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Himachal Pradesh High Court · body

2019 DIGILAW 1976 (HP)

Jaswant Singh v. State Of H P

2019-12-19

SURESHWAR THAKUR

body2019
JUDGMENT Sureshwar Thakur, J. - The instant appeal, stands directed, by the accused/convict, against, the judgment rendered, on 28.6.2019, by the learned Special Judge, Mandi, upon, Sessions trial No. 67 of 2016 whereon, he returned findings of conviction, against, the accused/convict in respect of charges framed, under, Sections 376 and 506 of the IPC, and, under Section 4 of the POCSO Act, AND also consequently sentenced him, to, undergo seven years'' rigorous imprisonment, and to pay a fine of Rs. 50,000/- for his committing an offence punishable under Section 4 of POCSO Act, and further sentenced him to undergo seven years'' rigorous imprisonment, and, to pay a fine of Rs. 50,000/- for his committing an offence punishable under Section 376 IPC, and further sentenced him to undergo one year simple imprisonment, and, to pay a fine of Rs. 1000/- and for his committing an offence, punishable under Section 506 of the IPC, AND in default, he was sentenced to undergo simple imprisonment for a period of one year, for the offences punishable under Sections 376 of IPC and under Section 4 of POCSO Act, and simple imprisonment, for one month, for his committing an offence punishable under Section 506 IPC. 2. The facts relevant to decide the instant case are that the victim is the daughter of complainant, who was about sixteen years old on 11.8.2016. Complainant PW-4 had gone to his relations and his wife PW-2 had also gone for work at Ghogarhdhar and their daughter was allalone in the house. At about 8:00 p.m. when the complainant and his wife returned back to their home, they found that the victim was sitting quite in the room. Mother of the victim asked her the reason that why she was quite, the victim disclosed to her that accused had committed sexual intercourse with her forcibly, when she had gone to Atta Chakki of accused at about 2 1/2-3 p.m. The victim also disclosed that accused had threatened her that in case she would tell about the aforesaid occurrence to anyone, he would killher. On 12.8.2016, complainant moved an application Ext. PW4/A to the police at police station Padhar, on the basis of which FIR Ext. PW11/A was registered. Medical examination of the victim was conducted at Zonal Hospital Mandi by PW-1 Dr. Sonali Mahajan vide MLC Ext. On 12.8.2016, complainant moved an application Ext. PW4/A to the police at police station Padhar, on the basis of which FIR Ext. PW11/A was registered. Medical examination of the victim was conducted at Zonal Hospital Mandi by PW-1 Dr. Sonali Mahajan vide MLC Ext. PW1/B. At the time of medical examination of the victim her vaginal slides, vaginal swan, pubic hair and clothes i.e. blue and pink coloured shirt and blue coloured salwar were taken into possession by the doctor and the same were sealed in a parcel and handed over to the police. The police visited the spot and victim gave indentification of the spot and police also clicked the photographs of the spot. On 13.82016,Inspector Vinod Thakur (PW-12) visited the spot at Himri-Ganga and prepared the spot map, at the instance of the victim. During investigation, on 16.8.2016, the statement of victim under Section 164 Cr. P.C. was got recorded before learned JMIC Jogindernagar. Medical examination of the accused was conducted. On 19.8.2016, Inspector Vinod Thakur moved an application to the Secretary Gram Panchayat Seiun, forl obtaining the birth certificate of the victim and procured the birth certificate of the victim. Report of FSL was obtained. The statements of the witnesses under Section 161 of Cr. P.C. were recorded 3. On conclusion of investigations, into the offences, allegedly committed by the accused, a report under Section 173, of, the Code of Criminal Procedure, was prepared, and, was filed in the Court concerned. 4. The accused was charged by the learned trial Court, for, his committing offence(s) punishable under Sections 376 and 506 of the IPC, and, under Section 4 of the Protection of Children from Sexual Offences Act, 2012. In proof of the charge, the, prosecution examined 12 witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case. Accused examined one defence witness in his defence. 5. On an appraisal of evidence on record, the, learned trial Court, recorded findings of conviction against the accused/appellant herein. 6. The accused/appellant, is, aggrieved by the judgment of conviction, as, recorded by the learned trial Court. Accused examined one defence witness in his defence. 