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2016 DIGILAW 350 (HP)

Lal Singh @ Lala v. State of H. P

2016-03-30

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the impugned judgment rendered on 21.11.2015, by the learned Special Judge, Mandi, District Mandi, Himachal Pradesh in Sessions trial No. 48 of 2014, whereby the learned trial Court convicted and sentenced the appellant (hereinafter referred to as “accused”)as follows:- Section 342 IPC: to undergo simple imprisonment for a period of one month and to pay a fine of Rs.500/- and in default of payment of fine he shall undergo further simple imprisonment for one week. Section 4 of the Prevention of Children from Sexual offences Act:- to undergo rigorous imprisonment for ten (10) years and to pay a fine of Rs.10,000/- and in default of payment of fine he shall further undergo simple imprisonment for six months. 2. Brief facts of the case are that PW-1 is having two children, the victim and a son. The prosecutrix was born on 18.10.1996. She was not studying owing to mental disability. She even cannot speak properly. On 30.5.2014 the mother of the prosecutrix (PW-1) alongwith her son went to the school and returned back to home at about 3.30 p.m. The victim was sleeping at that time and was wearing her clothes inside out. On inquiry, the victim disclosed to PW-1 that accused took her to a room and bolted the door and thereafter committed forcible sexual intercourse with her. She cried for help, but the accused did not spare her. PW-3 the grandmother of the prosecutrix called from outside and also knocked at the door, but the accused did not open the door, however the door was opened by him after some time. On inquiry made by the grandmother of the prosecutrix, the accused did not give any satisfactory answer for not opening the door. PW-1 thereafter disclosed the incident to PW-2 her sister-in-law. PW-1 also disclosed about the incident to her aunt (PW-6) on telephone. The matter was reported to the police and FIR Ex. PW-1/B was registered. The prosecutrix was medically examined on application Ex.PW-18/A and MLC Ex.PW-18/B was obtained. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 3. The matter was reported to the police and FIR Ex. PW-1/B was registered. The prosecutrix was medically examined on application Ex.PW-18/A and MLC Ex.PW-18/B was obtained. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 3. The accused was charged by the learned trial Court for his committing offences punishable under Sections 342, 376 IPC and Section 4 of POCSO Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 19 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 DW-1 Nand Lal in defence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused for his committing offences punishable under Sections 342 IPC and Section 4 of POCSO Act. 6. The learned counsel appearing for the appellant/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. The learned Additional 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. The prosecutrix, as unfolded by Exs.PW-7/B and 7/C which constitute respectively the birth certificate and the relevant abstract of the Pariwar Registrar of the prosecutrix, was a minor at the time contemporaneous to the occurrence. The reflections therein acquire conclusivity arousable from the factum of the learned defence counsel omitting to cross examine PW-7 qua the veracity of the apposite portrayals occurring therein. The reflections therein acquire conclusivity arousable from the factum of the learned defence counsel omitting to cross examine PW-7 qua the veracity of the apposite portrayals occurring therein. Given the conclusivity imputable to PW-7/B and PW- 7/C, the apt conclusion which ensues therefrom is of the prosecutrix being a minor at the stage contemporaneous to the occurrence hence standing disabled to accord consent to the sexual misdemeanors, if any, perpetrated upon her person by the accused. However, even if the prosecutrix was a minor at the stage contemporaneous to the occurrence as such constituting her legally handicapped to mete consent to the accused for his alleged act of perpetrating sexual intercourse upon her on the ill-fated day. Nonetheless the mere factum of hers standing legally interdicted to mete consent to the sexual overtures of the accused would not ipso facto clinch any conclusion qua the inculpation of the accused rather it stands enjoined upon this Court to on an incisive appraisal of her testimony unveil therefrom the preeminent factum of her deposition besides the corroborative depositions thereto of her relatives standing imbued with credibility besides inspiring. Moreover, the depositions of the prosecution witnesses are to imperatively secure corroboration from the medical evidence on record. In the event of this Court discerning on an incisive reading of her testimony besides of the testimonies of her relatives in purported corroboration thereto of theirs being credible besides trustworthy would constrain this court to return with aplomb the findings of conviction against the accused. In an endeavor to gauge whether the testimonies of the prosecution witnesses stand ingrained with candor and forthrightness for hence credibility being imputable to them, a prompt advertence to the testimony of PW-1 is imperative. 