Himachal Pradesh High Court
Mohan Lal vs Of on 21 July, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 67 of 2016.
Reserved on: 14th July, 2016.
.
Date of Decision: 21st July, 2016.
Mohan Lal .....Appellant.
Versus
of
State of H.P. ..Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. M.S. Verma and Mr. Yashveer Singh, Advocates.
For the Respondent: Mr. M.A. Khan, Additional Advocate General.
_______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the judgment rendered on 19.06.2015 by the learned Special Judge, Shimla, District Shimla, H.P. in Sessions trial No.18-S/7 of 2014, whereby, the learned trial Court convicted and sentenced the appellant/accused as under:
Sr. No. Sections Sentence imposed
1. 376, IPC Sentenced to undergo rigorous imprisonment for a period of
seven years and to pay a fine of Rs.30,000/-. In default of ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 2 payment of fine, the convict shall further undergo simple imprisonment for a period of two months.
2. 506, IPC Sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1000/-. In default of payment of fine amount, the convict shall further undergo simple imprisonment for a period of 15 days.
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3. Section 4 of Sentenced to undergo rigorous imprisonment for a period of the POCSO 10 years and to pay a fine of Rs.30,000/-. In default of Act. payment of fine amount, the convict shall further undergo simple imprisonment for a period of four months.
2. Brief facts of the case which are necessary to of determine the appeal are that the prosecutrix made a statement under Section 154 of the Code of Criminal rt Procedure (hereinafter referred as Cr.P.C.) disclosing therein that she is residing at Kasturba Balika Asharam, Durgapur from 29.3.2014. Her father is agriculturist, whereas, her mother had left her matrimonial home about four years ago.
According to the prosecutrix, her mother had solemnized marriage. They are five brothers and sisters and she is the eldest one. Her father used to beat her mother as well as his children. Due to this act of the father of the prosecutrix, her mother left the matrimonial home. Father of the prosecutrix is also stated to be in the habits of drinking.
When the mother of the prosecutrix left her matrimonial home, her father used to ravish her continuously. Due to the fear and beatings given by the accused, the prosecutrix has ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 3 not disclosed this fact to anyone or her relatives. On 28.3.2014, she left the house of her father and came to Shimla. On 29.3.2014, she was noticed by the police at .
ISBT, Shimla, thereafter, the workers from child help line were called to take the prosecutrix to Kasturba Balika Ashram, Durgapur. Prosecutrix further got recorded that she has not disclosed this fact to anyone and after residing in of the said Ashram for a week, on 4.4.2014, she left the Ashram along with her friend.
rt Both of them had gone to Solan where both of them were nabbed by the police and were brought to Police Station, Dhalli. On inquiry by the police, she disclosed all these facts to the police. On the basis of said statement, the police of Police Station, Dhalli recorded zero FIR under Sections 376, 506, IPC read with Section 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the "POCSO Act"). The zero FIR was sent to Police Station, Chirgaon, where FIR No.21/2014 under Sections 376(2), 506 IPC and Section 4 of POCSO Act was registered. After the registration of the FIR, the police started the investigation in the case and concluded all the formalities thereto.
::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 43. On conclusion of the investigation, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared .
and filed in the Court.
4. The accused was charged by the learned trial Court for his committing offences punishable under Sections 376, 506 IPC read with Section 4 of the Protection of Children of from Sexual offences Act to which he pleaded not guilty and claimed trial. rt
5. In order to prove its case, the prosecution examined 13 witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure, was recorded in which he pleaded innocence. However, he has not led any defence evidence.
6. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant.
7. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court.
The learned defence counsel has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court being not based on a proper appreciation ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 5 of the evidence on record, rather, theirs being sequelled by gross mis-appreciation 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.
8. On the other hand, the learned Addl. Advocate General has with considerable force and vigour, contended of qua the findings of conviction recorded by the Court below being based on a mature and balanced appreciation of rt evidence on record and theirs not necessitating interference, rather theirs meriting vindication.
9. 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.
10. At the outset it is imperative to determine the paramount factum qua the prosecutrix at the stage of hers standing subjected to forcible sexual intercourses by the accused/appellant hers holding an age to mete consent to his subjecting her to sexual intercourses. Evidence which discloses the factum of the prosecutrix being a minor at the stage contemporaneous to hers standing allegedly subjected to forcible sexual intercourses, stands constituted in ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 6 Ex.PW10/A, exhibit whereof is her school leaving certificate issued by the school concerned. Ex.PW10/A holds a reflection of hers standing born on 4.3.2000. It acquires .
evidentiary vigour given the pronouncement in the deposition of PW-10 of the prosecutrix standing admitted in school by the accused/appellant also with PW-10 testifying qua the time whereat the accused/appellant getting the of prosecutrix admitted in school his signing the relevant application. Consequently, rt the factum of Ex.PW10/A standing unaccompanied by the birth certificate of the prosecutrix would not denude the efficacy of the apposite reflections occurring therein , rather the reflections occurring therein qua the date of birth of the prosecutrix acquire corroborative vigour from the factum of the learned defence counsel while holding the prosecutrix to cross-examination qua the factum deposed by her in her examination-in-chief of hers holding an age of 14 years, not putting apposite suggestions to her for shattering the factum aforesaid deposed by her in her examination-in-chief. In sequel, the omission aforesaid of the learned defence counsel does foment an apt conclusion of the defence conceding to the factum as deposed by the prosecutrix in her examination-in-
::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 7chief of hers standing aged 14 years. Even the factum of the prosecutrix in her deposition disclosing her date of birth to be 3.3.2000, deposition whereof of the prosecutrix is .
minimally in variation vis-a-vis the reflections qua her date of birth existing in Ex.PW10/A. Consequently, the minimal variations inter se the date of birth of the prosecutrix as testified by her vis-a-vis the apposite reflections in of Ex.PW10/A hold no ground for the learned counsel appearing for the accused/appellant to contend of the apposite rt reflections in Ex.PW10/A being meritless. With this Court concluding of the prosecutrix holding an age depriving her to mete consent to the accused for his subjecting her to sexual intercourses, as a corollary the effect of consent, if any, meted by the prosecutrix to the accused in the latter perpetrating penal sexual misdemeanors upon her fades into insignificance.
