Mohit Tyagi vs State Of Uttarakhand

Siddhartha Sah, J

Present appeal is preferred against the judgment and order dated 13.01.2020 passed in Special Sessions Trial No. 120 of 2018, State v. Mohit Tyagi, by the Fast Track Court/Special Judge (POCSO)/Additional District and Sessions Judge, Dehradun. By it, the accused/appellant has been convicted under Sections 363, 377, 506 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act") and has been sentenced to 20 years rigorous imprisonment with a fine of Rs. 10,000/- under Section 4(2) of the POCSO Act, 1 year rigorous imprisonment with a fine of Rs. 1,000/- under Section 363 IPC and 6 months rigorous imprisonment with a fine of 1,000/- under Section 506 IPC.

The prosecution case started on the basis of FIR, which was registered at Reporting Out Post Dakpatthar, Police Station Vikasnagar, District Dehradun at 23:30 hrs. on 15.08.2018 at the behest of the informant with the allegations that the informant's minor son/ victim aged 13 years was returning home on 15.08.2018 at about 6:30 in the evening after tuition from Tons Colony, Dakpatthar. When his son reached near the house then the accused Mohit Tyagi son of Subhash Chand Tyagi R/o Tons Colony, Dakpatthar came from the front, who was on his bike Discover No.UA07L 4678 and he kidnapped his son forcibly by threatening him and made him sit on his motorcycle and took him near Shanti Dham, Dakpatthar, where Mohit Tyagi aforesaid forcibly made unnatural sexual relations with his son and left his son and went away threatening to kill his mother and father on telling anyone. On feeling pain in his anus, his son on coming home narrated the entire incident, therefore, it was requested that the report be registered and legal action be taken. The said FIR was initially registered as Chowki Silsila No.83/18 at Reporting Out Post Dakpatthar and then registered as Case Crime No.0371 of 2018 under Sections 363/377/506 of IPC and Section 3/4 of POCSO Act at Police Station Vikasnagar, District Dehradun.

On the basis of the aforesaid FIR, accused/appellant was arrested from the Dakpatthar Bus Stand on 16.08.2018 at 11:35 hrs. and arrest memo was also prepared.

In pursuance to the aforesaid FIR, the medico legal examination of the victim was conducted at CHC Vikasnagar on 16.08.2018 at 12:05 am. In the said medico legal examination report, the allegations as narrated in the FIR have been disclosed to the Medical Officer, who conducted the said medico legal examination and except tenderness in the anus of the victim, no other abnormality was detected in the said medical examination. In the course of the medical examination, T-shirt, baniyan, underwear, jeans and pant of the victim were collected and handed over to the concerning police by the Medical Officer. Also two anal swabs from the anus were collected. Blood sample of the victim was also collected during examination.

Upon arrest of the accused/applicant, the accused was also medically examined on 16.08.2018 at 1:30 pm by the Medical Officer C.H.C., Vikas Nagar, Dehradun. The alleged history of the medico legal report states - no history of chronic disease/medication/hospitalization/substance abuse- history of having taken bath and cloth change in the morning (16.08.18). The medico legal report of the accused specifically states- no scratch marks found on the body; (i) no abnormality on local examination; (ii) no smegma present on glans. The samples taken were:- (i)- Sample from Glans sent in sterile tube for DNA analysis; (ii)- Combed public hair sample sealed; (iii)- Cut pubic hair of accused sealed; (iv)- sealed undergarments.

On 16.08.2018, the Investigating Officer (referred to as I.O. hereinafter) took over the investigation and recorded the statements of the informant and also the statements of the victim. On 20.08.2018 at the pointing out of the victim, the place of incident was inspected and the site plan was prepared. On 20.08.2018, the statements of the victim were recorded under Section 164 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") in the Court of the Judicial Magistrate Ist, Dehradun. In the statements under Section 164 of the Cr.P.C, the victim reiterated the FIR allegations. In the course of the investigation, the I.O. obtained the blood samples of the victim and the accused and same were sent to the FSL. In the course of the investigation, the I.O. recorded the statements of the relevant witnesses. On 31.08.2018, the I.O. collected the original mark-sheet of Class-VI of the victim from the informant and also recorded the statements of the Medical Officer in the case diary. On completion of the investigation, the I.O. submitted the charge-sheet in the Court on 31.08.2018 against the accused/appellant under Sections 363/377/506 IPC and 3/4 of the POCSO Act. On the basis of the said charge-sheet dated 31.08.2018, the FTC/Special Judge, POCSO, Dehradun took cognizance under Sections 363/377/506 IPC and 3/4 of the POCSO Act against the accused/appellant.

