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2017 DIGILAW 966 (HP)

Kunwar Lal v. State Of Himachal Pradesh

2017-08-25

SANJAY KAROL, VIVEK SINGH THAKUR

body2017
JUDGMENT Sanjay Karol, ACJ. (Oral) - In this appeal filed under Section 374 Cr.P.C., 1973 convict Kunwar Lal has assailed the judgment dated 30.06.2016, passed by learned Special Judge, Chamba, H.P., in Sessions Trial No. 34 of 2014, titled as State of Himachal Pradesh v. Kunwar Lal, whereby he stands convicted for having committed offences punishable under the provisions of Sections 452, 376 of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and sentenced to undergo rigorous imprisonment for three years and pay fine in the sum of Rs. 5,000/-, for commission of offence punishable under the provisions of Section 452 IPC and in default thereof, further to undergo simple imprisonment for six months. Convict was further sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 5000/- for the offence punishable under Section 376 IPC, read with Section 6 of the POCSO Act and in default thereof, further to undergo simple imprisonment for a period of six months. 2. The challenge is laid on the ground that without correctly and completely appreciating the material so placed on record by the prosecution, trial Court committed an illegality in convicting the accused. All this resulted into travesty of justice. 3. After examining the record, we find the trial Court to have fully and correctly appreciated the testimonies of the prosecution witnesses (fourteen in number), as also correctly interpreted and applied the law. 4. In short, it is the case of prosecution that on 21.04.2014, accused Kunwar Lal trespassed into the house of Ashok Kumar (PW.4) and subjected his minor daughter i.e. the prosecutrix (PW.1) to sexual assault. At the relevant time, parents of the prosecutrix had gone to attend the function in the house of Dile Ram. On return, they saw the children weeping, when Bhoom Dei (PW.3), mother of the prosecutrix noticed the accused fleeing away from her house. On 22.04.2014, Bhoom Dei (PW.3) lodged a report at Police Station, Nakrod, District Chamba, H.P.. Investigation was conducted by Sharif Mohammad (PW.14) and ASI Jagdish Chand (PW.15). The accused was arrested on 23.04.2014. Prosecutrix was got medically examined from Dr.Rishu (PW.5). Report of the Forensic Science Labortory was obtained by the police. Also the accused was got medically examined from Dr.Jaswant Singh (PW.6). Investigation was conducted by Sharif Mohammad (PW.14) and ASI Jagdish Chand (PW.15). The accused was arrested on 23.04.2014. Prosecutrix was got medically examined from Dr.Rishu (PW.5). Report of the Forensic Science Labortory was obtained by the police. Also the accused was got medically examined from Dr.Jaswant Singh (PW.6). With the completion of investigation, challan was presented in the Court for trial. 5. On 31.07.2014, accused was charged for having committed offences punishable under the provisions of Sections 452, 376 of IPC and Section 3(A) of POCSO Act. 6. The trial Court found the prosecutrix (PW.1) to be a competent witness, able to testify as such in Court. Her statement came to be recorded on 11.08.2014. Prior thereto, her statement under Section 164 Cr.P.C., 1973 was recorded on 20.05.2014. In Court, she has affirmed to have made such statement. There are no contradictions as she has reiterated the version so narrated therein. She deposes that accused came to her house and untied her "paijami" (lower pants), where-after he laid upon her. She felt pain in her private parts. At that time, both her brother and sister were present in the room. She clarifies that she was taken to the hospital by her mother, where she was examined by a doctor and her statement was also recorded in the Court at Chamba. Significantly, when one examines the cross-examination part of her testimony, one only notices the defence taken by the accused is of the witness tutored by her parents. There is no proof of prior animosity inter se the accused and/or the family of the prosecutrix. Why would parents falsely implicate the accused by putting honour of their minor daughter at stake, is not borne out from record. No doubt, witness admits that she has deposed as her mother had told her to do so, but then, this does not mean that the mother had tutored the witness. Mother has only asked the child to depose in Court. The suggestion is not that the child has falsely deposed on the asking of her parents. 7. Testimony of the prosecutrix in fact, is corroborated by her brother Narinder Kumar (PW.2), who further states that after shunting the other siblings outside the room, accused closed the door from inside. This witness saw the accused committing the crime. Resultantly, he went and called his mother. Soon his mother came on the spot. 7. Testimony of the prosecutrix in fact, is corroborated by her brother Narinder Kumar (PW.2), who further states that after shunting the other siblings outside the room, accused closed the door from inside. This witness saw the accused committing the crime. Resultantly, he went and called his mother. Soon his mother came on the spot. Significantly this witness has withstood the test of cross-examination. It cannot be said that he was either tutored or has deposed falsely. In fact, from the suggestion given by the accused to this witness, it stands established that there was a function in the house of Dilo (Dile Ram). 8. When we examine the testimony of Smt. Bhoom Dei (PW.3), we notice her to have fully corroborated the version of her child. She further goes on to state that she saw the accused leaving the room and when she tried to catch him, he pushed her and fled away. Yes, to this extent there is improvement from her previous statement with which she was confronted, but then this does not make her an unreliable witness, not worthy of credence. She noticed that her child was bleeding from the private parts. Immediately she was told that it was the accused, who had committed the crime. Her husband and other people from the area assembled and on their advice, matter was reported to the police, who got the prosecutrix medically examined at the Regional Hospital, Chamba. Significantly, in the cross-examination part, accused does not seriously challenge his presence on the spot. There is no suggestion of animosity, save and except that there is a land dispute inter se the families, but what is the nature of dispute, remains undisclosed to her. In any event, such suggestion stands denied by the witness. One only notices that suggestion given by the accused to Narinder Kumar (PW.2) was also with regard to alleged beatings given by the father of the prosecutrix to the accused in Nawala (religious function), but no such suggestion was put to Smt. Bhoom Dei (PW.3). 