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Himachal Pradesh High Court · body

2016 DIGILAW 1252 (HP)

Manoj Kumar v. State of H. P.

2016-07-01

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgment of 2.5.2013 rendered by the learned Sessions Judge, Hamirpur, in Sessions trial No. 25 of 2012, whereby the learned trial Court convicted the appellant (hereinafter referred to as “accused”) for his committing offences punishable under Sections 376 and 506 of the Indian Penal Code also sentenced him as under:- “…………..the accused is sentenced to a rigorous imprisonment of eight years with a fine of Rs.20,000/- for the offence punishable under Section 376 of IPC. In default of fine he shall undergo further a simple imprisonment of six months. He is also sentenced to rigorous imprisonment for a period of one year and a fine of Rs.2000/- for the offence punishable under Section 506 of IPC. In default of fine, S.I for 15 days. Fine if recovered, shall go to the victim/prosecutrix as compensation. Both these sentences shall run concurrently……...” 2. Brief facts of the case are that on 2.6.2012 prosecutrix along with her mother moved an application Ex.PW-1/B before the Police Station, Barasar alleging therein that she is resident of village Kohdra Pattian and studying in eight class in Government Middle School, kyara Bag. Teacher Manoj Kumar (accused) is a resident of village Kotlu and he teaches the students of Primary wing in her school. On 24.3.2012 at about 1.00 p.m. when she was going alone to her village accused followed her and seeing her alone he caught hold her from the arm and took her towards the cluster of bamboos and committed rape on her. It is further alleged that thereafter on 4.4.2012 at about 3.00 p.m. when she was coming to her house from the school, accused again committed rape on her. Accused Manoj Kumar used to talk to her on mobile No. 9625289319 which belongs to her mother. He had taken this mobile number from her on 23.3.2012 by saying that her Hindi teacher had been asking for the same. Accused used to talk on this mobile number with her because there in only one mobile phone in her house and the same is with her mother. On 24.5.2012 while accused was talking with her on phone, her mother heard their conversations and enquired about it, on which the prosecutrix narrated the whole incident to her mother. Accused used to talk on this mobile number with her because there in only one mobile phone in her house and the same is with her mother. On 24.5.2012 while accused was talking with her on phone, her mother heard their conversations and enquired about it, on which the prosecutrix narrated the whole incident to her mother. She also disclosed to her mother that accused used to tease her in the school and threatened that in case she disclosed the incident to any one, she would be killed. Due to all this she stopped going to school. She requested for action against the accused. FIR Ex. PW-18/A came to be registered on the application aforesaid. Thereafter investigation of the case was handed over to ASI Madan Lal (PW-21). On the same day Pradhan Kashmir Singh (PW-4) handed over one complaint Ex.PW-3/A which was written by Ranjit Singh (PW-3) father of the prosecutrix to ASI Madan Lal along with the statements of the prosecutrix and accused comprised in Ex. PW-1/A and PW-4/A respectively, which were taken into possession by him vide recovery memo Ex.PW-4/B in presence of witnesses Roop Singh (PW- 5) and Joginder Singh. Site plan Ex. PW-21/A was prepared by the Investigating Officer. The accused was arrested and information about his arrest given to his relatives. Vide application Ex. PW-PW-18/C, medical examination of the prosecutrix was conducted and her MLC Ex. PW-16/C was obtained. Underwear Ex.P-1 and vaginal smear of the prosecutrix were preserved and samples were sent for chemical examination. As per PW-16 there were signs of sexual intercourse, but no sign of forceful sexual intercourse. The investigating Officer sent the accused to CHC Barsar and vide application Ex.PW-21/B his medical examination was conducted. His MLC is comprised in Ex. PW-8/A. As per the MLC the accused was found capable of performing sexual intercourse. PW-8 took the underwear Ex.P-3 of the accused and sealed the same in a cloth parcel Ex.P4 and handed over the same to the police. Thereafter on application Ex.PW-21/C the investigating Officer obtained birth certificate of the prosecutrix which is comprised in Ex.PW-14/A. Statements