Thereafter, charges were framed against the accused/appellant under Sections 363/377/506 of the IPC and Section 4 of the POCSO Act on 27.11.2018 by the Fast Track Court/Additional District Judge/Special Judge (POCSO), Dehradun. The accused pleaded not guilty and requested for trial.

In order to prove its case, the prosecution examined as many as 6 witnesses, namely, PW 1, the victim, PW 2, father of the victim, PW 3 Dr. Vijay Singh, PW 4 SI Ratan Singh Bisht, PW 5 S.P. Giri and PW 6 Dr. Pradeep Chauhan. In his defence, the appellant has examined himself as DW 1.

After the prosecution witnesses were examined, the appellant was examined under Section 313 of Cr.P.C. The accused denied making unnatural sexual relations with the minor son of the informant. He stated that the statements of PW-1 victim and PW-2 father of the victim are false. Regarding the statements of PW-3 Dr. Vijay Singh he feigned ignorance. Regarding the statement of PW-4 SI Ratan Singh Bisht he stated that false investigation was conducted and false charge-sheet was submitted. Regarding statements of PW5 S.P. Giri, he feigned ignorance. To the question, as to why the witnesses are giving statements against him, he answered that false statements are being given. He also replied that false case proceeded against him and that he is innocent and he has not committed any offence and whether he would like to give any defence evidence, he replied in the affirmative.

After hearing the parties, by the impugned judgment and order, the appellant has been convicted and sentenced as stated hereinbefore. It is challenged in the instant appeal.

Before the arguments are appreciated, it would be apt to examine as to what the witnesses have stated.

The victim was examined as PW1 who in his examination-in-chief deposed that the incident is of 15.08.2018 at 6:30 in the evening, when he was returning home from tuition; the accused Mohit Tyagi met him near the house; he was on a motorcycle; he forcibly made the victim to sit on his bike and threatened that if he does not go with him, he will kill his Mummy-Papa, then he sat on the motorcycle out of fear; the accused took him to near the Barrage near Shamshan Ghat Solar Panel; there the accused forcibly took off his clothes, then took off his own clothes; inspite of refusal by the victim, the accused made unnatural sexual relations with him forcibly due to which, he experienced a lot of pain; Then he left him at Tikona Pahar from where the victim went home walking; the accused threatened him again that if he tells it to his Mummy-Papa then he will kill them. PW 1, the victim further deposed that the accused had consumed wine; after going home, the victim told Mummy-Papa about this incident, then his parents took him to Dakpatthar Chouki where his father gave a written report of the incident in the Chauki. On seeing Paper No."16A"the witness said that it is his class 6th report card in which name of his parents and the date of birth of the victim is recorded as 01.01.2005; regarding this incident, there was his medical. The witness identified his thumb impression on Paper No. 13A/2. On perusal of Paper No. 13A/3, PW 1, the victim stated that on the asking of doctor he had given the information regarding the incident to the doctor which was noted down by the doctor; Regarding the incident, his statement was recorded before the Magistrate. The witness was shown Paper No. 18A/1, then on reading it he said that this was the statement he gave before the Magistrate and identified his signatures below the statement which was marked as Ex.A-1. The witness also stated about inserting of penis by the accused in his mouth and catching his neck.

The victim was cross examined and in his cross- examination the witness stated that he saw the accused Mohit Tyagi, present in court, for the first time on 15.08.2018; he did not know the accused from before; he had told him to sit on the motorcycle and had also said that if he does not sit, he will beat him; on which, he sat on the motorcycle of Mohit Tyagi present in court; he had not met the victim before that; he does not know the house of Mohit Tyagi; he also does not know his mother-father from before that. He denied the suggestion that some other boy had done unnatural intercourse with him and he is naming Mohit Tyagi due to confusion. The victim admitted that it is correct to say at the time of incident, it was dark.

