eye” towards the victim for some time and that a previous case was already pending against him. The complainant, therefore, requested that necessary legal action be taken.

On the basis of this written complaint, a First Information Report was registered on 22.11.2019 at 3:10 p.m. as Case Crime No. 02/2019 under Section 354A(2) of the Indian Penal Code at the Revenue Sub-Inspector, Girsa. Subsequently, in compliance with the order of the District Magistrate dated 23.11.2019 (Paper No. 8A/4) and the order of the Superintendent of Police dated

25.11.2019 (Paper No. 8A/3), the investigation was transferred from the Revenue Police to the regular police. The Investigating Officer thereafter recorded statements of the relevant witnesses, arrested the accused and upon completion of investigation, submitted a charge sheet against the accused Sunil under Section 354A(2) IPC and Sections 7/8 of the Protection of Children from Sexual Offences Act, 2012. The learned Special Sessions Judge, Chamoli took cognizance of the matter and thereafter charges were formally framed against the accused under Section 354A(2) IPC and Section 7/8 of the POCSO Act, to which the accused pleaded not guilty and claimed to be tried.

3. In support of its case, the prosecution examined 7 witnesses, whose statements formed the backbone of its case. The witnesses were- the informant - father of the victim, as PW-1, mother of the victim as PW-2, brother of the victim as PW-3, victim as PW-4, Ramesh Chandra Khanduri, Principal, R.I.M. College, Langasu, Chamoli as PW-5, Rajesh Kumar Gorkha, First Investigating Officer/Patwari as PW-6 and Sub-Inspector Poonam Khatri, Second Investigating Officer, as PW-7 in oral 2 evidence. Additionally the prosecution produced documentary evidence: written report, victim's statement under Section 164 CrPC, victim's date of birth certificate, student file and transfer certificate, Chik FIR, sketch plan of place of incident in Village Jilasu.

4. Thereafter, the accused-appellant’s statement was recorded under Section 313 of the Code of Criminal Procedure, 1973, in which the accused denied the prosecution's story. The appellant stated that a false report had been filed against him and that the prosecution witnesses had given false testimony and that he was unaware of the documents proven by the prosecution. He submitted that false documents and a false and incorrect charge sheet had been filed against him. He submitted that he and the complainant had a dispute regarding the path behind the house and due to that dispute this false case was filed based.

5. The following is a consolidated account of the testimonies of all the witnesses examined in this case:

6. PW-1, the father of the victim, was examined on

26.11.2020. Supporting the prosecution case, he deposed that in the morning of 22.11.2019, while the family was still in bed, the accused Sunil came to their house and knocked on the door. When his daughter opened the door, Sunil grabbed her hand and made obscene gestures. When the witness attempted to apprehend him, Sunil fled. PW-1 further stated that the accused had previously harassed the victim on her way to school and a report had earlier been lodged against him. He proved the written report as Exhibit A-1 and identified his signature on the sketch map (Ex.A-7).

7. PW-2, the victim’s mother, was examined on

16.01.2021 and she too supported the prosecution case. 3 She stated that when her daughter opened the door on hearing a knock, the accused caught her daughter’s hand and made obscene gestures, causing her to scream. On hearing the commotion, PW-2 and her husband came out, and their dog barked at the accused, who then ran away. She confirmed that the incident was reported to the Patwari Chowki, Jilasu, and that the police had prepared a site map of their house. She substantially corroborated the deposition of PW-1.

8. PW-3, the victim’s brother, was examined on

17.03.2021. He stated that on 22.11.2019, between 6:00 a.m. and 7:00 a.m., he was going to his uncle’s (victim’s father’s) house when he saw the accused running away from that direction. He did not then know the reason for the accused’s running away. Upon reaching the house, he saw a commotion and was informed by PW-1 that the accused had molested the victim. PW-3 also stated that a case had earlier been registered against the accused and that he had been interrogated by the police.

9. PW-4, the victim, was examined on 02.04.2021. She stated that she was a Class 12 student at Government Inter College, Langasu, in 2019 and that her date of birth is 25.07.2002 as per school records. On

21.11.2019 at about 6:00 a.m., while the family was sleeping, the accused knocked on the door. When she opened it, the accused held her hand and made obscene gestures. She screamed, causing her parents to wake up and their dog to bark, upon which the accused fled. She proved her Section 164 Cr.P.C. statement as Exhibit A-2 and identified her signature on the sketch map (Ex.A-7). She also stated that the accused had harassed her earlier as well. 4

10. PW-5, the then acting Principal of Government Inter College, Langasu, was examined on 02.04.2021. He stated that on 20.01.2020 he was serving as the in- charge Principal and produced the victim’s date of birth certificate showing her date of birth as 25.07.2002. He also proved the student file and transfer certificate as Exhibits A-3 and A-4 respectively. His testimony confirms the age of the victim as a minor on the date of the incident.

11. PW-6, Rajesh Kumar Gorkha, Revenue Sub- Inspector, Girsa, was examined on 06.08.2021. He is a formal witness who stated that on 22.11.2019 he was posted as Patwari in Girsa area. He proved the Chik FIR (Exhibit A-5), the copy of the case diary entry (Exhibit A- 6), and the sketch map of village Jilasu (Exhibit A-7). He stated that thereafter, in compliance with the orders of the District Magistrate, Chamoli, the investigation was transferred to the regular police.

