JUDGMENT R.B. Misra, J. The present criminal appeal has been preferred from jail by the convict/appellant under Section 383 of the Code of Criminal Procedure against the judgment dated 18.12.2007, passed by learned Additional Sessions Judge-II, Kangra at Dharamshala, in Sessions Case No. 11-D/VII/2007, holding convict/appellant guilty for the offences punishable under Sections 363, 366, 376 and 506 IPC, in reference to FIR No. 301 of 2006, dated 24.12.2006, Police Station Dharamshala, convicting and sentencing the convict/appellant as under: “For an offence under Section 363, IPC with rigorous imprisonment for five years with fine of Rs. 5,000/- and in default the convict/accused shall further undergo rigorous imprisonment for one year and he is further convicted and sentenced for an offence under Section 366, IPC with rigorous imprisonment for seven years with fine of Rs. 10,000/- and in default the convict/accused shall further undergo rigorous imprisonment for one year and he is further convicted and sentenced for an offence under Section 376, IPC with rigorous imprisonment for 10 years with fine of Rs. 19,000/- and in default the convict/accused shall further undergo rigorous imprisonment for one year. The accused/convict is further convicted and sentenced for an offence under Section 506, IPC with rigorous imprisonment for two years with fine of Rs. 2,000/- and in default he shall further undergo rigorous imprisonment for six months. All the sentences shall run concurrently. The fine if realized is ordered to be awarded to the victim as compensation under Section 357, Cr.P.C.” 2. The case of the prosecution in brief is that on 24.12.2006 the victim/prosecutrix (name not given) accompanied by Neeraj Pradhan alias Tinku, reported the matter to the police that she had been residing with her parents at Pandori Road Gurdaspur and her farther had been working as Chowkidar in a Rice Mill. The convict/appellant (Ram Bahadur) had also been working there as Chowkidar in a brick kiln and was on visiting terms to the house of the victim/prosecutrix, and was thread brother (Dharam Bhai) of the mother of the victim/prosecutrix, who has also stated that about one year back, when there was none in her house, convict/appellant came and allured her, thereafter, she was taken in a bus and was brought to Dharamshala, and was kept at Chilgari in the house of Anil where both of them (the victim and the appellant) started working in the milk dairy of Anil.
During their stay in Dharamshala, convict/appellant used to sexually assault the victim/prosecutrix forcibly and has been threatening to kill her as well as her family members. The victim/prosecutrix was taken to the house of one Colonel at Chilgari and thereafter both of them went to Dari where they started living in the house of Mohani Aunty. During such stay of the victim, she had been sexually assaulted forcibly and was beaten and threatened, however, she ran away from the clutches of the convict/appellant and stayed in a temple from where she came to the house of Rinku uncle. The victim/prosecutrix disclosed the entire facts to Rinku uncle and thereafter the matter was reported to the police. The convict/appellant was arrested and both, the victim and the convict, were medically examined. After completion of the investigation, the convict/appellant was charged for the aforesaid offences and the case was committed for sessions trial by learned Chief Judicial Magistrate, Kangra at Dharamshala vide order date 13.04.2007. 3. In order to prove its case, prosecution examined as many as thirteen witnesses, whereas, convict-appellant, through his statement under Section 313 Cr.P.C., has denied the prosecution case. 4. On scrutiny of prosecution witnesses and the material on record, we notice that PW-1/Dr. Atul Gupta after medically examining the convict/appellant/Ram Bahadur has found him capable of performing sexual intercourse. 5. PW-2/Dr. Anju Viz, while posted as Medical Officer in Zonal Hospital Dharamshala, medically examined the victim/prosecutrix, aged about 15 years for sexual assault, consequent upon her abduction by convict/appellant. PW-2, after completing the medical examination, issued MLC, Ex. PW-2/A, and opined that possibility of sexual assaulted cannot be ruled out. 6. PW-3 (victim/prosecutrix) in support of the prosecution case has stated that she is illiterate and hails from Nepal and her father was deployed as Chowkidar in a Rice Mill in Gurdaspur. She knew the convict/appellant, who was in visiting terms to her house as he was ‘dharam bhai’/thread brother of her mother and was deployed as Chowkidar in a brick kiln of that area. PW-3 had lodged FIR, Ex.
