Himachal Pradesh High Court
Sonu vs State Of Himachal Pradesh on 28 November, 2022
Bench: Sabina, Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA .
Cr. Appeal No.405 of 2017 Reserved on: 23.11.2022 Pronounced on:28.11.2022 Sonu ......Appellant Versus State of Himachal Pradesh ......Respondent ______________________________________________ Coram:
Hon'ble Ms. Justice Sabina, Judge.
Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 For the appellant : Mr. Malay Kaushal, Advocate as Legal-Aid-Counsel.
For the respondent :
Mr. Anil Jaswal, Additional
Advocate General.
_______________________________________________ Sabina, Judge.
Appellant has filed the appeal, challenging the judgment of conviction dated 12.06.2017 and the order of sentence dated 16.06.2017, passed by the trial Court, whereby, he has been convicted and sentenced as under:-
(a) Under Section 376 : To undergo rigorous imprisonment of the Indian Penal for a period of ten years and to Code, 1860. pay a fine of Rs.25,000/- (twenty 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 28/11/2022 20:33:06 :::CIS 2
five thousand only) and in default of payment of fine amount, to undergo further simple imprisonment for six months.
.
(b) Under Section 4 of : To undergo rigorous imprisonment the Protection of for a period of seven years and to Children from pay a fine of Rs.20,000/- (twenty Sexual Offences thousand only) and in default of Act, 2012. payment of fine amount, the convict shall undergo further imprisonment for three months.
2. Learned counsel for the appellant has submitted that the trial Court had erred in ordering the conviction and sentence of the appellant with regard to charges framed against him, as the victim as well as her father had not supported the prosecution case during trial. Conviction of the appellant could not be based merely on the report of the Forensic Science Laboratory. PW-13 Dr. Richa Gupta had not deposed with regard to taking of blood sample of the victim and the appellant. Hence, no reliance could be placed on the report of the Forensic Science Laboratory. This Court had allowed the application filed by the prosecution under Section 311 of Code of Criminal Procedure, 1973 and PW-13 Dr. Richa Gupta was ordered to be re-examined.
Thereafter, PW-13 Dr. Richa Gupta appeared before this ::: Downloaded on - 28/11/2022 20:33:06 :::CIS 3 Court and she deposed that she had taken blood sample of the appellant for Deoxyribonucleic Acid (DNA) Examination.
She had also obtained the signatures/ thumb impression of .
the appellant. The prosecution could not be permitted to fill up the lacuna in its case by re-examining PW-13 Dr. Richa Gupta.
3. Learned Additional Advocate General, on the other hand, has opposed the appeal and has submitted that, although, the victim and her father had not supported the prosecution case during trial, but from the report of the Forensic Science Laboratory, the offence committed by the appellant was duly established. The victim was aged about 13 years at the time of incident. Appellant is none other than the husband of the sister of the father of the victim.
4. Prosecution story, in brief, is that the marriage of sister of the victim was to take place on 10.05.2014. A night before the marriage, victim had slept in the house of her cousin sister Archu. Appellant who was the 'Fufa' (husband of the sister of the father of the victim) of the victim, lifted her and took her to a hall of the house and gagged her mouth with her 'Duptta' and raped her. Victim had removed the 'Duptta' from her mouth and had raised alarm. As a result, ::: Downloaded on - 28/11/2022 20:33:06 :::CIS 4 mother of the victim knocked the door from outside and the appellant opened the door. Victim hit the appellant with a chair on his head. Victim was brought to Regional Hospital, .
Chamba, by her parents for medical treatment. On the basis of the statement of the mother of the victim, formal First Information Report (F.I.R.) No.149 of 2014, dated 12.05.2014, was registered against the appellant at Police Station Sadar, Chamba, under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC" in short) and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "POCSO Act" in short). Victim was got medically examined and her clothes were taken in possession. Statement of the victim was got recorded under Section 164 of Code of Criminal Procedure. Appellant was arrested.
5. After completion of investigation and necessary formalities, Challan was presented against the appellant.
Charges were framed against the appellant under Section 376 IPC and Section 6 of the POCSO Act by the Trial Court on 13.08.2014.
6. Appellant did not plead guilty to the charges framed against him and claimed trial.
::: Downloaded on - 28/11/2022 20:33:06 :::CIS 57. In order to prove its case, prosecution examined thirteen witnesses during trial. After the closure of the prosecution evidence, the appellant when was examined .
under Section 313 of the Code of Criminal Procedure, 1973, prayed that he was innocent and a false case had been registered against him.
8. Thereafter, an application was moved by the prosecution under Section 311 of Code of Criminal Procedure for summoning r PW-14 Amardeep Singh. The said application was allowed and thereafter statement of PW-14 Amardeep Singh was recorded and the appellant was again examined under Section 313 of Code of Criminal Procedure. Appellant did not lead evidence in his defence.
9. Learned trial Court vide impugned judgment dated 12.06.2017 and order dated 16.06.2017, ordered the conviction and sentence of the appellant, as mentioned in Para-1 of the judgment.
