Himachal Pradesh High Court
Sunil Kumar @ Sonu vs State Of H.P on 15 July, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
.
SHIMLA:
Cr. Appeal No.4231 of 2013.
Judgment reserved on: 2.7.2015
Date of Judgment: July 15,2015.
____________________________________________________________
Sunil Kumar @ Sonu. .....Appellant.
Vs.
State of H.P. ....Respondent.
Coram:
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?yes.
For the appellant: Mr. Shivendra Singh, Advocate.
For the respondent: Mr. M.L.Chauhan, Addl. Advocate
General with Mr.J.S.Rana, Assistant
Advocate General.
P.S.Rana, Judge.
JUDGMENT:Present appeal is filed against judgment and sentence passed by the learned Sessions Judge Mandi Whether reporters of the Local papers are allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 2H.P in Sessions Trial No. 28 of 2012 titled State of HP Vs. .
Sunil Kumar decided on 15.6.2013.
BRIEF FACTS OF THE PROSECUTION CASE:
2. It is alleged by prosecution that accused along with his mother Meera Devi and Dila Ram used to reside in the house of maternal aunt namely Smt. Nimo Devi at village Sudhrani in the year 2011. It is further alleged by prosecution that prosecutrix is the younger daughter of Smt. Nimo Devi. It is further alleged by prosecution that prosecutrix was born on dated 12.5.1997. It is further alleged by prosecution that in the month of January/February 2011 accused committed rape upon prosecutrix thrice by way of gagging her mouth when prosecutrix was sleeping with her maternal uncle, accused and mother of accused. It is further alleged by prosecution that thereafter accused threatened prosecutrix that he would eliminate prosecutrix in case she would narrate the incident to anybody. It is further alleged by prosecution that on dated 6.8.2011 when prosecutrix came back from school she was having stomach pain. It is further alleged by prosecution that thereafter mother of prosecutrix took prosecutrix to medical ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 3 officer where medical officer detected pregnancy of .
prosecutrix of about six months. It is further alleged by prosecution that thereafter prosecutrix disclosed whole matter to her mother and thereafter mother of the prosecutrix filed a complaint before police officials Ext PW6/A. It is further alleged by prosecution that thereafter FIR No. 106 Ext PW10/A was registered. It is further alleged by prosecution that thereafter investigating officer filed application for medical examination of prosecutrix and thereafter prosecutrix was medically examined on dated 8.8.2011 vide MLC Ext PW5/B. It is further alleged by prosecution that investigating officer visited spot and prepared site plan Ext PW17/C. It is further alleged by prosecution that prosecutrix produced one bed sheet Ext P3 which was took into possession vide seizure memo Ext PW7/A. It is further alleged by prosecution that birth certificate of prosecutrix Ext PW2/B was obtained. It is further alleged by prosecution that prosecutrix was born on dated 12.5.1997. It is further alleged by prosecution that prosecutrix delivered a female child on dated 16.10.2011. It is further alleged by prosecution that application was moved ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 4 before Medical Superintendent Zonal Hospital Mandi with .
the request to preserve blood samples of prosecutrix as well as her newly born child for DNA profiling. It is further alleged by prosecution that x-ray of the prosecutrix was also conducted and x-ray films are Ext PW4/A to Ext PW4/E. It is further alleged by prosecution that ultra sound of prosecutrix was also conducted and ultra sound films are Ext PW8/A to Ext PW8/C and report of Dr.Jyoti Vaidya is Ext PW8/G. It is further alleged by prosecution that sealed parcels were deposited in FSL Junga vide RC No. 47 of 2012.
It is further alleged by prosecution that four sealed parcels were sent to RFSL Gutkar vide RC No.15 of 2012. It is further alleged by prosecution that accused was also medically examined at Zonal Hospital Mandi and his MLC report is Ext PW18/A. It is further alleged by prosecution that application Ext PW18/B was filed before Medical Superintendent Zonal Hospital Mandi for preserving blood sample of accused and DNA profiling. It is further alleged by prosecution that investigating officer moved application before Principal Government High School Sudhrani for supply of birth certificate of prosecutrix. It is further alleged ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 5 by prosecution that FSL report Ext PA placed on record. It is .
further alleged by prosecution that as per DNA report Ext PZ accused is biological father of newly born children from prosecutrix. Charge was framed against accused under Section 376 IPC. Accused did not plead guilty and claimed trial.
3. Prosecution examined nineteen witnesses in support of its case.
Sr.No. Name of Witness
PW1 Dr. Anuradha Sharma
PW2 Munshi Ram
PW3 Dr. Sanjeev Sharma
PW4 Dr. Rakesh Kumar
PW5 Dr. Sarla Chand
PW6 Smt. Nimo Devi
PW7 Ms. Haseena
PW8 Dr. Jyoti Vaidya
PW9 Budhi Singh
PW10 Rajmal
PW11 Ashwani Kumar
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6
PW12 Dhani Ram
.