The informant was examined as PW2. In his statements, the PW2 deposed that the victim is his son; he was studying in Class-VIII and at present is studying in Class- IXth; his age is 13 years and his date of birth is 01.01.2005. On seeing Paper No. "16A",the witness stated that it is the report card of the victim of Class-VI of Lakshya Public School in which name of the victim, name of his parents, Admission No.221 and date of birth 01.01.2005 is there; he does not know Mohit Tyagi and himself stated that he used to do the work of supplying cylinders at homes of the people, therefore, he has seen him; the incident is of 15.08.2018, the victim was returning from tuition at 6:30, Mohit Tyagi met him on the way; he made the victim to sit on the vehicle by threat and said that he will kill his parents; the accused took the victim near Shanti Dhaam Barrage and committed unnatural sexual exploitation of the victim and mar-peet and threatened to kill; then the victim came and narrated the entire incident and also complained of pain in the anus; on the same day at 11:30 in the evening he gave a written report at Chauki Dakpatthar. The report is Paper No. 4A in the file which is in his handwriting which is marked as Ex.A-2. He had taken along the son to the Police Station; the police personnel had asked him the facial features of the accused and he had also told them that from where he was picked and where he was taken. According to the PW 2, the informant, the police had shown a photo to the victim who had identified the accused on the basis of the photo and said that the boy in the photo had committed wrong act with him; his son's medical examination was conducted, he had gone along with him; the statements of the victim were recorded before the Magistrate; the accused is present in the court.

In his cross examination, the PW2 admitted that he was not with the victim at the time of incident. According to the PW 2, it is also correct to say that he has not seen anyone making unnatural sexual relations with the victim; it is also correct to state that no test identification parade of the accused was conducted in the Thana or before the Magistrate; it is also correct to say that the police having shown the photo to the victim and to him, was not stated in the statements given to the I.O. nor he had given any photo of the accused to the I.O.; it is also correct to say that police having shown the photo to the victim is being told for the first time in the court. He denied the suggestion that being father of the victim he is giving false evidence in his support in the court.

The doctor who conducted the medical examination of the victim on 16.08.2018 was examined as PW-3. He deposed that the victim narrated him about the incident being of 7:30 on 15.08.2018 and that wrong act was committed upon him and he was threatened. The doctor stated that there was slight swelling on the left side of the neck of the victim and pain in the anus at the time of examination. He also deposed about having collected anal swabs, victim's underwear, pant, urine, nail clipping, hair and blood sample at the time of examination and handing over to police and proved the medical examination report which was marked as Ex. A-3.

The Investigating Officer (S.I. Ratan Singh Bisht) was examined as PW4. He deposed that he took over the investigation on 16.08.2018 and recorded the statements of the informant & victim and also arrested the accused on 16.08.2018. The arrest and information memo was prepared which was proved by him and marked as Ex.A-4 and also recorded the statements of the accused in the case diary and also recorded the medical reports of the accused and victim. He also deposed that he prepared the site plan which is in his handwriting and it was marked as Ex.A-5. He also deposed that on the same day, he got the statements of the victim recorded before the Magistrate under Section 164 Cr.P.C. The witness proved the application Paper Nos. 7B/1 and 7B/2 which was submitted for recording the statements of the victim and which were marked as Ex.A-6 and A-7 respectively. On 23.08.2018, the blood samples of the victim and the accused were obtained and were sent to FSL and after submitting them on 23.08.2018, a receipt was obtained on which he identified his signatures which was marked as Ex.A-8. The witness also proved the Chik FIR Chauki Silsila No.83/18 recorded on the basis of report of the informant by constable Shailendra. He identified the signatures of Shailendra Dutt which was marked as Ex.A-9. The witness also proved G.D. entry of registration of case which is report no.29 time 23:30 dated 15-08-2018 which was in the handwriting of Shailendra Dutt which was marked as Ex. A- 10. The G.D. entry of arrest of the accused was bearing report no.16 time 11:55 dated 16.08.2018 which was marked as Ex.A-11. The witness also deposed about handing over the original report card of Class-VI of the victim by the informant to him which records the date of birth of the victim and his name. He also stated about recording the statements of Medical Officer Dr. Vijay Singh. After investigation, the charge-sheet was sent to the court on 31.08.2018. The charge-sheet was proved by him and marked as Ex.A-12.

