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2020 DIGILAW 806 (HP)

Vishnu v. State of Himachal Pradesh

2020-11-04

CHANDER BHUSAN BAROWALIA, SURESHWAR THAKUR

body2020
JUDGMENT Sureshwar Thakur, J. - The convict, becomes aggrieved from, the, verdict of conviction, made on 01.11.2017, upon, Sessions Trial No. 3- D/VII/2015, by the learned Special Judge, Kangra at Dharamshala, wherethrough, he became convicted, for, a charge drawn under Sections 5(L) and 18, and, punishable under Sections 4, 6 and 8, of, the Protection of Children from Sexual Offences Act, 2012 (hereinafter for the sake of brevity, referred to as "POCSO Act"), hence is constrained to institute, thereagainst(s), the extant appeal before this Court. 2. He also obviously, becomes aggrieved, from the consequent thereto, sentence of, imprisonment, extending for a term of ten years, and, also, a fine of Rs. 25,000/-, hence imposed upon him, for, a charge drawn under Section 5(1), and, as, punishable under Section 6 of POCSO Act. In default of payment of fine, the, convict became sentenced, to, undergo rigorous imprisonment, for, six months. However, though, the, impugned verdict, by, the, learned trial Court, it, also recorded, an, order, of, conviction upon co-accused Parmodh Kumar, for a charge drawn under Section 354-A IPC, yet thereagainst, no appeal has been preferred, by, the afore accused, before this Court. 3. The genesis, of the prosecution case, becomes embodied, in, a letter, borne in Ex. PW-2/A, as became addressed by the victim/prosecutrix (name withheld), to, the Station House Officer, Dharamshala, (a) wherein, she makes a narrative, qua her mother, expiring in December, 2004, and thereafter her father, one Parmodh Kumar, establishing physical contact with her. Moreover, she also makes an echoing, that thereafter, one Vishnu Ram (appellant herein), her uncle, since her's attaining 10 years, of, age, and, upto 8th August, 2014, his establishing physical contact(s) with her. Furthermore, she makes a communication therein, that her afore uncle, seeking a promise from her, qua, even after her solemnizing marriage, her's continuing to maintain physical relation(s) with him, promise whereof she omitted to make. The last incident, of, perpetration of sexual intercourse, as, echoed, in the afore letter is, on 08.08.2014. In pursuance of Ex. PW-2/A, a formal FIR, came to be registered at Police Station, Dharamshala, FIR whereof, is, borne in Ex. PW-11/A. 4. During the course of investigations, being conducted into the offences, embodied in Ex. PW-11/A, the prosecutrix proceeded to make a statement, under Section 164 Cr.P.C., before the learned Magistrate concerned, (1) wherein, she ascribes penally inculpable misdemeanor(s), vis--vis, the accused. PW-2/A, a formal FIR, came to be registered at Police Station, Dharamshala, FIR whereof, is, borne in Ex. PW-11/A. 4. During the course of investigations, being conducted into the offences, embodied in Ex. PW-11/A, the prosecutrix proceeded to make a statement, under Section 164 Cr.P.C., before the learned Magistrate concerned, (1) wherein, she ascribes penally inculpable misdemeanor(s), vis--vis, the accused. The Prima donna factum of the capacity of the victim/prosecutrix, to, mete a valid consent, to the accused, for his holding her, to, coitus, is, enjoined to be gauged, from, documentary evidence, (a) thereupon, it becomes incumbent, upon, this Court, to, allude, to, Ex. PW-7/B, wherein an echoing occurs, vis--vis, the date of birth of the prosecutrix, hence being 16.08.1995. The afore reflection therein, vis--vis, the date of birth of the prosecutrix, obviously, did not, in contemporaneity, vis--vis, commission of the charged offences, upon her, by the accused, hence render her fully legally capacitated, to, mete any valid apposite consent, to, the accused. Significantly, compatible with the narrations borne, in, Ex. PW-11/A, also hence, echoings occur, in the statement made under Section 164 Cr.P.C., rather by the prosecutrix, before the learned Magistrate concerned, inasmuch as, she therein, too, imputes qua the accused, the apposite penally prohibited misdemeanor(s), of, his subjecting her, to, repeated sexual intercourses, since the age of 10, and, their's continuing, upto the age of 14 years. 5. Be that as it may, this Court, also, becomes enjoined to determine, the validity of the afore reflections, borne in Ex. PW-7/B, (1) and, in gauging the probative sanctity thereof, the efforts, as, made by the learned Defence Counsel, to, rob Ex. PW-7/B, vis--vis, its efficacy, are, but an extremely feeble attempt, as, (a) none of the suggestions meted, to, PW-7 are reflective, vis--vis, therefrom, the afore reflections borne in Ex. PW-7/B, becoming rid-off, of, their truth. Contrarily, a reading, of, the cross-examinations, done upon the prosecutrix, by the learned Defence Counsel, are, rather, suggestive, vis--vis, her's being (a) consenting partner, to, the perpetrations upon her, of sexual intercourses, suggestions whereof, as afore-stated, do not, for lack any legal capacity, therewith(s), the prosecutrix to mete any valid consent, qua there to the accused, hence hold, any exculpatory efficacy. Moreover, a, reading of the cross-examination, as, made, upon, PW-7, witness whereof produced, Ex. Moreover, a, reading of the cross-examination, as, made, upon, PW-7, witness whereof produced, Ex. PW-7/A, before the learned Trial Court, does not unveil, vis--vis, any suggestion, becoming meted to, him, and (a) their's appertaining to the afore school certificate, falsely depicting the age of the prosecutrix, nor, any attempt was made, to, scuttle the validity of the signatures, of, author thereof, (b) Conspicuously also, with, Ex. PW-7/B, being maintained in the records of (a) government school(s), and, the authorship thereof remaining unchallenged, hence on anvil thereof(s), the mandate of, Section 35, of the Indian Evidence Act, becomes attracted thereto, provisions whereof stand extracted hereinafter: " 35. Relevancy of entry in public [record or an electronic record] made in performance of duty.