PW13 Khem Chand
PW14 Prakram Singh
PW15 Prem Kumar
PW16 Anil Kumar
PW17 Shyam Lal
PW18 Aswani Kumar
rPW19 Anil kumar
4. Prosecution also produced following piece of documentary evidence in support of its case:-
Sr.No. Description.
Ext. PW1/A Application
Ext. PW1/B Identification form of Himani
Ext. PW1/C Identification form of Prosecutrix
Ext.PW2/A Application
Ext. PW2/B Date of birth certificate of
prosecutrix
Ext.PW3/A to Rotational Videography (RVG) of 3D prosecutrix Ext. PW4/A X-ray of right wrist, right elbow, to 4/E right knee, right ankle and right hip of prosecutrix ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 7 Ext PW4/G Report .
Ext PW5/A Application
Ext PW5/B MLC
Ext PW5/C X-ray form
Ext PW6/A Statement of Smt. Nimo Devi
Ext PW7/A Memo
Ext PW8/A to Ultra sound films of prosecutrix.
8/C
Ext PW9/A
r Copy of RC
Ext PW9/B Receipt of FSL
Ext PW10/A FIR
Ext PW10/B Endorsement
Ext PW11/A Copy of RC No. 15/2012
Ext PW12/A Copy of RC No.72/2012
Ext PW12/B Receipt of FSL
Ext PW13/A Abstract of entry Nos. 526 and
527
Ext PW13/B Abstract of entry of parcel at
serial No.35
Ext PW14/A Abstract of register No.19
Ext PW17/A Endorsement
Ext PW17/B Copy of departure report
Ext PW17/C Spot Map
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8
Ext PW17/D Specimen seal impression
.
Ext PW18/A Request for conducting MLC of
accused Sunil Kumar.
Ext PW18/B Application to M.O for
preservation of blood of accused.
Ext PW18/C Identification form of Sunil Kumar.
Ext PW18/D Copies of forwarding letters/notes to 18/F Ext PW18/G Application Ext PW18/H Certificate Ext PA r MLC of Sunil Kumar Ext PA-I FSL report Ext PZ Report regarding DNA test given by SFSL Junga HP Ext PX G.D No. 34(A).
5. Statement of accused under Section 313 Cr.PC was recorded. Accused stated that he is innocent. Accused did not lead any defence evidence despite opportunity granted by learned trial Court.
6. Learned trial Court convicted accused under Section 376 IPC to undergo rigorous imprisonment for seven years and to pay fine of Rs.50000/- (Fifteen thousand).
Learned trial Court further directed that in default of payment of fine convicted would further undergo simple ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 9 imprisonment for period of one year. Learned trial Court .
further directed that whole amount realized would be paid to prosecutrix.
7. Feeling aggrieved against the judgment and sentence passed by learned trial Court appellant filed present appeal.
8. Court heard learned Advocate appearing on behalf of appellant and learned Additional Advocate General appearing on behalf of the State and also perused entire record carefully.
9. Point for determination in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice to appellant.
10.ORAL EVIDENCE ADDUCED BY PROSECUTION:
10.1 PW1 Dr. Anuradha Sharma has stated that she is posted in Zonal Hospital Mandi since October 1998. She has stated that on dated 4.4.2012 police officials of police station Aut moved an application before Medical Superintendent Zonal Hospital Mandi which was marked to ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 10 her for necessary action. She has stated that application is .
Ext PW1/A.She has stated that thereafter she obtained blood samples of prosecutrix as well as blood sample of newly born baby on FTA cards and also obtained identification form of newly born baby Ext PW1/B. She has stated that identification form of prosecutrix is Ext PW1/C. She has stated that thereafter she handed over FTA cards as well as identification forms to police officials. She has stated that she identified prosecutrix as well as female child in Court.
10.2. PW2 Munshi Ram has stated that on dated 30.5.2012 police officials of police post Bali Chowki moved an application before him with direction to provide birth certificate of prosecutrix. He has stated that application is Ext PW2/A. He has stated that thereafter he prepared birth certificate Ext PW2/B. He has stated that as per birth certificate prosecutrix was born on 12.5.1997. He has stated that as per record the date of birth of prosecutrix was entered as per information given by one Kaur Singh resident of Sudhrani.
10.3. PW3 Dr. Sanjeev Sharma has stated that he was posted in Zonal Hospital Mandi since 2010. He has stated ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 11 that on dated 22.6.2012 Dr. Sarla Chand medical officer .
Zonal Hospital Mandi referred prosecutrix to him for determination of age. He has stated that he clicked rotational videography RVG of prosecutrix and took four prints in number which are Ext PW3/A to Ext PW3/D. He has stated that he had given age verification report of prosecutrix which is Ext PW3/E. He has stated that age of prosecutrix was found between 16-18 years. He has denied suggestion that prosecutrix was not referred to him nor he conducted age determination test.