She knew the convict/appellant, who was in visiting terms to her house as he was ‘dharam bhai’/thread brother of her mother and was deployed as Chowkidar in a brick kiln of that area. PW-3 had lodged FIR, Ex. PW-3/A, on 24.12.2006, narrating the entire incident indicating that one year back, in the month of July, i.e., during rainy season, when she was alone, the convict/appellant came to her house at about 11 a.m. and asked her to accompany him to go around, thereafter she was taken by the convict/appellant in a bus, wherein she was offered a ‘laddu’ brought from out side and thereafter, PW-3 became unconscious and when she regained her consciousness she found herself in the house of Tinku uncle at Dharamshala in Chilgari area. During her stay at Dharamshala, she had been sexually assaulted (galat kaam) by the convict/appellant and he had also threatened to kill her as well as her family members, in case of her raising hue and cry. Thereafter, the victim/prosecutrix was taken to the house of Mohni aunty where a room was taken on rent. There also she was sexually assaulted, beaten and threatened, however, PW-3 on getting opportunity ran away and came to a nearby temple and spent a night there. On the next day, she went to the house of Tinku uncle and disclosed the entire facts to him and FIR, Ex. PW-3/A was lodged accordingly. The victim was medically examined. PW-3 has reiterated her version in her cross-examination, however, she also stated that she did not disclose to the owner of the house where she remained in Chilgari area and where she used to work. She has also stated that she did not disclose to anyone that she was being sexually assaulted during her stay in the house of Mohni aunty, she did not disclose to any person about the sexual assault on her due to fear, except disclosing the incident to Tinku uncle, because he was known as Pradhan. When she took shelter in the temple, ‘pujari’ (Priest) was not there. PW-3 has further stated that she did not disclose to anyone about the bad act (galat kaam) being committed on her for the last 5-6 months as the convict/appellant was threatening her, however, she disclosed the facts to the wife of Tinku uncle, who, thereafter, disclosed the same to Tinku.
PW-3 has further stated that she did not disclose to anyone about the bad act (galat kaam) being committed on her for the last 5-6 months as the convict/appellant was threatening her, however, she disclosed the facts to the wife of Tinku uncle, who, thereafter, disclosed the same to Tinku. PW-3 has also stated in her cross-examination that Mohni was like her mother, however, she did not disclose to her apprehending whether she may or may not help her. 7. PW-4/Arjun Bahadur, in support of the prosecution case, stated that he thought that the victim/prosecutrix might have gone with the convict/appellant, being the maternal uncle of the victim, but when she did not turn up, he started searching her at different places, however, despite efforts the victim/prosecutrix was not traceable, thereafter, he went to the police station to lodge the missing report of his daughter. PW-4 came back from the police station, as he did not have the photograph of his daughter. PW-4 has stated that his daughter was born in the year 1992. PW-4 also visited the house of the convict/appellant in Nepal and gathered from his parents that the convict/appellant had taken away 2-3 girls from Nepal, but did not turn up. Thereafter, PW-4 became scared that his daughter might have been killed. On 24.12.2006 on information, PW-4 came to Dharamshala, where victim was handed over to him vide memo, Ex. PW-4/A, on which he put his thumb impression. PW-4 has further stated that the victim/prosecutrix disclosed to him that convict/appellant threatened to kill her as well as her parents, if she discloses the factum of her taking away. PW-4 has further stated in his cross-examination that on 24.12.2006 he was telephonically informed by Tinku Pardhan from Dharamshala that his daughter has been found at Dharamshala and his daughter disclosed that convict/appellant used to give beatings to her and also threatened her, but nothing more was disclosed. PW-4 has further stated in his cross-examination that he neither remembers the year of his birth nor the year of his marriage, however, PW-4 has stated that the victim/prosecutrix was born after the birth of his first child. PW-4 has specifically denied the suggestion that his daughter was 18/19 years of age on 17.09.2007 (the date when the testimony of PW-4 was recorded). 8.