In his cross examination, the PW4 admitted that he arrested the accused on 16.08.2018 from near Bus Station Dakpathar. He has narrated the criminal history of the accused from record of the Thana, he has no personal knowledge; he did not know the accused from before; he was told the facial features of the accused by the victim and from its aid, he had caught the accused; he also did not know the informant from before; He did not know the house of the informant and the victim; he had got the Section 164 Cr.P.C. statements of the victim recorded in the court on 20.08.2018. He denied the suggestion that he had not conducted the investigation of the case in accordance with law. He admitted that he had not conducted the identification proceedings of the accused. He admitted that there are two cases against the accused registered in the Thana under Section 377 IPC, but denied that on the basis of these cases, on the ground of suspicion the case crime No.0371/2018 was registered and he was arrested and challaned.

The Principal of the School, in which the victim was studying, was examined as PW-5 who proved the date of birth of the victim as 01.01.2005 on the basis of S.R. Register, the original S.R. Register was in front of him whose photocopy he proved which was marked as Ex.A-13. The witness also identified his signatures on the Class-VI mark- sheet of the victim and it was marked as Ex.A-14.

The Medical Officer Dr. Pradeep Chauhan who conducted the medical examination of the accused on 16.08.2018 was examined as PW-6, who inter alia stated that the accused has told him that he is not suffering from any disease and he has come after bathing and changing clothes. He had taken swab from the Glans of the accused and pubic hair and undergarments which were sealed and handed over to Constable Kuldeep. The medical report is in his handwriting which was marked as Ex.A-15. The bundle containing the case material, inside which, one grey colour underwear, baniyan were there. On seeing which, the witness stated that this underwear and baniyan were taken into possession during examination from Mohit Tyagi. The underwear was marked as material Ex.1, baniyan marked as material Ex.2, outer bundle was marked as material Ex.3 and the witness identified his signatures on the other bundle. Two other bundles relating to the case bearing FSL No.1552/2018 which were related to blood sample of the accused and the victim which were marked as material Ex.4 and material Ex.5, respectively. Before the court, one more envelope in which the Ex.4 is recorded was identified by the witness. The envelope was marked material Ex.6. The envelope was opened inside which the swab and pubic hair of the accused was found. On the swab, material Ex.7 and on pubic hair material Ex.8 was marked. In the cross- examination, the witness stated that it is correct to say that he cannot say that the pubic hair and swab are of the accused or not and he cannot identify the underwear and baniyan which were inside the envelope; he cannot say that actually the accused had came from home after bath or not, but he had asked him and he had told, which he had mentioned; it is correct that there were no marks of abrasion or swelling on the private parts of the accused.

The accused examined himself as DW1 and deposed that on 16.08.2018 he was called to Dakpatthar Chauki through a sepoy. He reached Dakpathar Chauki at 9:00 in the morning then the Darogaji Shamsher Ali had asked him that he had unnatural intercourse with someone yesterday, which he had denied and that on his denial, he had committed maar-peet with him; a man was sitting there; Darogaji told him that with the informant's son he had committed the wrong act; when this witness again denied, then Darogaji again committed maar-peet with him; the Darogaji gave him a small Katori and told him to go to the Bathroom and take out his semen; he refused for this, then he again committed maar-peet with him; to save himself from beating, he took out his semen in the Katori and placed before him; what he did with the semen, this witness does not know; thereafter, he was falsely implicated in this case and sent to jail. He admitted that there were two cases under the same sections in which he was acquitted and police had implicated him in the case. The witness was cross examined and in his cross- examination he has stated that after going to Dakpatthar Chauki, he did not go back home again and police sent to him jail from there; he was not told in which offence he was being sent to jail. He admitted that there were three cases in Thana Vikas Nagar, in all of which he was acquitted.