10.4. PW4 Dr.Rakesh Kumar Radiologist has stated that on dated 21.6.2012 Dr. Sarla Chand referred the prosecutrix to him for determination of radiological age. He has stated that x-rays were done under his supervision. He has stated that x-ray of right wrist, right elbow, right knee, right ankle and right hip were obtained under his supervision which are Ext PW4/A to Ext PW4/E. He has stated that Dr. Sarla Chand also filled x-ray form which is Ext PW4/F. He has stated the he had given his report which is Ext PW4/G. He has stated that as per his opinion radiological age of prosecutrix was found between 17-19 ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 12 years. He has admitted that nutrition habits can affect the .
radiological age of person.
10.5. PW5 Dr. Sarla Chand has stated that for the last six years he was posted as medical officer in Zonal Hospital Mandi. She has stated that on dated 8.8.2011 on the application of police officials Ext PW5/A she conducted medico legal examination of prosecutrix and she identified prosecutrix in Court. She has stated that she conducted medico legal examination of prosecutrix on dated 8.8.2011.
She has stated that prosecutrix was brought to hospital by lady constable with the alleged history of sexual assault by her cousin brother in January/February 2011 thrice. She has stated that before conducting her medico legal examination she obtained the consent of her mother Nimo Devi as well as consent of prosecutrix. She has stated that prosecutrix was conscious, co-operative, well oriented to the time and space. She has stated that pulse of the prosecutrix was 72 p.m regular, B.P was 130/74 mm. She has stated that on examination of prosecutrix she observed as follows.1.
Breasts developing, pubic hairs black in colour fully grown up, axillary hair black in colour growing no marks of any ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 13 injury seen on her body. 2. Height of uterus was about 26 .
weeks and foetal parts were palpable. 3. Labia Majora and minora developing, cervix and vagina healthy, foul smelling discharge present, hymen old torned and healed. 4 Two fingers inserted easily, uterus enlarged bi-lateral fornices clear, vaginal swabs taken and preserve LMP-18/1/2011.
She has stated that she advised ultra sound for exact age of gestation. She has stated that she handed over following specimens to police officials.1. True copy of MLC. 2. Pubic hair. 3. Vaginal swabs. 4. Sample of seal. 5. Clothes. She has stated that investigating agency also made quarries in the application Ext PW5/A which was answered by her as under.1. Prosecutrix was exposed to sexual intercourse however the exact time, how many times could not be stated upon. 2. Prosecutrix was found pregnant of about 26 weeks however exact age of gestation could be given after ultra sound report. 3. No struggle marks were seen on the body of prosecutrix. After examining the ultra sound report on 9.8.2011 Dr. Jyoti Vaidya Radiologist opined that there was single living foetus of 24 weeks plus 4 days of age. Dr. Jyoti Vaidya also opined that prosecutrix was having pregnancy of ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 14 6 months plus 4 days. She has stated that investigating .
agency had also requested her to conduct requisite tests for age determination test. She has stated that she advised x-ray and dental opinion. She has stated that as per opinion of Radiologist the age of prosecutrix was between 17 to 19 years and as per opinion of dental the age of prosecutrix was between 16 to 18 years. She has stated that she opined that age of prosecutrix was between 16 to 19 years.
10.6 PW6 Smt. Nimo Devi has stated that she is agriculturist by profession. She has stated that prosecutrix is her younger daughter aged about 15 years. She has stated that on dated 6.8.2011 when prosecutrix came back from school prosecutrix was having stomach pain. She has stated that thereafter she went to medical officer Zonal Hospital Kullu. She has stated that medical officer after examination told that prosecutrix was having pregnancy of about six months. She has stated that upon her persistent inquiry prosecutrix disclosed that her cousin brother Sonu @ Sunil Kumar accused present in court who is son of her real sister had committed forcible sexual intercourse with prosecutrix.
She has stated that prosecutrix disclosed to her that accused ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 15 had committed rape after gagging mouth of prosecutrix. She .
has stated that thereafter her daughter was medically examined at Zonal Hospital Mandi. She has denied suggestion that she and prosecutrix had not gone to Kullu hospital for medical examination. She has denied suggestion that the age of prosecutrix was about 20/21 years. She has denied suggestion that she kept accused in her house as Gharjawai (Son-in-law). She has denied suggestion that in the area there is customs to marry with the children of brother and sister. She has stated that prosecutrix disclosed to her that accused had rape prosecutrix thrice. She has denied suggestion that accused had not committed rape upon prosecutrix.
10.7. PW7 prosecutrix has stated that she has studied upto 8th class and thereafter she discontinued her study in the year 2011. Prosecutrix has stated that in the year 2011 her maternal uncle Dile Ram and her maternal aunt Meera Devi and her son Sunil Kumar accused present in Court used to reside in her house at village Sudhrani. Prosecutrix has stated that in the month of January/February 2011 accused Sunil Kumar present in Court raped her thrice after ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 16 gagging her mouth. Prosecutrix has stated that accused had .
threatened her that he would eliminate prosecutrix if prosecutrix would disclose incident to anyone. Prosecutrix has stated that in the month of August when she came back from school she sustained pain in her stomach and then her mother checked her stomach from medical officer.
