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Himachal Pradesh High Court · body

2016 DIGILAW 1441 (HP)

Krishan Chand v. State of H. P.

2016-07-20

AJAY MOHAN GOEL, RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment/order dated 17/18.2.2016, rendered by the learned Special Judge, Mandi, H.P., in Sessions Trial No. 47 of 2014, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 376 IPC and Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,10,000/- under Section 6 of the POCSO Act and in default of payment of fine, he was ordered to undergo simple imprisonment for six months. The victim was held entitled to compensation under Victim Compensation Scheme and 50% of the fine amount was also ordered to be paid to the victim through her parents. 2. The case of the prosecution, in a nut shell, is that PW-1, prosecutrix was born on 13.5.2001, as per birth certificate Ext. PW-5/B. On 12.6.2014, she went to school at 8:00 AM. Her mother and father were not present in the house and PW-2 Roshani Devi, grandmother was present in the house. PW-4 Rakesh Kumar her Uncle left house in connection with his employment and met victim near temple who was coming out of the bushes and was crying. PW-1 prosecutrix disclosed to PW-4 Rakesh Kumar that the accused had pushed her into the bushes and committed forcible intercourse with her. PW-4 Rakesh Kumar called PW-2 Roshani Devi and narrated everything to her. PW-2 Roshani Devi made inquiries from PW-1 prosecutrix who disclosed that she was ravished by the accused. PW-4 Rakesh Kumar went in search of the accused along with his brother and one Balwant Singh. PW-2 Roshani Devi along with PW-1 prosecutrix went to the Police Station and moved application Ext. PW-1/A whereupon FIR Ext. PW-10/A was registered in the Police Station. PW-12 Dr. Lata Chandel examined the prosecutrix and issued MLC Ext. PW-12/B. The statement of the victim was also recorded before the Magistrate vide Ext. PW-1/B. The accused was arrested. He was produced before PW-9 Dr. Parmod Guleria, who after examination issued MLC Ext. PW-9/B. The accused was also produced before PW-19 Dr. Dharam Pal and his blood on FTA card and DNA profiling was obtained. Similarly, PW-17 Dr. PW-12/B. The statement of the victim was also recorded before the Magistrate vide Ext. PW-1/B. The accused was arrested. He was produced before PW-9 Dr. Parmod Guleria, who after examination issued MLC Ext. PW-9/B. The accused was also produced before PW-19 Dr. Dharam Pal and his blood on FTA card and DNA profiling was obtained. Similarly, PW-17 Dr. D.R. Sharma obtained the blood sample of victim on FTA card and Ext. PW-17/A was obtained. The matter was investigated and challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as twenty witnesses. The accused was also examined under Section 313 Cr.P.C. He pleaded innocence. He examined two witnesses in defence. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. H.S. Rangra, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. V.S. Chauhan, Addl. Advocate General has supported the judgment/order of the learned trial Court dated 17/18.2.2016. 5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 is the prosecutrix. She has stated that accused had committed illegal act with her. She has signed applications Ext. PW-1/A and PW-1/B. She was produced before the doctor when she was medically examined. She had gone to the Court at Mandi. The learned Magistrate has made enquiries from her. The learned Public Prosecutor moved an application under Section 164-5A(a)(b) of Cr.P.C. and the victim was again examined. In her cross-examination, she deposed that she was sexually assaulted by the accused. She could not narrate her age. She could not tell her date of birth. She stayed at Kharidi. She could not narrate the subjects studied by her in 5th and 8th standard. Initially, she deposed that she was tutored to make statement, however, on a Court question put to her that as to whether she was making statement under pressure or something illegal happened with her. She categorically answered that she was making statement on her own and no one pressurized or tutored her to make statement. Initially, she deposed that she was tutored to make statement, however, on a Court question put to her that as to whether she was making statement under pressure or something illegal happened with her. She categorically answered that she was making statement on her own and no one pressurized or tutored her to make statement. The learned trial Court from the demeanor of the prosecutrix observed that the witness was not mentally retarded but was having low mental I.Q. She was able to understand the questions and thereafter she gave answers to the questions. She denied the suggestion that nothing illegal was committed with her by the accused. She denied that she was sexually assaulted by Dutt. She denied that she had been tutored by her grandmother and Uncle to make false statement. She has narrated the incident to her Uncle about the illegal act committed by the accused. 