10. The present case relates to rape of the victim, aged about 13 years.
11. PW-2 Tilak Raj proved the certificate relating to the age of the victim. As per Ex.PW-2/A, the date of birth of the victim is 20.01.2001. Incident in the present case had ::: Downloaded on - 28/11/2022 20:33:06 :::CIS 6 taken place in May, 2014. Thus, the victim was aged 13 years and about four months at the time of incident.
Appellant is the paternal uncle of the victim.
.
12. The victim while appearing in the witness-box as PW-1, did not support the prosecution story. In her cross-
examination, she admitted that she was medically examined and the Medico Legal Examination Report was signed by her. She also admitted that the Medical Officer had taken in possession her "Salwar, Kameej and Duptta".
13. Mother of the victim Viaso Devi while appearing in the witness-box as PW-3, did not support the prosecution story.
14. Father of the victim Datto appeared in the witness-box as PW-6 and also did not support the prosecution story.
15. PW-14 Amardeep Singh deposed that he was posted as Judicial Magistrate, 1st Class, Chamba. On 12.05.2014, he had recorded the statement of the victim under Section 164 of Code of Criminal Procedure, after assuring himself that the victim wanted to make the statement voluntarily.
::: Downloaded on - 28/11/2022 20:33:06 :::CIS 716. PW-13 Dr. Richa Gupta deposed that on 12.05.2014, she had medically examined the victim. It was a case of alleged history of sexual assault and the victim had .
been taken to a room forcibly by her relative at night when she had come out for urination. Her mouth had been tied with a 'Duptta' and her hands were held by the culprit and thereafter the victim had been raped. Mother of the victim reached the spot and found her daughter as well as the appellant in a naked condition. The said witness proved the medical report Ex.PW-13/A. The medical report Ex.PW-13/A, reads as under:-
"Alleged case brought by police of sexual assault.
Victim (name of victim not typed) was taken to the Room forcefully by her relative (Her father's sister's (Bua's) husband - Fufa) at night when she came out for urination. She was not aware of what was going on - her mouth was tied up tightly by dupatta & her hands were held by him. There culprit untied her and self clothes & conducted sexual intercourse around 10 times. The whole act continued for around 1 hour. After then victim's mother came & knocked the door where she saw both of them were naked. She witnessed the crime. All History said by victim (name of victim not typed).::: Downloaded on - 28/11/2022 20:33:06 :::CIS 8
On GPE:-
B.P:- 110/78 mm chest/cvs:- B/L clear LMP:-
Victim (name of
victim not typed) has
still not attained
.
puberty & menasch.
P.R:- 82/min P/A:- soft, tenderness ++ On External Examination:-
-Teeth bite marks are seen over left cheek e area of Red Patch around also Red Patch of 3-4 cm seen on left side of neck. Fresh skin sucking sign e accumulation of subcutaneous blood.
-Axillary hairs are underdeveloped. Pubic hairs are scanty over pubic bae B/L-Breasts buds are developing. All signs of attaining puberty.
On Internal Examination:-
No injury seen around vagina or introitus. Fresh drops of blood seen coming out of introitus. Hymen was torn e fresh fleshy mass seen around introitus".
FINAL OPINION WILL Be given after Chemical & Forensic Analysis.
I have taken blood sample of victim (name of victim not typed) in FTA Card for DNA analysis.
According to above analysis Report conclusion is:
1) Identical DNA profile was obtained from Salwar, vaginal swab of victim (name of victim not typed) & from cloth piece which matches completely with DNA profile of blood sample on FTA card of Sonu Kumar.
According to Regional Forensic Science Laboratory, Dharamshala, Himachal Pradesh, Report No.:-629 RFSL BIO (101) 2014, Reference No.:-1893/5A, FIR No.:-149/14, PMR/MLC No.:- victim (name of victim ::: Downloaded on - 28/11/2022 20:33:06 :::CIS 9 not typed) Sonu, 12.05.14, the Reports are also follows:-
1) Blood and Semen were not detected in exhibit (shirt, dupatta, bra & pubic hairs of victim (name .
of victim not typed).
2) Human blood was detected in salwar and cloth piece but the amount of blood was insufficient for blood group. Human Semen was detected in exhibits.
3) Blood was detected in traces in vaginal slides & semen was also detected in v. slides.
4) Human blood was detected in exhibit vaginal swab, & semen was detected in exhibit.
5) Human blood of group 'A' was detected in shirt, vest & cloth piece of Sonu & blanket semen was not detected.
6) Human blood of group 'A' was detected in pants, underwear & pubic hairs & cloth piece of Sonu & Human Semen was detected in the exhibit.
7) Human blood of group 'A' was detected in exhibit (blood sample/Sonu).
8) Blood was detected in traces in cloth piece & cloth pieces. Semen was not detected.
9) Human blood was detected in cloth piece and khind/mattress covers. Semen was not detected.
