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Himachal Pradesh High Court · body

2015 DIGILAW 1689 (HP)

Jai Singh v. State of H. P.

2015-11-18

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. 1. This appeal is directed against the judgement rendered on 7.5.2015 by the learned Special Judge, Mandi, in Sessions trial No. 35/2013, whereby the latter convicted and sentenced the accused for his having committed offences punishable under Section 5(m) of the Protection of Children from Sexual Offences Act read with Section 376(2)(f) besides read with Section 506 of the Indian Penal Code. The accused/convict is aggrieved by the renditions of the learned Special Judge, Mandi. Being aggrieved he has come to institute the instant appeal before this Court assailing the findings of conviction recorded therein. He has canvassed before this Court that this Court in the exercise of its appellate jurisdiction reverse the findings of conviction recorded against him by the learned Special Judge, Mandi. 2. The prosecution story, in brief, is that the accused/appellant herein was God brother of uncle of the prosecutrix and was frequently visiting their house. On 1.4.2013, the prosecutrix PW-11 along with PW-9 were playing in their house. The accused came to their house and asked PW-11 and PW-9 to accompany him to forest for collection of ‘Gucchi”. The accused carried PW-9 on his back and prosecutrix accompanied them on foot to the forest. The accused showed obscene clippings on his mobile phone to PW-9 and PW-11. Thereafter he directed PW-11 and PW-9 to took off their Pajama. PW-9 ran away, however, PW-11 victim was caught by the accused. The accused took off her Pajama and she was laid on the ground. The accused laid over the prosecutrix and tried to insert his private part into her private part. The victim raised cries. The accused put finger into the private part of the victim and thereafter threatened PW-11 and PW-9 not to disclose anything about this incident to anyone. PW-11 and PW-9 keep quite for some time, however, on 11.4.2013, when they were playing in the courtyard, they started quarrelling and PW-9 threatened to disclose the incident to the mother of the victim. Thereafter, the victim started crying. PW-4, mother of the victim made inquiries from the victim and thereafter a complaint Ext.PW-3/A was lodged with the police station and on the basis of which FIR Ext.PW.3/B was registered. The victim was produced before PW-1 Dr. Seema and her MLC Ext.PW-1/B was obtained. Thereafter, the victim started crying. PW-4, mother of the victim made inquiries from the victim and thereafter a complaint Ext.PW-3/A was lodged with the police station and on the basis of which FIR Ext.PW.3/B was registered. The victim was produced before PW-1 Dr. Seema and her MLC Ext.PW-1/B was obtained. The clothes of the victim and her vaginal swab sample were preserved and handed over to the police for chemical examination. The accused was arrested and was got medically examined. The doctor opined as per MLC Ext.PX that the accused was capable of performing sexual intercourse. The mobile phone of the accused Ext.P.2 was also taken into possession vide memo Ext.PW.4/A. The Investigating Officer prepared spot map Ext.PW.12/B and also recorded the statements of witnesses as per their versions. The case property was deposited with the MHC and thereafter forwarded to the Regional Forensic Science Laboratory, Mandi. The Regional Forensic Science Laboratory, Mandi after examination submitted the report Ext.P.Y. The accused while in police custody identified the place of occurrence vide memo Ext.PW.4/A. During the investigation, date of birth certificate of the prosecutrix Ext.PW.7/A, copy of Parivar Register Ext.PW.7/B were obtained. After completion of the investigation, the challan was prepared and put up before the Court for trial. 3. After completion of the investigation, challan, under Section 173 of the Cr.P.C. was prepared and filed in the Court. The trial Court charged the accused for his having committed offences punishable under Section 5(m) of the Protection of Children from Sexual Offences Act read with Section 376(2)(f) besides read with Section 506 of the Indian Penal Code. to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined as many as 12 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded, in which he pleaded innocence. On closure of proceedings under Section 313 Cr.P.C the accused was given an opportunity to adduce evidence in defence, which opportunity he chose to avail. 5. The accused/appellant is aggrieved by the judgement of conviction recorded by the learned trial Court. On closure of proceedings under Section 313 Cr.P.C the accused was given an opportunity to adduce evidence in defence, which opportunity he chose to avail. 5. The accused/appellant is aggrieved by the judgement of conviction recorded by the learned trial Court. Shri Vivek Singh Thakur, learned Advocate, has concertedly and vigorously contended before this Court that the findings of conviction, recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of material on record. Hence, he contends that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 6. On the other hand, the learned Additional Advocate General appearing for the State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are based on a mature and balanced appreciation of evidence on record, hence do not necessitate interference, rather merit vindication. 7. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 8. At the time of occurrence, the prosecutrix was aged 9 years. Implicit reliance can be placed on the sole testimony of the minor prosecutrix for anviling thereupon findings of conviction against the accused only when on a wholesome reading of her deposition recorded on oath before the learned trial Court an ensuing inference emanates therefrom of her testimony being both inspiring as well as credible. The prosecutrix has deposed as PW-11. She in her recorded deposition on oath before the learned trial Court has, therein after her competence to depose as a witness having stood gauged by the learned trial Court by its putting queries to her, answers whereto meted by her unfolded hers being possessed of intelligibility, made a disclosure qua the occurrence in tandem with the version qua it comprised in the FIR (Ext.PW.3/B) inasmuch as of the accused on 1.4.2013 at about 3.30 P.M. in a forest at Badi-Dhar, whereto she along with PW-9 accompanied him, having shown to both of them obscene clippings enclosed in his mobile whereafter the accused after taking off her Pajama inserted his private part in her private part, at which she felt pain and cried. She has also deposed in her examination-in-chief of the accused having threatened both her and PW-9, against theirs disclosing the incident to anyone, in event thereof he would eliminate both. She has also deposed qua hers having subsequently narrated the occurrence to her mother. The learned defence counsel subjected the prosecutrix to an inexorable cross examination for from her eliciting answers to the apposite suggestions put to her displaying the factum of the version deposed by her in her examination in chief standing contradiction for hence her creditworthiness losing force sequelly rendering her version qua the incident to be, as such, uninspiring as well as untrustworthy. However, the learned defence counsel while subjecting PW-11 to an exacting cross examination has been unable to throughout its course elicit from the prosecutrix any answer to the apposite suggestions put to her by him, wherefrom it could be inferred that she has contradicted her version qua the incident comprised in her examination in chief. In sequel when her testimony in her examination-in-chief remains unshattered during the course of her exacting cross examination by the learned defence counsel, necessarily then her deposition qua the incident comprised in her examination-in-chief is to be construed to be both inspiring as well as trustworthy. Apart therefrom the deposition of PW-9 who along with PW-11 had accompanied the accused to a forest whereto they had proceeded to collect ‘Guchhi’ has in her recorded deposition on oath after hers having been declared by the learned trial Court to be a competent witness on its putting queries to her, answers whereto meted by her unfolded hers being possessed of intelligibility, divulged therein a version qua the incident corroborative to the version qua it spelt out by PW- 9. She too was subjected to the grueling ordeal of a rigorous cross examination by the learned defence counsel. Nonetheless she during the course of the exacting cross examination to which she was subjected to, has come out unscathed, rendering her testimony qua the incident comprised in her examination in chief to remain unshattered for its hence being construable to be both inspiring as well as credible, besides attaining immense probative force for giving succor to the undefiled deposition on oath of PW-11. Concomitantly with the version qua the incident spelt out by the prosecutrix in her recorded deposition on oath having come to be corroborated by PW-9, an eye witness to the occurrence, buoys an apt conclusion from this Court, of implicit reliance being imputable to the deposition on oath of PW-11. Consequently, the imminent conclusion which surfaces therefrom, is of the prosecution hence having been able to prove the guilt of the accused. Moreover, the findings of conviction recorded against the accused by the learned trial Court as such do not merit any interference. 9. The factum of the hymen of the prosecutrix having remained intact, as has been contended by the learned counsel for the appellant herein to dispel the factum as espoused by the prosecutrix in her examination in chief of the accused having inserted his penis into her private parts. However, the mere factum of the hymen of the prosecutrix having remaining unruptured and its hence sequelling the ensuing derivable inference of her testimony qua the occurrence being prevaricated stands belied/countervailed in the face of PW-1, Dr. Seema having portrayed in her deposition qua occurrence of penetration of penis into the private parts of the victim even when the hymen of the victim/prosecutrix remains unruptured. Concomitantly, the mere factum of the hymen of the prosecutrix having remained unruptured cannot stand good to constrain this Court to conclude therefrom that the version qua the incident spelt out by the prosecutrix in her recorded deposition on oath, besides corroborated by PW-9, an eye witness, whose presence at the site of occurrence has for reasons attributed hereinabove remained unshattered, stands overwhelmed. 10. 10. Even if a delay of 10 days has occurred in the reporting of the matter by the complainant to the police, nonetheless when the said delay stands explained by the prosecutrix comprised in the factum of hers fearing, hers coming to be subjected to beatings by her mother in case she makes a disclosure qua the incident to the latter which looming fear, hence having deterred her to promptly disclose the incident to her mother, in face thereof hers being a minor, besides especially when the aforesaid explanation appears not to be gripped with any falsehood necessarily the effect of delay if any on the part of the complainant in reporting the matter to the police station concerned, would not enjoin this Court to draw a conclusion therefrom that the version qua the incident comprised in Ext.PW-3/B besides in the harmonious depositions on oath of both PW-9 and PW-11 is either premeditated or concocted. 11. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 12. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement convicting and sentencing the accused/appellant is affirmed and maintained. Record of the learned trial Court be sent back forthwith.