Himachal Pradesh High Court
Bhot Ram Alias Bhod vs State Of Himachal Pradesh on 19 November, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 293/2015 Reserved on: 18.11.2015 Decided on: 19.11.2015 .
_________________________________________________________________ Bhot Ram alias Bhod ...Appellant Versus State of Himachal Pradesh ...Respondent _________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? 1 Yes.
---------------------------------------------------------------------------------- For the Appellant: rt Mr. Vikas Rathore, Advocate.
For the Respondent: Mr. P.M. Negi, Deputy Advocate General. _________________________________________________________________ Rajiv Sharma, Judge This appeal is instituted against Judgment/Order dated 30.5.2015/18.6.2015 rendered by learned Special Judge, Kangra at Dharamshala (HP) in Sessions Case No. 22-D/VII-
2013, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence punishable under Sections 376, 354, 506 IPC and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012, has been convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of `25,000/- for offence under Section 6 of Protection of Children from Sexual Offences Act, 2012, in default of payment of fine, to further undergo simple imprisonment for two years. The 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 2
accused has also been sentenced to undergo rigorous imprisonment for five years and to pay a fine of `5,000/-, under .
Section 506 IPC, and, in default of payment of fine, to further undergo simple imprisonment for six months.
2. Case of the prosecution, in a nutshell, is that, Bhot, is the brother-in-law of the complainant. On 6.8.2013, accused paid a visit to the house of the complainant. Accused used to of come to the house of the complainant on earlier occasions also.
On 7.8.2013, husband of the complainant had gone to Draman rt for work and her brother-in-law, Manjeet Singh had gone to Dhar. Her mother-in-law had gone to somebody's house.
Complainant, her daughter and accused were in the room. At 12.30 pm, the complainant had gone to Khaniyara Bazaar.
When she came back in about one hour, she found prosecutrix weeping. She administered medicine to her. On 8.8.2013, in the morning hours, her husband, elder brother-in-law of the complainant and her mother-in-law had gone to work.
Complainant herself had gone to toilet at the back of the house.
When she came back in 3-4 minutes, she found accused carrying victim in his lap and he had put his right hand in the trousers of the prosecutrix and was fiddling with the private part of the prosecutrix. Prosecutrix was weeping loudly.
Complainant snatched the prosecutrix from the accused. She had noticed blood on the private part of the prosecutrix. She ::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 3 questioned the accused what he has done with her daughter.
She told him that she would report the matter to the police.
.
Complainant took her daughter to the PHC Khaniyara. Doctor asked the complainant to take her to Dharamshala. Prosecutrix was taken to Dharamshala. Doctor at Zonal Hospital informed the police about the prosecutrix having been brought to the hospital. Police reached the hospital. Statement of the of complainant was recorded vide Ext PW-1/A, by the Lady Head Constable Anita Devi. Thereafter, FIR Ext. PW-10/A was registered.
rt Clothes of the prosecutrix were taken into possession, which were examined. Mother of the prosecutrix gave her consent for medical examination of the prosecutrix.
Doctor issued MLC. Birth record of the prosecutrix shown in family register Ext. PW-14/A was obtained by the police. Date of birth of the prosecutrix was 3.7.2012. Accused was arrested.
Investigation was completed and Challan was put up in the Court after completing all codal formalities.
3. Prosecution has examined as many as 15 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. His case was that of denial simpliciter. Accused was convicted and sentenced as noticed herein above. Hence, this appeal.
4. Mr. Vikas Rathore, Advocate, argued that the prosecution has failed to prove its case against accused.
::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 45. Mr. P.M. Negi, Deputy Advocate General, has supported the judgment/order of conviction dated .
30.5.2015/18.6.2015.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 is the mother of the prosecutrix. She deposed that the date of birth of the prosecutrix was 3.7.2012. Accused of had visited her house at Khaniyara and stayed for the night on 6.8.2015. On 7.8.2013, her husband had gone to Draman. Her rt brother-in-law had also gone to Dhar to fetch milk. She left her daughter with step brother-in-law. She went to Khaniyara Bazaar. She came back in around 1 hour and noticed her daughter weeping. She gave medicines to her daughter. She went to sleep. On 8.8.2013, her husband had left for work. Her brother-in-law and mother-in-law also left for work. She handed over her daughter to the accused person and went to toilet.
When she came back, victim was seen in the lap of the accused.
Accused, with his right hand, had been fiddling with the private part of the prosecutrix with his finger. Victim was weeping loudly. She took the victim from the accused and noticed that there was blood on private part. She told him that she would report the matter to the police. She took victim to PHC Khaniyara and then to Dharamshala. There the Doctor told that the victim had been subjected to sexual assault. Doctor ::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 5 reported the matter to the Police. MLC of the victim was obtained. Police reached the spot. Her statement was recorded .
vide Ext. PW-1/A. In her cross-examination, she has admitted that she had eloped with her husband Kuldeep Kumar. She admitted that her father had lodged FIR at Police Station Kangra. Accused and her husband were kept in the police custody by the police for 10 days. She admitted that she had of made a statement in the Court at Kangra that she had gone with Kuldeep Kumar at her own will. She and her husband rt stayed at Baijnath after elopement. She denied the suggestion that they went to Kullu and stayed in the house of accused person at Kullu. Volunteered that the accused had been instrumental in her elopement with her husband. Case of kidnapping was pending before the Judicial Magistrate Kangra.
She also admitted that her father has not filed any application for dropping of FIR. She denied the suggestion that she was tutored by her father to rope in the accused in a false case. She denied the suggestion that that the accused has asked them to vacate the room. She also denied the suggestion that they were not prepared to vacate the room.