Prosecutrix has stated that medical officer after examination disclosed to her mother that prosecutrix was having pregnancy of about five months in her womb. Prosecutrix has stated that thereafter her mother filed a complaint to the police. Prosecutrix has stated that thereafter she was brought to Zonal Hospital Mandi for her medico legal examination. Prosecutrix has stated that medical officer had obtained her consent as well as consent of her mother and thereafter police visited at the spot, prepared spot map and took into possession bed sheet. Prosecutrix has stated that on dated 16.10.2011 she delivered female child in Zonal Hospital Mandi. Prosecutrix has stated that bed sheet is Ext P2. Prosecutrix has stated that accused is the father of female child. Prosecutrix has denied suggestion that she was not medically examined by any medical officer. Prosecutrix ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 17 has stated that accused and his mother left the village when .
she was brought to hospital for medical check up.
Prosecutrix has denied suggestion that her mother wants to marry her with accused. Prosecutrix has denied suggestion that her mother was interested to keep accused as Gharjawai (Son-in-law). Prosecutrix has denied suggestion that when accused and her mother left village thereafter present case was filed against accused. Prosecutrix has denied suggestion that accused did not commit rape upon her. Prosecutrix has denied suggestion that accused did not gage her mouth.
Prosecutrix has denied suggestion that female child born did not belong to accused.
10.8. PW8 Dr. Jyoti Vaidya has stated that in the month of August M.O was posted as Radiologist in Zonal Hospital Mandi. M.O has stated that on dated 9.8.2011 prosecutrix was referred by Dr. Sarla Chand medical officer Zonal Hospital Mandi for ultra sound examination of prosecutrix. M.O has stated that reference slip is Ext PW5/C. M.O has stated that M.O conducted ultra sound. M.O has stated that ultra sound films are Ext PW8/A to Ext PW8/C. M.O has stated that there was pregnancy of 24 weeks 4 days.
::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 1810.9. PW9 HHC Budhi Singh has stated that on dated .
6.4.2012 MHC police station Aut handed over him a sealed parcel with direction to take the same to FSL Junga vide RC No.47 of 2012. He has stated that copy of RC is Ext PW9/A and receipt of FSL is Ext PW9/B. He has stated that he deposited case property on dated 7.4.2012 in FSL Junga. He has stated that case property remained intact in his custody.
He has denied suggestion that no case property was given to him nor he took the same to FSL Junga.
10.10. PW10 Rajmal has stated that in the year 2010- 11 he remained posted as investigating officer police station Aut. He has stated that on dated 6.8.2011 HHG Dharam Singh came to police station Aut along with statement of Smt Nimo Devi recorded under Section 154 Cr PC Ext PW6/A. He has stated that thereafter he recorded FIR Ext PW10/A. He has stated that thereafter he prepared case file and handed over the same to HHG Dharam Singh with direction to take the same to the spot. He has denied suggestion that no statement of Smt. Nima Devi was brought to police station.
He has denied suggestion that he did not register FIR. He has denied suggestion that FIR was anti dated.
::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 1910.11. PW11 Ashwani Kumar has stated that he was .
posted at Balichowki police station Aut. He has stated that on dated 29.1.2012 MHC police station Aut handed over to him four sealed parcels with direction to take the same to RFSL Gutkar. He has stated that along with four samples MHC handed over to him docket, copy of FIR, letter of medical officer Zonal Hospital Mandi and specimen seal impression. He has stated that same articles were handed over to him vide RC No.15/2012 copy of which is Ext.PW11/A. He has stated that he deposited these articles at RFSL Gutkar.
10.12. PW12 Dhani Ram has stated that for the last two and half years he was posted as constable general duty in police post Balichowki. He has stated that on dated 20.5.2012 MHC police station Aut handed over him one parcel containing blood sample along with docket specimen seal impressions, copy of FIR, MLC and other documents vide RC No. 72/2012 Ext PW12/A with direction to take same to FSL Junga. He has stated that he deposited said articles with FSL Junga on dated 21.5.2012. He has stated that receipt of FSL is Ext PW12/B. He has stated that case ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 20 property remained intact in his custody. He has denied .
suggestion that no case property was given to him. He has denied suggestion that he did not take case property to FSL Junga.
10.13. PW13 Khem Chand has stated that he was posted as MHC in police station Aut since 2010. He has stated that he brought relevant register No.19 as well as record of road certificate. He has stated that on dated 9.8.2011 HHG Desh Raj deposited parcel containing bed sheet which was sealed in a parcel. He has stated that he entered articles in register No.19 at serial No.526. He has stated that on dated 10.8.2011 HHG Puran Chand deposited three sealed parcels with him. He has stated that one parcel sealed with seal ZH was stated to be containing wearing apparels of prosecutrix, second parcel sealed with seal ZH containing pubic hairs of prosecutrix and third parcel containing vaginal swabs along with sample seal. He has stated that he duly entered all these articles at serial No.527.
He has stated that abstract of entry No.526 and 527 is Ext PW13/A. He has stated that case property was deposited in malkhana at serial No.526 and 527 and were sent to RFSL ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 21 Gutkar through constable vide RC No.15 dated 29.1.2012.
