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Himachal Pradesh High Court · body

2015 DIGILAW 974 (HP)

Hoshiar Singh v. State of H. P.

2015-07-30

RAJIV SHARMA, SURESHWAR THAKUR

body2015
Judgment Rajiv Sharma, J. This appeal is instituted against the judgment and order dated 11.12.2013 and 13.12.2013, respectively, rendered by the learned Special Judge, Una, H.P. in Sessions Case No. 6-VII/2013, whereby the appellant-accused (hereinafter referred to as accused) who was charged with and tried for offence punishable under Section 376 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 20,000/- for the commission of offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the Act), and in default of payment of fine he was further ordered to undergo six months simple imprisonment. 2. The case of the prosecution, in a nut shell, is that PW-11, prosecutrix (name withheld), is the daughter of PW-1 Neelam Kumari and PW-2 Sanjeev Kumar. PW-2 Sanjeev Kumar, her father used to work at Amrali in the Boot Factory as a labourer. PW-11 is mentally retarded. She used to study in sixth standard in Government School. On 14.4.2013, PW-1 Neelam Kumari and PW-2 Sanjeev Kumar had left to Mehatpur for nasal operation of their son. PW-11, prosecutrix remained all alone at home at Village Singhan. Her parents came back at about 3:00 PM. They found that the victim was not present at home. She was searched in the neighbourer’s house. PW-1 Neelam Kumari went to the cowshed of their immediate neighbour Gurdev Singh. She noticed that her daughter was nude and accused, brother-in-law of Gurdev Singh, was doing the bad act with her on chaff. On seeing PW-1 Neelam Kumari, accused absconded from the spot. The matter was reported to the police on 15.4.2013. The statement of Neelam Kumari was also recorded under Section 164 Cr.P.C. The medical examination of the prosecutrix was also undertaken. Simple injuries i.e. bruises, contusions, superficial abrasion on right leg were noticed and preliminary opinion was given that possibility of sexual intercourse could not be ruled out. Her dried vaginal swab, swab smear, cervical swab smear, cut pubic hair, blood sample, including the clothes of the victim were sent for chemical analysis. The victim was also referred to the Medical Board. The Medical Board found the mental state of PW-11, prosecutrix to be the case of moderate mental retardation and not competent to make statement. Her dried vaginal swab, swab smear, cervical swab smear, cut pubic hair, blood sample, including the clothes of the victim were sent for chemical analysis. The victim was also referred to the Medical Board. The Medical Board found the mental state of PW-11, prosecutrix to be the case of moderate mental retardation and not competent to make statement. The accused was charged under Section 6 of the Act and in the alternative under Section 376 IPC. The matter was investigated and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 16 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. According to him, he was falsely implicated. He examined two witnesses in defence. The learned Trial Court convicted and sentenced the accused on 11/13.12.2013 under Section 6 of the Act. Hence, the present appeal. 4. Mr. Rajneesh K. Lall, 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 11/13.12.2013. 5. We have gone through the impugned judgment and records of the case carefully. 6. PW-1 Neelam Kumari testified that her daughter (name withheld) was 14 years of age. Her date of birth is 3.8.1999. She was mentally retarded. She was simpleton and used to go to school. On 14.4.2013, at about 6:00 AM, they had gone to Mehatpur. Her daughter was all alone at home. They had gone to Mehatpur as their son was operated in the Hospital at Mehatpur. She alongwith her husband came back to village Singan at about 3:00 PM. The victim was not present at home. She was searched in the nearby houses and then she went to the cowshed (Barra) of her neighbourer Gurdev Singh. She found that in the cowshed, the clothes of her daughter were kept aside and her daughter was lying nude. Accused was lying over her and was committing penetrated sexual assault upon the prosecutrix. The accused ran away from the spot. She noticed injuries on the person of prosecutrix. She