9. Further, when we notice the cross-----------------examination part of testimony of Ashok Kumar (PW.4), father of the prosecutrix, who otherwise corroborates the version of the prosecutrix, Narinder Kumar (PW.2) and Smt.Bhoom Dei (PW.3), one finds that there is no suggestion of either any land dispute or alleged beatings. 9. Further, when we notice the cross-----------------examination part of testimony of Ashok Kumar (PW.4), father of the prosecutrix, who otherwise corroborates the version of the prosecutrix, Narinder Kumar (PW.2) and Smt.Bhoom Dei (PW.3), one finds that there is no suggestion of either any land dispute or alleged beatings. Here suggestion is totally different and that being that Bhika Ram, brother of Ashok Kumar had closed the path of Mahajan, father of the accused by constructing a shed thereupon. Now when was this shed constructed; who is this Mahajan; and who is this Bhika Ram, there is nothing on record to establish their identity. In fact, witness has clarified that Nawala function in the house of Dile Ram was not on the date of incident, but later on. Hence, defence taken by the accused of the alleged beatings given on the day of Nawala, as is so put to Narinder Kumar (PW.2), is not believable. 10. Ocular version of the prosecutrix and her parents also stands corroborated by a co-villager Dilla Ram (PW.9), who had organized a function in his house. 11. From the ocular version of these witnesses, it is quite evident that prosecution has been able to establish: (a) parents of the prosecutrix being not at home at the time of commission of crime; (b) accused being present in the house of the victim on 21.04.2014 at 8.30 PM; (c) accused having committed the crime for which he was charged for; (d) accused seen fleeing away from the spot; and (e) there being no reason for the parents of the victim to falsely implicate the accused. 12. One finds the ocular version of the witnesses more so that of the prosecutrix to have been fortified by corroborative evidence. Dr. Rishu (PW.5), who issued MLC (Ex.PW.5/B), is categorical that on the basis of his clinical findings, he opined possibility of sexual intercourse could not be ruled out. There was bleeding in and around the vagina of the victim, which was least possible by scratching, as suggested by the accused. Suggestion put by the accused to the doctor contradicts the version of false implication. There was bleeding in and around the vagina of the victim, which was least possible by scratching, as suggested by the accused. Suggestion put by the accused to the doctor contradicts the version of false implication. The accused wants the Court to believe that prosecutrix sustained such injuries by fall on some sharp edged object, which stands clarified by the doctor that had it been so, injuries ought to have been not only on the private parts, but also on other portion of her body. 13. Insofar as ability of the accused to commit sexual assault is concerned, such fact stands established through the testimony of Dr.Jaswant Singh (PW.6). 14. On the question of age of the prosecutrix, we find there cannot be much challenge. At the time of commission of offence, prosecutrix was less than 4 years of age. Such fact also stands established through the testimony of Pritam Singh (PW.8), who has proved the birth certificate (Ex.PW.8/B), which records date of birth to be 20.07.2010. 15. On examination of the testimonies of the police officials, we find the investigation to have been conducted in a fair manner. Despite having expressed his desire, accused chose not to lead any evidence. Only defence taken was that of false implication on account of his having constructed the house and the complainant i.e. Bhoom Dei (PW.3), mother of the prosecutrix, harbouring animosity towards him, which defence we find not to have been probablized on record. 16. Testimonies of the prosecution witnesses, more so that of minor cannot be said to be unbelievable. Witnesses are trustworthy and in the opinion of the Court have deposed truthfully. Safely it can be held that prosecution has discharged the initial burden of establishing its case and the statutory burden, so required by the accused under Section 30 of the POCSO Act, cannot be said to have been discharged. Ocular evidence stands materially corroborated by other evidence on record. 17. The ocular version as also the documentary evidence clearly establishes complicity of the convict in the alleged crime. The testimonies of prosecution witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable. 18. From the material placed on record, it stands clearly established by the prosecution witnesses, beyond reasonable doubt, that the convict is guilty of having committed the offences charged for. The testimonies of prosecution witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable. 18. From the material placed on record, it stands clearly established by the prosecution witnesses, beyond reasonable doubt, that the convict is guilty of having committed the offences charged for. There is sufficient, clear, convincing, cogent and reliable piece of evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the convict stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the convict. Circumstances when cumulatively considered, fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that convict is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 19. Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that convict committed rape with the prosecutrix-child below 4 years of age and also committed penetrative sexual assault on her. 20. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings cannot be said to be erroneous in any manner. Hence, the appeal is dismissed. 21. Records of the Court below be immediately sent back.