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Himachal Pradesh High Court · body

2015 DIGILAW 803 (HP)

Jangli Ram v. State of H. P.

2015-07-02

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment : Justice Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 5/8.7.2013, rendered by the learned Sessions Judge (Forests), Shimla, H.P. in Sessions Trial No. 25-S/7 of 2012, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence punishable under Section 376 IPC, has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo imprisonment for six months. 2. The case of the prosecution, in a nut shell, is that PW-1 Vidya Devi, PW-2 Murat Singh alongwith the prosecutrix and three sons were putting up at Malyana as tenants. PW-2 Murat Singh was working as mason. He was having one room and one kitchen. The prosecutrix was student of second class in the year 2012. Her date of birth was 18.10.2004, as per the birth certificate Ext. PW-10/B and family register Ext. PW-10/C. On 26.4.2012, the marriage of the brother of Yashpal, who was residing in the neighborhood of PW-2 Murat Singh had been fixed. It was attended by him. PW-1 Vidya Devi alongwith the children stayed back in the house. The accused also attended the marriage alongwith PW-8 Atma Ram. Thereafter, PW-2 Murat Singh, PW-8 Atma Ram and other persons consumed liquor in the marriage. Accused went to the house of PW-2 Murat Singh to spend night. During night, accused alongwith two sons of PW-1 Vidya Devi and PW-2 Murat Singh had slept on single bed in the kitchen and one son and prosecutrix had slept on the floor in the room where the accused was sleeping. At about 11:00 PM, prosecutrix cried for help and on hearing her cries, PW-1 Vidya Devi went to the room and switched on the light. She noticed that accused was standing in the room and zip of his pant was open. PW-1 Vidya Devi also noticed blood on the legs of the prosecutrix. Thereafter, the accused escaped from the spot. PW-1 Vidya Devi narrated the incident to PW-2 Murat Singh. The prosecutrix had disclosed that wrong thing was done with her private part by the accused. Thereafter, PW-2 Murat Singh went in search of the accused alongwith PW-3 Roshan Lal but they could not find the accused. The police recorded the statement of PW-1 Vidya Devi and FIR Ext. PW-1 Vidya Devi narrated the incident to PW-2 Murat Singh. The prosecutrix had disclosed that wrong thing was done with her private part by the accused. Thereafter, PW-2 Murat Singh went in search of the accused alongwith PW-3 Roshan Lal but they could not find the accused. The police recorded the statement of PW-1 Vidya Devi and FIR Ext. PW-9/A was registered. The prosecutrix was examined by PW-5 Dr. Geetika. She issued the MLC Ext. PW-5/B. The clothes of the prosecutrix were taken into possession. These were sent to FSL. The opinion of the FSL is Ext. PW-5/C. The police also took photographs of the spot. The accused was arrested. He was also got medically examined. The matter was investigated and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 19 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. He denied the entire case of the prosecution. The learned Trial Court sentenced and convicted the accused on 5/8.7.2013. Hence, the present appeal. 4. Mr. N.S.Chandel, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. M.A.Khan, learned Addl. Advocate General, appearing for the State has supported the judgment of the learned trial Court dated 5/8.7.2013. 5. We have gone through the impugned judgment and records of the case carefully. 6. PW-1 Vidya Devi testified that her husband is working as a mason. They had one room and one kitchen on rent. Her daughter was studying in 2nd class. On 26.4.2012, the marriage of brother of Yashpal, who resides in their neighborhood had been fixed. Her husband had gone to attend the same. She and her children had stayed back in the house. Her husband came back from the marriage at about 10:30 PM alongwith the accused. Her two sons and the accused slept on the double bed. She and her husband slept in the single bed inside the kitchen and the remaining two children slept on the floor. Accused and her husband had consumed liquor in the marriage. At about 11:00 PM, her daughter cried. She went to the room and switched on the light. She saw the accused standing near her daughter and the zip of the pant was open. Accused and her husband had consumed liquor in the marriage. At about 11:00 PM, her daughter cried. She went to the room and switched on the light. She saw the accused standing near her daughter and the zip of the pant was open. She noticed blood on the legs of her daughter. Her husband was still asleep. The moment she started lifting her daughter, by that time, the accused had run away from the spot. Thereafter, she woke up her husband. When she asked her daughter the reason of her cries, she told her that the accused had done wrong thing with her in her private part. She had also told her that she was feeling pain in her private part. Her husband went out in search of the accused, but he could not be traced. She made statement to the police vide Ext. PW-1/A. The police took her daughter from Dhalli to the Hospital for conducting her medical examination. In her cross-examination, she deposed that she served food to children at 10:00 PM and at about 10:30 PM, her husband had reached. Her husband had telephonically informed the police. In her cross-examination, she admitted that on that night, they had neither sought nor tried to seek help from their neighbours. 