of the witnesses as per their version stand recorded. On 8.6.2016 the Investigating Officer recorded the supplementary statements of the prosecutrix, her mother and Roop Singh (PW-5). While recording statements of the witnesses, the Investigating Officer got conducted the videography through C Raj Kumar and CDs Ex.PW-10/A were prepared. On 8.6.2016 the Investigating Officer recorded the supplementary statements of the prosecutrix, her mother and Roop Singh (PW-5). While recording statements of the witnesses, the Investigating Officer got conducted the videography through C Raj Kumar and CDs Ex.PW-10/A were prepared. On 13.8.2012 the investigating Officer made a request letter Ex.PW-21/E to the Secretary, Gram Panchayat, Kyara Bag and received the receipt Ex.PW-14/B vide letter Ex.PW-14/C from Kanta Kumari. Thereafter PW-21 also wrote a letter to the Superintendent to police, Hamirpur for obtaining billing address and call detail along with tower location of mobile No. 96252- 89319 and 94189-75637 and received the same through Nodal Officer Madan Lal and JTO Sachin Bansal, which are Ex.PW-12/A (6 leaves) and Ex.PW-13/A (10 leaves) and it was found that accused had been talking to prosecutrix between the period from 23.3.2012 to 11.6.2012. The investigating Officer on an application comprised in Ex.PW-21/F obtained record (Ex. PW-15/A and 15/B-1 & 2) regarding admission of the prosecutrix and her attendance w.e.f. 24.3.2012. The case property was deposited with the MHC Ravi Kumar(PW-9) who entered the same in the Malkhana concerned, abstracts of entries in the Malkhana register comprised in Ex.PW-9/A and E.PW-9/B and sent the parcels to RFSL Gutkar for chemical examination through C Sunil Kumar vide RC No. 81/12 copy of which is Ex.PW-9.C. On receipt of RFSL report and completion of all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court. 3. The accused stood charged by the learned trial Court for his committing offences punishable under Sections 376 and 506 of IPC to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 21 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. In his defence, he tendered in evidence copies of attendance register Ex. DA and DB. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction against the accused for his committing offences punishable under Sections 376 and 506 of the IPC. 6. In his defence, he tendered in evidence copies of attendance register Ex. DA and DB. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction against the accused for his committing offences punishable under Sections 376 and 506 of the IPC. 6. The learned counsel appearing for the accused has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of evidence on record rather theirs standing sequelled by gross misappreciation of material on record. Hence he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. The learned Deputy Advocate General has with considerable force and vigour contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference rather meriting vindication. 8. 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. 9. The investigation into the offences qua which the accused stood charged by the learned trial Court stood germinated by Ex.PW- 1/B. Ex. PW-1/B is the complaint made on 2.6.2012 by the prosecutrix to the S.H.O of the Police Station concerned. It embodies a narration therein of the accused on two occasions subjecting the prosecutrix to forcible sexual intercourse. The initial forcible sexual encounter which occurred inter-se the prosecutrix and the accused was on 24.3.2012, it stood succeeded by another forcible sexual encounter inter-se both, sexual encounter whereof occurred on 4.4.2012. 10. The prosecutrix in her deposition on oath has deposed a version in corroboration to the enunciations embodied in Ex.PW-1/B. The solitary deposition of the prosecutrix bereft of any corroboration by other prosecution witnesses alone is sufficient to constrain this Court to record findings of conviction against the accused. However, before testing the veracity of the deposition of the prosecutrix, the prime factum of hers at the relevant time holding empowerment to mete consent to the accused for his subjecting her to sexual intercourse is required to be determined. However, before testing the veracity of the deposition of the prosecutrix, the prime factum of hers at the relevant time holding empowerment to mete consent to the accused for his subjecting her to sexual intercourse is required to be determined. The evidence qua the portrayal of the prosecutrix at the time contemporaneous to the occurrence not thereat being a major stands unfolded by Ex.PW-14/A. In sequel, the effect of consent, if any, purveyed by the prosecutrix to the accused for the latter subjecting her to sexual intercourse is wholly inconsequential. 