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Himachal Pradesh High Court · body

2012 DIGILAW 610 (HP)

State of H. P v. Brighu Chand

2012-09-20

R.B.MISRA, SANJAY KAROL

body2012
JUDGMENT R.B. Misra,J. The present Criminal Appeal has come up for adjudication after the grant of leave to appeal under Section 378 (3) of the Code of criminal Procedure in reference to judgment dated 21.11.2005, passed by the Presiding Officer, Fast Track Court, Hamirpur, H.P. in Criminal Appeal No.12 of 2004, acquitting the alleged accused/respondent under Sections 377 of the Indian Penal Code, while setting aside the verdict of Learned Judicial Magistrate, 1st Class, Court No.2, Hamirpur, dated 20.07.2004, passed in Criminal Case No.50-II of 2002, whereby the accused-respondent was convicted to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.3000/- and in case of default to pay the fine amount, the convict was to undergo simple imprisonment for further period of two months for the offence punishable under Section 377 of the Indian Penal Code, in reference to FIR 30 of 2002 dated 24.3.2002. 2. In order to adjudicate the present criminal appeal, it is necessary to give the factual background of the present case. As per prosecution, on 24.3.2002, complainant Kishan Chand (PW.1) filed a Rapat (Ex.PW.11/A), alleging that on 24.3.2002, at about 4.00 PM, when he had gone to ‘Nala’ to fetch leaves for his goats, he was told by his son (name not given) (PW.7) that accused-respondent had been committed sodomy upon him. The complainant further alleged that on seeing his anus, the same was bleeding. Thereafter, he took his son to Tauni Devi hospital, from where he was referred to Zonal Hospital, Hamirpur. Accordingly, FIR (Ex.A) was registered and site plan (Ex.PW.13/B) was prepared by ASI Gurdas (PW.13). Shirt of the victim (PW.7) was taken into possession vide memo (Ex.PW.1/A). The victim was medically examined and MLC (Ex.PW.14/A) was issued by Dr.Archana Soni (PW.14). Dr.V.K.Gautam (PW.9) medically examined the accused, and issued MLC (Ex.PW.9/A). Thereafter, two pullindas containing Shirt and Paijama of the victim were sent to FSL, Junga for chemical examination. After investigation, the accused was charged for the aforesaid offence. 3. In order to prove its case, the prosecution examined as many as 14 prosecution witnesses. Dr.V.K.Gautam (PW.9) medically examined the accused, and issued MLC (Ex.PW.9/A). Thereafter, two pullindas containing Shirt and Paijama of the victim were sent to FSL, Junga for chemical examination. After investigation, the accused was charged for the aforesaid offence. 3. In order to prove its case, the prosecution examined as many as 14 prosecution witnesses. Whereas, the accused / respondent through his statement under Section 313 of Cr.P.C. has denied the prosecution case and had claimed innocence by further stating that criminal case was going between his family and that of the complainant and 4 days prior to the date of incident, as the complainant had cut their trees and on objection being raised by accused side, complainant threatened that he would lodge a false case against him. In support of his case, the accused adduced (DW.1 and DW.2), in his defence. 4. In support of the defence, Sh.Prithi Chand (DW.1) was examined, who stated that he did not see accused and victim (PW.7) nearby the cow-shed on the fateful day. DW.1, however, has not stated anything that on the fateful day i.e. on 24.3.2002, the door of the cow-shed of the accused was locked by his father. 5. DW.2/Vidhi Chand, who remained Pradhan and Up-Pradhan of Gram Panchayat, Gawardu, has stated that families of complainant and that of the accused were having strained relations regarding land disputes. Out of which many disputes have been disposed of or were sorted out by the Panchayat. Yet he himself has admitted that the said disputes came to an end in the year 1995-96. However, nothing could be said that the intensity of the land disputes are so strong that a man will implicate the accused in a false case, as such, defence version cannot be said to be reliable, on the ground of enmity. 6. Out of 14 prosecution witnesses, two witnesses Sh.Ramesh Chand (PW.11), who proved Rapat (Ex.PW.11/A) on record and Sh.Bakshi Ram (PW.12), who proved FIR (Ex.PW.12/A) are the formal witnesses. Sh.Ravinder Singh (PW.6), at the relevant time, procured the birth certificate of the victim (PW.7) and that of accused from the possession of Sh.Pratap Singh (PW.3) as Ex.PW.3/A and Ex.PW.3/B respectively. Sh.Mukesh Katoch (PW.8) is the witness of recovery of Paijama (Ex.P2) which was taken into possession vide Fard (Ex.PW.1/A). Sh.Gurdev Singh (PW.10), has deposed that Paijama (Ex.P2) was taken into possession in his presence. Sh.Mukesh Katoch (PW.8) is the witness of recovery of Paijama (Ex.P2) which was taken into possession vide Fard (Ex.PW.1/A). Sh.Gurdev Singh (PW.10), has deposed that Paijama (Ex.P2) was taken into possession in his presence. Sh.Ashwani Kumar (PW.11) has received five pullindas and the said pullindas were transmitted to F.S.L., Junga from Malkhana through Trilok Singh (PW.5). 