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[Cites 6, Cited by 0]

Himachal Pradesh High Court

Balwinder Paul vs State Of H.P on 20 March, 2020

Bench: Sureshwar Thakur, Chander Bhusan Barowalia

          IN THE HIGH COURT OF HIMACHAL PRADESH
                          SHIMLA

                                         Cr. Appeal No. 286 of 2018




                                                                                .
                                         Reserved on : 16.3.2020





                                         Date of decision 20.3.2020

    Balwinder Paul                                                          ...Appellant





                                         versus

    State of H.P.                                                           ....Respondent.





    Coram:
    The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
    The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.

    Whether approved for reporting?1 Yes.

    For the appellant:                            Mr. Balwant Singh Thakur,

    For the respondent:                           Mr. Hemant Vaid & Mr.
                                                  Narender Guleria, Addl. A.Gs.



                                                  with Mr. Narender Thakur and
                                                  Amit Dhumal, Dy. A.Gs.




    Per Sureshwar Thakur, Judge:

The accused becoming aggrieved, by, his conviction, for, commission, of, offences, punishable, under, Sections 376 & 506, of, the Indian Penal Code, and, under Section 6 of the Protection of the Children from Sexual Offences, hence arising, from, FIR No. 182 of 2015, of, 1 Whether reporters of the local papers may be allowed to see the judgment?

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19.7.2015, lodged with Police Station, West Shimla, H.P., and, besides also becoming aggrieved, by, consequential therewith sentence(s), becoming imposed, upon him, hence .

by the learned Sessions Judge, Shimla H.P., has, thereagainst constituted, the instant appeal, before this Court.

2. The accused, was charged, for committing offences punishable under Sections 376 & 506, of, the Indian Penal Code, and, Section 6 of the Protection, of, the Children from Sexual Offences. In proof of the prosecution case, the prosecution examined 21 witnesses. On conclusion of recording of prosecution evidence, the statement, of, the accused under Section 313 Cr.P.C., stood recorded, by the trial Court, wherein, he made disclosures qua his false implication. However, he did not lead any defence evidence.

3. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein.

4. The accused/appellant, is, aggrieved by the judgment of conviction recorded, by the learned trial Court.

The learned Counsel appearing, for, the accused/appellant ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -3- has concertedly, and, vigorously hence 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.

5. On the other hand, the learned Additional Advocate General, has, with compatible force, and, vigor, also contended, that, the findings of conviction, as, stand recorded by the learned Court below, rather standing based, on a mature, and, balanced appreciation, "by it", of evidence on record, and, theirs not necessitating, any, interference, rather theirs meriting vindication.

6. 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.

7. The learned counsel, for, the aggrieved accused/convict, has, laid centralized focus, upon, the trite factum, (i) of the minor prosecutrix resiling from her ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -4- previous statement, recorded in writing, (ii) and, has thereon erected, a, forceful submission before this Court, qua, the verdict of conviction, and, consequential therewith .

sentences, as, imposed upon the accused/convict, being infirm, and, besides has also contended that obviously, hence, the afore trite factum, rather renders the afore charges, framed against the accused/convict, to, become staggered. He also thereafter makes a vehement submission, before this Court, qua hence even proof, of, Ext. PW­11/E, exhibit whereof, is, the medico legal certificate, through a testification made by its author, and, its revealing qua the prosecutrix, being subjected to sexual intercourse, also cannot comprise, any formidable piece of evidence, of, immense vigor, for, therethrough, the, incriminatory role, constituted against the accused becoming cogently proven, nor, also thereafter the accused, can be, connected with the afore unfoldings, as, borne in Ext. PW­11/E. However, for the reasons to be assigned hereinafter, both the afore submissions, made before this Court, by, the learned counsel appearing, for, the accused/convict, are rudderless, (a) The learned Judicial ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -5- Magistrate concerned wherebeforewhom the prosecutrix recorded her statement in proceedings, drawn under Section 164 Cr.P.C., statement whereof, is, borne, in Ext.

.