8. PW-2 Rajesh Kumar deposed that he alongwith Manjeet Singh joined the investigation. Police has taken soil sample in a match box. In his cross-examination, he has admitted that Kuldeep Kumar and his wife had eloped before ::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 6 marriage. He also admitted that accused person permitted Kuldeep Kumar and his wife to live in his room. He did not .
know that accused person had paid the expenditure of the case instituted against Kuldeep Kumar abut kidnapping of PW-1.
Further, he admitted that the accused person was insisting Kuldeep Kumar and his wife to vacate the room.
9. PW-3 Kashmir Singh deposed that on 10.8.2013, of PW-1 produced the clothes of accused. Clothes were sealed in a parcel vide Ext. PW-1/D. In his cross-examination, he has rt admitted that PW-1 was residing in a room with her husband and accused person has been asking PW-1 and her husband to vacate the room.
10. PW-4, father of the prosecutrix, deposed that he had one daughter. She was 1 ½ years at the time of recording of the statement i.e. 23.1.2014. He was residing at Khaniyara. He had gone to Draman. Accused and PW-1 were at home. He got a call on mobile at 12 noon at Draman on 8.8.2013 from his wife that the accused person had fiddled with his daughter. He came to Dharamshala Zonal Hospital. His wife, with victim and police, was present. In his cross-examination, he has admitted that the accused person was asking to vacate the room. Volunteered that he has asked to vacate the room after institution of the case. He also admitted that after elopement, he was living in the house of the accused.
::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 711. PW-5 Dr. Anish Bhatia observed external mild errythmia around vaginal region of the victim. He issued .
prescription vide Ext. PW-5/A. In her cross-examination, he has admitted that there was no wound or swelling on the person of the victim.
12. PW-6 Dr. Tilak Bhagra has examined the accused.
He issued MLC Ext. PW-6/A. There was no blood on the private of part of the accused.
13. PW-7 Dr. Archana Gautam has examined the rt prosecutrix. She issued MLC Ext. PW-7/A. According to her, no rape has occurred with the victim. In her cross-examination, she has admitted that it was not necessary that there would be scratch marks or wound in the case of fiddling.
14. PW-12 Desh Raj deposed that on 8.8.2013 at 1.50 pm, information was received from Zonal Hospital Dharamshala that a case of rape with victim had been reported. He recorded Rapat Ext. PW-12/A. Statement of the complainant was recorded vide Ext. PW-1/A. Prosecutrix was medically examined. He prepared the scene of the crime. He did not know that the accused had a dispute with the complainant and her husband.
15. PW-13 Ramesh Kumar deposed that a lady made a call on his mobile. She wanted to talk to Kuldeep. She had ::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 8 talked with Kuldeep on mobile. Kuldeep left the spot and went to the Zonal Hospital.
.
16. PW-14 Mohinder Singh has issued the abstract of Parivar Register of Kuldeep to the Police vide Ext. PW-14/A. He has also proved original Parivar Register Ext. PW-14/A. The date of birth of the prosecutrix was 3.7.2012.
17. PW-15 Vijay Kumar recovered and took into of possession clothes of the accused. He also took clothes of the prosecutrix into possession. He also obtained abstract of rt Parivar Register. He also moved an application for recording statement of the complainant under Section 164 CrPC. It was recorded vide Ext. PW-1/E. He recorded statements of other witnesses.
18. PW-1 has testified that she had gone out of room and handed over custody of the child to the accused. When she came back, child was found in the lap of the accused. He was fiddling with the private part of the girl. She went to the hospital. Doctor at Hospital reported the matter to the police.
Police reached the spot. Statement of PW-1 was recorded vide Ext. PW-1/A. FIR was registered. Matter was investigated. PW-4 is the father of the prosecutrix. He got a call on mobile at 12 noon at Draman. He was informed about the incident by his wife. He went to the Hospital. PW-5 Dr. Anish Bhatia has noticed external mild errythmia around vaginal region of the ::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 9 prosecutrix. He proved MLC Ext. PW-5/A. In her primary opinion, PW-7 Dr. Archna Gautam has categorically opined .
that fiddling with genital area could not be ruled out.
Ejaculation by the accused on genital area on 7.8.2013 could not be ruled out. Though, according to mother, she had washed the Pajama worn by the victim so no Pajama was kept as specimen. According to her final report, no rape was committed of with the victim. However, there is sufficient material to prove that the accused has fiddled with the genital part of the prosecutrix.
rt
19. Mr. Vikas Rathore, Advocate, has vehemently argued that his client has been falsely implicated. According to him, his client was instrumental in elopement of the parents of the prosecutrix. Accused wanted the parents of the prosecutrix to vacate the room. They refused to do so. Thus, his client was falsely implicated. There was no occasion for PW-1 to falsely implicate the accused only for the reason that they refused to vacate the room at the instance of the accused. Possibility of making accusations against accused is also ruled out for the simple reason that he has rather helped them in their elopement and they have also stayed with him after elopement.
There was no previous enmity between the families of the complainant and accused. No respectable person would ever level false allegations by risking his/her honour. Complainant ::: Downloaded on - 15/04/2017 19:22:04 :::HCHP 10 PW-1 has handed over custody of the child to accused to look after her. However, shockingly, the accused has fiddled with the .
private part of the victim. Victim was weeping when PW-1 came back after using toilet. Thus, the prosecution has fully proved its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court.
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20. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.
rt (Rajiv Sharma) Judge (Sureshwar Thakur) Judge November 19, 2015 vikrant ::: Downloaded on - 15/04/2017 19:22:04 :::HCHP