was brought to the house. She found that in the cowshed, the clothes of her daughter were kept aside and her daughter was lying nude. Accused was lying over her and was committing penetrated sexual assault upon the prosecutrix. The accused ran away from the spot. She noticed injuries on the person of prosecutrix. She was brought to the house. The incident was narrated to her Bhabhi (wife of her brother), who in turn advised them to make the complaint to the police. Thereafter, she alongwith her husband and daughter went to the Police Station, Haroli. An application Ext. PW-1/A was given to the SHO, PS Haroli. The daughter was examined by Medical Officer at CHC, Haroli. The doctor also took clothes of her daughter, which she was wearing on the date of occurrence. Her daughter identified the place of occurrence. The police also took photographs on the spot. Her statement was also recorded under Section 164 Cr.P.C. vide Ext. PW-1/B. She identified shirt Ext. P-6, salwar Ext. P-7, undershirt Ext. P-8 and dupatta Ext. P-9. In her cross-examination, she admitted that her daughter could not write properly but despite that she understood all the things. There are about 6-7 houses near her house. She denied the suggestion that the accused was falsely implicated in connivance with Shashi Bala. 7. PW-2 Sanjeev Kumar is the father of the prosecutrix. He has corroborated the statement of PW-1 Neelam Kumari. According to him also, his daughter is simpleton and mentally retarded. He had gone with his wife on 14.4.2013 to Mehatpur at about 6:00 AM in connection with operation of his son. The prosecutrix was all alone at home. They came back at 3:00 PM. The prosecutrix was missing. His wife had gone to search for her in nearby houses. His wife returned back with the prosecutrix after some time and she disclosed to him that she had seen the accused committing sexual intercourse with his daughter. His daughter was naked at the relevant time. The accused ran away from the spot. Shashi Bala came to their house on the next day. Thereafter, complaint was made to the police. In his cross-examination, he deposed that his son was operated upon at Mehatpur. 8. PW-3 Arjun Singh also deposed that the prosecutrix is mentally retarded. 9. PW-5 Dr. Sonia, has issued MLC Ext. PW-5/B. She, on local examination, found labia minor burised, reddish in colour and tender. Thereafter, complaint was made to the police. In his cross-examination, he deposed that his son was operated upon at Mehatpur. 8. PW-3 Arjun Singh also deposed that the prosecutrix is mentally retarded. 9. PW-5 Dr. Sonia, has issued MLC Ext. PW-5/B. She, on local examination, found labia minor burised, reddish in colour and tender. Lining of vagina was bruised, reddish in colour, no tear or abrasion was present in lining. Hymen was torn, edges of the tear were congested and swollen. There was pain and tenderness in the vagina. Two fingers could be inserted with difficulty. The probable duration of injuries noticed on the vagina and other parts of the body of the victim was less than 3 days. The injuries mentioned in the MLC could be possible if an adult person commits penetrative sexual assault upon the victim. The victim was referred to Intelligence Quotient Test on 20.4.2013. The report of the RFSL is Ext. PW-5/C. The opinion of the Medical Board is Ext. PW-5/E. She identified the child in the Court. 10. PW-6 Dr. G.S. Didhra, has examined the accused. He issued MLR Ext. PW-5/B. According to him, the accused was potent and was capable of performing sexual act. 11. PW-10 Shashi Bala deposed that the mother of the prosecutrix, Smt. Neelam Kumari disclosed her that accused person has committed sexual intercourse with the prosecutrix on 14.4.2013. Neelam Kumari told her that she has not reported the matter to the police and thereafter upon her advice; the matter was reported to the police. She also deposed that the victim is mentally retarded. 