Himachal Pradesh High Court
Guddu Ram vs State Of H.P on 4 November, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 65 of 2018.
Reserved on: 28th October, 2020.
.
Date of Decision: 4th November, 2020.
Guddu Ram .....Appellant.
Versus
State of H.P. ....Respondent.
Coram
r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Chander Bhusan Barowalia, Judge. Whether approved for reporting? Yes.
For the Appellant: Mr. Rajneesh K. Lal, Advocate.
For the Respondent: Mr. Narender Guleria, and, Mr.
Ashwani Sharma, Additional
Advocates General.
_______________________________________________________ Sureshwar Thakur, Judge.
The accused/appellant herein, became charged for, the, commission of offences punishable, under, Section 376(2)(f), and, under Section 506 of the IPC, and, also became charged, for, commission of an offence punishable, under, Section 4 of the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO" Act).
The learned trial Court concerned, made an order, of, conviction, vis-a-vis, the afore charges framed, under, ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 2 Section 376(2)(f) of the IPC, and, under Section 4 of the POCSO Act, and, hence, sentenced the convict, to, undergo rigorous imprisonment for a period of 14 years .
years, and, to pay a fine of Rs.5,000/-, for commission, of, an offence punishable under Section 376(2)(f) of the IPC, and, in default of payment of fine amount, he was sentenced to further undergo simple imprisonment for a term of one year. He was further sentenced by the learned trial Court, to, undergo rigorous imprisonment, for a period of 14 years, and, to pay a fine of Rs.5,000/-, for commission, of, an offence punishable, under, Section 4 of the POCSO Act, and, in default of payment of fine amount, he was sentenced, to, undergo simple imprisonment for one year. Both the sentences are ordered to run concurrently. However, the learned trial Court makes an order of acquittal, vis-a-vis, the charge framed, under, Section 506, of, the IPC.
2. The convict/accused/appellant herein, becomes aggrieved therefrom, hence, through, casting the extant appeal before this Court, has strived to beget reversal(s) of the afore made conviction, and, the afore consequent therewith sentence(s) hence imposed, upon him, under the afore verdict.
::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 33. The genesis of the prosecution story, becomes, embodied in the apposite FIR, FIR whereof becomes borne in Ex.PW8/A, (i) thereins, the minor prosecutrix narrates, .
vis-a-vis, accused Guddu Ram, being her uncle, and, on, 14.01.2014, after, and, on, hers returning home, subsequent to hers taking examination, for 8 th standard,
(ii) thereat, since, she, and, the accused were alone, the latter perpetrating forcible sexual intercourse, upon, her person, (iii) and, also his intimidating her, with dire consequences, of his eliminating her, upon, hers making an intimation, of, the incident to anybody. Subsequent thereto, also, she narrates therein qua as and when, the accused finding her alone at home, his subjecting her to forcible sexual intercourse(s). The investigating Officer concerned, for ensuring the emergence, of, the best scientific evidence, for, proving the charge, against the accused, (iv) he, on FTA cards, hence collected, through, memo drawn, and, borne in Ex.PW11/E, the blood samples of, the prosecutrix, besides collected, the blood samples, on FTA card, hence also of the accused through memo borne in Ex.PW11/H, and, also collected, the, blood samples, on FTA card, through memo, embodied, in, Ex.
13/B, of, the minor, baby, of, the prosecutrix. All the afore ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 4 collections, of, blood samples, on, FTA cards, of all the afore, become through, road certificate, borne in Ex.PW5/B, transmitted hence to the FSL concerned.
.
Thereons, the DNA expert, after making the apposite inter se DNA profilings, made, an opinion, vis-a-vis, the minor baby, being born from the womb, of, the minor prosecutrix, and, hers being fathered, by the accused.
4. The afore inter se matching(s) of the afore collected blood samples, on FTA cards, respectively, of, the minor prosecutrix, of her minor baby, and, also of the accused, unflinchingly proves the charges against the accused. The afore made apposite inter se matching(s), becomes borne, in the report of the FSL, embodied in Ex.
PX.
5. Even though, in the visible, and, evident face of the prosecutrix, being a minor, and, hence, hers becoming fully incapacitated, to, under law, mete any valid consent to the accused, for his subjecting her, to repeated sexual inter course, (a) and, whereupons, the learned defence counsel's espousal, vis-a-vis, the sexual encounters, which occurred inter se the accused, and, the prosecutrix, being wholly consensual, would obviously, become rendered, an extremely emaciated espousal. Nonetheless, for enabling ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 5 the learned counsel appearing for the appellant, to make, espousals, upon evidence, if any, existing on record, and, its portraying, vis-a-vis, the sexual intercourses, which .
occurred inter se the accused, and, the prosecutrix, being consensual, he has obviusly proceeded to scuttle the effects, of, the minority of the prosecutrix, rather at the relevant time, and, as become pronounced, in, a certificate, embodied in Ex.PW2/B.