10. PW-1 (Satya Devi) is the mother of the prosecutrix. She in her examination-in-chief has unveiled therein the factum of her daughter being mentally retarded besides suffering from an impairment of speech. On 30.5.2014 she has underscored in her deposition of hers alongwith her son returning home from school at about 3.30 p.m. whereat she noticed her daughter sleeping and hers also proceeding to sleep with her daughter. She proceeds to depose of hers noticing her daughter to be wearing her clothes inside out whereupon she made an inquiry from her for hers wearing clothes in an odd and unnatural fashion. She proceeds to depose of hers noticing her daughter to be wearing her clothes inside out whereupon she made an inquiry from her for hers wearing clothes in an odd and unnatural fashion. On her inquiring from the prosecutrix she deposes of the latter disclosing to her that in her absence the accused had come home and had proceeded to take her to a room and bolted its door. She has also disclosed therein of a disclosure being made by the prosecutrix of the accused committing forcible sexual intercourse upon her and of hers crying for help yet hers standing not spared by the accused. She further disclosed of Gulabi Devi (mother in law of PW-1) beckoning the accused from outside and also knocking at the door but the accused not opening the door yet after sometime his opening the door. PW-1 further deposes of her mother in law making an inquiry from the accused for his not opening the door, yet the accused not giving any satisfactory answer. She proceeded to disclose the incident to her sister-in-law Lachmi Devi who had also noticed the prosecutrix wearing clothes in an unnatural and odd fashion. She has testified the factum of the FIR qua the occurrence comprised in Ex. PW-1/B standing lodged at her instance in the police station concerned. She in her cross-examination deposed of hers noticing the blood stains on the clothes of her daughter. 11. The deposition of PW-1stands corroborated by PW-3 (Gulabi Devi). 12. PW-4 is the deposition on oath of the prosecutrix whose intelligibility on standing adjudged by the learned trial Court on hers meteing apt answers to the queries put to her by the learned trial Court hence coaxing it to declare her to be a competent witness. She in her examination-in-chief deposes of the accused gagging her mouth and hers raising cries for help whereupon her grandmother knocked at the door. A close reading of the testimony of PW-1 underscores the factum of the prosecutrix raising outcries which invited the attention of PW-3 leading the latter to proceed to the room whereat the accused purportedly subjected the prosecutrix to forcible sexual intercourse. A close reading of the testimony of PW-1 underscores the factum of the prosecutrix raising outcries which invited the attention of PW-3 leading the latter to proceed to the room whereat the accused purportedly subjected the prosecutrix to forcible sexual intercourse. However the factum as deposed by PW-1 and by the prosecutrix of PW-3 proceeding to the room whereat the accused purportedly subjected the victim to forcible sexual intercourse on the prosecutrix raising an outburst besides shrieking for help to forbid the accused from perpetrating forcible sexual intercourse upon her is not lent any succor by the deposition of PW-3. In sequel, the testimonies on oath of PW-1 and of the prosecutrix qua the factum aforesaid stands belied with a concomitant effect of the veracity of theirs testimonies suffering impairment. Moreover what constrains this Court to conclude of PW-3 being a concocted witness stands aroused from the factum of a disclosure qua the incident standing rendered by the prosecutrix only to PW-1 at a stage when she had on returning home made an inquiry from the prosecutrix on hers noticing the latter wearing her clothes in an unnatural besides in an odd fashion. Further more, even the factum as deposed by PW-1 of hers noticing the prosecutrix to be wearing her clothes in an unnatural and odd fashion stands bereft of any trace or element of truth rather is rendered prevaricated especially in the face of PW-3 omitting to disclose in her deposition on oath of hers, on hers entering the room whereat the ill-fated occurrence took place not noticing the prosecutrix to be wearing her clothes in an unnatural and odd fashion. The effect of the aforesaid contradiction intra-se the testimonies of PW-1 and PW-3 spells an aura of doubt qua the veracity of the version spelt out qua the occurrence by both PW-1 and PW-3. It also belies the factum of the accused ever entering the room of the prosecutrix. Further more it also belies the deposition of the prosecutrix of hers inviting the attention of PW-3 by her raising cries and shrieks. 