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Himachal Pradesh High Court · body

2015 DIGILAW 1732 (HP)

Padam Singh v. State of H. P.

2015-11-27

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment rendered on 04.07.2015 by the learned Special Judge, Mandi, District Mandi, H.P. in Sessions trial No.40 of 2013, whereby, the learned trial Court convicted and sentenced the appellant/accused to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.10,000/- and in default of payment of fine amount to undergo simple imprisonment for a period of six months for his having committed offences punishable under Section 5(m) of the Prevention of Children from Sexual Offences Act read with Section 376 of the IPC. 2. Brief facts of the case which are necessary to determine the appeal are that the prosecutrix/victim daughter of PW-2 was minor aged 8 years in the month of June, 2013. The victim was drinking water in the house of one Yog Raj and the accused called her to his house. The accused laid the victim on his bed and opened her salwar. The accused inserted his spit covered finger into her private part. He also opened the zip of his pant. In the meantime, PW-3 Purnu Devi came on the spot and rescued the victim. The victim narrated the entire incident to PW-3 Purnu Devi. PW-3 narrated the entire incident further to the mother of the victim. Thereafter, complainant, Ex.PW3/A was lodged with the police and FIR Ex.PW12/A was registered. During investigation the police took into possession the bed sheet, Ex.P-2 vide memo Ex.PW3/B. The accused was arrested and he identified the spot vide memo Ex.PW1/A. The victim was produced before the doctor and was got medically examined and her MLC Ex.PW11/B was obtained. The victim was also produced before the Magistrate and her statement Ex.PW13/F was got recorded. The accused in police custody made disclosure statement Ex.PW8/A and led the police party to the spot and identified the spot vide memo Ex.PW8/B. The accused was produced before the doctor and his MLC Ex.PA was obtained. As per the opinion of the doctor, he was fit to perform sexual intercourse. The Investigating Officer during investigation prepared spot map Ex.PW13/A as also took into possession abstract of date of birth register, Ex.PW6/B and copy of pariwar register Ex.PW7/B. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. The Investigating Officer during investigation prepared spot map Ex.PW13/A as also took into possession abstract of date of birth register, Ex.PW6/B and copy of pariwar register Ex.PW7/B. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. The accused was charged by the learned trial Court for his having committed an offence punishable under Section 5 (m) of the Protection of Children from Sexual offences Act read with Section 376 of the IPC to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 15 witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence and chose to lead evidence in defence. The accused examined two defence witnesses. 6. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant. 7. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned defence counsel has concertedly, and, vigorously contended, 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 the 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. 8. On the other hand, the learned Deputy Advocate General 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 and do not necessitate interference, rather merit vindication. 9. 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. 10. The prosecutrix was aged 12 years at the time of commission of the offences aforesaid by the accused upon her, hence a minor. The prosecutrix has deposed as PW-4. 9. 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. 10. The prosecutrix was aged 12 years at the time of commission of the offences aforesaid by the accused upon her, hence a minor. The prosecutrix has deposed as PW-4. The sole testimony of the prosecutrix can form the basis for convicting the accused, if her sworn deposition on oath is both inspiring and trustworthy for giving succor to her version qua the incident comprised in Ex.PW13/F which constitutes her statement recorded before the learned Magistrate. When she came to depose as a witness before the learned trial Court, she was permitted to render a version on oath qua the incident on the learned trial Court having gauged her competence besides her intelligibility ensuing from hers meteing intelligible answers to its queries. In her sworn deposition on oath she has in consistence with her statement comprised in Ex.PW13/F testified therein of the accused having called her to his room where he untied the string of her salwar and proceeded to insert a finger in her private part. However, she has deposed qua hers being rescued by Purnu Devi. PW-4 was subjected to crossexamination by the learned defence counsel yet during the course of her inexorable cross-examination she remained unshattered, hence, rendering her version qua the incident comprised in her examination-in-chief being construable to be credible as well as inspiring. Her testimony stands corroborated by PW-3, who had entered the room of the accused where the latter had taken the prosecutrix for perpetrating upon her sexual misdemeanors attributed to him by