6. Consequently, a solemn obligation is cast, upon, this Court, to, test the veracity, of, the afore submission. A perusal of Ex. PW 2/B, underscores, vis-a-
vis, it being authored by the Principal, Govt. Senior Secondary School, Khunni, District Shimla, H.P., and, it also contains a narration, vis-a-vis, the date, of, admission of the child, in the afore school, and, besides thereto it also contains echoing(s), vis-a-vis, the date of birth, of, the prosecutrix, as, entered in the school records, being 25.11.1999. PW-2 stepped into the witness box, and, proved the authorship of Ex.PW2/B, and, despite an opportunity, being given to the learned defence counsel, for the accused, to tear apart the efficacy, of, Ex.PW2/B, rather he omitted to mete any suggestion to him, (I) intended towards casting aspersion(s), upon, the ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 6 authorship, of, Ex.PW2/B, (ii) and, also, vis-a-vis, the appsoite recitals borne therein, being unauthentic. The trite effect thereof, is, vis-a-vis, the defence acquiescing, .
vis-a-vis, the valid authorship of Ex.PW2/B, and, also vis-a-
vis, the veracity(ies), of, the echoings borne therein, and, appertaining, vis-a-vis, the date of birth of the prosecutrix.
7. Be that as it may, despite, the afore omission(s), becoming made by the learned defence counsel, (i) yet the learned counsel for the appellant, makes an allusion, to the deposition, occurring in the cross-examination, of, the mother of the prosecutrix, who stepped, into the witness box as PW-10, (ii) and, made echoings therein, vis-a-vis, the prosecutrix, failing twice, and, thrice, thereupon, he strives to erect a submission, that the entry of date, of, birth, of, the prosecutrix, as, borne in the school records, being false. However, the afore made argument cannot succeed, with this Court, as apart from Ex.PW2/B, the prosecution, hence, for, unflinchingly proving the date of birth, of, the prosecutrix, has made dependence, upon, her birth certificate, borne in Ex.PW3/C, (iii) wherein, there occur narration(s), hence, carrying inter se compatibility, inter se the reflections, made therein, and, vis-a-vis, those found, in, Ex.PW2/B, ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 7
(iv) and, emphatically, appertaining, to, the date of birth, of, the prosecutrix. Consequently, with there occurring inter se corroboration, in, both the afore alluded exhibits, .
(v) thereupon, with the best evidence, for determining, the date of birth of the prosecutrix, being the one, as become(s) embodied, in, the apposite birth certificate, rather issued by the competent authority, and, with Ex.PW3/C, falling within domains thereof, hence, a firm conclusion erupts, vis-a-vis, the prosecution fully establishing, the minority of the prosecutrix, at the relevant time, (v) thereupon, arguments, if any, as, strived to be made, by the learned counsel, appearing for the appellant, that the repeated sexual intercourses, wheretowhich, the accused subjected the prosecutrix, being wholly consensual, rather becoming thoroughly rudderless.
8. Ex.PW3/C, becomes proven by PW-3, the Secretary, of, the Gram Panchayat concerned. Even during, the course, of his being subjected to cross-
examination, by the learned defence counsel, there is no suggestion meted to him, and, appertaining to the afore entries being made, not at the instance, of, the father-
cum-natural guardian nor at the instance, of, the mother, ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 8 of, the prosecutrix, (i) and, rather theirs being made by a person, who obviously did not hold the best knowledge, vis-a-vis, the date of birth of the prosecutrix, nor also any .
suggestion became meted to PW-3, and, appertaining, to, the falsity, of, authorship of Ex.PW3/C, (ii) nor subsequent to stepping into the witness box of PW-3, any application became, cast under Section 311 of the Cr.P.C., by the defence, before the learned trial Court, for, seeking the latter's permission, to ensure production of, all contemporaneous records, appertaining to makings, of, Ex.PW3/C, (ii) and, theirs suggesting, vis-a-vis, in contemporaneity, vis-a-vis, the making of Ex.PW3/C, neither the father-cum-natural guardian of the prosecutrix, and, nor her mother, though, holding the best knowledge, vis-a-vis, the date of birth of the prosecutrix, making any firm intimation qua therewith, through a scribed application made therebefore, nor hence obviously any application made before the Secretary, Panchayat concerned, became strived to be adduced, (iii) nor any affidavit, vis-a-vis, the date of birth of the prosecutrix, and, as, accompanying the afore scribed application, as, made by the father or the mother before the Secretary, Panchayat concerned, become assayed, hence, came to be ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 9 adduced, (iv) besides, the hospital records, contemporaneous to the making of Ex.PW3/C, if the prosecutrix was born, in, a hospital, remained unadduced, .
