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2017 DIGILAW 1076 (HP)

Daleep Singh @ Deepu v. State of Himachal Pradesh

2017-09-16

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment of 15.03.2017 rendered by the learned Special Judge, Chamba, in Sessions trial No. 3 of 2016, whereby the learned trial Court convicted the appellant (hereinafter referred to as “accused”) for his committing offences punishable under Sections 452 and 376 of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual offences Act, 2012. 2. The brief facts of the case are that PW-1 being victim of the case had studied upto the 5th standard in a Government school. At home, the parents of the victim have kept cattle. On 8.11.2015 at about 6. a.m all the other family members, i.e. the parents, brothers and sister had gone to collect fuel wood at place Chukrasa i.e. by the side of river Ravi. She left back at home in the room where she along with her brothers and sister used to sleep. When the victim was sleeping in the room the accused came there and firstly switched on the light. He thereafter had switched it off. At that time the victim was lying on the bed. Without saying anything to the victim, the accused at once came on the bed and removed her slacks and committed forcible sexual intercourse. At about 8-9 a.m. when the parents of the victim had returned back home, on inquiries being made, the victim had disclosed the entire incident to her mother Achhro Devi. The victim alongwith her parents had gone to Police Post Gehra where her father Sarbo lodged the report on the same day. After collecting all the inculpatory evidences and after completing all codal formalities and upon conclusion of investigations into the offences, allegedly committed by the accused, thereafter the Investigating Officer concerned presented the challan before the learned trial Court. 3. A charge stood put to the convict/appellant herein, by the learned trial Court, for his committing offences punishable under Sections 452, 376 and 506 of the Indian Penal Code 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 16 witnesses. 4. In order to prove its case, the prosecution examined 16 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 any evidence in defence. 5. The accused stands aggrieved by the findings of conviction recorded upon him by the learned trial Court, for his committing offences punishable under Sections 452 and 376 of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual offences Act, 2012, hence prefers the instant appeal. The learned counsel appearing for the accused has concerted to vigorously contend qua the findings of conviction recorded by the learned Court below standing not based on a proper appreciation by it of evidence on record, rather, theirs standing sequelled by gross mis-appreciation by it of material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 6. 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 Courts below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting vindication. 7. 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. 8. In respect of penal misdemeanors perpetrated upon the victim/prosecutrix by the accused, on, 8.11.2015, a report with the Police Station concerned, was, lodged on the very same day. On anvil of a statement made by the prosecutrix before the Officer Incharge of the Police Station concerned, an. F.I.R borne in Ext.PW-1/A was registered with the Police Station concerned. The victim was, on, 8.11.2015 taken by the Investigating Officer, before PW-8, for enabling the latter to hold her medical examination. On PW-8 conducting the medical examination of the victim, she prepared MLC qua the prosecutrix, MLC whereof is borne in Ext.PW-8/B. She while stepping into the witness box has proven all the contents borne therein. 9. The victim was, on, 8.11.2015 taken by the Investigating Officer, before PW-8, for enabling the latter to hold her medical examination. On PW-8 conducting the medical examination of the victim, she prepared MLC qua the prosecutrix, MLC whereof is borne in Ext.PW-8/B. She while stepping into the witness box has proven all the contents borne therein. 9. The victim as displayed by her birth certificate borne in Ext.PW-4/B was born on 9.7.1998, whereas, with the perpetration of penal misdemeanors on her person by the accused, occurring on 8.1.2015, thereupon on the day when the ill-fated occurrence befell her, she, was thereat hence a minor. Consequently, she was legally incompetent to mete any consent vis-à-vis the accused, for his subjecting her to sexual intercourse. Ext. PW-5/B was proven by PW-5, who, has in his deposition made a disclosure that in his issuing Ext.PW-4/B, his meteing reverence to the apposite register maintained with respect to births and deaths, of, residents within the jurisdiction of Radi. He was subjected to a rigorous cross-examination by the learned defence counsel, during course