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Himachal Pradesh High Court · body

2014 DIGILAW 665 (HP)

Vicky Kumar v. State of H. P.

2014-05-29

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment rendered on 26th June, 2013, by the learned Additional Sessions Judge, Sirmaur, District at Nahan, in Sessions Trial No.28-N/7 of 2012, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.25,000/- for the commission of offence punishable under Section 376 (2) (f) of the Indian Penal Code and in default of payment of fine, he has been sentenced to undergo rigorous further imprisonment for one year. 2. The prosecution case, is divulged in the F.I.R., lodged qua the occurrence. It contains a narrative qua the fact of on 23rd June, 2012 during day time at place Suketi within the jurisdiction of Police Station, Nahan, the accused having committed rape on minor prosecutrix PW- 3. The prosecutrix had visited the room of the accused to watch television. The accused bolted the room from inside and opened the string of the Pajami of the said girl and massaged oil on her private parts and ultimately committed rape on the minor prosecutrix. On the prosecutrix shrieking the accused unbolted the door. The minor prosecutrix had weepingly come to her mother in the nearby quarter. She narrated the entire incident to her mother. The mother of the prosecutrix noticed the presence of oil on the thigh of the prosecutrix. The father of the prosecutrix arrived in his room during lunch hour at 1.30 p.m. On his arrival, the incident was narrated to him by the mother of the prosecutrix. The F.I.R qua the incident comprised in Ext.PW-2/A was lodged at the instance of PW-2 Sana Ullah, the father of the prosecutrix. 3. On the lodging of the F.I.R. the police commenced investigation. During the course of investigation, the Investigating Officer moved an application Ext.PW-13/A for the medical examination of the prosecutrix PW-3. The doctor before whom Ext.PW-13/A was moved, namely, Dr. Manisha Aggarwal,(PW-5) opined that there was nothing to suggest that intercourse had not taken place with the prosecutrix. Slides Ext.P4 and P5, clothes P6 and P7 were preserved by PW-5 and handed over to the police for chemical examination. Ext.PW-7/A, is, the age determination test report of PW-3, conducted at R.H.Nahan. X-ray films are comprised in Ext.7/A to Ext.7/C. The age of the prosecutrix is divulged therein to be between 6 to 9 years. Slides Ext.P4 and P5, clothes P6 and P7 were preserved by PW-5 and handed over to the police for chemical examination. Ext.PW-7/A, is, the age determination test report of PW-3, conducted at R.H.Nahan. X-ray films are comprised in Ext.7/A to Ext.7/C. The age of the prosecutrix is divulged therein to be between 6 to 9 years. The Investigating Officer visited the spot and spot map Ex. PW-16/A was prepared. At the spot the accused intimated the police that he has thrown a piece of paper in a dustbin, which was used by him for cleaning his private parts, after commission of the act. The said paper Ex. P-3 containing semen, was taken into possession vide memo Ex. PW-2/B in the presence of PW-4 (Sanjeev Kumar) and PW-6 (Roshan Lal). Si Kulbeer Singh has clicked the photographs by Digital Camera of P.S Sadar, Nahan, which comprised in Ex. P-9 to P-19. The date of birth certificate of the accused was obtained by the Investigating Officer from the Principal, Swami Adghdanand Ji, Maharaj, Inter College, Barhan, District Chandoli, UP, which is comprised in PW-16/D. The extract of School Gazette pertaining to accused is comprised in Ex. PW-16/E. The name of the accused in the school record has been recorded as Sang Priya, copy whereof is Ex. PW-16/F. On an application Ex. PW-7/E, moved by the Investigating Officer, the accused was medically examined at R.H Nahan and MLC Ex. PW-7/D was obtained, in which the Doctor has opined that there is nothing to suggest that the accused is not able to perform sexual intercourse. On an application Ex. PW-12/A, blood sample on FTA Mini card of PW-3 prosecutrix was taken by PW-12 Dr. Puneet Sharma, Medical Officer, R.Z, Nahan and was handed over to the police duly sealed. The clothes of the prosecutrix Ex. P-6 and P-7 , piece of paper stained with semen Ex. P-3 and underwear Ex. P-2 were sent to the chemical analyst and his report Ex. P-16/G was obtained. Investigating Officer, sent the clothes, vaginal smear, under wear of the accused and sample of blood of PW-3 prosecutrix and of the accused to the Chemical analyst, Junga of analyses and rendition of an opinion thereon. The report of the Chemical analyst, is, PW-16/G. During the course of investigation of the case, PW-2 Sh. Sana Ullah produced affidavit regarding the date of birth of the prosecutrix comprised in Ex. The report of the Chemical analyst, is, PW-16/G. During the course of investigation of the case, PW-2 Sh. Sana Ullah produced affidavit regarding the date of birth of the prosecutrix comprised in Ex. PW-2/C. The investigating Officer deposited the case property alongwith sample in Malkhana. 