7. PW-2 Murat Singh, corroborated the statement of PW-1 Vidya Devi, the manner in which the incident had happened on 26.4.2012. He came to his house at 10:30 PM. The accused also accompanied him to his house. He told his wife to arrange bedding for the accused. His son and daughter who were younger and used to wet the bed during night had also slept in the same room on the floor. He had gone to sleep by 10:45 PM. At 11:00-11:30 PM, he was woken up by his wife. His wife and daughter were weeping and at that time, the accused was not present. He had seen condition of his daughter and had found blood on her private part. On asking, her daughter told him that the uncle who had come had committed bad act with her. His wife took the daughter for medical examination at 6:30 AM. 8. PW-3 Roshan Lal deposed that PW-2 Murat Singh had visited his house on the intervening night of 26th /27th April, 2012 at about 12:30 AM. On asking, her daughter told him that the uncle who had come had committed bad act with her. His wife took the daughter for medical examination at 6:30 AM. 8. PW-3 Roshan Lal deposed that PW-2 Murat Singh had visited his house on the intervening night of 26th /27th April, 2012 at about 12:30 AM. Murat Singh told him that in the night, accused had come to his house with him and had done wrong act with his daughter and ran away from there. He along with Murat Singh had searched for the accused but could not be found. The police took into possession the bed sheet vide memo Ext. PW-2/A. It was signed by him. 9. PW-4 Dr. Aman Madaik, has examined the accused and issued MLC Ext. PW-4/C. In his opinion, there was nothing to suggest that accused was incapable of performing sexual intercourse. 10. PW-5 Dr. Geetika, has medically examined the prosecutrix. She has noticed following injuries on the body of the prosecutrix: “i) A vertical scratched abrasion on right cheek 2 cm lateral to ala of nose, which was 1 cm in size, reddish in colour, which was blunt/tip of sharp. The said injury was less then 12 hours. ii) There was bruise 5 cms. below left nipple of .5 x .5 cms. size, which was bluish in colour and was caused by a blunt weapon within probable duration of less than 72 hours. iii) There was a bruise bilateral elbow of 1 cm x 1 cm size which was bluish in colour caused by a blunt weapon within probable duration of less than 72 hours. iv) There was a bruise on left chin of 1 x 2 cms. size, oval in shape which was bluish in colour caused by a blunt weapon within probable duration of less than 72 hours.” In her opinion, there was a penetration into introitus and there were injuries on body. Her final opinion based on the chemical examination FSL report that sexual assault could not be ruled out. 11. PW-7 Desh Raj, proved the date of birth of the prosecutrix at Sr. No. 155 of the Register brought by him. Her date of birth was recorded in the register as 18.10.2004. He proved certificate Ext. PW- 7/A. 12. PW-8 Atma Ram, deposed that there was marriage ceremony on 26.4.2012. The accused had come to his workshop. 11. PW-7 Desh Raj, proved the date of birth of the prosecutrix at Sr. No. 155 of the Register brought by him. Her date of birth was recorded in the register as 18.10.2004. He proved certificate Ext. PW- 7/A. 12. PW-8 Atma Ram, deposed that there was marriage ceremony on 26.4.2012. The accused had come to his workshop. He had told him that he had come in connection with Court case in Shimla. During night, he and accused had gone to attend the marriage. Murat Singh had also met them. They had consumed liquor in the marriage. One another person Madan was also with them. After taking drinks and food, Murat Singh and accused started talking something with each other for about ten minutes and during that period he and Madan got to one side and they both came to the workshop. Murat Singh and accused remained there talking to each other. He was declared hostile and cross-examined by the learned Public Prosecutor. He admitted in his cross-examination by the learned Public Prosecutor that accused was not invited in the marriage but he had gone with them as his guest. However, on cross-examination by the Advocate on behalf of the accused, he admitted that accused had come to his workshop at first instance and at that time he had told him that he was to take some money from Murat Singh. He was again cross-examined by the learned Public Prosecutor. He deposed that he had told this fact for the first time in the Court and he had also not disclosed this fact to the police under statement made under Section 161 Cr.P.C. mark-A. 13. PW-10 HC Narian Singh proved the birth certificate Ext. PW-10/B and copy of family register vide Ext. PW-10/C. 14. PW-15 HHC Dula Ram deposed that the accused identified the room where he had committed the sexual offence with the victim. 