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2020 DIGILAW 761 (HP)

Vinod Kumar v. State of Himachal Pradesh

2020-10-16

SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, J. - The instant appeal, becomes, directed by the appellant-convict, against, the verdict, of, conviction, pronounced upon him, by, the learned Special Judge, Kangra at Dharmshala, H.P., upon, Sessions Case No. 53-B/VII/2014, vis-a-vis, charges drawn under Section 4, and, Section 6 of the Protection of Cildren, from Sexual Offences, Act, 2012, and, Section 363, and, Section 366 of IPC. He also obviously becomes aggrieved, from, the imposition, of, sentence(s) upon him, inasmuch as, his becoming sentenced to undergo rigorous imprisonment, for, seven years, and, to pay a fine of Rs. 50,000/-, and, in default of payment of fine, his becoming sentenced, to, undergo simple imprisonment extendable, upto six months, for, the commission, of, the offence, under, Section 4, of the POCSO Act, (a) besides he also becomes aggrieved, from, the imposition, upon him, of, a, sentence, of, rigorous imprisonment extendable upto three years, and, to pay a fine of Rs. 10,000/-, and, in default of payment of fine, his becoming sentenced, to, undergo simple imprisonment, for, three months, for, the commission of offence, under, Section 363, of, IPC. From the afore imposition(s), of, fine amount(s), a, sum of Rs. 20,000/- was directed to be paid, as compensation, to the prosecutrix, and, all the afore sentences, were, ordered to run concurrently, and, the tenure(s), of, afore imposed sentences of imprisonment, hence already undergone, by the convict, during investigation, and, trial of the case, were, ordered to be set off, from, the afore sentences, of imprisonment, imposed upon him. 2. The genesis, of, the prosecution case is embodied in FIR, hence, borne in Ext. PW-2/A, wherein, the prosecutrix ascribes, vis-a-vis, the convict, qua his perpetrating penal misdemeanor(s), upon her inasmuch, as, his committing, the, charged offences. The site of occurrence is borne in the site plan, as, embodied in Ext. PW-24/A. 3. During the course of investigation(s), the prosecutrix made a statement, under, Section 164 of Cr.P.C., statement whereof, is, embodied in Ext. PW1/C, wherein she in corroboration, vis-a-vis, the recitals borne, in FIR Ext. PW-2/A, ascribes commission(s) of offences, upon, her by the accused-convict, hence punishable, under, Section 363, and, under Section 366 of IPC, besides, under Sections 4 and 6, of, POCSO Act. Moreover, during the course, of, the investigation(s), being carried into the charged offences, by, the Investigating Officer concerned, Ext. P-5, shirt, Ext. P-6, Salwar, Ext. P-7, Sweater, and, Ext. PW-2/A, ascribes commission(s) of offences, upon, her by the accused-convict, hence punishable, under, Section 363, and, under Section 366 of IPC, besides, under Sections 4 and 6, of, POCSO Act. Moreover, during the course, of, the investigation(s), being carried into the charged offences, by, the Investigating Officer concerned, Ext. P-5, shirt, Ext. P-6, Salwar, Ext. P-7, Sweater, and, Ext. P-8 pant of convict Vinod Kumar, become recovered, at the instance of the victim, through memo comprised in Ext. PW-1/B. Furthermore, during, the course of investigation being conducted, by the Investigating Officer concerned, vis-avis, the afore offences, the Investigating Officer concerned, has, also collected, the, blood samples, on, PTA Card, of, convict Vinod Kumar, through memo, borne in Ext. PW-26/D, (i) and, also during the course, of, investigation, the Investigating Officer concerned collected, the blood sample, on, FTA card, of, victim, through memo, borne in Ext. PW-26/E, (ii) and, all the afore collected items, as well as, the blood samples, respectively borne on, the, respective FTA Cards, of, both accused, and, of the victim, were also sent to the FSL concerned, through road certificate, borne in Ext. PW-17/A, (iii) and, upon the afore items reaching for analyses, being made thereon, by the DNA expert concerned, working thereat, (iv) the latter, upon, making inter-se matchings thereof, made a conclusion in his report, as, embodied in Ext. PW-27/A, qua, theirs occurring inter-se compatibility, inter-se the DNA profile, of, the prosecutrix, vis-a-vis, the DNA profile, of, the accused-convict, as, become respectively, embodied, in, the collected blood samples, on, FTA cards, of, the victim, and, of the accused. Moreover, during the investigation being conducted, into the offences, the mother of the prosecutrix had handed over, to the Investigating Officer concerned, Ext. PW-2/B, exhibit whereof, is, the birth certificate, of, the victim, carrying therein narrations, vis-a-vis, the date of birth, of, the prosecutrix. 4. Moreover, during the investigation being conducted, into the offences, the mother of the prosecutrix had handed over, to the Investigating Officer concerned, Ext. PW-2/B, exhibit whereof, is, the birth certificate, of, the victim, carrying therein narrations, vis-a-vis, the date of birth, of, the prosecutrix. 4. Be that as it may, even though, the afore formidable opinion, made by the DNA expert concerned,hence working at the FSL concerned, after theirs' making, the, apt inter-se comparison(s), inter-se, the blood samples, respectively, of, the victim, and, of the accused, and, with the afore opinion, clinching the guilt of the accused, (i) yet, the learned counsel for the convict, has, contended, that the prosecution, has visibly failed to prove the precise date of birth, of, the prosecutrix, (ii) through its placing on record the best evidence qua therewith, inasmuch as, the one comprised, in, the validly issued,birth certificate of the prosecutrix. Even if assumingly, PW-2/B carries narrations, vis-a-vis, the date of birth of the prosecutrix, (iii) yet, with the afore exhibit being a photocopy, and, also with the prosecution, failing to prove the genuineness, of, the signatures, of, the purported author thereof, hence, no reliance becoming amenable, to, become placed, upon, Ext. PW-2/B. He, obviously makes, a, serious argument, before this Court, that, since evidence surges-forth, vis-a-vis, the sexual intercourse(s), if any, perpetrated, upon, the victim, by the accused, being consensual, and, also hence with the prosecutrix thereat arriving, at, the age of consent, thereupon the charges against the accused failing, and, not surviving. 