Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2344 (HP)

Des Raj @ Raj Kumar v. State of Himachal Pradesh

2016-11-04

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgement rendered on 30.12.2015 by the learned Special Judge, Chamba, District Chamba, Himachal Pradesh in Sessions Trial No.30 of 2015, whereby the appellant stands convicted and sentenced to undergo imprisonment in the following manner:- Sr.No. Section Sentence imposed. 1. 342 IPC The appellant/accused was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1000/- and in default of payment of fine, the convict was to undergo further imprisonment for one month; 2. 506 IPC The appellant/accused was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.2000/- and in default of payment of fine, the convict was to undergo further imprisonment for two months; and 3. Section 4 of the Protection of Children from Sexual Offences Act, 2012. The appellant/accused was sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.5000/- and in default of payment of fine, the convict was to undergo further imprisonment for six months. All the sentences were ordered to be run concurrently. 2. The prosecution story, in brief, is that on 24.3.2015, the victim along with her parents reported the matter to the police that on 23.3.2015 at about 10 AM, she went to Shakti Nallah for grinding maize grain along with her brother Sunil Kumar aged 5 years. The victim went to the Gharat of Shri Firozu where one person named Singh R/o village Saloga was grinding his maize grain. Thereafter, the maize grain of the victim was poured in the Gharat for grinding. After some time, accused also came there and gave money to her brother for bringing some sweet from the shop. When the brother of the victim refused, he slapped him and thereafter her brother went to the shop while weeping. Then accused bolted the door of the Gharat and forcibly put off the Pajami as also his Pants and thereafter committed wrong act with her (sexual intercourse). It was 12 noon when the victim cried, accused gagged her month with his hand. Thereafter, accused tried to give her money not to disclose the incident. When she refused to take money, then the accused threatened her to do away with her life in case she discloses the incident to any one. It was 12 noon when the victim cried, accused gagged her month with his hand. Thereafter, accused tried to give her money not to disclose the incident. When she refused to take money, then the accused threatened her to do away with her life in case she discloses the incident to any one. It is further story of the prosecution that thereafter the accused went to the Gharat of one Mussadi. When the victim was weeping, one Deep son of Shri Chatter Singh R/o village Kathla came there and asked her as to why she was weeping. Then she narrated the incident to him. Thereafter, she went to her house with the flour and narrated the incident to her uncle and aunt. The victim again came with her uncle and aunt towards Shakti Nallah where her parents met them. However, due to night, they returned to their house and only then the matter was reported to the police on the next day and showed their willingness for medical examination of the victim. On this complaint, FIR came to be registered against the accused. Case was investigated. Victim as well as accused were got medically examined. Statement of victim was also got recorded before the learned Judicial Magistrate 1st Class, Chamba and on completion of investigation, challan was prepared for the aforesaid offences against the accused. 3. 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. 4. The accused-appellant herein stood charged for his allegedly committing offences punishable under Sections 342, 376, 506 of the Indian Penal Code and Section 3 (a) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012. The accused-appellant pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 17 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. He did not adduce any evidence in defence. 6. The accused-appellant stands aggrieved by the judgment of conviction recorded by the learned trial Court. 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. He did not adduce any evidence in defence. 6. The accused-appellant stands aggrieved by the judgment of conviction recorded by the learned trial Court. The learned counsel appearing for the appellant, 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. 7. 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. 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. Ext.PW-13/A and Ext.PW-13/B respectively constitute the birth certificate and an abstract of the Parivar Register of the prosecutrix wherewithin a display occurs qua the prosecutrix at the relevant time holding an age of 13 years. Consequently, consent, if any, meted by her to the penal misdemeanors perpetrated upon her by the accused holds no vigour. 