PW­19/B, upon, hers testifying, through video conferencing, rather making echoings therein, vis­a­vis, Ext. PW­19/B, being voluntarily made by the prosecutrix,

(i) and, besides, upon, contents thereof being readover to her, hers' thereafter, making her signatures thereon. Since underneath, the afore statement, as, made before the learned Magistrate concerned, by the minor prosecutrix in proceedings, drawn under Section 164 Cr.P.C., the Magistrate concerned, has, appended the requisite certificate, (b) thereupon the afore made statement through video conferencing, by the learned Magistrate concerned, acquires vigor, and, efficacious evidentiary sanctity, (c) and, also when, upon, hers being subjected to cross­ examination, by the learned defence counsel, there is neither any suggestion meted to her, vis­a­vis, heres hence pressuring the prosecutrix to make a statement, nor, when any suggestion is purveyed, to, her, vis­a­vis, the signatures of the prosecutrix, as, testified by her, in her examination­ ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -6- in­chief, to be embossed voluntarily, by the minor prosecutrix, upon, Ext. PW­19/B, being either unauthentic or fake, (d) necessarily hence, the, afores' bring forth, the .

requisite legal effect, vis­a­vis, the afore statement, of, the learned Magistrate concerned, hence proving the charges against the accused/convict, and, the further corollary thereof, is, the reneging(s), of, the prosecutrix, upon, hers stepping into witness box, from her previous statement, recorded in writing, rather loosing tenacity, and, evidentiary vigor, (e) moreso, when after the completion, of, cross­ examination of the prosecutrix, by, the learned Public Prosecutor, upon, permission being granted to him, upon, the prosecutrix resiling from her previous statement, recorded in writing, the, defence omitting, to, confront her, vis­a­vis, Ext. PW­1/B, exhibit whereof as aforestated, acquires formidable evidenciary, vigor, and, sanctity, (f) thereupon, dehors, the prosecutrix resiling, from, her previous statement, recorded, in, writing, hence upon hers stepping into the witness box, as PW­6, rather the learned defence counsel, is hence construed, to, acquiesce, vis­a­ vis, the testification, as, made by the learned Judicial ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -7- Magistrate concerned, through video conferencing, (g) and, wherein she unfolds qua the statement, of, the prosecutrix, as, recorded by her, in proceedings, drawn under Section .

164 Cr.P.C., and, as embodied in Ext. PW­1/B, being free from any duress or compulsion becoming exercised upon him, whereupon also Ext. PW­1/B becomes a potent piece, of, incriminatory evidence against the accused.

8. Be that as it may, the learned counsel for the accused/convict, has attempted, to, dispel the vigor, if any, of echoing made in Ext. PW­11/E, wherein articulations occur, vis­a­vis, the prosecutrix being subjected, to, penetrative sexual assault, (i) though, his contending, that, yet, therethrough the identity of the accused, in his committing the charged offences, not becoming established, and, hence the judgment in appeal, before this Court, meriting interference by this Court, in the exercise, of, appellate jurisdiction. However, the afore made submission, is, straightway amenable for becoming discountenanced, given (a) as afore stated, it being made dependent, upon, the factum, of, the prosecutrix, rather resiling, from, her previous statement, recorded in writing, ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -8- all effects whereof, hence for all the aforestated reasons, obviously does not leverage, vis­a­vis, the learned defence counsel, any capacity to ably contend that thereupon, the, .

pronouncements, made in Ext. PW­11/E loosing probative vigor(s). (b) The accused/convict, is, the step father of the minor prosecutrix, and, preponderantly, when the report, of, the DNA specialist, borne in PW­11/F, and, proven by PW 11, and, wheretowhom, the relevant items, both of the accused, and, of the prosecutrix were sent for examination, also makes vivid incriminatory ascriptions, vis­a­vis, the accused, (c) thereupon the afore best scientific evidence underwhelms, the, entire force, of, the afore made submissions. The DNA expert working at the FSL concerned, upon, his stepping into witness box, has, proven, his authoring Ext. PW­11/F. The relevant incriminatory observations embodied therein, are, extracted hereinafter:­ "Exhibit 4e (blood sample on FTA card of accused showed amplification at all the fifteen autosomal STR loci and amelogenin with Investigator ID Plex Plus R PCR Amplification Kit.

2. The DNA isolated from Exhibit­1 ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -9- (lower/pyjama of child victim) and Exhibit­8 (bedsheet) showed amplification at all the fifteen autosomal STR lock and amelogenin with .

Investigator ID Plex Plux R PCR Amplification Kit.

3. The DNA isolated from Exhibit­2c (vaginal swab of child victim) and Exhibit­2d (vulval swab of child victim) showed partial amplification with Investigator ID Plex Plux R PCR Amplification Kit.

4. DNA isolated from Exhibit­1 (lower/pyjama of child victim) and Exhibit 4e (blood sample on FTA card of accused) showed amplification of Y­STRs with Powerplex 23 R PCR Amplification Kit.

