Himachal Pradesh High Court
P.O. Jais vs Through Secretary Home on 2 April, 2022
Bench: Sabina, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2nd DAY OF APRIL, 2022
.
BEFORE
HON'BLE MRS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.79 of 2018
Between:-
PREM VERMA,
SON OF SH. HEERA SINGH,
RESIDENT OF VILLAGE AND
P.O. JAIS, TEHSIL THEOG,
DISTRICT SHIMLA, H.P.,
PRESENTLY CONFINED IN
MODEL CENTRAL JAIL KANDA,
DISTRICT SHIMLA,
HIMACHAL PRADESH.
......APPELLANT
(BY J.L. BHARDWAJ, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
THROUGH SECRETARY HOME,
GOVT. OF H.P. AT SHIMLA.
......RESPONDENT
(BY MR. KAMAL KANT, DEPUTY
ADVOCATE GENERAL)
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This appeal coming on for hearing this day, Hon'ble
Mrs. Justice Sabina, delivered the following:
.
JUDGMENT
Appellant has filed appeal challenging the judgment/ order dated 28.01.2017/21.02.2017 passed by the trial Court, whereby he was convicted and sentenced as under:-
Under Section 377 of Rigorous imprisonment for a period Indian Penal Code of 7 years and to pay fine of Rs.10,000/-. In the event of failure to pay the amount of fine, he shall further undergo simple imprisonment for a period of one r month.
Under Section 6 of Rigorous imprisonment for a period Protection of Children of 10 years and to pay a fine of from Sexual Offences Rs.20,000/-. In the event of failure Act, 2012 to pay the amount of fine, he shall further undergo simple imprisonment for a period of three months.
2. Prosecution story, in brief, is that on 22.07.2015, victim, who was a student of 3rd class, was playing in the school ground near the residential quarter of the complainant. At about 7:00 p.m., the victim had informed the wife of the complainant that he was feeling pain in his anus. On further inquiry, the victim disclosed that appellant had called him in the field situated near the school ground and had removed his pajama and had put his private part again and again in his anus. The victim had started screaming and on being ::: Downloaded on - 07/04/2022 20:10:07 :::CIS -3- noticed by wife of Surinder, appellant released the victim and the victim had fled away from the spot. Victim was chased by the .
appellant, but he was unsuccessful in catching him.
3. On the basis of the statement of the complainant, formal FIR No.111, dated 22.07.2015, was registered at Police Station Theog, under Section 377 of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act').
4. After completion of the investigation and necessary formalities, challan was presented against the appellant.
5. Charges were framed by the trial Court against the appellant under Section 377, IPC and Section 6 of the POCSO Act, vide order dated 17.11.2015. Appellant did not plead guilty to the charges framed against him and claimed trial.
6. During trial, prosecution examined 14 witnesses to prove its case. Appellant, when examined under Section 313 of Code of Criminal Procedure (Cr.P.C.), after close of the prosecution case, prayed that he had been falsely involved in this case.
Appellant examined one witness in his defence.
7. The trial Court, vide impugned judgment/order, ordered the conviction and sentence of the appellant as mentioned in para-1 ::: Downloaded on - 07/04/2022 20:10:07 :::CIS -4- of this judgment. Hence, this appeal by the appellant.
8. We have heard Mr. J.L. Bhardwaj, learned counsel for .
the appellant as well as Mr. Kamal Kant, learned Deputy Advocate General and have gone through the record available on the file carefully.
9. As per the prosecution story, appellant had committed the offence of sodomy. The victim, in the present case, was a boy aged about 7 years at the time of the incident.
10. With regard to establish the age of the child, prosecution has examined PW-8 Prem Singh. The said witness has proved the certificate Ext. PW8/A. A perusal of Ext. PW8/A reveals that the date of birth of victim was 05.02.2008. Thus, the victim was little more than 7 years old at the time of the incident.
11. Victim, while appearing in the witness box as PW-7, has deposed that he was a student of 3rd class and on 22.07.2015, he was playing in the school ground. Appellant came there and offered that he would take him for an outing. Appellant took him towards his fields and put his private part in his anus (usnay apni pisab wali jagha meri latrine wali jagha mai daali). Appellant was smelling of alcohol. He had felt pain. Appellant had laid him on the ground and had pushed him. In the meantime, a lady came there. Thereafter, ::: Downloaded on - 07/04/2022 20:10:07 :::CIS -5- he put on his pajama. Appellant had chased him. He had narrated the incident to his mother and he was taken to the police station.
