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2016 DIGILAW 177 (HP)

Harnam Singh v. State of Himachal Pradesh

2016-03-02

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. This appeal stands directed against the judgement rendered on 21/30.05.2015 by the learned Special Judge, Kangra at Dharamshala, Himachal Pradesh in Sessions Case No.9-K/VII- 2013, whereby the appellant stands convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.25000/- and in default to undergo simple imprisonment for two more years for commission of offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. 2. The prosecution story, in brief, is that the prosecutrix is in close relation of the accused. She is related to him as niece. In the year, 2013 she was a student of 10th class in Sauhra School. On 27.1.2013 at about 11 a.m., she had gone to Kedar Studio Sauhra for getting her photographs. The photographer told the prosecutrix that the photographs were not ready and, therefore, the prosecutrix was coming back to her house from there. On the way, the accused Harnam Singh had met her near the house which was under construction and belonged to the father of the prosecutrix. The accused asked the prosecutrix to accompany him in order to make love. The prosecutrix being of immature age could not understand as to what the accused had told her and she accompanied him. He took her to one room of that house which was under construction. He had kissed her there and thereafter he started pressing her breasts. She could not understand as to what the accused was doing. Thereafter the accused had forcibly removed the Salwar of the prosecutrix and then forcibly made her lie down in the room with her back on the ground and thereafter, he had put off his pant and then had committed penetrative sexual assault with the prosecutrix for 8-10 minutes. After performing this forcible sexual intercourse with her, the accused had given a hundred rupee note to her and directed her not to disclose about this occurrence to any one. The prosecutrix had thereafter gone to her house and had not talked to anybody about this occurrence. She was under fear and kept on thinking about the occurrence all alone. Realizing that the accused had committed a wrong act with her for which the accused should be punished, she gathered some courage and thought of getting justice for herself. The prosecutrix had thereafter gone to her house and had not talked to anybody about this occurrence. She was under fear and kept on thinking about the occurrence all alone. Realizing that the accused had committed a wrong act with her for which the accused should be punished, she gathered some courage and thought of getting justice for herself. Then she had straightaway gone to the Police Post Gaggal, all by herself. She narrated the occurrence to ASI/Incharge of the Police Post, Gaggal. The said ASI on hearing the prosecutrix, informed her mother telephonically on which her mother, grandmother, Taya and Tai came to the Police Post Gaggal and in their presence, the statement of the prosecutrix was reduced into writing vide rapat No. 8 Ex.PW-3/A. Videography of her statement had also been conducted vide CD Ex.PW-13/E. The said rapat was sent to Police Station, Kangra, through Constable Bhinder Singh, on the basis of which FIR Ex.PW-10/A came to be registered against the accused. The currency note of Rs. 100/- was also handed over by the prosecutrix to the Police which had been given to her by the accused after committing penetrative sexual assault with her. The currency note of Rs. 100/- was taken into possession by the Police vide memo Ex.PW-3/B. The prosecutrix had herself given in her own handwriting Ex. PW-3/C about the occurrence which had taken place with her. The lady constable Surendra Kumari was deputed to get the prosecutrix medically examined from the doctor vide application Ex.PW-2/A and accordingly she was medically examined vide MLC Ex. PW-2/C. Her x-ray examination had also been conducted vide form Ex.PW-2/B and x-ray films Ex.PW-2/D to Ex. PW-2/F and report Ex.PW-2/G was procured according to which the age of the prosecutrix was more than 13 ½ years, but less than 15 years. As per medical examination, the prosecutrix was found to have been subjected to sexual intercourse, but the final opinion was reserved till receipt of the FSL report. PW-2/F and report Ex.PW-2/G was procured according to which the age of the prosecutrix was more than 13 ½ years, but less than 15 years. As per medical examination, the prosecutrix was found to have been subjected to sexual intercourse, but the final opinion was reserved till receipt of the FSL report. The pubic hair, vaginal swabs and slides were prepared and preserved and the clothes and undergarments of the prosecutrix were sealed by the doctor in accordance with codal formalities and were handed over to the police, which were deposited with the MHC, who entered the same in Malkhana register, the entry abstract of which are Ex.PW-8/A to Ex.PW-8/C. The accused was arrested and his medical examination