PW-4 has specifically denied the suggestion that his daughter was 18/19 years of age on 17.09.2007 (the date when the testimony of PW-4 was recorded). 8. PW-5/Anil Pardhan, in support of the prosecution case, has stated that when both the convict/appellant and the victim/prosecutrix came to him asking place to live and job, they were allowed to live in a small room adjoining to his kitchen, and jobs were arranged for them. PW-5 has very specifically stated that when both of them came to him, the female appears to be under constant fear. PW-5 has further stated in his cross-examination that both of them worked in his house. During their stay, convict/appellant used to work in the dairy being run by him and the victim/prosecutrix used to work in his house. PW-5 has further admitted in his cross-examination that in August, 2006, the convict/appellant reported to the police that he (PW-5) did not pay anything to the convict/appellant and PW-5 was called in the police station where he had paid ` 1200/- (twelve hundred) to the convict/appellant. PW-5 has also stated that his brother is Tinku, who is residing separately having house adjoining to his house. PW-5 has further stated in his cross-examination that he is not falsely implicating the convict/appellant for filing a complaint against him before the police for non-payment of the wages. 9. PW-6/Neeraj Kumar, Pardhan of the area in support of the prosecution case has stated that the victim/prosecutrix alongwith the convict/appellant came to the house of his brother in the month of July, 2006, in search of job and his brother deployed them in his house where they worked for about two months, thereafter, both of them worked in the house of Colonel Babar Gurung in their locality and during that period both of them were residing in the house of Mohni at Dari. On 23.12.2006 convict/appellant came to his house and inquired about the victim/prosecutrix by disclosing that she did not turn up to the house. On the next day, the victim/prosecutrix met PW-6 near his house in a shattered condition and wife of PW-6 inquired from her then she disclosed that she was not married with the convict/appellant, who had brought her from her parents residing in Gurdaspur.
On the next day, the victim/prosecutrix met PW-6 near his house in a shattered condition and wife of PW-6 inquired from her then she disclosed that she was not married with the convict/appellant, who had brought her from her parents residing in Gurdaspur. On the advice of PW-6, she went to the Police Station and PW-6 contacted the father of the victim, who came to Dharamshala to whom the victim/prosecutrix disclosed everything. PW-6 has also reiterated the prosecution version in his cross-examination and has also accepted that convict/appellant was working in the dairy of his brother and the victim/prosecutrix was working in the house of his brother. PW-6 has also very categorically stated that in the month of October/November, 2006, the convict/appellant made a complaint before the police against his brother for non-payment of wages and his brother was called in the police station where payment was made to the convict/appellant, however, PW-6 has denied the suggestion that in that respect the convict/appellant has been falsely implicated. PW-6 has also stated in his cross-examination that the victim/prosecutrix met his wife on 24.12.2006 and disclosed about the facts and deliberation between the victim/prosecutrix and her father which took place in his presence and the victim/prosecutrix disclosed everything to her father, as to what had happened during the past. PW-6 has very categorically stated in his cross-examination that the victim/prosecutrix disclosed that she had been kept by the convict/appellant as his wife. 10. PW-7, a Lady Constable Sulekha Devi, accompanied the victim/prosecutrix for medical examination. PW-8 is Constable Madan Lal who brought the sealed packets of samples from the hospital and deposited the same with MHC in the police station. PW-9 the Head Constable/Anil Kumar, delivered the sealed packets at Forensic Science Laboratory for chemical analysis, however, all these witnesses are formal in nature. 11. PW-10/Mohni Katri in support of prosecution case has stated that in November, 2006, both the victim/prosecutrix and the convict/appellant stayed in her house for 20/25 days. On 23.12.2006, the victim/prosecutrix left the house in her absence when PW-10 had gone to attend a marriage and her daughters were in their school, however, on 24.12.2006 the victim/prosecutrix was found in Chilgari, Dharamshala. PW-10 has also stated that the victim/prosecutrix and the convict/appellant came to her house and claimed themselves to be married.