12. PW-11, prosecutrix has deposed that accused had put off his clothes, again said that he had put off her clothes in the room where chaff was stored. The accused made her to lie. The accused did the bad act with her. Thereafter, her mother appeared on the spot. She denied the suggestion in her cross-examination that nothing has happened to her. She denied the suggestion that she was not taken to the room where chaff was stored and accused put off his clothes and her clothes and thereafter did the bad act with her. 13. PW-12 Dr. Sukhjit Singh deposed that the prosecutrix was admitted in the hospital from 29.4.2013 to 2.5.2013 and again on 7.6.2013. She was examined by the Board of doctors on 8.6.2013. She was found to be moderate mental retarded. 13. PW-12 Dr. Sukhjit Singh deposed that the prosecutrix was admitted in the hospital from 29.4.2013 to 2.5.2013 and again on 7.6.2013. She was examined by the Board of doctors on 8.6.2013. She was found to be moderate mental retarded. He proved report Ext. PW-5/E. 14. PW-15 Insp. Mohinder Kumar, deposed that FIR Ext. PW-15/A was registered. On 16.4.2013, the place of occurrence was identified by the prosecutrix and her mother. Site plan was prepared. The I.Q. Test of the prosecutrix was got conducted. The case property was sent to RFSL, Dharamshala. 15. PW-16 Subhash Chand, Panchayat Secretary has proved the date of birth of the prosecutrix vide certificate Ext. PW-14/A. The date of birth of the prosecutrix was 3.8.1999. 16. The accused has also examined DW-1 Ashwani Kumar. According to him, Sanjeev Kumar was on leave on 13.4.2013. DW-2 Raman Kumar deposed that there was no entry regarding admission of Parveen Kumar son of Sanjeev Kumar of Village Singan. However, in his cross-examination, he admitted that there is another private hospital, namely, Malik Hospital, near their hospital. The ENT specialist used to visit the hospital on Thursday. He also admitted that if the doctor is not available in their hospital, the patients go to the other nearby hospital. 17. PW-1 Neelam Kumari has seen the accused committing rape upon her daughter. The accused ran away after seeing PW-1 Neelam Kumari. The incident has happened on 14.4.2013 and the FIR was registered on 15.4.2013. There is no inordinate delay in registration of the FIR. The matter was discussed by PW-1 Neelam Kumari with PW-10 Shashi Bala, who advised her to lodge the FIR. PW-2 Sanjeev Kumar has also corroborated the statement of PW-1 Neelam Kumari. PW-1 Neelam Kumari and PW-2 Sanjeev Kumar had gone to Mehatpur. They came back at about 3:00 PM. The prosecutrix was missing from home. PW-1 Neelam Kumari had gone in search of her daughter. She was found in the cowshed of Gurdev. She narrated the incident to PW-2 Sanjeev Kumar. 18. PW-5 Dr. Sonia has medically examined the prosecutrix. She has categorically opined that there was evidence of vaginal penetrative assault. She has noticed injuries on the person of prosecutrix. Labia minor were bruised, reddish in colour and tender. Lining of vagina was bruised, reddish in colour. No tear or abrasion was present in lining. 18. PW-5 Dr. Sonia has medically examined the prosecutrix. She has categorically opined that there was evidence of vaginal penetrative assault. She has noticed injuries on the person of prosecutrix. Labia minor were bruised, reddish in colour and tender. Lining of vagina was bruised, reddish in colour. No tear or abrasion was present in lining. Hymen was torn, edges of the tear were congested and swollen. 19. PW-12 Dr. Sukhjit Singh has proved the report Ext. PW-5/E. According to him, it was a case of moderate mental retardation. The prosecutrix has also appeared as PW-11. She has categorically deposed that the accused had put off his clothes and her clothes in the room where chaff was stored. She was made to lie by the accused. The accused did the bad act with her. The date of birth of the prosecutrix is 3.8.1999. She was minor at the time of incident. The accused has committed rape upon a child of 14 years, who was mentally retarded. The accused has taken advantage of her being simpleton. There is no occasion for the family of the prosecutrix to falsely implicate the accused in this case when there is no enmity between the two families. 20. The blood was detected in traces in Ext. 1a (dried vaginal swab). Human blood was also detected on Ext. 2b (salwar of the prosecutrix), though it was found insufficient for blood grouping, as per report Ext. PW-5/C. Thus, the prosecution has proved the case against the accused beyond reasonable doubt. 21. 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 11.12.2013 and 13.12.2013.