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2016 DIGILAW 1742 (HP)

Bholu Ram v. State of H. P.

2016-08-22

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment of 24.12.2015 rendered by the learned Additional Sessions Judge, Ghumarwin District Bilaspur, Himachal Pradesh (Camp at Bilaspur) in Sessions trial No. 4/7 of 2015, whereby the learned trial Court convicted the appellant (hereinafter referred to as “accused”) for his committing an offence punishable under Sections 376 of the Indian Penal Code also sentenced him as under:- “…………..he is sentenced to undergo rigorous imprisonment for a period of ten years and fine of Rs.10,000/- (Rupees Ten Thousand Only) for the commission of offence punishable under Section 376 of the Indian Penal Code. In default of payment of fine he shall further suffer rigorous imprisonment for a period of six months……...” 2. Brief facts of the case are that the prosecutrix is the wife of Amit Chand (PW-7) and was residing in village Khungan. Her husband is a driver by profession and he seldom visits home. Accused alongwith the prosecutrix and her three daughters and one son had been residing together. On the intervening night of 9/10.9.2014 at about 12.30 a.m. accused came to the room of the prosecutrix and forcibly committed sexual intercourse upon her. The prosecutrix had communicated qua the aforesaid act of the accused to her father by her mobile phone. In the company of her father (PW-5) she had gone to the police station for lodging a report. The accused for the past 15-16 days had regularly been teasing the prosecutrix. Earlier also on 3-4 occasions the accused had forcibly made physical relations with the prosecutrix. On 8.9.2014 during the night time the accused by entering in her room had made physical relation with her forcibly. The accused on each and every occasion holding out threats to the prosecutrix to kill her if she made a disclosure to anyone. Out of fear, except for her husband, the prosecutrix had not disclosed anything to anyone. Her husband had been abusing her. Owing to the threatening meted by the accused the prosecutrix had not reported the matter to the police earlier. On the matter being reported to the police, FIR Ex.PW-10/A came to be registered. Medical examination of the prosecutrix was conducted on an application. Dr. Shilpa (PW-9) conducted her medical examination and observed that the possibility of sexual intercourse and rape could not be ruled out. On the matter being reported to the police, FIR Ex.PW-10/A came to be registered. Medical examination of the prosecutrix was conducted on an application. Dr. Shilpa (PW-9) conducted her medical examination and observed that the possibility of sexual intercourse and rape could not be ruled out. The accused was also medically examined and on his examination it stands found that there was nothing to suggest that the accused was not capable of performing sexual acts. Site plan Ex. PW-12/A was prepared. Vaginal swabs, pubic hair and slides of the prosecutrix were preserved by the medical officer and handed over to the police. The underwear, sample of blood, pubic hair and semen of the accused were also taken and sealed. Further the case of the prosecution is that the prosecutrix had handed over to the police her shirt (Ex.P-2) and salwar (Ex.P-3), which were sealed in a parcel and seized vide seizure memo Ex.PW-2/A. A khandolu (Mattress) (Ex.P-5) was also produced by the prosecutrix which was seized under memo Ex.PW-2/B. Mobile phone alongwith sim card was also taken into possession by the police vide seizure memo Ex.PW-3/A. The case property was handed over to the MHC, who sent the same to the Regional Forensic Science Laboratory, Mandi. On receipt of RFSL report comprised in Ex. PW-8/C 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 13 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. However he did not choose to lead evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction against the accused for his committing an offence punishable under Section 376 of the IPC. 6. However he did not choose to lead evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction against the accused for his committing an offence punishable under Section 376 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 se-quelled by gross mis-appreciation 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. An FIR stood lodged with the police station concerned qua the ill-fated incident which occurred in the intervening night of 9/10.9.2014 at 12.30 a.m. wherein a narrative is held of the prosecutrix standing subjected to forcible sexual intercourse by the accused/her father-in-law. The sole deposition qua the ill-fated occurrence of the prosecutrix when bereft of any vice of any visible inter-se contradiction vis-à-vis her respective examination-in-chief with her cross-examination would ipso facto constitute sinewed evidence of probative worth for constraining this Court to return findings of conviction against the accused. For disinterring the factum aforesaid an incisive reading of her deposition is imperative. She has in her deposition made both loud and vivid underscorings therein qua on the relevant date hers standing subjected to forcible sexual intercourse by the accused. She with utmost promptitude made a revelation qua the occurrence to PW-5, her father. PW-1 (Ashwani Kumar) has deposed a version corroborative to the version qua the occurrence spelt out by the prosecutrix in her testification. She with utmost promptitude made a revelation qua the occurrence to PW-5, her father. PW-1 (Ashwani Kumar) has deposed a version corroborative to the version qua the occurrence spelt out by the prosecutrix in her testification. PW-1 who alongwith PW-5 on the latter receiving a cellular communication from the prosecutrix proceeded to the matrimonial home of the latter has recorded a vivid pronouncement in his testification qua theirs thereat noticing the prosecutrix sitting in the courtyard of her house alongwith her three daughters whereas the accused stands testified by them to be noticed by them to be hurling abuses from the room of the upper storey of his house. The aforesaid pronouncement occurring in the testification of the PWs aforesaid holds the effect of theirs countervailing the concert of the defence to here-before espouse of with the prosecutrix not raising outcries for inviting the presence of the inhabitants of the homesteads located in close vicinity to the relevant site of occurrence apparently unveiling of hers holding consent to the accused for his subjecting her to sexual