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2016 DIGILAW 2074 (HP)

RAKESH KUMAR v. STATE OF H. P

2016-09-26

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment of 20.5.2014 rendered by the learned Special Judge Sirmaur District at Nahan, H.P. in Sessions trial No. 44-ST/7 of 2013, whereby the learned trial Court convicted the appellant (hereinafter referred to as "accused") for his committing an offence punishable under Section 377 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 also sentenced him as follows:- Under Section 377 IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default of payment of fine, he shall further undergo simple imprisonment for two months. Under Section 4 of POCSO Act to undergo rigorous imprisonment for seven year and to pay a fine of Rs. 10,000/- and in default of payment of fine he shall further undergo simple imprisonment for two months. 2. Brief facts of the case are that PW-1 aged 12 years was studying in Shamsher Senior Secondary School, Nahan and used to play in the chowgan playing ground adjoining to the school. On 22.6.2013 PW-1 alongwith his cousin had gone to the Chow-gan for playing where fair was going on. Accused met him and offered him ice-cream. PW-1 initially declined to accept the ice-cream but later on he accepted the same. Thereafter the accused took him behind the school and unzipped his pant and took out his male organ and asked him to hold and shake. PW- 1 followed the instructions of the accused. On 23.6.2013 at about 11 A.M. PW-1 was playing with his friends in the ground and the accused took him to Kala Amb where he served PW-1 cold drink, bread slice and cane juice. The accused thereafter came in HRTC Bus and alighted from the bus 1 or 2 KM short of Nahan. PW-1 was taken to one Khala and thereafter the accused committed carnal intercourse with him. PW-1 cried in pain but was slapped by the accused and threatened to keep quite. Thereafter the accused put his penis into the mouth of PW-1 and discharge semen on the ground. The accused also gave a currency note of Rs.500/- to PW-1 and threatened him not to disclose this incident to anyone. On the next day the accused met PW-1 in the Chowgan and demanded a sum of Rs.500/-. Thereafter the accused put his penis into the mouth of PW-1 and discharge semen on the ground. The accused also gave a currency note of Rs.500/- to PW-1 and threatened him not to disclose this incident to anyone. On the next day the accused met PW-1 in the Chowgan and demanded a sum of Rs.500/-. When the maternal uncle of PW-1 came there the accused fled away from the spot. On the next day PW-1 again came to chowgan for playing and the accused demanded a sum of Rs.500/- in the meantime mother of PW-1 came on the spot and asked the accused as to why he is spoiling her son by giving money, but the accused fled away from the spot. In the evening PW-1 disclosed the entire incident to his mother. Thereafter Rapat Ex.PW-5/A was lodged and FIR was registered. After completing 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 Section 377 of IPC and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 11 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. He chose to lead evidence in defence and examined one DW. 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 section 377 of IPC and under Section 4 of the Protection of Children from Sexual Offences Act. 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 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. 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 vigor 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 theirs 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 incidents of the accused perpetrating upon the victim offences constituted under Section 377 IPC and under Section 4 of Protection of Children from Sexual Offences Act, 2012 stand deposed by the victim. The victim testifies as PW- 1. Since he was a child witness hence the learned trial Court by putting queries to him for ascertaining qua his competence to depose whereupon his meeting satisfactory answers thereto, it stood constrained to declare him competent to testify qua the occurrence. In sequel thereto, in his testification qua the occurrence he has made communications in tandem with the report qua the occurrence lodged with the police station concerned comprised in Ex.PW-8/A. The testification of PW-1 qua the occurrence is bereft of any infirmity. His testification qua the occurrence attained corroborative vigor from the testimony of PW-2 his mother. The MLC (Ex. PW-7/B) prepared by the Doctor concerned after holding the victim to medical examination unfolds of the accused attempting to commit sodomy upon the victim. With Ex.PW-7/B lending corroborative vigor to the deposition of the victim also to the deposition of PW-2, consequently the prosecution version cannot be said to be ingrained with any falsity. 10. The learned counsel for the accused contends qua occurrence of delay in the reporting of the incident to the police station concerned stains the prosecution version with a vice of falsity. 10. The learned counsel for the accused contends qua occurrence of delay in the reporting of the incident to the police station concerned stains the prosecution version with a vice of falsity. However, with the testifications qua the occurrence rendered by PWs 1 and 2 besides with medical evidence comprised in Ex.PW-7/B all holding intra-se congruity also given the gravity of the penal misdemeanors perpetrated upon the victim by the accused besides theirs impinging upon the social prestige of the victim and of his family also their reporting besetting the victim with mental and psychological trauma, the delay, if any, in the reporting of the matter to the police station, concerned holds no effect. Moreover with the mother of the victim in prompt sequel to the latter transmitting information to her qua the occurrence lodging an FIR in the police station concerned dispels the effect if any of the victim not making an earlier disclosure qua the occurrence to the police station concerned, significantly when for reasons aforestated it would be unbefitting to expect from him a prompt disclosure qua the occurrence to the relevant agency. 11. The learned counsel for the accused also contends of the prosecution not lending any tangible explanation qua the existence of injuries on the person of the accused. Given the delay in the lodging of the FIR also given the disparity in the ages of the victim and the accused concomitantly hence with the superior physical strength of the accused vis-a-vis the victim, it would be illogical to make a conclusion of the victim a boy of 12 years during the course of the relevant occurrence inflicting injuries upon the accused. In sequel non-explanation by the prosecution qua the existence of injuries on the person of the accused is wholly inconsequential. 12. A wholesome analysis of 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. 13. In aftermath this Court does not deem it fit and appropriate that the findings of conviction recorded by the learned trial Court merit interference. 13. 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.