4. On completion of the investigation into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was presented before the learned Chief Judicial Magistrate, Sirmaur at Nahan. The learned committing Magistrate, after compliance of the statutory provisions, committed the case for trial to the learned Sessions Judge for trial. 5. On consideration of the police report and the material placed before the Court and after the hearing the learned Public Prosecutor, the learned trial Court proceeded to charge-sheet the accused for his having committed an offence punishable under Section 376(2) (f) of the Indian Penal Code, 1860. 6. The accused did not plead guilty to the charge and claimed to be tried. 7. In proof of the prosecution case, the prosecution examined as many as 18 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which the accused pleaded innocence. 8. On closure of proceedings under Section 313 of Code of Criminal Procedure, the accused was given an opportunity to adduce evidence in defence, however, he did not adduce any evidence in defence. 9. Consequently, after hearing the learned Public Prosecutor, as well as, the learned defence counsel, learned trial Court on the strength of the material laid before it, convicted and sentenced the accused, for his having committed an offence under Section 376 (2) (f) of the Indian Penal Code. 10. In the appeal, which is directed against the impugned judgement of the learned Additional District & Sessions Judge, Sirmaur at Nahan, whereby he convicted and sentenced the accused for his having committed an offence punishable under Section 376(2)(f) of the Indian Penal Code, the learned counsel appearing, for, the accused/appellant has contended, that, the impugned judgment of the trial Court, is, perverse, in as much, as, it is not based on a proper evaluation of the evidence, hence, has sequeled mis-appreciation of evidence by the trial Court, as such, it be reversed in appeal before this Court, while exercising, its, jurisdiction. On the other hand, the learned Additional Advocate General forcefully and vigoursly contended before this Court that the accused committed rape of a minor prosecutirx, therefore, the findings recorded by the learned trial Court, against the accused are based on a proper appraisal and evaluation of the entire evidence on record. As such, he contends that the appeal be dismissed and the judgement of conviction rendered by the learned trial Court be maintained and affirmed. 11. The learned counsel on either side have been patiently heard by this Court and the entire record of the case has been incisively as well as carefully perused by this Court. 12. The star witness of the prosecution, is, the prosecutrix, who is PW-3, she, has, divulged by Ex. PW- 2/C, then was seven years of age, at, the time the incident took place. The age of the prosecutrix being 7 years, at the relevant time, is, not controverted by the defence counsel. Obviously, then she was minor at the time of hers being allegedly subjected to forcible sexual intercourse by the accused-appellant. Therefore, consent if any of the prosecutrix, is, of no relevance. The testimony of the prosecutrix, who appeared as PW-3, has been carefully and incisively read by this Court. The prosecutrix has forthrightly deposed before the learned trial Court, that the accused, at the relevant time, was watching Television and had proceeded to massage her private part with oil and subsequently committed “bad act” with her. She deposed that she narrated the entire incident to her mother. She, also, identified the accused, facing trial, and present in the Court, at, the time of recording of her deposition, to be the same person, who had committed “bad act” with her. In cross-examination, she has denied the suggestion that she has not visited the quarter of the accused to watch Television. An analysis of the testimony of prosecutrix, unfolds the fact of her having truthfully and with utmost candour deposed the facts qua the incident, in tandem with the narration of facts, as, comprised in the FIR, hence, she deposed in corroboration thereof. Nothing interse contradictory has emanated, on a wholesome reading of her testimony, so as to construe, her testimony to be blemished or tainted. Moreover, the testimony of prosecutrix has been corroborated by the testimony of mother of the prosecutrix, PW-1, as well as father of the prosecutrix PW-2. 13. Nothing interse contradictory has emanated, on a wholesome reading of her testimony, so as to construe, her testimony to be blemished or tainted. Moreover, the testimony of prosecutrix has been corroborated by the testimony of mother of the prosecutrix, PW-1, as well as father of the prosecutrix PW-2. 