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2016 DIGILAW 1648 (HP)

Moti Ram v. State of H. P.

2016-08-09

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 5-4-2016 rendered by the learned Special Judge, Mandi in Sessions Trial No-13/2015, whereby by the appellant/accused (hereinafter referred to as the “accused”), who was charged with and tried for offences punishable under sections 376 and 506 of the Indian Penal Code and section 4 of the Prevention of Children from Sexual Offences Act, has been convicted and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.10,000/- and in default of payment of fine to further under undergo simple imprisonment for six months under Section 4 of the Prevention of Children from Sexual Offences Act read with Section 376 of the Indian Penal Code and to undergo imprisonment for six months and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo imprisonment for one month under Section 506 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The case of the prosecution, in a nutshell, is that PW10 prosecutrix is minor daughter of PW9 Devinder Kumar from his first marriage. She was born on 5.11.1999. PW9 Devinder Kumar solemnized another marriage with PW8 Kala Devi. On 20.1.2015, the prosecutrix was playing in the passage. The accused gave her Rs.20/- and took her to a cow-shed. He committed forcible sexual intercourse with her in the cow-shed. On 23.1.2015, the prosecutrix disclosed the incident to PW8 Kala Devi. PW9 Devinder Kumar had gone to Janjehali and when he came back, PW8 Kala Devi disclosed everything to him. Thereafter, the matter was reported to the police and FIR, Ext.PW13/A was registered. The matter was investigated and the challan was put up in the trial court after completing all codal formalities. 3. Prosecution examined as many as nineteen witnesses, in all, to prove its case against the accused. Statement of the accused under Section 313 Cr. P.C. was recorded, in which he pleaded that he has been falsely implicated. The learned trial court convicted and sentenced the accused vide impugned judgment dated 5.4.2016, as stated hereinabove. Hence, the present appeal. 4. Mr. Devender K. Sharma, learned counsel appearing for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. The learned trial court convicted and sentenced the accused vide impugned judgment dated 5.4.2016, as stated hereinabove. Hence, the present appeal. 4. Mr. Devender K. Sharma, learned counsel appearing for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Parmod Thakur, learned Additional Advocate General, appearing for the State, has supported the impugned judgment dated 5.4.2016. 6. We have heard the learned counsel for the parties and have gone through the judgment and record meticulously. 7. PW1, HHC Nand Lal, deposed that on 25.1.2015 HHC Mohan Lal deposited with him three parcels duly sealed with seal and he made entry in the Malkhana register at Sr. No.452. On the same day, L.C. Dayawanti also deposited with him three parcels duly sealed with seal and he made entry in the Malkhana. On 31.1.2015, except FTA cards, the case property was sent to FSL Junga vide R.C. No. 169 of 2014-15 through L.C. Savitri Devi, who after depositing the case property handed over the receipt to him. The case property was brought back from FSL by Constable Pritam Lal on 26.2.2015 and was safely deposited with him. 8. PW2, L.C. Dayawanti, deposed that on 25.1.2015, she produced prosecutrix before the Medical Officer, Zonal Hospital, Mandi and after examination, the doctor handed over to her three parcels sealed with seal of Hospital and she deposited the same with Malkhana Moherar. 9. PW3 LC Savitri Devi, deposed that on 31.5.2015, HHC Nand Lal handed over to her five parcels vide R.C. No. 169 of 2014 and she after safely depositing the parcels at RFSL Mandi, handed over the receipt to Malkhana Moherar. 10. PW4, HHC Pritam Lal, deposed that on 26.2.2015, he brought back the case property safely from RFSL Mandi and deposited the same with Malkhana Moherar. 11. PW5, Lal Singh, deposed that he was elected as Up-Pradhan of Gram Panchayat, Tungadhar. On 24.1.2015, Devinder Kumar, father of the prosecutrix telephonically informed him that the accused had committed wrong act with his daughter on 20.1.2015. He was declared hostile and in his cross-examination conducted by the learned Pubic Prosecutor, he admitted that Devinder Kumar had disclosed to him on telephone and personally also that the accused on 20.1.2015 had committed forcible intercourse with his daughter in a cow-shed. He was declared hostile and in his cross-examination conducted by the learned Pubic Prosecutor, he admitted that Devinder Kumar had disclosed to him on telephone and personally also that the accused on 20.1.2015 had committed forcible intercourse with his daughter in a cow-shed. He also admitted that Devinder Kumar told him that his daughter disclosed this fact to her mother Kala Devi on 24.1.2015. In his cross-examination, he admitted that their houses are adjoining to each other. He also admitted that the house of the accused and cow-shed are adjoining to the passage. He also admitted that house of Devinder Kumar is also adjoining to the passage. 