- An entry in any public or other official book, register or [record or an electronic], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact." Hence, the afore entry is concludable to become prepared, in, the discharge of public duties, by public officials, besides all the recitals borne therein, attract thereons, a rebutable presumption of truth. Nonetheless, the apposite rebuttal evidence, qua therewith, was enjoined to emerge, only upon, the learned Defence Counsel, through the aegis of the learned trial Court, ensuring production therebefore, of, contemporaneous therewith records, and their's unveiling, (1) the, entry of date of birth, made in Ex. PW-7/B, remaining unaccompanied, by any affidavit sworn, by her parents or her natural guardian (2) and hence, it being recorded fictitiously, rather, on surmises, and, conjectures (3) whereupon(s), alone, the, rebuttable statutory presumption, enjoyed by entries, as, made, vis--vis, the afore apposite fact(s), in the school records, would become construable, to, become cogently rebutted. Obviously, none of the above suggestions, rather, became meted to PW-7, during his cross-examination, by the learned Defence counsel, nor, the afore alluded cogent rebuttal evidence, was strived, to be adduced before the learned trial Court, through the Defence counsel, seeking an affirmative order, on his application moved therebefore, under, Section 311 Cr.P.C. Resultantly, Ex. Obviously, none of the above suggestions, rather, became meted to PW-7, during his cross-examination, by the learned Defence counsel, nor, the afore alluded cogent rebuttal evidence, was strived, to be adduced before the learned trial Court, through the Defence counsel, seeking an affirmative order, on his application moved therebefore, under, Section 311 Cr.P.C. Resultantly, Ex. PW-7/B, enjoys a conclusive presumption of truth, hence, this Court is constrained, for want of adduction, of, cogent disproof, vis--vis, the prosecutrix, being a minor, at the relevant stage (4) in aftermath, therefrom, an, unflinching conclusion, becomes sparked, qua, any meteing of any consent, by the victim to the accused, in the latter perpetrating repeated sexual intercourses, upon her, becoming both inconsequential, and, also being totally nugatory. 6. Be that as it may, the solitary testimony, of, the prosecutrix, if, free from any gross improvements, or, embellishments, as purportedly, made by her, over her previous statement(s) recorded in writing, or, if, her testification, is, free from any blemish of any intra se contradiction, occurring intra se her examination-in-chief, and, her cross-examination, (1) thereupon, this Court, would be coaxed to, consider her, to be a credible, and, trustworthy witness, and, on anvil of her solitary testimony, would become constrained, to, make an order, of, conviction, upon, the convict/accused. On a reading, of, the testimony of PW-2, the prosecutrix, underscorings, emerge, vis--vis, both, in her examination-in-chief, and, in her cross-examination, her's making consistent echoings, rather bearing, the, completest harmony with her previous statement(s), recorded in writing, and, as respectively, became borne in letter, Ex. PW-2/A, and, in the statement made, by her, under Section 164 Cr.P.C., statement whereof, is borne in, Ex. PW-2/B. The effect(s), of her's not making any gross improvements therefrom, nor her's making any embellishments, qua therewith, upon, her's stepping into the witness-box, is, qua her testimony, becoming construable to confidence inspiring, and, also trustworthy. One Smt. Anamika Gupta (PW-3) and, one Smt. Shakti Chadha (PW-4), both, upon, stepping into the witness-box, made testifications, in, corroboration(s) to the testimony, as, becomes, rendered, qua, the genesis of the prosecution case, hence, by the prosecutrix (a) besides, both omitted, to, in their respective cross-examinations contradict the versions, qua, the charged offences, as, occur in their respective, examinations-in-chief(s) (b) obviously, therethrough(s), this Court becomes prodded, to unflinchingly conclude, vis--vis, the prosecution firmly establishing the charges, drawn against the convict. 7. 7. As aforestated, the accused's defence only devolves, upon, consent, being meted by the prosecutrix to the accused, and, the afore, given discussions supra is, an impermissibly canvassed plea, by, the learned Defence Counsel. 8. In summa, the afore alluded relevant evidence, conspicuously proves, the charges against the convict/accused, and, thereupon, this Court concludes that the appreciation, of, evidence, as made, by the learned Trial Court, not suffering from any perversity, of, a nonappreciation of any evidence, or, of, any mis-appraisal, of, evidence germane, to the charges drawn against the convict/accused. 9. In aftermath, this Court does not deem it fit to make any interference with the impugned verdict, of, conviction, and, consequent therewith sentence, imposed upon the convict, by the learned Trial Court. Accordingly, the extant appeal is dismissed, and, the impugned judgment is maintained and affirmed. Records be sent back forthwith.