PW-4. She on hers ingressing therein has deposed hers having witnessed the victim in the room of the accused besides, having witnessed the string of the salwar of PW-4/prosecutrix being untied as also the zip of the pant of the accused being open. She has deposed that on inquiry by her from PW-4, a disclosure was made by the latter to her of the accused having called her to his room, laid her on the bed, whereafter his having inserted his finger smeared with spit into her vagina. She has deposed that on inquiry by her from PW-4, a disclosure was made by the latter to her of the accused having called her to his room, laid her on the bed, whereafter his having inserted his finger smeared with spit into her vagina. Her deposition is consistent with her previous statement comprised in Ex.PW3/A. Apart therefrom, the factum deposed by her in her examinationin- chief of hers on entering the room of the accused hers having noticed the victim therein besides, hers having noticed the zip of the pant of the accused being open as also the string of the salwar of the prosecutrix being untied, also remains unshattered during the exacting ordeal of cross-examination to which she was subjected to, by the learned defence counsel. Necessarily then, with a prompt disclosure having been made by PW-4 to her qua the penal misdemeanors perpetrated on her person by the accused which disclosure stood elicited by her on an inquiry made by her from the prosecutrix which disclosure qua the occurrence to her by the prosecutrix stand deposed by her on oath are consistent with the version qua the incident deposed by PW-4, imparts to it an element of its lending formidable corroboration to the version narrated on oath by PW-4 qua the incident. Moreover, the testimonies of both PW-4 and PW-3 stand corroborated by PW-2. The testimonies of the aforesaid prosecution witnesses being not ridden with any taint of improvements or embellishments arising from theirs having deposed a version qua the incident in contradiction to their previous statement recorded in writing for hence rendering them discardable besides, implicit reliance thereupon being not placed by this Court, nurses an inference of their testimonies rather carrying immense probative vigour for founding thereupon findings of conviction against the accused more so when there is no proof of the prosecution witnesses aforesaid rearing an animosity towards the accused hence having falsely implicated the accused. 11. The accused had propagated the defence of alibi. In support of his propagation he has examined DW-1 and DW-2, who in their respective testimonies have unraveled the factum of the accused being present at Kullu at the relevant time along with other persons. 11. The accused had propagated the defence of alibi. In support of his propagation he has examined DW-1 and DW-2, who in their respective testimonies have unraveled the factum of the accused being present at Kullu at the relevant time along with other persons. However, the learned trial Court discarded the aforesaid plea on the score of DW-1 admitting qua distance inter se Kullu and the spot where the alleged occurrence took place being coverable within one hour, hence, assumingly the availability of the accused at Kullu even after his having committed the offence at the site of occurrence yet not dispelling his presence at the site of occurrence, more so, when the time qua availability of the accused at Kullu has not been deposed to be a time contemporaneous to the time when the ill fated occurrence took place at Village Khaidhar. Besides, falsity to the aforesaid plea of alibi reared by the accused in his defence is borne by the fact of both the DWs having deposed that the accused was carrying bricks of some person at Kullu whose name has, however, remained unspelt. Omission in the aforesaid regard has precluded the examination of the person aforesaid as a witness for eliciting during its course from him a statement to sustain the fact of availability of the accused at Kullu for performing his chores. 12. The defence has espoused qua the non existence of any injury on the hymen or its having not come to be torn, belies the version of of the prosecutrix corroborated by PW-2 and PW-3 of the accused having inserted his finger smeared with spit in her vagina. However, the aforesaid espousal before this Court fails to gain any legal leverage, especially in the face of PW-11 Dr. Anuradha Sharma, who on hers examining the victim issued MLC Ex.PW11/B having deposed qua the hymen of a child being highly placed and it remaining untorn besides uninjured even when a person inserts therein his spit covered finger which does not cross it. 13. Anuradha Sharma, who on hers examining the victim issued MLC Ex.PW11/B having deposed qua the hymen of a child being highly placed and it remaining untorn besides uninjured even when a person inserts therein his spit covered finger which does not cross it. 13. 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 the evidence on record, rather it has aptly appreciated the material available on record. 14. In view of the above, we find no merit in this appeal which is accordingly dismissed and the judgment impugned before this Court is affirmed and maintained. Record of the learned trial Court be sent back forthwith.