.
He has stated that copy of RC is Ext PW11/A which is correct as per original record. He has stated that similarly on dated 20.5.2012 constable Dhani Ram deposited sealed parcel sealed with seal ZH Mandi with him stated to be containing liquid blood sample. He has stated that he entered parcel at serial No.35 in register No.19 and abstract of the same is Ext PW13/B which is correct as per original record. He has stated that sample was sent to FSL Junga on the same day through constable Dhani Ram vide RC No.72/2012 copy of which is Ext PW12/A. He has stated that receipt of FSL is Ext PW12/B. He has stated that case property remained intact in his custody. He has stated that RC and receipt is correct as per record brought by him in Court. He has denied suggestion that no case property was deposited with him. He has denied suggestion that he did not send case property to FSL Junga/RFSL Gutkar.
10.14. PW14 Prakram Singh has stated that he was posted as investigating officer police station Aut since 2011.
He has stated that on dated 6.4.2012 constable Dhani Ram deposited a sealed parcel sealed with three seals of ZH Mandi ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 22 stated to be containing FTA papers pertaining to blood .
samples of prosecutrix as well as her daughter. He has stated that he entered parcel in register No.19 at serial No.21/23. He has stated that abstract of register No.19 is Ext PW14/A which is correct as per record brought by him in Court. He has stated that he also sent relevant documents along with parcel to FSL Junga. He has stated that copy of RC is Ext PW11/A and receipt Ext PW11/B are correct as per original record. He has denied suggestion that no parcel was deposited with him. He has denied suggestion that he did not send parcel to FSL Junga.
10.15 PW15 Prem Kumar has stated that on dated 13.2.2012 he brought four parcels along with report from RFSL Gutkar and handed over the same to MHC police station Aut. He has denied suggestion that no parcel was brought by him from RFSL Gutkar.
10.16 PW16 SI Anil Kumar has stated that after completion of investigation case file was produced before him and he found a prima facie case under Section 376 IPC against accused. He has stated that he prepared challan and ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 23 submitted the same in the Court of Judicial Magistrate Ist .
Class Court No.2 Sundernagar.
10.17 PW17 ASI Shyam Lal has stated that in the year 2011 he remained posted as Incharge police post Bali Chowki police station Aut District Mandi. He has stated that on dated 6.8.2011 complainant Nimo Devi made her statement Ext PW6/A before him which was recorded as per her version. He has stated that after recording statement he read over the matter to her and thereafter put her RTI on it.
He has stated that thereafter he made endorsement on the statement under Section 154 Cr PC and his endorsement is Ext PW17/A. He has stated that after making his endorsement he sent statement to police station through HHG Karam Singh on the basis of which FIR No.106 dated 6.8.2011 Ext PW10/A was registered. He has stated that endorsement regarding registration of FIR is Ext PW10/B. He has stated that when complainant Nimo Devi made her statement he was on patrolling duty. He has stated that he moved application before medical officer Zonal Hospital Mandi which is Ext PW5/A with a request to conduct medico legal examination of prosecutrix but on the same day her ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 24 medico legal examination could not be conducted. He has .
stated that on dated 7.8.2011 he visited the spot and prepared spot map Ext PW17/C. He has stated that on the same day prosecutrix produced one bed sheet which was took into possession vide memo Ext PW7/A. He has stated that bed sheet was put in a sealed parcel which was sealed with seal impression 'M' and he also obtained specimen seal impression of seal 'M'. He has stated that one of the specimen seal impression 'M' is Ext PW17/D. He has stated that he also recorded the statements of witnesses as per their versions. He has stated that case property was deposited with MHC police station Aut. He has stated that further investigation was entrusted to ASI Ashwani Kumar as he was transferred from police post Bali Chowki. He has denied suggestion that statement of complainant under Section 154 Cr.PC was manipulated by him. He has denied suggestion that complainant did not give any statement before him. He has denied suggestion that the same were not read over to her. He has denied suggestion that he did not visit at the spot. He has denied suggestion that bed sheet was not took ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 25 into possession. He has denied suggestion that he had .
recorded the statement of the witnesses at his own.
10.18. PW18 ASI Ashwani Kumar has stated that investigation of the case was entrusted to him. He has stated that he obtained birth certificate of prosecutrix by moving application Ext PW2/A. He has stated that thereafter certificate Ext PW2/B was prepared and provided by Secretary Gram Panchayat Khalwan. He has stated that thereafter he also made efforts to nab the accused. He has stated that on dated 16.10.2011 prosecutrix had delivered a female child in Zonal Hospital Mandi. He has stated that on dated 4.4.2012 he moved application before medical superintendent Zonal Hospital Mandi Ext PW1/A with a request to preserve blood samples of prosecutrix as well as her newly born child for DNA profiling. He has stated that blood samples of newly born baby of prosecutrix as well as prosecutrix were took by medical officer. He has stated that identification form of newly born child is Ext PW1/B and identification form of prosecutrix is Ext PW1/C. He has stated that prosecutrix was also medically examined and her x-rays were conducted for the purpose of determination of ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 26 her age. He has stated that documents are Ext PW3/A to Ext .