7. Sh.Kishan Chand (PW.1) i.e. the complainant while supporting the prosecution case, has stated that at the time of occurrence his son aged about 5 ½ years, had gone out, for playing from there he was taken by accused to the cow-shed and after tearing his Paijama, sodomy was done by the accused on the victim and when PW.1 has gone to fetch the leaves for goats, on enquiry, it was revealed that his son was sexually assaulted. PW.1 observed the blood on the anus of the victim. Thereafter, PW.1 asked his wife Tripta Devi (PW.2) to call the father of the accused and the latter came on the spot and offered Rs.100/- to him to hush-up the matter. PW.1, in cross-examination, has stated that he has seen his son near the cow-shed of Bhrigu (accused). However, the statement of PW.1 cannot only be discarded merely for not recording of the fact in FIR (Ex.PW.12/A) to the effect that on asking by PW.1, to call the father of the accused, the latter one came and offered Rs.100/- to hush-up the matter, as it is not necessary that each and every fact to be entered in the FIR. 8. Smt.Tripta Devi (PW.2), mother of the victim has also supported the prosecution case by saying that on enquiry, victim told her that the accused took him to the cow-shed and after bolting the door thereof, tore his paijama and inserted his penis into the anus of the victim. As a result of which anus of the victim started bleeding. PW.2 went to the house of Ward Panch and thereafter to the house of the accused. Where accused offered Rs.100/- to them and asked them to hush-up the matter. Thereafter, the victim was taken to Tauni Devi, hospital, from where they were asked to go to zonal hospital, Hamirpur. 9. Victim (PW.7) while appearing as witness has stated that on the fateful day, he along with other children had gone to play Cricket. Where accused offered Rs.100/- to them and asked them to hush-up the matter. Thereafter, the victim was taken to Tauni Devi, hospital, from where they were asked to go to zonal hospital, Hamirpur. 9. Victim (PW.7) while appearing as witness has stated that on the fateful day, he along with other children had gone to play Cricket. At that time, accused told him that he is going to graze the cattle and took him to his cow-shed, wherein he after tearing his paijama inserted his penis into his anus. Thereafter, he left him near the house of Rikhi. PW.7, thereafter, narrated the incident to his parents. PW.7 has denied the suggestion that he sustained injuries due to fall while playing Cricket. The victim (PW.7) has also denied the suggestion that he is making false deposition against the accused. We also note that though PW.7 has admitted that he was made to make his deposition at the instance of his parents, however, we cannot ignore that an innocent boy will not tell a lie and would not falsely implicate the accused by saying that carnal intercourse has been committed upon him by the accused. 10. Dr.V.K.Gautam (PW.9) while issuing the MLC (Ex.PW.9/A) has also indicted that there is nothing that accused-respondent was not capable of performing sodomy. Dr.Archana Soni (PW.14) has medically examined the victim (PW.7) on 25.3.2002 at about 12 noon. On medical examination, PW.14 has found reddish blue contusion having 2 cms x 3 cms. Circumstance was found around his anal opening. Area was having depression. Examination was painful and tender. Lacerated wounds of triangular shape at 5 O’clock and at 11 O’clock position ¼ cms x ½ cm, which was bleeding on touch, was also observed. As observed by PW.14, muceid whitish discharge and one foreign hair was also found around and at anal sphincter. In the opinion of PW.9, on examination of injuries sustained by the child, the commission of unnatural offence cannot be ruled out. We also take note of the fact that in the present case, penetration was so intense that it caused reddish blue contusion having 2 cms x 3 cms, in circumference, depression, pain and the tenderness around anal opening and also caused lacerated wound of triangular shape at 5 O’clock and at 11 O’clock, position ¼ cm x ½ cm, which bleed on touch. Thus, absence of semen on anal swab or foreign hair as in the instant case is not sufficient to hold the accused not guilty of unnatural offence. We also take note of the fact that the opinion of Dr.Archana Soni (PW.14) is also analyzed in view of the fact that suggestion qua inflicting