12. PW6, Prem Lata, C.D.P.O., Sheraj, proved on record certificate, Ext. PW6/A. 13. PW7, Inder Kumar, issued birth certificate of the prosecutrix, Ext. PW7/B. 14. PW8, Kala Devi is the step-mother of the prosecutrix. According to her, the prosecutrix is 15 years old. On 23.1.2015 her husband had gone to Janjehli for some work. Her daughter disclosed that the accused had committed forcible sexual intercourse with her on 20.1.2015. She disclosed that she was playing on passage and the accused gave her Rs.20/-. Thereafter, he took her to the cow-shed and committed forcible sexual intercourse with her. Her daughter was taken to the hospital, Mandi, where she was medically examined. The clothes of her daughter were taken into possession. In her cross-examination, she deposed that the house of the accused is adjoining to her house. The cow-shed is behind the back of the house of the accused. Her husband came back at about 8.00 P.M. on 23.1.2015. She disclosed the incident to her husband in the morning of 24.1.2015. She denied the suggestion that they were having any dispute over the passage for use and to take the cattle. 15. PW9, Devinder Kumar is the father of the prosecutrix. He testified that the prosecutrix was born on 5.11.1999. On 24.1.2015, his wife disclosed to him in the morning that the accused had committed sexual intercourse with the prosecutrix on 20.1.2015. Thereafter, they went to the Police Station and reported the matter. In his cross-examination, he deposed that he reached the house on 23.1.2015 at about 11.00 P.M. 16. PW10 is the prosecutrix. She answered to the question put by the learned trial court that the accused took her to cowshed. He opened her Pyjami and committed sexual intercourse with her. Thereafter, they went to the Police Station and reported the matter. In his cross-examination, he deposed that he reached the house on 23.1.2015 at about 11.00 P.M. 16. PW10 is the prosecutrix. She answered to the question put by the learned trial court that the accused took her to cowshed. He opened her Pyjami and committed sexual intercourse with her. She disclosed the incident to her mother. She was medically examined. She was also produced before the learned Magistrate and her statement was recorded vide Ext. PW10/A. In her cross-examination, in reply to question No.5, she admitted that she came back to her house and disclosed the incident to her mother. 17. PW11 Dr. Madhubala medically examined the prosecutrix. She issued MLC, Ext.PW11/B. According to her, it could not be predicted whether sexual assault was done with the prosecutrix or not. In her cross-examination, she stated that no injuries were found on the private part of the prosecutrix. She admitted that the vaginal slides and swabs were obtained from the same place. 18. PW12, Dr. L.M. Gautam, deposed that he had obtained blood sample of the accused on FTA card. He also medically examined the accused and issued MLC, Ext. PW12/B. 19. PW13, ASI Jeet Singh, proved on record statement of the mother of prosecutrix, Ext.PW8/A, on the basis of which FIR, Ext.PW13/A was registered. 20. PW15 Constable Suresh Kumar, deposed that on 18.1.2016, MHC Inder Dev handed over to him two parcels which were sealed along with articles mentioned in R.C. No.6 of 2016. He safely deposited the same at RFSL and on 19.1.2016 handed over the receipt to MHC. 21. PW16, Constable Dinesh Kumar, testified that on 20.1.2016 vide R.C. No.8/2016, Ext. PW16/A, MHC handed over a sealed envelope to him along with documents mentioned in the R.C. and he after depositing the same safely at SFSL Junga, handed over the receipt to MHC. 22. PW17, MHC Inder Dev deposed that on 18.1.2016, he handed over three parcels along with FTA card vide R.C. No. 6 of 2016, Ext.PW15/A to Constable Suresh Kumar who after depositing the same handed over the receipt to him. 23. PW18, Dr. Sunish Sharma, obtained blood sample of the prosecutrix on FTA card. The report of the SFSL, Ext. PW18/C was produced before him and he reproduced the same on the back side of MLC, Ext.PW18/B. 24. The prosecutrix was born on 5.11.1999. 23. PW18, Dr. Sunish Sharma, obtained blood sample of the prosecutrix on FTA card. The report of the SFSL, Ext. PW18/C was produced before him and he reproduced the same on the back side of MLC, Ext.PW18/B. 24. The prosecutrix was born on 5.11.1999. She was minor at the time of incident as is evident from the statements of PW-7, Inder Kumar, who issued birth certificate of the prosecutrix, Ext.PW7/B, PW8 Kala Devi and PW9 Devinder Kumar. 