PW3/D and report of M.O is Ext PW3/E. He has stated that x-ray forms are Ext PW4/A to Ext PW4/E. He has stated that accused Sunil Kumar was arrested on dated 17.5.2012.
He has stated that accused was also medically examined by medical officer. He has stated that report of medical officer is Ext PA. He has stated that request for conducting medico legal examination of accused Sunil Kumar is Ext PW18/A. He has stated that similarly he also moved application before Medical Superintendent Zonal Hospital Mandi for preserving blood sample of accused Sunil Kumar for DNA profiling. He has stated that he also recorded the statements of the witnesses as per their versions. He has stated that he also filed application before Principal Government High School Sudhrani Ext PW18/G for obtaining birth certificate of prosecutrix. He has stated that thereafter birth certificate of prosecutrix was issued by head master Government High School Sudhrani. He has stated that as per birth certificate prosecutrix was born on 12.5.1997. He has stated that birth certificate is Ext PW18/H. He has stated that after receipt of FSL report Ext PA he produced case file before SHO police ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 27 station Aut for preparation of challan. He has denied .
suggestion that he did not request to Medical Superintendent Zonal Hospital Mandi for obtaining blood sample of accused for DNA profiling. He has denied suggestion that Medical Superintendent did not obtain blood sample of accused. He has denied suggestion that birth certificate was not obtained.
He has denied suggestion that he did not move application through competent authority.
10.19 PW19 SI Anil Kumar has stated that after the receipt of report regarding DNA Ext PZ he prepared supplementary challan and submitted the same in Court.
11. Submission of learned Advocate appearing on behalf of appellant that prosecution has not brought on record any cogent and reliable evidence that appellant had committed rape upon prosecutrix and in the absence of such evidence appellant could not be punished under Section 376 IPC and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. PW7 prosecutrix has stated in positive manner when she appeared in witness box that in the month of January/February 2011 appellant had raped ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 28 her thrice after gagging her mouth. PW7 prosecutrix has .
stated in positive manner that appellant had threatened prosecutrix to eliminate her in case prosecutrix would disclose the fact of rape to anybody. Prosecutrix has stated in positive manner before learned trial Court that accused had raped her. Court is of the opinion that testimony of prosecutrix is trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of prosecutrix. There is no evidence on record in order to prove that prosecutrix had hostile animus against appellant at any point of time.
12. Another submission of learned Advocate appearing on behalf of appellant that the age of prosecutrix was more than sixteen years at the time of alleged incident and there is no evidence of threat on record given by appellant to prosecutrix and prosecutrix was not dumb or mentally retarded and no injury was attributed to prosecutrix by appellant and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. As per birth certificate issued under Section 12/17 of Registration of ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 29 Births and Deaths Act 1969 Ext PW2/B it is proved on .
record that prosecutrix was born on dated 12.5.1997. Birth certificate Ext PW2/B relating to prosecutrix has been issued by a public servant in discharge of his official duty and is a relevant fact under Section 35 of Indian Evidence Act 1872.
Appellant did not adduce any cogent, positive and reliable evidence on record in order to rebut birth certificate Ext PW2/B placed on record issued under Section 12/17 of the Registration of Births and Deaths Act 1969. Birth certificate Ext PW2/B was registered on dated 26.5.1997 and entry in birth register was recorded on dated 26.5.1997 prior to the incident. It was held in case reported AIR 2011 SC 1691 titled Murugan @ Settu Vs. State of Tamil Nadu that documents made ante litem motam can be relied upon safely when such documents are admissible under Section 35 of Indian Evidence Act 1872. Document Ext PW2/B placed on record is admissible under Section 35 of Indian Evidence Act 1872. Hence it is held that prosecutrix was minor at the time of incident. As per prosecution story incident took place in the month of January/February 2011. Hence it is held that prosecutrix was minor at the time of incident in the month of ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 30 January/February 2011 as per birth certificate Ext PW2/B .
placed on record issued under Section 12/17 of Registration of Births and Deaths Act 1969.
13. Another submission of learned Advocate appearing on behalf of appellant that there is no evidence on record that any kind of threat or fear was given to prosecutrix by appellant and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. Prosecutrix has specifically stated when she appeared in witness box that accused gagged her mouth at the time of commission of criminal offence of rape and also threatened minor prosecutrix to keep mum and not to disclose incident to anyone otherwise he would eliminate minor prosecutrix. It is proved on record beyond reasonable doubt that accused had threatened minor prosecutrix to eliminate her in case she would disclose incident to anyone.
14. Another submission of learned Advocate appearing on behalf of appellant that there was no injury upon the body of prosecutrix and on this ground appeal be accepted is also rejected being devoid of any force for the ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 31 reasons hereinafter mentioned. It is held that minor .
prosecutrix surrendered to appellant due to fear of her death because it is proved on record by way of testimony of prosecutrix that appellant had threatened the prosecutrix to eliminate her in case she would disclose the incident to anyone and it is proved on record that appellant had gagged the mouth of prosecutrix at the time of commission of rape.