5. On an appraisal of evidence on record, the, learned trial Court, recorded findings of conviction against the accused/appellant herein. 6. The accused/appellant, is, aggrieved by the judgment of conviction, as, recorded by the learned trial Court. The learned Counsel appearing for the accused/appellant, has, concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing, not, based on a proper appreciation, by it, of the evidence on record, rather, theirs'' standing sequelled by gross misappreciation, by it, of the 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, has also with considerable force and vigour, contended that the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation, by it, 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 prosecutrix, as disclosed by her birth certificate, borne in Ext. PW6/B, and, proven by PW6, was, hence at the relevant time, a, minor, and, was hence incompetent, to, mete any valid consent, vis--vis, the, sexual misdemeanor, allegedly perpetrated on her person, by the accused. PW-1, has, in his deposition, made unequivocal voicing, vis--vis, upon hers'' examining the prosecutrix, and, also after hers'' receiving, the, report, of, the FSL concerned, and, as embodied in Ext. P-X, hers forming, a, formidable opinion, qua the prosecutrix, becoming subjected to sexual assault. However, she has made clear underlining(s), in her deposition, vis--vis, her , at the time of subjecting the prosecutrix to medical examination, hers'' rather not noticing, any, external injury, hence becoming borne, upon, any portion of her body. 10. Be that as it may, the deposition, of, the prosecutrix, who stepped into the witness box, as PW-3, has become meted, the, absolutest corroboration, by her parents, who, respectively, stepped into the witness box, as PW-2, and, as PW-4. 10. Be that as it may, the deposition, of, the prosecutrix, who stepped into the witness box, as PW-3, has become meted, the, absolutest corroboration, by her parents, who, respectively, stepped into the witness box, as PW-2, and, as PW-4. A closest reading, of, the deposition of the prosecutrix, wheretowhich, rather hence absolutest corroboration, stands meted, by her parents, and, who respectively stepped into the witness box, as PW-2 and PW-4, unfolds, qua it holding vivid underscoring(s) (i) that the accused perpetrating sexual assault, upon the victim. The afore rendered deposition(s), are, free from any taint, of, any intrase or interse contradictions, thereupon, it becomes incumbent upon this Court, to, mete, the, absolutest sanctity thereto, a) moreso, when, their respectively rendered deposition(s), are, also free from any taint, of, theirs contradicting, the, versions, qua, therewith, as spelt by each, of them in their respective deposition(s), (ii) also, when upon theirs'' becoming subjected to, the, ordeal, of, a rigorous crossexamination, by the learned defence counsel, theirs'' neither grossly improving or embellishing, upon, their respectively recorded, hence previous statements, in, writing. Consequently, this Court, is, constrained to conclude, vis--vis, the genesis, of, the prosecution case, becoming unflinchingly proven. 11. However, the learned counsel for the accused, has, contended with much vigor, before this Court, that when PW-4, the father of the prosecutrix, makes a deposition, in his crossexamination, vis--vis, hers, attaining the age, of, majority, in the year 2015, hence, on anvil thereof, the unfoldment(s), borne in the apposite birth certificate, as, embodied in Ext. PW6/B, (i) and, hence holding echoing(s), vis--vis, the prosecutrix, at the relevant time, being a minor, (ii) and, also being incompetent, to mete any valid consent, to, the accused, vis--vis, his allegedly perpetrating any sexual assault upon her, (iii) rather all becoming both waned, subsided and blunted. However, the afore made submission, before this Court, by the learned counsel for the accused, is, infirm, (iv) as the mother of the prosecutrix, upon stepping, into the witness box, has, made a deposition, that, at the relevant time, though, talks for betrothing the prosecutrix, being underway, yet the apt talks failing, as, at the relevant time, especially in contemporaniety, vis--vis, the mis-demeanor, ascribed, to the accused, becoming committed, hers not completing hence 18 years. The afore articulation, hence existing, in, the crossexamination, of, the mother of the prosecutrix, obviously, is, contrary, to, the afore deposition, existing in the cross-examination, of, the