7. PW-2 Roshani Devi testified that PW-1 prosecutrix was her granddaughter. On 12.6.2014, victim had gone to school at 8:30 AM. Her son Ramesh Kumar had gone for labour work at about 9:40 AM. Her son Sanju called her and disclosed that accused had sexually assaulted the victim. Thereafter, she went to the spot. She made enquiries from the victim. The victim disclosed that accused had committed sexual intercourse with her. Thereafter, her son Sanju directed her to make complaint to the Police Station and he went in search of the accused. An application Ext. PW-1/A was moved to the police and FIR was registered. The victim was produced before the doctor and was medically examined. The victim was also produced before the Magistrate and her statement Ext. PW-1/B was recorded. In her cross-examination, she admitted that the victim was not mentally fit since her birth. The victim left her school when she was in 8th class. Case was registered by her son Sanju and victim. She denied the suggestion that accused had seen victim and Dutt in compromising position in the first week of June, 2014. 8. PW-4 Rakesh Kumar is a material witness. He testified that on 12.6.2014, victim had gone to school at about 8:00 AM. After some time, he also left the house in connection with his employment. When he reached near temple, he met his niece who was coming out of bushes. She was weeping. He inquired from her about the reason of weeping. He testified that on 12.6.2014, victim had gone to school at about 8:00 AM. After some time, he also left the house in connection with his employment. When he reached near temple, he met his niece who was coming out of bushes. She was weeping. He inquired from her about the reason of weeping. She disclosed that the accused forcibly took her into the bushes and committed forcible sexual intercourse with her. Thereafter, he called his mother and disclosed everything to her. He requested his mother to take the victim to the Police Station. He went in search of the accused along with his brother Ramesh Kumar. On the way, Balwant also met them. They noticed accused at Kanda Pattan. He denied the suggestion that accused had seen victim and Dutt Ram at Thahra Shiyaral at 7:30 AM. 9. PW-5 Sarswati Nanda has issued birth certificate Ext. PW-5/B. The date of birth of the PW-1 prosecutrix was recorded as 13.5.2001. In his cross-examination, he deposed that the date of birth certificate was issued on the basis of admission register maintained in the school. 10. PW-6 Rajiv Kumar, Panchayat Secretary has proved birth certificate and copy of Pariwar Register vide Ext. PW-6/B and PW-6/C. As per the certificates, the date of birth of the prosecutrix was 13.5.2001. 11. PW-9 Dr. Parmod Guleria, has examined the accused and issued MLC Ext. PW-9/B. 12. PW-12 Dr. Lata Chandel has medically examined the prosecutrix. According to her, human semen was detected on Ext. 4-A shirt of the victim and blood was also detected in the traces of vaginal swab of the victim. Her final opinion was that sexual intercourse was committed in the last 24 hours from the date of her first clinical examination. 13. PW-13 Satish Kumar deposed that he was Up Pradhan of Sarskan. He remained associated in the investigation of this case on 13.6.2014. In his presence, victim identified the place vide memo Ext. PW-13/A. Two contraceptives and one wrapper were found on the spot. Those were taken into possession and kept in Cigarette boxes and were sealed with seal “Q”. He was declared hostile and cross-examined by the learned Public Prosecutor. However, he admitted his signatures on Ext. PW-13/B. 14. PW-17 Dr. D.R. Sharma, deposed that the prosecutrix was produced before him. He filled in FTA Card Ext. PW-17/A. The blood sample was obtained and sealed. 15. PW-19 Dr. He was declared hostile and cross-examined by the learned Public Prosecutor. However, he admitted his signatures on Ext. PW-13/B. 14. PW-17 Dr. D.R. Sharma, deposed that the prosecutrix was produced before him. He filled in FTA Card Ext. PW-17/A. The blood sample was obtained and sealed. 15. PW-19 Dr. Dharam Pal deposed that the accused was produced before him and he obtained his blood on FTA Cards for DNA profiling. 16. PW-20 SI Purshotam Kumar deposed that he recorded the statement of grandmother of the victim. He went to the Police Post Dharampur where accused was present. He was arrested and sent to the Hospital. His MLC was obtained. The supplementary statement of the victim was recorded. The case property was taken into possession. 17. DW-2 Dr. P.L. Verma deposed that certificate Ext. DW-2/A was issued by him. He was Member of the Board. The victim was examined by them and the certificate was issued. The disability was found to be 75% qua intellectual impairment. The victim was suffering from mental retardation. He admitted that such type of patients could be tutored easily. In his cross-examination, he admitted that victim was not totally mentally retarded but was of low mental I.Q. She could understand if something has happened with her. She could also easily identify the persons who were familiar with her and also about their act and conduct. 