11. Even before proceeding to determine the veracity of the deposition of the prosecutrix, it is imperative to allude to the deposition of PW-16, who subjected the prosecutrix to medical examination. In her deposition she has underscored therein of on hers subjecting the prosecutrix to medical examination hers detecting thereon the hereinafter extracted observations:- “ON EXAMINATION: There was no external injuries visible on body. ON Local examination She was wearing brown colour underwear that was preserved for sample. No external injury was present. Pubic hair were shaved so that cannot be preserved for sample. Discharge outside the external orifice present and hymen was broken. Virginal smear were made and preserved. Pervaginal examination Uterus size were parous mobile and it was antiverted. Her menstrual history Her menarchae at 11 years, her last menstrual period was on 26th April, 2012. So she was advised urine pregnancy test that was negative at that time. Samples were preserved and sent for chemical examination.” 12. She has also deposed therein of hers recording a final opinion on 7.8.2012 of there existing, on the relevant portions of the person of the prosecutrix, on its standing subjected to medical examination by her, visible symptoms of hers standing subjected to sexual intercourse, yet she has underlined therein of hers not detecting on the relevant portions of the person of the prosecutrix any indication or evidence of hers standing subjected to forcible sexual intercourse. Consequently, the deposition of PW-16 does with specificity spell the factum of the minor prosecutrix standing subjected to sexual intercourse. Consequently, the deposition of PW-16 does with specificity spell the factum of the minor prosecutrix standing subjected to sexual intercourse. The effect, if any, of hers on hers subjecting the prosecutrix to medical examination not detecting on the relevant portions of her person any evidence of hers standing subjected to forcible sexual intercourse when impinges upon hers meteing consent to the accused, consent whereof to the accused for his allegedly perpetrating the alleged penal misdemeanors upon her person for reasons ascribed hereinabove not obviously holding any leverage to the learned counsel for the accused, of the prosecutrix consensually succumbing to the sexual misdemeanors perpetrated on her person by the accused, is hence concomitantly legally insignificant. 13. The learned counsel appearing for the accused has made an ad nauseam allusion to the deposition of the prosecutrix besides has inextenso adverted to the depositions rendered by her parents who stepped into the witness box as PW-2 and PW-3 whereupon hence he espouses of with their respective testimonies imbuing the genesis of the prosecution case with deep pervasive discrepancies, renders the prosecution case to be a pure invention or a concoction whereupon no credence is imputable by this Court. 14. The learned counsel for the accused has contended of with Ex. PW-3/A uncontrovertedly standing forwarded by the father of the prosecutrix to the Pradhan of the Panchayat concerned who prior thereto stood communicated by PW-2, the mother of the prosecutrix the incidents of sexual misdemeanors perpetrated by the accused on the person of the prosecutrix, awakenings whereof of the mother of the prosecutrix qua the sexual misdemeanors perpetrated on 24.3.2012 and 4.4.2012 on the person of the prosecutrix by the accused stood engendered on the prosecutrix making the apposite communications to her, yet with PW-3/A being reticent qua the incidents of sexual misdemeanors ascribed by the prosecutrix to the accused renders the subsequently instituted complaint before the police concerned to stand clothed with unauthenticity rather its standing engendered by premeditation or concoction. The aforesaid submission addressed before this Court by the learned counsel for the accused suffers from an inherent infirmity as it is founded upon a pure misreading of the recitals embodied in Ex.PW-3/A. Even if in Ex.PW-3/A there is an omission of enunciation with specificity qua the sites whereat the sexual misdemeanors