father, of, the prosecutrix, wherein, he makes, a, deposition, vis--vis, rather at the relevant time, hers'' acquiring the age of majority, and, obviously, the, afore interse contradictions, existing in the respective crossexamination(s), of the mother, of, the prosecutrix, and, the father of the prosecutrix, (v) rather constrain a conclusion, vis--vis, no reliance being meteable, vis--vis, the, deposition, of, the father, of, the prosecutrix, wherein, he strived to impeach, the, apt meteable credence, vis--vis, the birth certificate, appertaining, to, his daughter, and, as embodied in Ext. PW6/A, and, wherein, the prosecutrix, is, shown to be a minor, rather at the relevant stage. 12. Dehors the above, the afore interse contradictions, hence, interse the testification, of, the mother, of, prosecutrix, and, the father of the prosecutrix, rendering hence the latters'' testification, to, not acquire, any aura of credence, yet, it was open for the accused, to, proceed, to impeach, the, unfoldments, occurring in Ext. PW6/A, exhibit whereof, is, the birth certificate, of, the minor prosecutrix, comprised in (a) his either recalling the parents, of, the prosecutrix, for, theirs becoming respectively re-examined, especially qua each becoming confronted with Ext. PW6/A, (b) his eliciting from the authorities concerned, holding the, records, appertaining to the birth, of, the prosecutrix, hence documents, unraveling, vis--vis, despite, no intimation being purveyed, hence by the father, of the prosecutrix, to the authorities concerned, yet the, latter proceeding, to, surmisingly make an opinion, in, Ext. PW6/A, vis--vis, the, date of birth, of, the prosecutrix. However, both the afore endeavors, remained un-recoursed, by the learned defence counsel, and, wants thereof, rather draw a conclusion, vis--vis, hence, the, echoing(s) made in Ext. PW6/A, proven by PW-6, hence obviously acquiring an aura of truth. Consequently it becoming inevitable for this Court, to, conclude, vis--vis, the minor prosecutrix, at, the relevant time, not acquiring the apposite age, to, mete any valid consent, to, the accused, for, the latters'' hence perpetrating any sexual intercourse, upon her. 13. PW6/A, proven by PW-6, hence obviously acquiring an aura of truth. Consequently it becoming inevitable for this Court, to, conclude, vis--vis, the minor prosecutrix, at, the relevant time, not acquiring the apposite age, to, mete any valid consent, to, the accused, for, the latters'' hence perpetrating any sexual intercourse, upon her. 13. Even though, the learned counsel, for the accused has contended with much vigor, before this Court, upon his making an allusion, vis-a-vis, deposition(s), existing in the cross-examination(s), of, PW-2 and PW-4, wherein, each has acquiesced, vis--vis, houses being located, in vicinity, vis--vis, the place of occurrence, upto, the house of the prosecutrix, and, despite the occurrences thereof, yet, the prosecutrix, refraining from revealing, the, occurrence, to, the inhabitants thereof, and, also with echoing(s), borne therein, vis--vis, the prosecutrix not raising, any, shrieks and outbursts, for, hers, inviting, the, attention, of, the persons/residents, of, the neighborhood, as existing, in proximity, vis--vis, the site of occurrence, (i) and, thereupon, he contends, that, the alleged sexual intercourse, which occurred interse the accused, and, the prosecutrix, being consensual. In the afore endeavour, he also alludes to PW-1, in her deposition, borne in her cross-examination, articulating qua upon, her examining the prosecutrix, hers, not noticing any external injury, upon her, and hence reiteratedly contends, that, the sexual act, if any, perpetrated by the accused, upon the prosecutrix, being consensual. However, the vigor, of, the afore made submission, before this Court, is, both waned and enfeebled, from, the trite afore inferences, as drawn by this Court, vis--vis, the prosecutrix, at the relevant time, being minor, and hence becoming, incompetent, to, mete any valid consent, to the accused, for his subjecting her, to, sexual intercourse. 13. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court 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 a perversity or absurdity of mis-appreciation and nonappreciation of evidence on record. 14. There is no merit in the appeal, and, the same is dismissed. The impugned judgment, pronounced by the learned Special Judge, Mandi, in session trial No. 67 of 2016, is, maintained and affirmed. Also, the pending application(s), if any, are also disposed of. No costs.