12. PW-7, Sub-Inspector Poonam Khatri, was examined on 12.11.2021. She deposed that on

30.11.2019 she was posted at Kotwali Karnaprayag and received the investigation of this case through Order No. R-04 (Investigation-34)/2019 issued Superintendent of Police, Chamoli. She proved the application for recording the victim’s Section 164 Cr.P.C. statement, the application for its observation, the arrest report, the arrest/information memo, and the site inspection memo. After completing the remaining formalities and recording statements of witnesses, she submitted the charge sheet against the accused under Section 354A(2) IPC and Section 7/8 POCSO Act, which was proved as Exhibit A-13. 5

13. Now, the appellant is before this Court, challenging his conviction and sentence.

14. The learned amicus curiae for the accused- appellant submitted that the appellant is an innocent person who has been wrongly convicted, and that the impugned judgment has been passed without proper appraisal of the evidence available on record. It is argued that even if the entire prosecution case is taken at its face value, the evidence led is wholly insufficient to sustain the conviction. Attention is drawn to the fact that the appellant had previously been falsely implicated by the father of the victim in a similar case registered as Special Sessions Trial No. 15 of 2019 before the learned Special Sessions Judge, Chamoli, in which the appellant was acquitted vide judgment dated 13.01.2021. It is contended that the present prosecution suffers from the same infirmities and appears to be a continuation of the prior animosity.

15. The learned amicus further submits that from a bare perusal of the impugned judgment, it is clear that the conviction rests solely on the testimony of interested witnesses who are close relatives of the victim, and that no independent witness has been examined by the prosecution to corroborate the alleged occurrence. It is argued that the evidence on record does not make out the ingredients of the offences under Section 354A(2) IPC or Section 7 read with Section 8 of the POCSO Act. The accused has consistently stated that a false report was lodged against him, that the prosecution witnesses have deposed falsely, and that he had no knowledge of the documents allegedly proved by the prosecution. He further asserted that false documents and an incorrect charge sheet were prepared against him, and that due to 6 an existing dispute regarding the pathway behind the house of the complainant, he has been falsely implicated in the present case.

16. Per contra, learned State Counsel supported the conviction and sentence awarded by the learned Trial Court. It is submitted that the prosecution has proved its case against the appellant beyond all reasonable doubt and that the evidence on record has remained consistent from the very inception of the proceedings. Learned State Counsel points out that the victim has supported the prosecution version both in her statement recorded under Section 164 Cr.P.C. as well as in her deposition before the Court, and that her testimony inspires confidence. It is further argued that the nature of the offences, particularly when committed upon a minor, coupled with the material available on record, clearly establishes a strong case against the appellant. Learned State Counsel submits that recording acquittal would pose a real risk of repetition of similar crime with the victim. Therefore, it is contended that the learned Trial Court has rightly convicted and sentenced the appellant, and no interference is warranted.

17. Having heard the learned counsels and after perusal of the material on record, this Court is of the considered opinion that the conviction of the appellant cannot be sustained. The fundamental principle that the prosecution must prove its case beyond all reasonable doubt governs the analysis and, on a careful appreciation of the evidence, the prosecution has not discharged that burden. Although the victim is a child and her age has been satisfactorily proved by school records, proof of minority does not eliminate the requirement that the occurrence itself be established beyond reasonable 7 doubt. Here the evidence suffers from multiple, material infirmities. The victim’s account is inconsistent on core particulars such as the date of incident appears variously as 21.11.2019 and 22.11.2019, and there are clear variations between her statement under Section 164 Cr.P.C. and her in-court deposition as to the precise sequence of events (the timing, whether there was a knock first or direct contact, and what immediately followed). PW-1 and PW-2, the victim’s parents whose testimony is central to the prosecution, also differ on relevant points such as the presence of accused and role of the investigating officer and the circumstances of the reporting, these are not trivial lapses of recollection but discrepencies which affect the narrative relied upon by the prosecution. PW-3’s evidence is, in substance, that he saw the accused running away and learnt thereafter that an incident had occurred and he did not witness the act itself and PW-5 merely confirms the victim’s age. PW- 6 and PW-7 are formal witnesses who proved papers and routine formalities.

18. The prosecution’s own case suggests neighbours and others came to the spot on hearing a commotion, yet no independent, disinterested witness from the neighbourhood was produced to corroborate the critical fact of the accused’s commission of the alleged act. The omission to call such witnesses, unexplained in the material, is a significant lacuna especially where the only eyewitness evidence is furnished by interested relatives. Further, the record discloses an earlier prosecution arising out of related allegations (Special Sessions Trial No. 15 of 2019) in which the appellant was acquitted on 13.01.2021. While an earlier acquittal does not operate as res judicata on a subsequent distinct 8 charge, it is a relevant circumstance bearing on motive and the possibility of repeated or retaliatory complaints and therefore must be weighed in assessing the reliability the present prosecution. Taken together, contradictions victim’s statements, inconsistencies in the testimony of the complainant’s family, the absence of independent corroboration where such corroboration reasonably could have been procured and the prior acquittal create a possibility of a false implication which the prosecution has failed to exclude. Under settled criminal law, where more than one inference is reasonably open, the accused is entitled to the benefit of that doubt. The prosecution’s case, in the present state of record, does not exclude every reasonable hypothesis of innocence and therefore does not attain the standard of proof required to sustain conviction under Section 354A(2) IPC or Sections 7/8 of the POCSO Act. For these reasons this Court finds the impugned judgment unsustainable.

19. Accordingly, the appeal is allowed and the conviction and sentence awarded by the learned Trial Court are hereby quashed and set aside. As the appellant is already on bail. He needs not to surrender. His bail bonds shall stand discharged.

20. T.C.R. be sent back to the learned Trial Court. Rdang (Pankaj Purohit, J.) 24.09.2025 9