Hence according to RFSL Report analysis & clinical analysis my opinion is there is nothing suggestive that sexual intercourse has not taken place"
::: Downloaded on - 28/11/2022 20:33:06 :::CIS 1017. PW-13 Dr. Richa Gupta further deposed that she had taken the sample of vaginal swabs, vaginal fluid, pubic hairs and clothes of the victim and had handed over the .
same to the police. On perusal of the report of the Forensic Science Laboratory, she had given her final opinion that there was nothing to suggest that sexual intercourse had not taken place. She proved her opinion Ex.PW-13/B.
18. During the pendency of the appeal, an application had been moved by the prosecution under Section 311 of Code of Criminal Procedure, 1973, for re-examination of PW-13 Dr. Richa Gupta. The said application was allowed. When PW-13 Dr. Richa Gupta was re-examined on 30.03.2021, she deposed that the appellant had been produced before her by the police on 26.07.2014 for drawing his blood sample for DNA Profile analyses. She had taken the blood sample of the appellant and proved the Form Ex.PW-11/N.
19. A perusal of Ex.PW-11/N reveals that on 26.07.2014, blood sample of the appellant was taken for DNA profiling/DNA cross matching. The said Identification Form bears the photograph and thumb impression of the appellant. It also bears the signatures of the appellant.::: Downloaded on - 28/11/2022 20:33:06 :::CIS 11
20. Although, PW-13 Dr. Richa Gupta, in her cross-
examination, has deposed that she had taken finger prints .
and thumb impression of the accused on the Identification Form, but in her examination-in-chief, she has deposed that she had taken signatures and thumb impression of the appellant on the Form.
21. A perusal of the Identification Form reveals that the same is duly signed and thumb marked by the appellant and it does not bear the finger prints of the appellant. The fact that the Form Ex.PW-11/N does not bear the finger prints of the appellant, does not mean that the blood sample of the appellant was not taken by PW-13 Dr. Richa Gupta.
The Form Ex.PW-11/N bears the photograph of the appellant and is duly signed by him and has also been thumb marked by him. There is nothing on record to show that the Form Ex.PW-11/N does not bear the signatures or thumb impression of the appellant. Hence, the discrepancy pointed out by the appellant in the cross-examination of PW-
13 Dr. Richa Gupta, when examined on 30.03.2021, cannot be said to be fatal to the prosecution case.
::: Downloaded on - 28/11/2022 20:33:06 :::CIS 1222. Report of Forensic Science Laboratory is Ex.PX and the same reads as under:-
"OBSERVATIONS:
.
1. Exhibit-1 (blood sample on FTA card, victim (name of victim not typed) and Exhibit-2 (blood sample on FTA card, Sonu Kumar) showed amplification of all the fifteen autosomal STR loci and amelogenin with AmpF/STR Identifiler Plus ® PCR Amplification Kit.
2. Exhibit-3b (salwar, victim (name of victim not typed), Exhibit-5a (vaginal swab, victim (name of victim not typed) and Exhibit-9b (cloth piece) yielded slightly degraded DNA, however it was possible to amplify all the fifteen autosomal STR loci and amelogenin with AmpF/STR Identifiler Plus ® PCR Amplification Kit.
3. Identical DNA profile was obtained from Exhibit-3b (salwar, victim (name of victim not typed)), Exhibit-5a (vaginal swab, victim (name of victim not typed) and Exhibit-9b (cloth piece); and this profile matches completely with the DNA profile obtained from Exhibit-2 (blood sample on FTA card, Sonu Kumar)."
23. Thus, as per the report of the Forensic Science Laboratory, the vaginal swab of the victim showed identical DNA Profile obtained from the blood sample of the appellant.
::: Downloaded on - 28/11/2022 20:33:06 :::CIS 1324. A perusal of the medical evidence shows that there were teeth bite marks on the left cheek of the victim and there was a red patch on the left side of the neck. There .
were signs of fresh skin sucking. The hymen was freshly torn and there were fresh drops of blood coming out of introitus.
25. Thus, in the present case, although, the material witnesses have not supported the prosecution story, but the report of the Forensic Science Laboratory shows that the offence in question had been committed by the appellant.
26. In the present case, the victim was aged about 13 years at the time of incident. It is unfortunate that she has been sexually assaulted by none other than a close relative.
Appellant is the husband of the sister of the father of the victim. Apparently, due to family pressure and close relationship between the parties, the material witnesses have not supported the prosecution case during trial, but the medical evidence and the report of the Forensic Science Laboratory establishes the commission of offence by the appellant.
27. Keeping in view the facts and circumstances of the case, the learned trial Court had, thus, rightly ordered the conviction and sentence of the appellant with regard to the ::: Downloaded on - 28/11/2022 20:33:06 :::CIS 14 charges framed against him. No ground for interference is made out.
28. Dismissed.
.
29. Pending miscellaneous application(s), if any, shall also stand disposed of.
( Sabina )
r Judge
( Sushil Kukreja )
November 28, 2022 Judge
(Yashwant)
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