was got conducted vide application Ex.PW-1/A and as per MLC Ex.PW-1/B, he was found capable to perform sexual intercourse. At the time of medico-legal examination of the accused, the pubic hair, garment including undergarments of the accused had been sealed in two parcels and were handed over to the Police which were deposited with the MHC. The same had also been entered in the Malkhana register, the entry abstract of which is Ex. PW-8/A. The blood sample of the accused had also been taken for which application Ex.PW-13/B was moved and the blood sample of the accused was taken for which forms Ex.PW-14/A and Ex.PW-14/B were filled in. The police had moved application Ex.PW-6/A before the Secretary Gram Panchayat Sauhara, for obtaining the birth certificate of the prosecutrix, who had issued the birth certificate Ex.PW-6/B. He had also issued family register copy Ex.PW-6/C of the prosecutrix to the police. The Police had also moved application Ex.PW-7/A before the Head Master Govt. High School, Sauhara, for obtaining the date of birth certificate of the prosecutrix and accordingly the Head Master of the said school issued date of birth certificate Ex.PW-7/B to the Police, according to which the date of birth of the prosecutrix was 15.7.1998. The police also visited the spot and prepared site plan Ex.PW-12/A and thereafter the photographs of the spot, Ex.PW-13/D-1 to D-9 were taken and CD of these photographs had also been prepared. 3. The case property of this case was sent to FSL Junga with docket Ex.PW-12/E, vide RC Ex.PW-8/D through constable Hans Raj No. 514 on 3.2.2013, who had deposited the case property in FSL Junga on 4.2.2013 in the same condition. 3. The case property of this case was sent to FSL Junga with docket Ex.PW-12/E, vide RC Ex.PW-8/D through constable Hans Raj No. 514 on 3.2.2013, who had deposited the case property in FSL Junga on 4.2.2013 in the same condition. The FSL Junga sent the report Ex.PA to the Police and thereafter the police had shown that report to the doctor, who had then given final opinion Ex.PW-2/H according to which the prosecutrix had been found to have been subjected to sexual intercourse on 27.1.2013. 4. On completion of investigation into the offences allegedly committed by the accused a report under Section 173 Cr.P.C. stood prepared and filed in the competent Court. 5. The accused-appellant herein stood charged for committing an offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. The accused-appellant pleaded not guilty and claimed trial. 6. In order to prove its case, the prosecution examined 15 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, stood recorded wherein he pleaded innocence and claimed false implication. In defence he chose to lead evidence and examined one witness. 7. The accused-appellant stands aggrieved by the judgment of conviction recorded by the learned trial Court. Shri Vikas Rathore, learned Advocate has concerted to vigorously contend before this Court qua the findings of conviction, recorded by the learned trial Court, standing not anvilled on a proper appreciation by it of evidence on record, rather, theirs standing sequelled 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. 8. On the other hand, the learned Additional Advocate General appearing for the State has with considerable force and vigour contended qua the findings of conviction recorded by the Court below being based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting vindication. 9. 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. 10. The accused-appellant is alleged to have committed aggravated sexual assault upon minor prosecutrix. 9. 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. 10. The accused-appellant is alleged to have committed aggravated sexual assault upon minor prosecutrix. Exts.PW-15/A and PW-15/B constituting the pedigree table of the prosecutrix and the accused, proven by PW-15 conclusively denotes the factum of both belonging to the same family. Firm conclusivity to the enunciations aforesaid in Exts.PW-15/A and PW15/B stands acquired by the prosecutrix deposing in tandem thereto in her examination-in-chief, factum whereof remaining unconcerted to be shred apart by the learned defence counsel while subjecting her to cross-examination, is obviously personificatory of the defence acquiescing to the enunciations in Exts.PW-15/A and PW-15/B. 11. Be that as it may, this Court is now enjoined to traverse through the prosecution evidence for discerning therefrom the pre-eminent fact of the version qua the alleged incident deposed by the prosecutrix being credible as well as inspiring. In the event of an incisive reading of her deposition underscoring the factum of her testimony being credible besides inspiring, this Court would be constrained to record findings of conviction against the accused-appellant. A threadbare scanning of the testimony of the prosecutrix unfolds the factum of her deposition comprised in her examination-in-chief candidly communicating therein a version qua the ill-fated incident in