25. The prosecutrix in her statement in the question-answer form, having been recorded by the learned trial court has specifically stated that the accused took her to cowshed. He opened her Pyjami and committed sexual intercourse with her. Thereafter, she disclosed the incident to her mother. She was also medically examined. Statement of the prosecutrix is duly corroborated by her step-mother PW8, Kala Devi, who testified that the prosecutrix told her that on 20.1.2015 when she was playing on passage, the accused gave her Rs.20/-. Thereafter, he took her to the cow-shed and committed forcible sexual intercourse with her. On 23.1.2015 her husband PW9 Devinder Kumar came back. She disclosed the incident to her husband in the morning of 24.1.2015. PW9, Devinder Kumar, father of the prosecutrix, also testified that on 24.1.2015, his wife disclosed to him in the morning that the accused had committed sexual intercourse with the prosecutrix on 20.1.2015. Thereafter, they went to the Police Station and reported the matter. PW5, Lal Singh, Up-Pradhan, Gram Panchayat, Tungadhar also deposed that PW9 Devinder Kumar, father of the prosecutrix, had telephonically informed him that the accused had committed wrong act with his daughter on 20.1.2015. Though, he was declared hostile, but in his cross-examination conducted by the learned Pubic Prosecutor, he admitted that PW9 Devinder Kumar had disclosed to him on telephone and personally also that the accused on 20.1.2015 had committed forcible intercourse with his daughter in a cow-shed. Statement of the prosecutrix was also recorded under Section 164 Cr.P.C. vide Ext. PW10/A by the Judicial Magistrate, 1st Class, wherein she categorically stated that the accused gave her Rs.20/- and took her to cow-shed. Thereafter, he closed the door of the cow-shed. He removed her Pyjami and he also removed his Pyjama. She was made to lie and he did wrong act with her. She was also threatened by the accused. PW10/A by the Judicial Magistrate, 1st Class, wherein she categorically stated that the accused gave her Rs.20/- and took her to cow-shed. Thereafter, he closed the door of the cow-shed. He removed her Pyjami and he also removed his Pyjama. She was made to lie and he did wrong act with her. She was also threatened by the accused. According to report of RFSL, Mandi, PW14/B, blood could not be detected on vaginal slides Ext.2b and Pyjama of the accused Ext.4, but human semen was detected on these exhibits. Blood samples of the accused and the prosecutrix were also taken for DNA. Report of the SFSL, Junga is Ext. PW 18/C and the conclusion thereof reads as under:- i. The autosomal STR DNA profile obtained from Exhibit-2c (underwear, prosecutrix) matches with the autosomal STR DNA profile obtained from Exhibit-1-1 (blood sample on FTA card, prosecutrix). ii. The partial autosomal STR DNA profile obtained from Exhibit-1a (vaginal slides, prosecutrix) is consistent with the autosomal STR DNA profile obtained from Exhibit-1-1 (blood sample on FTA card, prosecutrix). iii. From the partial and mixed Y-STR DNA profile obtained from Exhibit-2c (underwear, prosecutrix), one partial Y-STR DNA profile could be identified and this Y-STR DNA profile is consistent with the Y-STR DNA profile obtained from Exhibit-4 (blood sample on FTA card, accused). iv. Exhibit-1a (vaginal slides, prosecutrix) did not show amplification of Y-STRs with powerplex Y 23® PCR amplification kit. Hence Y-STR DNA profile could not be obtained from this exhibit. 26. PW11, Dr. Madhu Bala has not correctly analyzed SFSL report, Ext. PW18/C. It is evident from the report, Ext.PW18/C that from the partial and mixed Y-STR DNA profile obtained from underwear of the prosecutrix, Exhibit-2c, one partial Y-STR DNA profile could be identified and this Y-STR DNA profile was consistent with the Y-STR DNA profile obtained from Exhibit-4 blood sample of the accused on FTA card. Statement of the prosecutrix as noticed above is duly corroborated by PW8 Kala Devi, PW9 Devinder Kumar and PW5, Lal Singh. 