.
12. Complainant, while appearing in the witness box as PW-1, has deposed as per the contents of the FIR.
13. PW-2, mother of the child victim, has corroborated the statement of the complainant.
14. PW-9 Dr. Subash Chander has deposed that on 22.07.2015, he had medico legally examined the victim, who had been brought with the alleged history of sexual assault. On local examination, he had noticed the following injuries on his person:-
"Three small superficial tears/lacerations. Two Anteriorly and one posteriorly over external and sphincter of size of 0.5 cm x 0.2 cm long, spindle shaped, reddish in colour. No fresh bleeding with anal mucosa is reddish congested and tenderness was also found present. Tone was normal swab is reddish brown in colour, slightly stained with blood and stool. No other injuries seen."
He had given his opinion that possibility of anal penetration was present.
15. PW-9 has further deposed that on 23.07.2015, he had also medico legally examined the appellant and on local examination, he had noticed as under:-
::: Downloaded on - 07/04/2022 20:10:07 :::CIS -6-"Smegna was not found present on inner side of prepuce. No injury mark was seen. No secretions .
seen over glans penis. On milking fresh secretions were not found coming out. No blood spots present on and around penis. Abrasion over the interior fold of prepuce reddish in colour. No fresh bleeding/tenderness was found present. The size of abrasion was 3cm x 0.5 cm.
He has further deposed that the abrasion over interior fold of prepuce suggested possibility of stretching of skin.
16. PW-12 Aryan, aged about 6 years, has deposed that he was playing with the victim in the big ground near the school. PW-7 had gone to bring the ball and he had returned after sometime while weeping and had narrated the incident to them.
17. The first argument raised by learned counsel for the appellant is that the version of the child victim was not corroborated by medical evidence.
18. We have carefully gone through the testimony of the victim. The child victim has specifically stated that offence of sodomy had been committed by the appellant. A perusal of the medical evidence reveals that there were three small superficial tears/lacerations, two anteriorly and one posteriorly over external anal sphincter of size of 0.5cm x 0.2 cm long, spindle shaped, ::: Downloaded on - 07/04/2022 20:10:07 :::CIS -7- reddish in colour. The swab, which was taken, was slightly stained with blood and stool. As per medical examination of the appellant, .
an abrasion over the interior fold of prepuce reddish in colour was seen. The size of abrasion was 3 cm x 0.5 cm. The doctor has given the opinion that the abrasion suggested possibility of stretching of skin. During cross-examination also, the doctor has stated that from the margins seen on the anal of the victim suggested that the victim had been sodomized. Although, the victim, in his cross-examination, has admitted that he was suffering from constipation, but the said fact fails to advance the case of the appellant to the effect that the appellant had not committed the offence in question. Rather, from the ocular version as well as the medical evidence on record, it stands duly established that the offence in question had been committed by the appellant. PW-9, in his cross-examination, has specifically stated that the nature of injuries would be different during constipation, whereas, from the margins seen in this case, it could be said that the victim had been sodomized. Hence, there is no force in the argument raised by the learned counsel for the appellant to the effect that ocular version given by the victim was not corroborated by the medical evidence.
::: Downloaded on - 07/04/2022 20:10:07 :::CIS -8-19. Learned counsel for the appellant has next raised the argument that the appellant has been falsely involved in this case .
due to a dispute between the parents of the victim and the appellant.
In this regard, learned counsel has placed reliance on the cross-
examination of the victim, wherein, he has admitted that a quarrel had taken place between his parents and the appellant. However, it was not specifically put to the witness as to when the said quarrel had taken place and what was the basis of the said quarrel. The victim was merely a child aged about 9 years at the time of his examination during trial. Suggestion was put to PW-1, father of the victim, and PW-2, mother of the victim, wherein, they had denied that there was a dispute regarding the payment of wages between PW-1 and the appellant. The appellant, in his examination under Section 313, Cr.P.C., has also not stated as to what was the dispute between him and the parents of the victim. Thus, the argument raised by the learned counsel for the appellant that the appellant had been falsely involved in this case due to some dispute between the complainant and the appellant is not substantiated from record.