On 23.12.2006, the victim/prosecutrix left the house in her absence when PW-10 had gone to attend a marriage and her daughters were in their school, however, on 24.12.2006 the victim/prosecutrix was found in Chilgari, Dharamshala. PW-10 has also stated that the victim/prosecutrix and the convict/appellant came to her house and claimed themselves to be married. On 24.12.2006 PW-10 was told by the police that convict/appellant had brought the victim/prosecutrix from her parental house. 12. PW-11/Constable Joginder Singh and PW-12/S.I. Gulzari, Additional S.H.O., Police Station, Dharamshala, Investigating Officer, have supported the prosecution case in their official capacity. 13. PW-12/S.I. Gulzari has acknowledged the FIR, Ex. PW-3/A, and sending of the victim/prosecutrix for medical examination. PW-12 has further stated in his cross-examination that the victim/prosecutrix, got the FIR recorded, accompanied by Tinku alias Neeraj Pardhan. PW-12 further stated that Tinku alias Neeraj and Anil Pardhan are real brothers and the victim/prosecutrix resided in the house of Anil Pardhan and Anil Pardhan was not accompanied with the victim/prosecutrix when the FIR was registered. PW-12 has also stated in his cross-examination that he recorded the statement of Anil Pardhan during investigation. 14. PW-13/Dr. Vijay Thakur has given the opinion, Ex. PW-13/A and Ex. PW-13/B on the basis of skaigram and ultrasound. 15. On analysis of the prosecution witnesses, it appears that in view of testimony of PW-3, she herself disclosed at the time of medical examination that her age was 15 years and in view of the statement of PW-4 (father of the victim/prosecutrix), the victim/prosecutrix was born in the year 1992, however, the radiological age of the victim/prosecutrix was taken between 15 to 17 years, as per Ex. PW-13/A after X-ray examination of left wrist joint, left shoulder joint, left hip joint, left elbow joint and left ankle joint and on the cumulative effect of the oral version of the victim/prosecutrix. In our considered view neither any record has been produced by the prosecution nor any prosecution witness has been examined to indicate that the victim/prosecutrix was more than 18 years, whereas, in view of her own testimony the victim/prosecutrix was less than 16 years of age. In this respect, we do not find any scope of interference in the finding arrived at by the learned Additional Sessions Judge Kangra at Dharamshala in taking the victim/prosecutrix as minor.
In this respect, we do not find any scope of interference in the finding arrived at by the learned Additional Sessions Judge Kangra at Dharamshala in taking the victim/prosecutrix as minor. It is also noticed from the testimony of PW-3/victim that she on her own did not disclose to anyone during her stay with the convict/appellant for about 5-6 months despite getting opportunities because the convict/appellant had been constantly beating and threatening to kill her and her family members and has sexually been assaulting her. We also notice some minor contradictions. PW-3 did not disclose to her father when she had a talk with her father and how she was given in superdari of her father, whereas, Ex. PW-4/A reveals that the victim/prosecutrix was given in superdari to her father/PW-4 on 27.12.2006. The stay of the victim/prosecutrix with the convict/appellant in Dharamshala as his wife is supported by the testimony of PW-3, that is the victim/prosecutrix as well as by the testimony of PW-5/Anil Pardhan and PW-6/Neeraj Kumar corroborated by the testimony of PW-10/Mohni Katri. Undisputedly, the victim/prosecutrix was kept by the convict/appellant as his wife during her stay at Dharamshala. A minor contradiction is also being noticed from the testimony of PW-6/Neeraj Kumar that the victim/prosecutrix has disclosed the entire incident to her father, whereas, PW-4 (father of the victim) was only disclosed that the convict/appellant had been giving beatings and threatening to kill the victim as well as her parents and taking of the victim by the convict/appellant has also been disclosed to this, however, some minor contradictions does not go to the root of the case. 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 .
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. 16. The version of PW-3 regarding sexual assault against her wishes during the time she spent with the convict/appellant cannot be disbelieved, as she was minor and her version is supported by the medical opinion of PW-2/Dr. Anju Viz. 17. On analysis of the prosecution witnesses, the material on record and medical evidence, we are of the considered opinion that the learned Additional Sessions Judge has arrived at a correct finding that the convict/appellant has taken the victim/prosecutrix, a minor girl, from the lawful guardianship of her parents and kept her at Dharamshala as his wife for several months and has not only threatened to kill her, and also to kill her parents but gave beatings to her and also sexually assaulted her.
As such, the holding of guilt of the convict/appellant for the aforesaid offences cannot be said to be incorrect. We, in our considered view, also find that the prosecution has been successful in proving the case against the convict/appellant beyond reasonable doubt, therefore, in the facts and circumstances of the case there is no scope of interference in the findings arrived at by the learned Additional Sessions Judge. The criminal appeal, being devoid of merit, is dismissed.