5. The learned counsel for the appellant, thereafter, though has, contended, vis-a-vis, the lack, of, tenacity, or, lack of evidenciary creditworthiness, of, Ext. PW-2/A, and, as, become anchored, upon, the afore made espousal(s) before this Court, yet, his afore contention, is not amenable, for, becoming accepted, (i) inasmuch, as, with Ext. PW-2/B becoming handed over by the mother of the prosecutrix, to, the Investigating Officer concerned. Moreover, upon, the afore certificate, hence being handed over to the Investigating Officer concerned, rather possession thereof, becoming assumed, by the Investigating Officer concerned, through, his drawing memo Ext. PW-2/C, and, thereon(s) the signatures of the mother, of, the prosecutrix existing, (ii) and, significantly, since the mother, of, the prosecutrix, does not challenge, the validity of her signatures, borne upon, Ext. PW-2/C, and, thereon(s) the signatures of the mother, of, the prosecutrix existing, (ii) and, significantly, since the mother, of, the prosecutrix, does not challenge, the validity of her signatures, borne upon, Ext. PW-2/C, and, also when the mother, of, the prosecutrix, hence, had the complete best knowledge, vis-a-vis, the date of birth of the prosecutrix, (iii) thereupon when the afore factum of hers holding the custody, of, Ext. PW-2/C, and, thereafter hers handing over, it, to the Investigating Officer concerned, through, memo drawn in Ext. PW2/C, and whereons hence her valid signature(s) also exist (iv) hence all beget(s), an inference, qua hers holding a valid custody, of, the afore exhibit, and, with hers, being, the, best person to hold, the, foremost knowledge, vis-a-vis, the precise date of birth, of, the prosecutrix, (v) and, moreover, only if the afore exhibit was holding truthful narration(s), or, it was validly issued by the signatory thereof, thereupon, alone she would assume custody thereof, as otherwise, she would entail upon herself, the penal culpability, for, possessing the afore purportedly false exhibit. In aftermath, Ext. PW-2/C holds an efficacious aura, of, solemnity. 6. In aftermath, when Ext. PW-2/B, emanates from the valid custody, of, the mother, of, the prosecutrix, and, also with the defence not seeking, to, elicit original thereof, from, the school concerned, for, therethrough its photocopy becoming proved, especially when therethrough, the factum of its valid issuance by the school concerned, would purportedly become disproven, or, proven, (i) thereupons dehors the afore wants hence by the prosecution, rather constrains this Court, to, conclude, vis-a-vis, Ext. PW-2/B carrying authenticity, (ii) and, also the therein(s) borne, date of birth, rather assuming authenticity/creditworthiness. Moreover, therethrough the prosecution is concluded to discharge the burden, of, proof, appertaining to the date of birth, of the prosecutrix, and, though rebuttal evidence qua therewith, was enjoined, to, become adduced by the defence, through, its recoursing, the, afore befitting mechanism, yet, its failing to adduce cogent proof qua lack, of, authenticity thereof, thereupon an adverse inference, is, to be rather drawn against the defence. 6. From the afore made conclusion hence emerging qua the prosecutrix being disabled, at the relevant time, to make, a, valid consent to the accused, for, his committing the charged offences, upon, her. 6. From the afore made conclusion hence emerging qua the prosecutrix being disabled, at the relevant time, to make, a, valid consent to the accused, for, his committing the charged offences, upon, her. Consequently, bespeakings, if any, on the part of the prosecutrix, as occur, in her cross-examination, and, theirs being may be suggestive, vis-a-vis, hers being, a, consensual partner, vis-a-vis, the charged offences, as, became perpetrated, upon, her, rather becoming unamenable, for, any succor, being drawn therefrom, by the defence. 7. Contrarily, with the prosecutrix in her crossexamination, refuting, the, suggestions meted to her, vis-a-vis, hers making, a, statement, under, Section 164, before the learned Magistrate concerned, hence with duress and compulsions, being exerted upon her, by her mother, and, the police officials, (i) rather, begets an inference, vis-a-vis, the statement made, by the prosecutrix under Section 164 Cr.P.C., wherein she ascribes, vis-a-vis, the accused, the commission of charged offences, upon, her, rather acquiring evidenciary tenacity, and, probative vigor(s). Moreover, strength, vis-a-vis, the afore inference, becomes marshaled from the factum, of, the learned Magistrate concerned, wherebeforewhom, the, afore statement was made, hence upon hers stepping into the witness box, as PW-20, hers, during the course, of her examination-inchief, clinching, the, factum, vis-a-vis, the authenticity, of, the statement made by the prosecutrix before her, and, as becomes borne, in, Ext. PW-20/C, (ii) and, also hence, importantly with hers proving the validity, of, the statutory certificate made thereons, by her. Consequently, the statement of the prosecutrix, as, recorded by her, and, embodied in Ext. PW-1/C, gather(s) an aura of creditworthiness, and, therefrom the guilt of the accused, become fully proved. 8. 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 any gross perversity or absurdity of mis-appreciation, and, non appreciation of evidence on record. Consequently, there is no merit, in, the instant appeal, hence, it is dismissed, and, the impugned verdict, is, affirmed, and, maintained. Records be sent back forthwith.