ascribed by the prosecutrix to the accused stood perpetrated on her person besides the dates when the accused perpetrated sexual misdemeanors upon the prosecutrix , nonetheless an incisive reading thereof unveils a sure manifestation of the prosecutrix weepingly on hers standing belabored by her mother on the latter overhearing her speaking on the phone making disclosures to her mother of all the sexual misdemeanors which stood perpetrated by the accused on her person. Even if there are non-enunciations therein with specificity qua the sites besides qua the dates whereon the prosecutrix stood subjected to forcible sexual misdemeanors by the accused yet the words “SUB KUCH BATLAYA’ occurring therein encompass within their ambit of hers standing subjected to forcible sexual intercourse by the accused. Even otherwise the recitals prior thereto occurring in Ex.PW-3/A with vividity manifest of the prosecutrix standing encumbered with fright on account of the accused intimidating her over telephone. Further more with revelations occurring therein of the accused brandishing a knife at her for instilling fear in her against hers revealing the incident to any body especially with all the aforesaid unfoldments occurring therein standing not concerted to be belied by the learned defence counsel while holding PW-3 to cross-examination, constrain a conclusion, of the defence conceding to the unfoldments occurring in Ex.PW-3/A. Consequently, with the defence standing inferred to concede to the aforesaid unfoldments comprised in Ex.PW- 3/A an inevitable ensuing sequel therefrom is of the accused taking to mete threatenings to the prosecutrix also his taking to brandish a knife at her for instilling fear in her mind for silencing her against hers revealing the incident to anybody, as he held a guilt in his mind of his subjecting the prosecutrix to forcible sexual intercourse. Cumulatively hence the effect of non-enunciations, if any, in Ex.PW-3/A qua the perpetration of sexual misdemeanors by the accused on the person of the prosecutrix on two occasions is wholly insignificant. Cumulatively hence the effect of non-enunciations, if any, in Ex.PW-3/A qua the perpetration of sexual misdemeanors by the accused on the person of the prosecutrix on two occasions is wholly insignificant. Even otherwise the learned defence counsel while holding PWs 1 to 3 to cross- examinations has omitted to put apposite suggestion to each qua the 2nd portion of Ex. 3/A wherein the phrase occurs “SAB KUCH BATLAYA” of its not holding any interpretation qua its echoing an unfoldment by the prosecutrix to her mother of the sexual misdemeanors perpetrated on her person by the accused or of its not holding the signification of the prosecutrix communicating to her mother qua hers standing subjected to forcible sexual intercourse by the accused. Omissions aforesaid by the learned defence counsel while holding the aforesaid PWs to cross-examinations, for hence the aforesaid interpretation standing not lent to the phrase “SAB KUCH BATLAYA” occurring in Ex. PW-1/A renders it to with aplomb being amenable to an inference of the prosecutrix at the stage of preparation of Ex. PW-3/A disclosing to her parents even the factum of the accused subjecting her to sexual intercourses. The spurrings of the aforesaid interpretation vis-à-vis the relevant manifestations occurring in Ex.PW- 3/A disables the learned counsel for the accused to contend of the subsequently introduced factum in PW-1/B of the prosecutrix standing subjected to sexual intercourse by the accused being both an improvement also an embellishment besides apparently in gross contradiction vis-à-vis PW-3/A hence rendering both to be bereft of any sanctity. Concomitantly also disables the learned counsel for the accused to contend of the deposition of the prosecutrix anvilled thereupon being un-amenable to credence standing imputed thereto by this Court. 