15. PW-17 Lakhi Ram deposed that he being the Secretary Gram Panchayat Gohar had supplied the birth certificate of the prosecutrix vide Ext. PW-10/B, Ext. PW-10/C and copy of family register Ext. PW-10/D to the police. 16. The prosecutrix was also examined as PW-18 on oath. She stated that one year back, her father had gone to attend the marriage. During night, the accused came alongwith her father. She identified the accused in the Court. PW-10/B, Ext. PW-10/C and copy of family register Ext. PW-10/D to the police. 16. The prosecutrix was also examined as PW-18 on oath. She stated that one year back, her father had gone to attend the marriage. During night, the accused came alongwith her father. She identified the accused in the Court. During night time, she alongwith her brother Pardeep had slept on the floor and accused had slept on the bed alongwith her brother Kamlesh. During night time, accused committed wrong thing with her private part. She felt pain and cried. Thereafter, her mother entered the room and accused fled away. The accused was arrested by the police and she identified him. She was medically examined by the doctor. The clothes worn by her were also taken into possession by the doctor. Her father brought other clothes and those were worn by her. In her cross-examination, she specifically deposed that nobody had tutored her to make statement in the Court. Volunteered that she was aware of it. Her mother accompanied her to the hospital. Her clothes were taken into possession by the doctor. 17. PW-19 ASI Sewa Singh has investigated the matter. He alongwith the police party went to the spot. He recorded the statement of PW-1 Vidya Devi vide Ext. PW-1/A. FIR Ext. PW-9/A was recorded. The prosecutrix was medically examined. He took into possession bed sheet vide memo Ext. PW-2/A. He clicked the photographs. 18. This is the entire evidence led by the prosecution. The case of the prosecution, precisely, is that he accused came to stay overnight in the house of PW-2 Murat Singh. He sexually assaulted the prosecutrix. PW-1 Vidya Devi noticed the accused on the spot. She also woke up her husband. In the meantime, accused ran away. The prosecutrix was medically examined. 19. The prosecutrix was examined as PW-18. She has categorically testified that she was sexually assaulted by the accused during night time. She felt pain and cried. Thereafter, her mother entered the room and the accused ran away. She identified the accused in the Court. She was medically examined by PW-5 Dr. Geetika. The doctor has noticed the injuries, as noticed by us while discussing the statement of PW-5 Dr. Geetika. She has categorically opined on the basis of clinical examination and FSL report that sexual assault could not be ruled out. She identified the accused in the Court. She was medically examined by PW-5 Dr. Geetika. The doctor has noticed the injuries, as noticed by us while discussing the statement of PW-5 Dr. Geetika. She has categorically opined on the basis of clinical examination and FSL report that sexual assault could not be ruled out. In her opinion, there was penetration into introitus and there were injuries on the body. 20. The statement of PW-18 prosecutrix has been duly corroborated by PW-1 Vidya Devi and PW-2 Murat Singh. The date of birth of the prosecutrix was 18.10.2004. The school certificate alongwith the copy of the parivar register has been duly proved by the prosecution. There was no enmity of the family of the prosecutrix with the accused. 21. Mr. N.S.Chandel, Advocate, appearing on behalf of the accused submitted that the father of the prosecutrix has to pay some money to the accused and thus his client has been falsely implicated. There is no force in this submission. There is no evidence on record to show that the father of the prosecutrix has to pay some money to the accused. Even if, hypothetically it is assumed that the money was to be paid, no self respecting father would ever try to falsely implicate the accused in such a heinous crime where the honour of the family and the prosecutrix is also involved. Thus, the prosecution has fully proved the case against the accused as per the statement of PW-18, prosecutrix and PW-5 Dr. Geetika, duly corroborated by PW-1 Vidya Devi and PW-2 Murat Singh. 22. Accordingly, there is no merit in this appeal and the same is dismissed. There is no occasion for this Court to interfere with the well reasoned judgment and order of the learned trial Court dated 5/8.7.2013.