13. PW-1 has deposed in her cross-examination of hers noticing the blood stained clothes of the prosecutrix. However in her examination-inchief she has omitted to testify qua the factum aforesaid. Further more it also belies the deposition of the prosecutrix of hers inviting the attention of PW-3 by her raising cries and shrieks. 13. PW-1 has deposed in her cross-examination of hers noticing the blood stained clothes of the prosecutrix. However in her examination-inchief she has omitted to testify qua the factum aforesaid. An articulation by PW-1 in her cross-examination of hers noticing the clothes of the prosecutrix to be stained with blood whereas hers omitting to depose the factum aforesaid in her examination-in-chief renders the effect of her deposition qua the factum aforesaid constituted in her cross-examination to stand subsequently invented by her. Also in face of PW-3 omitting to disclose in her deposition of hers on entering the room whereat the ill-fated occurrence took place noticing the clothes of the prosecutrix to be stained with blood falsifies the deposition of PW-1. It appears that PW-1 has for falsely implicating the accused indulged in a bout of falsehood which falsehood qua the aforesaid factum is lent accentuated evidentiary corroboration by the report of the FSL comprised in Ex. PX spurring from the factum of its omitting to with conclusivity unveil therein qua the stains on the clothes of the prosecutrix belonging to her. 14. In aftermath the aforesaid prevarication occurring in the depositions of PW-1 and PW-3 renders their testimonies qua the occurrence to be both uninspiring and incredible. Apart therefrom PW-1 has also articulated falsehood qua the prosecutrix suffering from mental disability besides impairment of speech especially when the trial Court on gauging her intelligibility from hers meteing intelligible answers to its queries for adjudging her competence to depose as a witness thereupon proceeded to declare her a competent witness. As a corollary, the falsehoods embarked upon by PW-1 palpably portray the factum of hers contriving a false story against the accused. 15. The medical evidence omits to corroborate the testimonies of the prosecutrix and of PW-1 which otherwise too for reasons afore-stated are embroiled in falsehood. However, PW-18 who prepared MLC Ex. PW- 18/B has therein recorded a tentative opinion of perpetration of sexual intercourse upon the prosecutrix being not overrule-able. 15. The medical evidence omits to corroborate the testimonies of the prosecutrix and of PW-1 which otherwise too for reasons afore-stated are embroiled in falsehood. However, PW-18 who prepared MLC Ex. PW- 18/B has therein recorded a tentative opinion of perpetration of sexual intercourse upon the prosecutrix being not overrule-able. She had reserved her final opinion on the FSL concerned ventilating in its report on an examination of the apposite material sent to it for forming an opinion therefrom, the clinching fact of the prosecutrix standing subjected to forcible sexual intercourse at the instance of the accused. The report of the FSL comprised in Ex. PX omits to render a conclusive opinion qua Ex. P-1constituing the underwear of the accused whereat human semen stood detected being of the accused. The lack of co-relatebility of human semen on Ex.P-1 with the semen of the accused clinches an invincible conclusion of the prosecutrix unveiling a false story qua the accused subjecting her to forcible sexual intercourse. Moreover, given the report of the FSL concerned the final opinion rendered by PW-18 qua the possibility of sexual assault upon the prosecutrix being not overruleable also cannot stand on any secure, firm and sacrosanct pedestal. In aftermath the final opinion recorded by PW-18 unveiling therein the factum of possibility of sexual assault upon the prosecutrix being not overrule-able stands benumbed of its efficacy especially when it for reasons aforestated strikes a discordant note with the report of FSL comprised in Ex.PX. 16. The summum bonum of the above discussion is that the prosecution has not been able to adduce cogent and emphatic evidence in proving the guilt of the accused. The appreciation of evidence as done by the learned trial Court suffers from an infirmity as well as perversity. Consequently reinforcingly, it can be formidably concluded, that, the findings of the learned trial Court merit interference. 17. In view of the above discussion, the appeal is allowed and the impugned judgment of 21.11.2015 rendered by the learned Special Judge, Mandi is set aside. The appellant/accused is acquitted of the offences charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 18. The appellant/accused is acquitted of the offences charged. The fine amount, if any, deposited by the accused is ordered to be refunded to him. Since the accused is in jail, he be released forthwith, if not required in any other case. 18. The registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the jail concerned, in conformity with this judgment forthwith. Records be sent down forthwith.