Heard the learned counsel for the appellant Ms. Divya Jain, Advocate and Ms. Manisha Rana Singh, Deputy Advocate General for the State at length and perused the record.

First of all the learned counsel for the appellant made a submission that the PW1/victim made the dock identification after about a year of the incident. She argued that in his cross examination, the victim/PW-1 has stated that he has seen the accused Mohit Tyagi for the first time on 15.08.2018 and he did not know the accused from before. She also drew the attention of the Court to the statement of the victim/PW-1 when he accepted the suggestion that it is right to say that at the time of incident it was dark and thus submitted that how could the victim/PW-1 identify the accused as well as the motorcycle number when as per the victim himself it was dark. Referring to the statements of PW-2, the father of the victim, it is argued that he too, did not know Mohit Tyagi but this witness has himself stated that he does the work of supplying cylinders the people houses, therefore, he has seen him. In the Thana, the police personnel had asked the facial features of the accused and police had shown one photo to the victim and on the basis of the photo, he had identified the accused. It was further argued by the learned counsel for the appellant that no test identification parade was conducted and said fact is admitted to the I.O./PW-4. She also stressed that the facial features of the accused was told by the victim and on that assistance I.O. had apprehended the accused.

The learned counsel for the appellant further submitted that the accused was arrested on 16.08.2018 at about 1:30 pm from Bus Stand, Vikas Nagar. Thereafter, the accused was taken to the Medical Officer. Referring to the medico legal report of the accused, she argued that upon examination of the accused, the Medical Officer in the alleged history has specifically mentioned that there is no history of chronic disease. There is the history of having taken bath and clothes changed in the morning (of 16.08.2018).

The learned counsel for the appellant has further argued that if the accused had changed his clothes how the semen could be detected in his underwear. She also referred to the statement of PW-6, the Medical Officer who conducted the medical examination of the accused, wherein he deposed that the accused told him that he had taken bath and also changed his clothes.

The learned counsel for the accused/appellant further argued that since it is admitted to prosecution witness the victim/PW1 that at the time of incident, it was dark, hence he did not have any opportunity to identify or see the face of the accused/appellant. Then how the FIR could be registered against the accused by name.

The counsel for the accused/appellant thus submitted that since it was dark at the time of incident there was no opportunity to the witness to identify the accused hence in the absence of the identification of the accused the case is bad since the inception.

The learned counsel for the accused/appellant further made a submission that the accused was not confronted with the conclusion of the FSL report dated 15.11.2018 regarding the matching of the DNA in the statements under Section 313 Cr.P.C., hence the conclusion of FSL report dated 15.11.2018 having not presented for the explanation of the accused, the same cannot be a ground for conviction of the accused/appellant. The learned counsel for the appellant lastly submitted that Section 4(2) of the POCSO Act was inserted with effect from 16.08.2019 and the incident being of 15.08.2018, the sentence of 20 years could not have been imposed since at that particular time, there was lesser sentence of not less than 7 years, hence, the sentence is also on the higher side.

Per contra, learned Deputy Advocate General for the State Ms. Manisha Rana Singh contended that the incident occurred in the month of August, hence the witness could have seen the accused. As to how the accused was named in the FIR and as to how the victim had the opportunity/occasion to identify the accused, she has no plausible explanation except that on the basis of photograph of the accused he was named in the FIR. However, she submitted that since the accused threatened the victim before and after the incident, he had ample time to see the accused. Supporting the prosecution case, she argued that in the medical examination of the victim there was tenderness in the anus and mild swelling in the neck and the medical report supports the prosecution case.

So far as the matching of the DNA is concerned, the learned Deputy Advocate General contended that the clothes of the accused were sealed on 16.08.2018 and were duly referred for examination to the Forensic Science Laboratory. She also submitted that blood samples were taken on 23.08.2018 and on the same day they were transmitted to the FSL. She placed reliance on the FSL report dated 15.11.2018 and stated that human semen was detected on Ex.3 and that DNA obtained from Ex.3 (underwear of the accused) is matching with the DNA obtained from Ex.13 and Ex.14 (blood sample of the victim and blood sample of the accused).