20. Learned counsel for the appellant has next submitted that it was not established on record that the parcels collected during investigation of this case had been sent to the Forensic Science ::: Downloaded on - 07/04/2022 20:10:07 :::CIS -9- Laboratory (FSL). Learned counsel has submitted that so far as PW-3 Ram Parsad is concerned, he has stated that he had been .
handed over 13 parcels on 23.07.2015 with seal bearing impression 'MO', whereas, PW-5 HHC Mohar Singh has stated that on 23.07.2015, Constable Ram Parsad had deposited 13 parcels of this case bearing seal impression 'MOT' in the police station.
21. PW-3 Constable Ram Parsad has deposed that on 23.07.2015, he had been handed over 13 parcels with seal bearing impression 'MO' with a direction to deposit the same in the police station. He had handed over these parcels to Incharge Malkhana, P.S. Theog.
22. PW-5 HHC Mohar Singh has deposed that on 23.07.2015, Constable Ram Parsad had deposited 13 parcels of the case pertaining to child victim with seal bearing impression 'MOT'.
23. PW-6 HC Man Dev has deposed that on 25.07.2015, he had received the case property and had handed over the same to Constable Ravi Kumar for depositing the same with the FSL. On the same day, after depositing the case property, RC was returned to him. He has proved the copy of RC Ext. PW6/A.
24. A perusal of Ext. PW6/A reveals that the case property bearing seal impression 'MOT' had been deposited with the FSL. A ::: Downloaded on - 07/04/2022 20:10:07 :::CIS
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perusal of FSL report Ext. PZ-1, also reveals that the parcels were bearing seal impression 'MOT'. Hence, the argument raised by the .
learned counsel for the appellant is liable to be rejected, merely because PW-3 has stated that the parcels were bearing seal impression 'MO', whereas, PW-5 has categorically deposed that the case property was bearing seal impression 'MOT' and the said fact is duly corroborated by copy of RC Ext. PW6/A.
25. The result of the FSL Ext. PZ reads as under:-
"The exhibits/cuttings were subjected to biological and serological analyses in the laboratory. 'Benzidine test' was performed to detect the presence of blood. The species of origin was determined by the gel-diffusion technique. Acid phosphatase test and microscopic examination were carried out to detect the presence of semen. The hair found in Parcel-1 and Parcel-11 were examined and compared morphologically and microscopically. On the basis of aforesaid examination, result was as under:
(1) Blood was detected on exhibit-1 (hair found around anal area, Vardan), exhibit-2 (anal swab-1, Vardan) and exhibit-3 (anal swab-2, Vardan) which was insufficient for serological examination. Semen was not detected on the exhibits. (2) Human blood was detected on exhibit-4 (anal swab-3, Vardan). Semen was not detected on the exhibit.
(3) Human blood and human semen was detected on exhibit-5 (underwear, Vardan).::: Downloaded on - 07/04/2022 20:10:07 :::CIS
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(4) Blood and semen was not detected on exhibit-8 (swab from penis, Prem), exhibit-9 (prepuce swab, Prem), exhibit-10 (swab from prepuce and tip of .
urethra, Prem), exhibit-11 (sample pubic hair, Prem) and exhibit-14 (urine sample, Prem). (5) Human blood was detected on exhibit-12 (underwear, Prem) which was insufficient for serological examination. Semen was not detected on the exhibit.
(6) The hair found in exhibit-11 (sample pubic hair, Prem) were identified as human pubic hair.
(7) The single hair found in exhibit-1 (hair found around anal area, Vardan) was identified as human pubic hair which could not be compared with the hair in exhibit-11 (sample pubic hair, Prem) due to insufficient quantity."
26. A perusal of the report of FSL Ext. PZ-1 reveals that DNA profile obtained from the underwear of the victim matched with DNA profile obtained from the blood sample of the appellant.
27. Thus, in the present case, version given by the child victim is duly corroborated by the medical evidence as well as the report of the FSL. The child victim in the present case was merely aged about 7 years and the appellant has committed a heinous offence by sexually assaulting him.
28. Since in the present case, prosecution had been successful in proving its case against the appellant, the learned trial Court has rightly ordered the conviction and sentence of the appellant with regard to the charges framed against him. No ground ::: Downloaded on - 07/04/2022 20:10:07 :::CIS
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for interference is made out.
29. Accordingly, the appeal is dismissed and the impugned .
judgment and order dated 28.01.2017/21.02.2017, whereby appellant was convicted and sentenced under Section 377, IPC and Section 6 of POSCO Act, are upheld.
( Sabina )
Judge
r ( Satyen Vaidya )
April 02, 2022 Judge
( Himalvi )
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