5. DNA isolated from Exhibit­2C (vaginal swab of child victim) and Exhibit­2d (vulval swab of child victim) did not show amplification of Y­STRs with Powerplex 23 R PCR Amplification Kit.

6. A mixed autosomal STR DNA profile was obtained from Exhibit­1 (lower/pyjama of child victim) and from which a major component and a minor component could be identified. The minor component is coexistent with the DNA profile obtained from Exhibit­4e (blood sample on FTA card of accused).

7. Partial autosomal STR DNA profiles pertaining to a female were obtained from Exhibit­ 2c (vaginal swab of child victim) and Exhibit 2d ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -10- (vulval swab of child victim) and these DNA profiles are consistent with the major component identified in the mixed autosomal STR DNA profile obtained .

from Exhibit­1 (lower/pyjama of child victim).

8. The autosomal STR DNA profile obtained from Exhibit­8 (bedsheet) matches completely with the autosomal STR DNA profile obtained from Exhibit­4e (blood sample on FTA card of accused).

9. The Y­STR DNA profile obtained from Exhibit­I (lower/pyjama of child victim) matches with the Y­STR DNA profile obtained from Exhibit­ 4e blood sample on FTA card of accused)."

A perusal of the afore extracted observations, as, embodied in the DNA report, borne in Ext. PW­11/F, hence proven by its author, are, candidly examplificatory, vis­a­vis, the accused hence committing penetrative sexual assault, upon, his minor step daughter.

9. Be that as it may, the afore extracted observations, as, borne in Ext. PW­11/F, become the paramount best scientific evidence, for, proving the charges against the accused/convict, and, the efficacy of the afore extracted observations, as, embodied therein, may, loose their apt vigor, upon (a) the learned defence counsel, upon, ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -11- production, of, the items of prosecutrix, as, seized under the apt seizure memo, and, thereafter sent to the DNA expert concerned, working in the FSL concerned, or, (b) .

and, of, the FTA card of the accused, also seized, under, an aptly drawn seizure memo, and, thereafter sent alongwith the items belonging to the prosecutrix, to the DNA specialist, working at the FSL concerned, (c) and, reiteratedly, upon each, of theirs respective production(s) hence in Court, at the time of the prosecutrix making her deposition, (d) or, at the time of making, of, deposition, by the police official concerned, who lodged them in the malkhana concerned, (e) and, upon the recording, of, the deposition, of, the police official, who carried them, to, the FSL concerned, (f) and, besides, upon, the examination, of, the author of EXT. PW­11/E, reiteratedly, besides upon each, of, the afore relevant items, as, contained in sealed parcels, hence becoming, shown to each, rather all the afore being meted suggestion(s), vis­a­vis, the items/belongings, of, the prosecutrix or the FTA card, or, other relevant materials belonging to the accused, and enclosed in, the relevant seized parcels rather not belonging, to, either of ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -12- them, (g) or suggestions being purveyed to them, vis­a­vis, at the time, of, receipt of the afore parcels at the FSL concerned, they never travelled thereupto, and, thereafter .

in Court, in an unbroken or untampered condition, hence facilitating, the, introduction, of, fictitious belongings therewithin, (h) or suggestions became meted qua each, vis­a­vis, at the time of production, of, case properties in Court, and, whereat, the case properties were shown, to the, prosecution witnesses concerned, the Court making observations, vis­a­vis, the english alphabet(s), as borne, on the seal impressions, rather mismatching with their description, as, made in the relevant seizure memos. Since thereupon alone there would be lack, of, inter­se connectivity, inter­se, the, seizure, of, case properties, and, vis­a­vis, transmission(s) thereof, to the FSL concerned, and, thereafter their production in Court, and, whereupon, the accused would become entitled to, a verdict, of, acquittal. However, significantly, when, none of the afore suggestions, became purveyed to any, of, the afore prosecution witnesses, thereupon, the effect, of, non meteings, of, the afore suggestions, to, each of the ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP -13- prosecution witnesses, in, contemporaneity, vis­a­vis, the production, of, the relevant case properties, in Court, is, qua the afore extracted observations, as, embodied, in, the .

report of the DNA specialist, and, as, borne in Ext. PW­ 11/E, necessarily nailing the charge against the accused.

10. 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.

(Sureshwar Thakur), Judge.

(Chander Bhusan Barowalia) 20 March, 2020 th Judge (kck) ::: Downloaded on - 20/03/2020 20:24:30 :::HCHP