27. Their Lordships of Hon’ble Supreme Court in Sunil Kundu vs. State of Jharkhand, (2013) 4 SCC 422 have held that when there is cogent and reliable ocular evidence, it has primacy over medical evidence. Their Lordships have held as under:- 23. As we have already stated the major lacuna in this case is that use of firearms by the accused is not proved. Their Lordships have held as under:- 23. As we have already stated the major lacuna in this case is that use of firearms by the accused is not proved. There are no firearm injuries on the deceased. It is true that when there is cogent eyewitness account, the medical evidence recedes in the background. However, when the eye-witness account is totally inconsistent with the medical evidence and there is reason to believe that improvements are made in the court to bring the prosecution case in conformity with the post-mortem notes, it is a cause for concern. In such a situation, it is difficult to say that one must believe the tainted eye-witness' account and keep the medical evidence aside. In this connection, we may usefully refer to the judgment in Sahebrao where this Court observed that when the doctor's experience has not been questioned, he is the only competent person to opine on the nature of injuries and cause of death. We may also refer to the judgment of this Court in Anjani Chaudhary, where the medical evidence did not support the appellant's presence as there was no injury on the deceased which could be caused by a lathi and the appellant was stated to be carrying a lathi. Since the eyewitnesses therein were not found to be reliable, this Court acquitted the appellant therein. 28. Their Lordships of Hon’ble Supreme Court in Anil Vs. State of Maharashtra, (2014) 4 SCC 69 have held that DNA genotype can be obtained from any biological material such as bone, blood, semen etc. Matching of DNA profile of sample at scene of crime with that of accused, it can generally be concluded that both samples are of same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory. Their Lordships have held as under:- Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the quality control and quality procedure in the laboratory. 29. Their Lordships of Hon’ble Supreme Court in Vijay Pal vs. State (Government of NCT of Delhi), (2015) 4 SCC 749 have held that there is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. It is also an accepted principle that sufficient weight age should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weight age does not ipso facto mean that each and every statement made by a medical witness should be accepted at its face value even when it is self-contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. Their Lordships have held as under:- 15. There is no dispute that the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner as alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. It is also true that the post-mortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the post-mortem can by no means be ascribed to be insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses. It is also an accepted principle that sufficient weight age should be given to the evidence of the doctor who has conducted the post-mortem, as compared to the statements found in the textbooks, but giving weight age does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it is self-contradictory. It is also a settled principle that the opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. That apart, it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which are to be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant'. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to the alternative possibilities cannot be accepted as conclusive. 30. Their Lordships of Hon’ble Supreme Court in Tomaso Bruno vs. State of Uttar Pradesh, (2015) 7 SCC 178 have held that the courts normally would look at expert evidence with a greater sense of acceptability, but the Courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable. The purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. The purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. Their Lordships have held as under:- 40. The courts, normally would look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable. We agree that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. This Court is expected to analyze the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. As discussed earlier, serious doubts arise about the cause of death stated in the post-mortem reports. 31. Though, there is some delay in registering the FIR of the incident with the Police, but the same has been duly explained by the prosecution. On 20.1.2015 when the incident occurred, PW9 Devinder Kumar, father of the prosecutrix was away from the house. On 23.1.2015, he came back to his house at night and in the morning of 24.1.2015, his wife PW8 Kala Devi, told him the incident. Thereafter, he narrated the incident to PW5 Lal Singh. Parents of the prosecutrix visited the Police Station, Janjehali and reported the matter. 32. The prosecution has proved its case against the accused beyond all reasonable doubts and this Court finds no reason to interfere with the well-reasoned judgment rendered by the learned trial Court. 33. Consequently, in view of analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any also stands disposed of. Bail bonds are cancelled.