11. The prosecutrix in proof of the genesis of the prosecution case had stepped into the witness box. She being a child witness, therefore, the learned trial Court was enjoined to pronounce upon her competence to depose as a witness, pronouncement whereof by it was enjoined to stand preceded by its quizzing the prosecutrix for its hence ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 8 adjudging her intelligibility. The learned trial court had declared her a competent witness to testify before it only when prior thereto it by quizzing her had assessed her .
intelligibility, in sequel, the pronouncement by the learned trial Court qua her competence to depose as a witness empowers this Court to read her testimony. The prosecutrix in her testification before the learned trial Court has made of communications therein in wholesome harmony vis-a-vis the recorded recitals qua the penal sexual misdemeanors rt delineated in FIR Ex.PW7/A. She stood subjected to the ordeal of a rigorous cross-examination, yet she has come out unscathed in the aforesaid ordeal. In sequel, her testimony qua the genesis of the prosecution case as aptly concluded by the learned trial Court is both trustworthy besides inspire the confidence of this Court.
12. The prosecutrix in her testification has therein throughout named the accused/appellant to be her "Pita ji". The prosecutrix hails from a remote far flung area of District Shimla. She, on her mother abandoning the company of the accused/appellant, continued to stay with him. She being a minor, the accused/appellant while holding her custody was enjoined to ensure of her virginity ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 9 remaining undefiled. However, the accused/appellant despite his holding her custody at his home wantonly subjected her to forcible sexual intercourses. The espousal .
of the defence of the accused/appellant insisting upon the prosecutrix to mete appropriate attention towards her studies, insistence whereof by him upon the prosecutrix reared a motive in the prosecutrix to falsely implicate the of accused/appellant, holds no formidability given the triviality of the purported motive nursed by the prosecutrix arising rt from the facet aforesaid vis-a-vis hers ascribing to the accused/appellant allegations unraveling his perpetrating heinous offence(s) upon her person also with hers referring to the accused/appellant throughout her testification in Court as her "Pita ji", factum whereof remains unrepulsed by the defence counsel while holding her to cross-examination, contrarily, boosts a deduction of the accused/appellant misusing the capacity in which he held the custody of the minor prosecutrix also an inference upsurges of the prosecutrix not leaning to impute allegations of a serious nature against her "Pita ji" unless the allegations held a ring of truth. Further more, she would refrain from imputing serious allegations against her "Pita ji" given hers thereupon ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 10 standing rendered homeless rather when she stood driven to flee from her home enables this Court to conclude of hers standing prodded to leave her home as she was .
uncomfortable thereat, given hers standing subjected to penal sexual misdemeanors by the accused. On fleeing from her house she proceeded to Shimla. She was noticed by the police at ISBT, Shimla. The police had sent her to Kasturba of Balika Ashram, Durgapur. After 7 days she along with her companion fled to Solan. She, on 8.4.2014 was nabbed at rt Solan and was brought to Police Station, Dhalli where her statement under Section 154 of the Cr.P.C. was recorded by the police, wherein she leveled allegations of hers standing subjected to forcible penal sexual misdemeanors by the accused/appellant. The mere factum of hers not disclosing to the police on 29.3.2014 the penal sexual misdemeanors which she subsequently ascribed to the accused/appellant in FIR Ex.PW6/C, would not render her creditworthy testimony to lose its creditworthiness nor would the minimal delay of 11 days as stands aroused since 29.3.2014 upto the date of her lodging an FIR against the accused/appellant at Police Station, Dhalli would belittle her credence, prominently when this Court concludes of hers taking to impute ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 11 allegations against the accused/appellant, who is her "Pita ji" qua whom she would refrain to constitute serious allegations only when he had wantonly sexually abused her .
at her home where he held her custody.
13. The deposition of the prosecutrix acquires credence from MLC Ex.PW12/C. Also with PW-12 testifying in Court of the prosecutrix standing subjected to sexual of intercourses invincibly connects the accused with the allegations constituted against him by the prosecutrix in her rt creditworthy testimony. Even though in the report of the FSL concerned comprised in Ex.PW 12/B, the expert concerned opines of the accused/appellant not being the biological father of the prosecutrix yet the aforesaid unfoldment occurring in Ex.PW12/B would not oust the creditworthy testimony of the prosecutrix nor also would oust the factum of hers staying in the home of the accused/appellant even when her mother had fled therefrom nor would render the accused dehors his not being the biological father of the prosecutrix, of his yet holding a symbolic relationship with her as her "Pita ji", relationship whereof of the accused with her, stands ascribed by the prosecutrix throughout in her testification, factum whereof remaining undenied by the ::: Downloaded on - 15/04/2017 20:51:40 :::HCHP 12 accused, enjoined him to take care of her while he held her custody at his home as his daughter than to wantonly ravish her.
.
14. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the of analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-
rt appreciation and non appreciation of the evidence on record, rather it has aptly appreciated the material available on record.
15. In view of the above, we find no merit in this appeal which is accordingly dismissed and the judgment impugned before this Court is affirmed and maintained.
Record of the learned trial Court be sent back forthwith.
(Rajiv Sharma) Judge.
(Sureshwar Thakur) 21 July, 2016.
st Judge.
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