10. The learned counsel for the appellant has contended of with the prosecutrix besides her parents not supporting the prosecution case, it was grossly inapt for the learned trial Court to record an order of conviction upon the accused/appellant herein. True it is that qua the prosecutrix besides her parents omitting to support the prosecution case yet the aforesaid factum cannot override the testification of PW-16 who recorded her statement made before him under Section 164 Cr.P.C., statement whereof stands comprised in Ext.PW-16/A wherein the prosecutrix has explicitly inculpated the accused/appellant. True it is that qua the prosecutrix besides her parents omitting to support the prosecution case yet the aforesaid factum cannot override the testification of PW-16 who recorded her statement made before him under Section 164 Cr.P.C., statement whereof stands comprised in Ext.PW-16/A wherein the prosecutrix has explicitly inculpated the accused/appellant. The vigour of the testification of PW- 16 besides of the reflections occurring in Ext.PW-16/B would stand belittled only when the defence had emphatically established qua the recitals occurring in Ext.PW-16/B not emanating from a pure volition of the prosecutrix arising from the factum of her standing pressurized by the Investigating Officer concerned to record it before the Magistrate concerned. However, a close reading of the deposition of PW-16 unveils qua the recording of Ext.PW-16/B by him being free from any stain of it not emanating from the pure volition of the prosecutrix besides it unveils of the prosecutrix in recording it her standing bereft of any exertion upon her of any duress by the Investigating Officer. The aforesaid testification of PW-16 occurring in his examination-in-chief has remained uneroded of its sinew even when he faced the ordeal of a rigorous crossexamination. Consequently, the recitals occurring in Ext.PW-16/B acquire probative worth of immense sinew whereupon efficacy of the deposition of the prosecutrix besides of the deposition of her parents stands benumbed. It appears qua in the prosecutrix reneging from the recitals embodied in the relevant F.I.R. while hers testifying in Court also in her parents not lending sustenance to the prosecution version theirs standing prodded by extraneous considerations whereupon their testifications do not hold any sway nor their testifications countervail the taintfree deposition of PW-16 wherebefore whom Ext.PW-16/B evidently stood volitionally recorded by the prosecutrix, corollary whereof is qua no conclusion other than qua the prosecution hence succeeding in proving the charge stands generated. 11. The further reason for this Court to conclude of the recitals occurring in Ext.PW- 16/B holding a paramount virtue of truth ensues from the factum of the relevant MLC prepared qua the prosecutrix comprised in Ext.PW-8/A making vivid unfoldments of the prosecutrix standing subjected to forcible sexual intercourse. Apart therefrom, the report of the FSL concerned comprised in Ext.PX makes a loud communication therein of human semen standing detected in Ext.1a, the Pajami of the prosecutrix, also it pronounces qua human semen standing detected in Ext.3a, the underwear worn by the accused. Apart therefrom, the report of the FSL concerned comprised in Ext.PX makes a loud communication therein of human semen standing detected in Ext.1a, the Pajami of the prosecutrix, also it pronounces qua human semen standing detected in Ext.3a, the underwear worn by the accused. However, though there occurs no pronouncement therein qua human semen borne thereon being relatable to the accused, yet any omission qua the aforesaid pronouncement therein would not negate the factum of Ext.1a whereon it occurs not at the relevant time not standing worn by the prosecutrix or of Ext.3a not belonging to the accused unless there occurred visible display in cogent evidence qua the exhibits aforesaid not respectively standing worn by the aforesaid. An inference qua the aforesaid pronouncements standing blunted would spur on the defence concerting to assail the efficacy of the relevant recovery memos whereunder they stood recovered. However, the aforesaid concert remained un-assayed by the defence whereupon obviously the relevant best evidence for benumbing the aforesaid inferences is amiss. Consequently, the existence of human semen thereon is to stand concluded to belong to the accused thereupon it is apt to conclude of the accused at the relevant time perpetrating forcible sexual intercourse upon the prosecutrix. 12. 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. 13. In view of the above, there is no merit in this appeal which is accordingly dismissed. The judgment impugned before this Court stands maintained and affirmed. Record of the learned trial Court be sent back forthwith.