of injury, while playing Cricket, by the victim has emphatically been denied by PW.7. Only minor contradiction emanating from the testimony of PW.1 that after the said unnatural offence, accused Bhrigu Ram by lifting the victim had left him on the back side of the house of Rikhi Ram. In view of testimony of PW.2, Tripta Devi (mother of the victim), the accused brought the victim by lifting him on his back and has kept him near the house of Rikhi and thereafter, accused left for his house. PW.1 has also stated in cross-examination that when he had gone to collect the leaves for goats, he observed that accused Bhrigu lifted the victim and PW.1 has also denied the suggestion that victim had suffered such injuries while playing Cricket. Minor contradictions or inconsistencies, as noted above, shall be irrelevant as the minor contradictions do not go to the root of the case in view of the decision of Hon’ble Supreme Court in State of Madhya Pradesh versus Ramesh & Another, (2011) 4 SCC 786 , Waman & Others versus State of Maharashtra, (2011) 7 SCC 295 . The Hon’ble Supreme Court has also observed in State of U.P. versus Naresh & Others, (2011) 4 SCC 324 that minor discrepancies are bound to occur due to normal errors of observation, errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and trivial matters which do not affect core of prosecution case, should not be made a ground for rejecting the evidence in its entirety. The Hon’ble Supreme Court in Thoti Manohar Versus State of Andhra Pradesh, (2012) 7 SCC 723 has observed that testimonies of related witnesses, even family members and close relatives, if are natural and their version is consistent and nothing is suggested to bring any kind of inherent improbabilities in their testimonies, as such, the testimonies of related or interested witnesses are not to be rejected. In Thoti Manohar (supra), the Hon’ble Supreme Court has observed that minor discrepancies are to be ignored as no evidence can ever be perfect for man is not perfect and man lives in an imperfect world giving undue importance to discrepancies would amount to adopting a hyper-technical approach, as such, the Court while appreciating the evidence should not attach much significance to minor discrepancies which do not shake the basic version of the prosecution case. The victim (PW.7) has also stated in cross-examination that on the fateful day accused took him on the pretext that he is going to take goats for grazing and after taking him had performed unnatural offence by penetrating his penis into his anus, thereafter, accused brought him by lifting him and has left him near the house of Rikhi. 11. On appraisal of the prosecution witnesses and materials on record, the learned Judicial Magistrate has made the correct assessment of the evidence, whereas, learned First Appellate Court / Presiding Officer, Fast Track Court, Hamirpur, has not correctly appreciated the prosecution witnesses and has not made proper appraisal of the same. Therefore, we are of the considered view, the finding and verdict arrived at by learned Judicial Magistrate, 1st Class, is legally correct, whereas, the verdict of First Appellate Court, being not legally correct, therefore, the same is set aside. We hold the accused-respondent guilty of offence punishable under Section 377 IPC also take note of the fact that while convicting the accused-respondent for the offence punishable under Section 377 IPC, the sentence has not adequately been awarded. Therefore, keeping in view the facts and circumstances, after having heard the learned counsel for the convict-respondent, we modify the quantum of sentence and accordingly modify the same by enhancing the sentence against accused to undergo imprisonment for 5 years and to pay fine of Rs.5000/-. In default of payment of fine, the convict shall undergo simple imprisonment for further period of 6 months. The said fine is ordered to be paid to the victim through his father / lawful guardian in reference to provisions of Section 357 of the Code of Criminal Procedure. It is also ordered that sentence already undergone and the fine amount already deposited shall be reduced from the present sentence. Accordingly, the appeal of the State is allowed. Non bailable warrants be issued against the accused / respondent to ensure his presence. It is also ordered that sentence already undergone and the fine amount already deposited shall be reduced from the present sentence. Accordingly, the appeal of the State is allowed. Non bailable warrants be issued against the accused / respondent to ensure his presence. Bail bonds of accused / respondent be cancelled and accordingly, accused / respondent is ordered to be apprehended and sent to Jail to undergo the sentence, so awarded.