18. PW-1 prosecutrix, in her statement, has categorically deposed that the accused had committed forcible sexual intercourse with her. The statement of PW-1 prosecutrix was also recorded vide Ext. PW-1/B. It is true that as per the statement of DW-2 Dr. P.L. Verma, the prosecutrix was found to be 75% intellectually impaired. However, in his cross-examination, he admitted that victim was not totally mentally retarded but was of low mental I.Q. She could understand if something happened with her. Initially, the prosecutrix has deposed that she was tutored but later on, upon a Court question put to her, she has categorically deposed that she was making the statement of her own and no one had tutored her to make the statement. 19. An application was filed before the learned ACJM, Sarkaghat vide Ext. PW-20/H for recording the statement of the prosecutrix under Section 164(5) on 16.6.2014. It was assigned to learned Judicial Magistrate, Court No. 2 Sarkaghat on 4.7.2014. 19. An application was filed before the learned ACJM, Sarkaghat vide Ext. PW-20/H for recording the statement of the prosecutrix under Section 164(5) on 16.6.2014. It was assigned to learned Judicial Magistrate, Court No. 2 Sarkaghat on 4.7.2014. Thereafter, the statement of the prosecutrix was recorded by the learned Judicial Magistrate after satisfying himself that the prosecutrix wanted to depose without any pressure and coercion from any person and understood the sanctity on oath. The learned Judicial Magistrate has also certified that the child produced before him with her grandmother was making statement voluntarily without any pressure. The statement was recorded by the learned Judicial Magistrate in his own hand writing. The contents of the statement were read over to the prosecutrix. The prosecutrix in her statement recorded vide Ext. PW-1/B by the learned Judicial Magistrate has categorically stated that she was going to the school and the accused committed an illegal act with her. She narrated the incident to her Uncle and her grandmother. 20. According to Section 164 (5A) (b), the statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, is to be considered a statement in lieu of examination-in-chief, as specified in Section 137 of the Indian Evidence Act, 1987 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial. Since the prosecutrix was found to be intelligent enough to get her statement recorded before the Court under Section 164 Cr.P.C., the assistance of interpreter was not required. 21. The date of birth of the prosecutrix was 13.5.2001, as per certificates Ext. PW-6/B and PW-6/C. The statement of the prosecutrix is duly corroborated by her Uncle PW-4 Rakesh Kumar who has seen the prosecutrix coming out of the bushes. The prosecutrix has told him that the accused had taken her behind the bushes and committed sexual intercourse with her. Thereafter, PW-4 Rakesh Kumar called his mother and disclosed everything to her and FIR was lodged. 22. The prosecutrix has been medically examined by PW-12 Dr. Lata Chandel. She issued MLC Ext. PW-12/B. According to her final opinion also, the victim was sexually assaulted. She noticed human semen on Ext. 4-A, shirt of the victim and blood was detected in the traces of vaginal swab of the victim. 22. The prosecutrix has been medically examined by PW-12 Dr. Lata Chandel. She issued MLC Ext. PW-12/B. According to her final opinion also, the victim was sexually assaulted. She noticed human semen on Ext. 4-A, shirt of the victim and blood was detected in the traces of vaginal swab of the victim. The blood samples of the prosecutrix and accused were taken. These were sent to FSL. According to report Ext. PX, the accused was having blood group “O” and victim was having blood group “A”. 23. According to the report Ext. PW-18/A, DNA profile pertaining to male was obtained from Ext.-1a (shirt of prosecutrix) and profile matched completely with the DNA profile obtained from Ext.-4a (blood sample on FTA Card of accused). The DNA profile obtained from Ext.-3 (pants of accused) matched completely with the DNA profile obtained from Ext.-4a (blood sample on FTA card of accused). The report Ext. PW-18/A further corroborates the statement of the prosecutrix. The statement of prosecutrix has been corroborated by PW-4 Rakesh Kumar and PW-12 Dr. Lata Chandel. 24. The case property remained in safe custody from its seizure till its production at the FSL. The prosecutrix has no enmity with the accused. The prosecution has duly proved that the accused committed aggravated penetrative sexual assault upon the prosecutrix at 8:30 AM at village Saraskan near temple. The prosecution has thus proved the case against the accused beyond reasonable doubt and there is no occasion for us to interfere with the well reasoned judgment/order of the learned trial Court dated 17/18.2.2016. 25. Accordingly, there is no merit in this appeal and the same is dismissed.