Even case of the prosecution falls under description No.3 as defined under Section 375 IPC which is quoted "When her consent was obtained by putting her in fear of death or of hurt". In the present case it is proved on record as per testimony of prosecutrix that appellant had threatened prosecutrix that he would eliminate her in case she would disclose the fact to anyone. It is also proved on record that appellant had committed offence of rape after gagging mouth of prosecutrix. Hence it is held that present case falls within third description as defined under Section 375 IPC.
15. Another submission of learned Advocate appearing on behalf of appellant that as per testimony of PW3 Dr. Sanjeev Sharma, PW4 Dr.Rakesh Kumar Radiologist and PW5 Dr. Sarla Chand the age of prosecutrix was ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 32 between 16 to 19 years and on this ground appeal be .
accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that experts are not eye witness of the incident. It is well settled law that opinion of expert is advisory in nature. It is well settled law that purpose of expert opinion is primarily to assist the Court in arriving at final conclusion and report of expert is not binding upon the Court. It is well settled law that if the evidence of eye witness is trustworthy then Court is well within jurisdiction to discard expert opinion. See AIR 2012 SC 3046 titled Dayal Singh and others Vs. State of Uttaranchal. It is well settled law that exact age is not determinable through ossification test and variation of two years is possible on either side if variation of two years is took into consideration towards lesser side then the age of the prosecutrix comes to fourteen years strictly in conformity with birth certificate placed on record.
16. Another submission of learned Advocate appearing on behalf of appellant that testimony of prosecutrix is not credible and it requires corroboration and on this ground appeal be accepted is also rejected being ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 33 devoid of any force for the reasons hereinafter mentioned. It .
is held that testimony of minor prosecutrix is trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of minor prosecutrix. There is no evidence on record in order to prove that minor prosecutrix had hostile animus against appellant at any point of time.
17. Another submission of learned Advocate appearing on behalf of appellant that there is material contradictions in the testimony of prosecution witnesses and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned.
Learned Advocate appearing on behalf of appellant did not point out any material contradiction which goes to the root of case. It is well settled law that minor contradictions are bond to come in a criminal case. In the present case incident took place in January/February 2011 and testimonies of prosecution witnesses were recorded on 19.11.2012, 20.11.2012, 22.11.2012, 12.12.2012, 13.12.2012, 14.12.2012, 28.1.2013 and 6.2.2013. It is well settled law that even if there are some discrepancies and contradictions in the evidence of witnesses then entire evidence should not ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 34 be discarded if contradictions did not go to the root of case.
.
Even in present case minor contradictions did not go to the root of case. See AIR 1972 SC 2020 titled Sohrab and another Vs. State of Madhya Pradesh. See AIR 1985 SC 48 titled State of U.P Vs. M.K. Anthony, See AIR 2007 SC 2257 titled State of Rajasthan Vs. Om Parkash, See 2009 (11) SCC 588 titled Prithu @ Prithi Chand and another Vs. State of H.P. See 2009 (9) SCC 626 titled State of UP Vs. Santosh Kumar and others. See AIR 2009 SC 151 titled State Vs. Saravaran and another. See AIR 1988 SC 696 titled Appabhai and another Vs. State of Gujarat. See AIR 1999 SC 3544 titled Rammi @ Rameshwar Vs. State of Madhya Pradesh. See 2000 (1) SCC 247 titled State of H.P Vs. Lekh Raj and another. See 2004 (10) SCC 94 titled Laxman Singh Vs. Poonam Singh and others. See 2012 (10) SCC 433 titled Kuriya and another Vs. State of Rajasthan. It is well settled law that concept falsus in uno falsus in omnibus is not applicable in criminal case.See AIR 1980 SC 957 titled Bhe Ram Vs. State of Haryana. Also See AIR 1971 SC 2505 titled Rai Singh Vs.State of Haryana.It was held in case reported in AIR 1987 SC 1328 titled Dalbir Singh and others Vs.State of ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 35 Punjab that there is no hard and fast rule which could be .
laid down for appreciation of evidence as it is a question of fact and each case has to be decided on the facts as they proved in a particular case. It was held in case reported in AIR 1973 SC 944 titled Jose Vs. State of Kerala that conviction can be based on the sole testimony of a single witness if testimony is trustworthy, reliable and inspire confidence of Court. See AIR 1957 SC 614 titled Vadivelu Thevar Vs. The State of Madras and also see 1965 SC 202 titled Masalti and others Vs. State of Uttar Pradesh.
18. Another submission of learned Advocate appearing on behalf of appellant that there is no corroboration of rape as per testimony of medical officer and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that as per testimony of Dr. Jyoti Vaidya who conducted ultra sound of minor prosecutrix that there was pregnancy of 24 weeks and four days. It is proved on record that DNA profile of prosecutrix, female child and appellant were obtained and even DNA report Ext PZ issued by FSL Junga proved beyond reasonable doubt that ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 36 prosecutrix is the biological mother of female child and .
accused is the biological father of female child. It is proved on record that DNA profile report Ext PZ submitted by FSL Junga remained un-rebuttal on record.