On considering the rival submissions of learned counsel for the parties and also going through the record, the questions/issues which fall for consideration of the Court are- (i) As to whether the victim could have identified the accused and named him in the FIR? (ii) As to whether the FSL report can form one of the basis for sustaining conviction of the accused/appellant?

The result of this appeal hinges on the outcome of the answers to the aforesaid two questions. On one hand, it has been argued on behalf of the accused/appellant that since it was dark at the time of incident, hence the victim had no opportunity or occasion to see and identify the accused at the time of incident. In the cross examination, the victim/PW1 has admitted that it was dark at the time of incident. He has also admitted that he has seen the accused for the first time on 15.08.2018 and he did not know the victim from before. It also needs to be stated that when the informant had taken his son to the Police Station the police had asked the facial features of the accused and the police had shown the photo and on the basis of the photo, the victim had identified the accused which is evident from the statement of examination-in-chief of PW-2. The PW-2 has admitted that there was no test identification parade in the Thana or before the Magistrate. He also admitted that he had not given the statement to the I.O. that police had shown the photo to the victim and PW-2 nor he had given any photo of the accused to the I.O. The PW-2 also admitted that he is making the statement about police having shown the photo of the accused to the victim for the first time in court. In his cross examination, the I.O./PW-4 has admitted that the victim had told him the facial features of the accused and with its assistance he had apprehended the accused.

Prosecution is not able to even suggest as to how the FIR is named. It doubts the prosecution case.

The victim has categorically stated that it was dark at the time of incident. How the appellant has been named in the FIR? How could he be identified in court by anyone when no one had any opportunity to identify him at the time of alleged incident?

In view of all these glaring inconsistencies in the prosecution case, the explanation put forth on behalf of the State by the learned Deputy Advocate General that in the month of August, it was possible for the victim to have identified the accused at 6:30 in the evening and that the accused having threatened the victim before and after the incident, hence there was ample opportunity for the victim to identify the accused, is wholly unacceptable for the due identification of the accused.

In view of the facts and circumstances as narrated hereinbefore, we are of the considered opinion that the prosecution has utterly failed to firstly give a satisfactory explanation for the identification of the accused by the victim as it is the prosecution case that it was dark at the time of incident (as stated by the victim himself) and secondly how the FIR could have been lodged at the behest of the informant naming the accused in the FIR. Hence, the prosecution case is palpably false at the very inception.

So far as the conclusion of the FSL report dated 15.11.2018 is concerned, the same also does not inspire confidence for placing reliance upon it, inasmuch as the medical examination report of the accused dated 16.08.2018 clearly states that there is history of the accused having taken bath and changed clothes. Also statements of DW-1 accused need to be considered wherein he stated that the police had obtained semen from the accused under threat by repeated beating in the Chauki and thus to save himself from the further beating by police, the accused took out his semen and gave it to the police. The police has thus not been able to successfully prove that the chain of custody of the underwear which the accused was wearing at the time of incident was the same underwear which was taken into possession at the time of medical examination of the accused. Secondly, since the accused-appellant was not confronted with the conclusions of the FSL report, the FSL report could not be relied against the accused. Hence in view of the aforesaid, the FSL report dated 15.11.2018 cannot be read against the accused/appellant and on this count too, the prosecution case is bound to fail and the conviction of the accused cannot be sustained.

Thus on the overall consideration of the facts and circumstances of the case, this Court is of the view that the prosecution has utterly failed to successfully prove the charges under Sections 363, 377 and 506 of the IPC and Section 4(2) of the POCSO Act against the accused /appellant. Hence the judgment and order dated 13.01.2020 passed by the Fast Track Court/Special Judge (POCSO)/Additional District Judge, Dehradun cannot be sustained and deserves to be set-aside. Accordingly, the appeal deserves to be allowed.

The appeal is allowed.

The impugned judgment and order is set aside. The accused-appellant is acquitted of all the charges levelled against him.

The accused-appellant is in jail. Let he be released forthwith, if not required in any other case, subject to his furnishing personal bond and two sureties each of the like amount to the satisfaction of the court concerned under Section 437A of the Cr.P.C. within three weeks.

Let a copy of this judgment along with the trial court record be sent to the court concerned.