intercourse. Even otherwise reiteratedly the factum of hers purveying with utmost promptitude a communication qua the occurrence to her father by holding a communication with him over a cell phone, factum whereof stands vigorously corroborated by call detail reports Ex.PC and PE, unfolds the imminent factum of hers not contriving the implication of her father-in-law the accused nor also it can be concluded of hers by omitting to raise outbursts not rendering herself amenable to an inference standing foisted qua hers consensually succumbing to the sexual misdemeanors of the accused given hers holding a perception qua her reputation standing stigmatized by hers, during the ordeal of hers standing subjected to forcible sexual intercourse by the accused, raising outcries inviting thereat the presence of the neighbors, hence hers deeming it fit to on its conclusion make an intimation thereof to her father. Also the perpetration of sexual intercourse upon her person by the accused for it to be not amenable to a construction of its standing committed by hers purveying consent to the accused did not entail upon her to during its course or during the ordeal which beset her to raise outcries especially when as manifested by hers on consummation of the occurrence making a prompt cellular communication to her father rather tellingly bespeaks of hers not meteing consent to the sexual misdemeanors of the accused moreso when the aforesaid concert would stand unresorted to by her given its distracting her married life, as a corollary, dehors hers not during the ordeal which beset her, hers not raising outbursts for inviting the presence thereat of the neighbours holding residences in proximity thereof, is, consequential, given the prevalence hereat of singularly peculiar facts nor it can hence be concluded of hers by omitting to raise shrieks held consent to the accused qua his subjecting her to sexual intercourse. 10. The defence has assayed qua the implication of the accused by the prosecutrix holding an aura of falsity it standing reared by the accused holding a desire to alienate a part of his land to his sister whereas the prosecutrix and her father insisting upon the accused qua his transferring his land in their names, resistance whereof of the accused evoking an altercation inter-se the accused and the father of the prosecutrix wherefrom the latter nursed a vendetta vis-à-vis the accused, vendetta whereof found its outlet in his in collusion with her father falsely implicating the accused. However the aforesaid defence gets stifled by the factum of the prosecutrix acquiescing to the suggestion put to her by the learned defence counsel while holding her to cross-examination qua her husband not expending any money on her maintenance besides on the maintenance of her children rather her acquiescing to the apposite suggestion put to her by the learned defence counsel when holding her to cross-examination of the accused maintaining her besides her children. The effect of the aforesaid acquiescences is of there being no estrangement in the relationship inter-se the accused and the prosecutrix rather both living harmoniously together thereat the accused during the absence from home of the husband of the prosecutrix given the latter standing engaged as a driver callings whereof of his profession entailing his not staying regularly at his house. Also the aforesaid acquiescence blunts the factum of both holding animosity, with a concomitant effect of the defence making an engineered espousal on anvil aforesaid of the prosecutrix in connivance with her father falsely implicating the accused. Apart therefrom the effect of the prosecutrix leveling grave allegations upon her father-in-law begetting the ill-sequel of her image standing tarnished, protection whereof is the cherished aspiration of any married lady, she hence cannot at all be inferred to hold false allegations against the accused unless the latter had sexually exploited her. 11. The medical evidence on record held in Ex.PW-9/B holding manifestations of the prosecutrix standing subjected to sexual intercourse being not overrule able also the report of the FSL concerned holding unveilings of the vaginal slides of the prosecutrix sent there before holding semen, lends succor to the deposition of the prosecutrix. Even though the husband of the prosecutrix while appearing as PW-7 has deposed of his on the relevant date holding coitus with the prosecutrix hence concerts to repel the prosecutrix version yet his testimony is unworthwhile to oust the credible testimony of both PW-1 and PW-5 the brother and father respectively of the prosecutrix both of whom in prompt sequel to the latter making a cellular communication to them qua the occurrence proceeded to her matrimonial home whereat they testify qua theirs not noticing PW-7. The un-shattered testimony of both PW-1 and PW-5 qua theirs on theirs visiting the matrimonial home of the prosecutrix not noticing thereat the husband of the prosecutrix is amplifying display of the endeavor of the defence to thereupon repel the participation of the accused in the forcible coitus to which she stood held by the accused being both feeble besides fragile. Consequently, also with the opinion of the FSL concerned qua the vaginal slides of the prosecutrix as sent to it for examination holding semen is to be concluded to be connecting the accused in as much as the relevant vaginal slides holding the semen of the accused. 12. The effect of delay, if any, of the prosecutrix reporting the occurrence to the police station concerned stands effaced given its standing explicated in the factum of the police station Ghumarwin standing located at a distance of 28 kms from the relevant site of occurrence where to at she in the company of PW-5 in the morning of 10.9.2014 made a visit. Consequently when the alleged incident occurred in the intervening night of 9/10.9.2014 also when in prompt sequel thereto she made a cellular communication to her father who visited her matrimonial home rather renders hers holding a prompt communication qua the occurrence to her father also the factum aforesaid entwined with the evident factum of the relevant police station standing located at a distance of 28 kms from the site of the occurrence where to at given the darkness of the relevant time besides unavailability of means of transport she could not be expected to in prompt sequel to the occurrence visit it renders the delay, if any, to be inconsequential. 13. 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. 14. 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.