19. Another submission of learned Advocate appearing on behalf of appellant that all prosecution witnesses are interested witnesses and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that in sexual offence case generally prosecutrix used to narrate incident to their mother and father. In the present case rape was committed upon minor prosecutrix in the four walls of house. It is well settled law that relative witness is not interested witness. See AIR 1981 SC 1390 titled State of Rajasthan Vs. Smt. Kalki and another.
20. Another submission of learned Advocate appearing on behalf of appellant that investigation of case was conducted in a bias manner and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. There is no evidence on record in order to prove that investigating agency had any ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 37 hostile animus against appellant at any point of time. It is .
proved on record that investigation was conducted by investigating agency strictly in accordance with law in impartial manner. Investigating agency recorded the testimony of prosecution witnesses, prepared site plan, obtained MLC of prosecutrix and appellant and also obtained DNA report of minor prosecutrix, appellant and female child.
It is proved on record that appellant is biological father of female child born from prosecutrix.
21. Another submission of learned Advocate appearing on behalf of appellant that all recoveries and specimen signatures have been prepared in violation of Article 20 (3) of the Constitution of India and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that prosecution has collected entire evidence strictly in accordance with law. There is no positive and reliable evidence on record in order to prove that prosecution has collected evidence contrary to law in the present case. It is held that entire oral and documentary evidence was collected by prosecution in accordance with law.
::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 3822. Another submission of learned Advocate .
appearing on behalf of appellant that all material questions have not been put to appellant under Section 313 Cr.PC and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned.
Court has carefully perused the statement of appellant recorded under Section 313 Cr. PC. It is held that all material questions have been put to accused when accused was examined under Section 313 Cr.PC. It is held that no miscarriage of justice was caused to the appellant by way of non putting any incriminating questions to the appellant under Section 313 Cr.PC.
23. Another submission of learned Advocate appearing on behalf of appellant that FSL reports placed on record are inadmissible and the laboratory which had tested the articles was not competent and was not fully equipped with latest technology and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. FSL report Ext PA and Ext PZ have been issued by FSL Junga under Section 293 Cr.PC.
Scientific expert reports placed on record are admissible ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 39 under Section 293 Cr.PC Appellant did not file any .
application before learned trial Court to examine personally any scientific officer posted in DNA department and posted in Biology and Serology department. It was held in case reported in 1997 (2) crimes 648 titled M/s Visakha Agro Chemicals (P) Ltd and others Vs. Fertilizer Inspector-cum-
Assistant Director of Agriculture Visakhapatnam and another that Court has to accept the report issued under Section 293 Cr.PC as valid evidence without examining the author of report. It is well settled law that testimony of prosecutrix must be appreciated in the background of entire case and Court should be sensitive while dealing with cases involved in sexual molestation. See 1996 (2) SCC 384 titled State of Punjab Vs. Gurmal Singh and others, See 2000 SCC (5) 30 titled State of Rajasthan Vs. N.K. See 2000 (1) SCC 247 titled State of HP Vs. Lekh Raj and another. See Madan Gopal Vs. Naval Dubey 1992 (3) SCC 204. It was held in case reported in 2013 (3) SCC 791 titled Rajesh Patel Vs. State of Jharkhand that testimony of prosecutrix is sufficient to convict the accused if it inspires confidence of Court. It was held in case reported in AIR 1996 SC 922 titled ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 40 Bodhisattwa Gautam Vs. Subhra Chakraborty that rape is .
not only a crime against the woman but it is a crime against entire society. It was held that rape destroyed the entire psychology of woman and pushes the woman into deep emotional crisis. It was held in case reported in AIR 1996 SC 1393 titled State of Punjab Vs. Gurmit Singh and others that testimony of victim in case of sexual offence is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement Court should not find difficult to act on the testimony of victim of sexual assault alone to convict the accused where testimony of prosecutrix inspires confidence of Court and found reliable.
It is well settled law that corroboration in rape cases is not sine qua non for conviction of accused. It was held in case reported in AIR 1983 SC 753 titled Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat that law does not require corroboration in rape case and if evidence of prosecutrix is trustworthy then there is no bar to convict the accused on the testimony of prosecutrix alone. See AIR 1981 SC 559 titled Rafiq Vs. State of Uttar Pradesh.
::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 4124. In view of the above stated facts and case law .
cited supra appeal filed by appellant is dismissed and the judgment and sentence passed by learned trial Court are affirmed. It is held that learned trial Court had properly appreciated oral as well as documentary evidence placed on record in accordance with law. Records of learned trial Court be sent back forthwith along with certify copy of judgment.
Appeal filed by appellant is disposed of. Pending application(s) if any are also disposed of.
(P.S.Rana) Judge.
July 15,2015(R) ::: Downloaded on - 15/04/2017 18:34:32 :::HCHP 42 .
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