whereof, he admitted the suggestion put to him that, no, name has been mentioned in the birth certificate borne in Ext.PW-5/B. From the aforesaid admission made by PW-5, the learned counsel, for, the accused has contended that no reliance can be imputed vis-à-vis Ext.PW- 4/B, even if it therein holds the name of the victim/prosecutrix, especially given want of inter se compatibility in the apposite respect thereof interse Ext.PW-4/B vis-à-vis Ext.PW-5/B However, the aforesaid submission is rejected, given the birth certificate borne in Ext.PW-5/B in its apposite column of parentage bearing the names respectively of one Sarbo and of one Achro. The aforesaid Sarbo and Achro are evidently the parents of the victim. Even if one Sarbo and one Achro, had, off springs’ other than the prosecutrix also if thereupon the birth certificates comprised in Ext.PW-5/B and in Ext.PW-4/B, are, appertaining to the siblings of the prosecutrixs’, yet it was incumbent upon the learned defence counsel, to, establish by adducing trite best evidence qua Ext.PW-5/B, not, appertaining to the prosecutrix whereupon Ext.PW-4/B also would acquire a concomitant nullificatory effect. However, the aforesaid endeavour has not been made. However, the aforesaid endeavour has not been made. Consequently, the mere factum of the name of the prosecutrix, not, being borne in birth certificate Ext.PW-5/B, is, of no avail to the learned counsel for the appellant, to, contend of PW-4/B and of Ext.PW-5/B both, not, appertaining to the identity of the prosecutrix. 10. As aforesaid, the doctor who subjected the prosecutrix to medical examination, has, proven MLC Ext.PW-8/B, PW-8 during her cross-examination answered in the affirmative, a suggestion, of no semen being detected in the vaginal swab slides, on anvil thereof the learned counsel for the accused contended, that thereupon, no, sexual intercourse occurred interse the victim and the accused. Contrarily, with Pw-8 in her examination in chief making a communication that on hers subjecting the prosecutrix to medical examination, hers observing qua separating libia minora also of hymen holding multiple raptures also hers opining that hence the victim being subjected to sexual intercourse, does, constrain a conclusion that with the deposition of PW-8 being in consonance with PW-1, thereupon the prosecution succeeding in proving the charge against the accused, dehors non detection of semen in the vaginal slabs, occurrences whereof therein is not preemptory for establishing the apt penal penetration, “penetration” whereof stands displayed by existence of its features in Ext.PW-8/B, exhibit whereof is prepared with respect to the medical examination of the prosecutrix and stands proven by PW-8. 11. Be that as it may, as aforesaid with the prosecution establishing in proving that at the time contemporaneous to the ill-fated occurrence, the victim being a minor, thereupon hers’ evidently omitting, to, in contemporaneity of the accused holding her to sexual intercourses hence raise shrieks and cries, is wholly insignificant given omissions whereof entirely devolving upon the apt penal sexual misdemeanor emanating upon hers purveying consent vis-à-vis the accused, significances if any, whereof, stand sub-sumbed by hers evidently thereat being a minor hence being legally incapacitated to mete any validatory consent vis.-a-vis the accused. The deposition of the prosecutrix inspires confidence and is trustworthy besides credible, hence, necessitates its being revered and vindicated, especially when the trial Court, on, gauging her intelligibility from hers meteing intelligible answers to its queries, for hence adjudging her competence to depose as a witness, thereafter its proceeding to declare her a competent witness. The deposition of the prosecutrix inspires confidence and is trustworthy besides credible, hence, necessitates its being revered and vindicated, especially when the trial Court, on, gauging her intelligibility from hers meteing intelligible answers to its queries, for hence adjudging her competence to depose as a witness, thereafter its proceeding to declare her a competent witness. However, during the course of her cross-examination, she, has minimally deviated from her previous statement recorded in writing, deviation whereof, is qua hers testifying of hers switching on the light of the Veranda, whereafter the accused entered her room, whereas the aforesaid echoings are not borne in Ext.PW-1/A. The aforesaid purported improvement and embellishments, do not, erode the genesis of the prosecution story, especially when the report of RFSL Dharamshala borne in Ex.PX, reveals that human semen was detected on the slacks of the victim besides human semen being detected on pubic hair. 12. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court not suffering 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 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.