15. Be that as it may the learned counsel for the accused has with much vigor contended of reliance as placed upon Ex. PW-4/A embodying therein the confessional statement of the accused being grossly inapt given the emanations occurring on a reading of the testimony of PW-19 qua its preparation occurring when 300-400 persons congregated outside the Panchayat Ghar whereat the accused at the relevant time stood interrogated by the Pradhan, Gram Panchayat concerned preeminently when is perse magnificatory of its standing prepared under duress and compulsion exercised upon him, hence leaves it to hold no evidentiary worth. Also he concerts to rid it of its tenacity on the score of PW-19 deposing in his cross-examination of the accused not in his presence appending his signatures thereon besides he also assays to belie its probative worth on the anchorage of his scribing it on the direction of Pradhan whereupon he contends of its standing recorded at the behest of the Pradhan hence not being a volitional statement of the accused. However the aforesaid contention also holds no vigor in the face of the accused not denying the existence of his signatures as occur thereon. Predominantly with the inference formed hereinabove qua the embodiments in Ex.PW-3/A echoing of the prosecutrix prior thereto narrating to her parents of the accused subjecting her to sexual intercourse renders the aforesaid espousal made by the learned counsel for the accused qua Ex.PW-4/A which embodies the confessional statement of the accused whereon his signature exists to hold no efficacy contrarily it is to be concluded of the embodiments occurring in Ex.PW-4/A holding concurrence with the manifestations occurring in Ex.PW-3/A prepared prior thereto, manifestations whereof for reasons aforestated unravel of the prosecutrix divulging to her parents the factum of hers standing subjected to sexual intercourse by the accused. If the aforesaid submission addressed before this Court by the learned counsel for the accused for belying the sanctity of PW-4/A is accepted, it would sequel the inapt consequence of this Court reading Ex.PW-3/A and Ex.PW-4/A dichotomously, endeavor whereof is to be obviated. 16. Be that as it may the volitional making of Ex.PW-4/A stands concerted by the learned counsel for the accused to stand jettisoned by the factum of its standing preceded by his in the Panchayat Ghar standing interrogated by the Pradhan of the Panchayat concerned whereat 300-400 persons as deposed by PW-19 had congregated. 16. Be that as it may the volitional making of Ex.PW-4/A stands concerted by the learned counsel for the accused to stand jettisoned by the factum of its standing preceded by his in the Panchayat Ghar standing interrogated by the Pradhan of the Panchayat concerned whereat 300-400 persons as deposed by PW-19 had congregated. However the factum of a mammoth gathering of 300-400 thronging the Panchayat Ghar at the relevant time when he thereat stood interrogated by the Pradhan would not ipso facto render its making by the accused to be under any exertion of duress or compulsion upon him rather given the emanation in the deposition of PW-19 of the accused appending his signatures thereon subsequently elsewhere where before no evidence stands adduced of his thereat standing subjected to duress or compulsion rather contrarily when recitals in Ex.PW-4/A would hold vigor only on theirs standing signatured by the accused, signatures whereof he subsequently appended thereon elsewhere than at the Panchayat Ghar without any proven exercise of duress or compulsion upon him renders the making of Ex.PW-4/A dehors its recitals standing dictated to PW-19 by the Pradhan to be volitional hence credence is enjoined to be imputed thereto. 17. Further more the contention of the learned counsel for the accused anvilled upon the attendance register portraying qua the presence of the prosecutrix standing recorded in the apposite school from 9 a.m. to 3 p.m. on both the dates whereat she stood subjected to forcible sexual intercourse by the accused belying the factum of hers on 24.3.2012 standing subjected in the school premises to forcible sexual intercourse by the accused also suffers diminution in legal worth engenderable from the afore-referred inference standing invincibly recorded by this Court qua PW-4/A holding sanctity. Further the submission of the learned counsel for the accused of non-ascription in Ex.PW-1/B with specificity qua the venue and time of hers standing subjected to forcible sexual intercourse which purportedly occurred on 4.4.2012 hence rendering the propagation therein to be hence ridden with falsity also for all the reasons afore-stated suffers the fate of its standing axed by this Court. 18. 18. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of conviction has committed any legal misdemeanor, in as much, as, its mis-appreciating the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of conviction recorded by the learned trial Court merit interference. 19. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.