tandem with besides in corroboration to the report qua the occurrence constituted in Ext.PW-10/A. A sharp reading of her deposition comprised in her cross-examination omits to convey of hers either contradicting her version recorded in her examination-in-chief qua the ill-fated incident, also its incisive reading portrays of there being no occurrence therein of any improvement or embellishment over her previous statement recorded in writing for fostering an inference of her version qua the incident comprised in her examination-in-chief, hence standing belittled or lacking in creditworthiness. In sequel, it has to be aptly concluded that her testimony qua the occurrence is both inspiring as well as credible for rendering a conclusive determination qua the guilt of the accused-appellant. 12. In sequel, it has to be aptly concluded that her testimony qua the occurrence is both inspiring as well as credible for rendering a conclusive determination qua the guilt of the accused-appellant. 12. Even though no corroborative evidence to the creditworthy testimony of the prosecutrix is enjoined to be emanating nor is it imperative to allude to any evidence corroborative to the credible, inspiring testimony qua the ill-fated occurrence recorded in the deposition on oath of the prosecutrix, yet the prosecution has led firm evidence corroborative to the trustworthy evidence qua the ill-fated occurrence embedded in the testimony of the prosecutrix. The germane corroborative evidence stands comprised in the testimonies of PW-2 and PW-4. With potent corroboration hence, standing lent by the PWs aforesaid to the version qua the incident spelt out by the prosecutrix in her deposition recorded on oath, gives firm conclusivity to an apt inference of the prosecution succeeding in proving the guilt of the accused-appellant. 13. Now it is imperative to determine besides reckon the age of the prosecutrix at the stage contemporaneous to the occurrence. PW-2 Dr. Parampreet Bawa in her deposition on oath has recorded therein the factum of the radiological age of the prosecutrix ranging between 13½ years but less than 15 years. She has denied the suggestions put to her in her cross-examination by the learned defence counsel qua the age of the prosecutrix being more than 16 years. Moreover, she has also denied the suggestion put to her in her cross-examination by the learned defence counsel qua the age of the prosecutrix as unraveled by skigram being more than 18 years and there being chances of error of two years on either side. Contrarily, she has clarified of occurrence of variations in her minimum and maximum age ranging between 6 to 8 months. Sequelly, the testimony of PW-2 manifests the factum of the age of the prosecutrix at the time contemporaneous to the occurrence being less than 15 years. Even if the opinion qua the age of the prosecutrix deposed on oath by PW-2 is infirm, yet infirmity, if any, gripping the opinion of PW-2 qua the age of the prosecutrix at the stage contemporaneous to the occurrence, stands overcome by abstract of birth register of the prosecutrix comprised in Ext.PW-6/C and her birth certificate comprised in Ext. Even if the opinion qua the age of the prosecutrix deposed on oath by PW-2 is infirm, yet infirmity, if any, gripping the opinion of PW-2 qua the age of the prosecutrix at the stage contemporaneous to the occurrence, stands overcome by abstract of birth register of the prosecutrix comprised in Ext.PW-6/C and her birth certificate comprised in Ext. PW-7/B, both of which unflinchingly are communicative of the factum of the prosecutrix at the stage contemporaneous to the occurrence standing aged below 15 years. In aftermath, invincible evidence alluded to aforesaid underpins a formidable conclusion of the prosecutrix standing aged below 15 years at the stage contemporaneous to the occurrence. 14. The medical evidence too needs advertence. PW-2 who conducted the medical examination of the prosecutrix in quick spontaneity to the ill-fated occurrence of 27.1.2013, has with candor and firmness deposed of hers on the strength of the report of FSL comprised in Ext.PA holding an opinion of the prosecutrix standing subjected to sexual intercourse on 27.1.2013. The opinion underscored by PW-2 is lent corroborative vigour by Ext.PW12/A, which bespeaks the factum of Ext.PA the underwear of the victim indicating the presence of DNA of more than one person besides DNA profiling thereof being compatible with the DNA of accused Harnam Singh. The aforesaid best evidence qua the inculpatory role of the accused in the offence committed by him has immense conclusivity for founding thereupon a clinching verdict as aptly recorded by the learned trial Court of the accused forcibly subjecting the minor prosecutrix to sexual intercourse. 15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 16. In view of the above, we find no merit in this appeal which is accordingly dismissed. In sequel, the impugned judgement is affirmed and maintained. Record of the learned trial Court be sent back forthwith.