13. PW-1 Smt. Idu Nisha, the informant has been square and categorical while despoing that the prosecutrix was summoned by the accused, to his quarter to watch Television, at about 11 a.m. On returning therefrom, the prosecutrix narrated to her that the accused had subjected her, to forcible sexual intercourse. She deposed that, she, also examined the private parts of the prosecutrix and found that her thigh was massaged with oil and oil was present on her thigh. Subsequently, she has deposed that the prosecutrix narrated to her that, the, accused had perpetrated forcible sexual intercourse on her person. She also deposed that there was swelling on the private parts of the prosecutrix. This witness also deposed that there was copious oozing of blood from her private part. She deposed that the prosecutrix was medically examined. The accused had enabled the Investigating Officer, in, the presence of witnesses, to, recover a piece of paper stained with his semen, from the dustbin of his quarter. The testimony of PW-1 the informant gets corroboration from the testimony of the prosecutrix PW-3. In addition PW-2 has, also supported the testimonies of PW-1 and PW-3, in as much as, he has deposed in corroboration thereof. Consequently, the narration of the incident has been corroborated by the testimonies, of, all the star/material witnesses. Their testimonies do not portray any interse and intra se contradiction so as to render their testimonies to be unbelievable. 14. In addition PW-2 has, also supported the testimonies of PW-1 and PW-3, in as much as, he has deposed in corroboration thereof. Consequently, the narration of the incident has been corroborated by the testimonies, of, all the star/material witnesses. Their testimonies do not portray any interse and intra se contradiction so as to render their testimonies to be unbelievable. 14. Furthermore, witnesses to the the recovery of pieces of paper Ext.P-3 recovered under Ext.PW-2/B have not supported the factum of recovery of Ext.P-3 under memo Ext.PW-2/B, in as much, as, they have denied the fact of recovery thereof having been have in their presence in the manner as shown in Ext.PW-2/B. Even if, hence, in the absence of proof of recovery of Ext.P-3 under Ext.PW-2/B in the legally efficacious manner, it does not, as such, erode or belittle the legal effect of the testimony of PW-5, who subjected the prosecutrix to medical examination and she having deposed that there was nothing to suggest on hers having medically examined, her private parts that, she, was not subjected to forcible sexual intercourse. PW- 5 had observed, on her subjecting the prosecutrix to medical examination of no fresh bleeding being detected by her, none the less, in the face of the report of FSL Junga revealing that no blood and semen was detected on the salwar and shirt of the prosecutrix, yet blood was detected, in traces in the vaginal smear slides of the prosecutrix, whose presence constrained PW-5 to subsequently render, her final opinion comprised in Ext.PW-5/B on the back side of MLC Ext.PW-5/A. The said opinion, unequivocally pronounces, the fact of the prosecutrix having been subjected to forcible sexual intercourse at the instance of the accused. Morover, Ext.PW-7/D, which is the MLC issued on 25.6.2012 by the medical practitioner concerned, who carried out the medical examination of the accused discloses, that, the accused was not unfit to perform sexual intercourse. Consequently, in the face thereof and given the fact that the accused has divulged by Ext.PW-16/D and Ext.PW-16/E to be aged about 20 years. As sequel, the effect thereof, is, that the accused was sexually fit as well as was major at the time of his having perpetrated forcible sexual intercourse on the minor prosecutrix. 15. Consequently, in the face thereof and given the fact that the accused has divulged by Ext.PW-16/D and Ext.PW-16/E to be aged about 20 years. As sequel, the effect thereof, is, that the accused was sexually fit as well as was major at the time of his having perpetrated forcible sexual intercourse on the minor prosecutrix. 15. An analyses of the entire evidence on record oral as well as documentary, preponderately the opinion, of, PW-5 comprised in Ext.PW-5/A, as well, as, her subsequent opinion after hers having perused the report of FSL comprised, in, Ext.PW-5/B, fortifies a forthright and clinching conclusion that the firm interse corroborative testimonies, of, PW-1 and PW-3, are hence believable. Besides with their testimonies having been corroborated by the medical evidence, they enjoy legal sanctity and occupy a high pedestal in the rank of evidentiary values. The imputation of truth thereof by the learned trial Court, to, the evidence on record, cannot, be construed to be untenable nor it can be said that the learned trial Court misdirected itself in convicting and sentencing the accused. 16. The upshot of the above discussion, is, that there is neither any glaring nor stark error of mis-appreciation or non-appreciation of material evidence on record by the learned court below, rather the learned trial Court has appreciated the evidence in a mature and balanced manner, as such, the findings rendered by the learned trial Court are affirmed. The appeal is accordingly dismissed.