for theirs displaying, the reflections qua her date of birth, as occur in Ex.PW3/C, bearing harmony or disharmony, therewith. All the afore recoursings, obviously constituted vigorous potent rebuttal evidence, for belying the afore reflections, and, only upon theirs being adduced, they would constitute the firmest rebuttal evidence, for, displacing the vigour, of, Ex.PW3/C. However, they remained unrecoursed. Cumulatively, the, effects, of, the afore visible waivers, and, abandonments, by the learned defence counsel, before the learned trial Court, for therethroughs, his assaying to rip apart, the efficacy, of, Ex.PW3/C, does obviously, (v) boost a conclusion, qua the defence acquiescing, vis-a-vis, the reflections, made in Ex.PW2/B, and, in Ex.PW3/C, and, appertaining to the date of birth of the prosecutrix, being obviously incorporated, in tandem with the scribings, as made, by her parents, before, the Panchayat concerned, and, , for wants, of, efficacious erosions thereof(s), through, adduction(s), of, the afore best rebuttal evidence, thereupon(s) the ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 10 reflections carried in Ex.PW3/C, enjoy an, aura of conclusive truthfulness.
9. Even though, the mother of the prosecutrix, has .
deposed, vis-a-vis, the prosecutrix failing twice and thrice.
However, solitarily therefrom, eminently, in the absence of the afore valid recorusing(s) being made, by the learned defence counsel, before the learned trial court, for, therethrough, strivings being made to benumb the validity, and, efficacy, of, the entries, of, date of birth of the prosecutrix, as, become borne in Ex.PW3/C, rather any placing(s), of, reliance(s) thereon, would be extremely frail, inasmuch, as, (i) and more so, even if, it hold(s) truthfulness, and, veracity, yet the afore bald suggestion, would not facilitate the making, of, any inference leaning towards the accused, especially when the apposite records, as, available with the school concerned, and, theirs maybe making bespeakings, in consonance with the afore, rather remaining unadduced in evidence, (ii) and, also with the prosecutrix as also her father, in their respective cross-examinations, denying the afore factum.
10. The source of the birth certificate, is, a valid source, inasmuch, as, it emanates from the Government records, (i) and, only upon, the authorship of the birth ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 11 certificate, becoming proven by adduction, of, best evidence, qua therewith, rather to be false, (ii) or, upon, contemporaneous records accompanying an application, if .
any, made before the Secretary, Gram Panchayat concerned, for, an entry of the date of birth, of, prosecutrix being incorporated, in, the panchayat records, and, upon each becoming adduced into evidence, rather theirs completely, belying the entries, vis-a-vis, the date of birth of the prosecutrix, as, embodied in ex.PW3/C, thereupon, alone, a completest aura of doubt,w ould, engulf the afore factum. The Secretary, Panchayat, is, an authorised government official, to make entries in the Panchayat records, appertaining to recordings, of, date of birth(s), and, of, death(s), of, denizens, as, occur in the Mohal, or/and, Village concerned, and, in making the afore entries, he perform(s) public duties. The making of the afore entries, in the discharge, and, performance, of public duties, by a pubic official, does immediately, on incorporation(s), of, the apposite date of birth, in the records concerned, by the competent officer, be it, in the Panchayat records, and/or, in Municipal records, does attract thereto, hence, the mandate, as, becomes borne, in ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 12 Section 35, of, the Indian Evidence Act, provision(s) whereof, stand extracted hereinafter:-
"35. Relevancy of entry in public 1[record or an electronic record] made in performance .
of duty.--An entry in any public or other official book, register or 1[record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or 1[record or an electronic record] is kept, is itself a relevant fact."
and though the afore presumption, is, rebuttable, (ii) reiteratedly, and, re-emphasisingly, hence, obviously adduction of, cogent rebuttal evidence, to rip the efficacy, of, the afore presumption, rather became, a, dire statutory necessity. As aforestated, neither in the cross-
examination, either of PW-2 or of PW-3, any of the afore suggestion(s), for, therethrough the defence attempting, to, repel, the afore presumption, of, truth, carried by Ex.PW3/C, became meted to each of them, (iii) nor as aforestated any endeavour was made by the defence, even on completion, of, the making(s), of, the deposition of PW-3, hence, before the learned trial Court, to, through availment, of, the provisions, of Section 311 of the Cr.P.C., ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 13 seek permission(s)/leave qua therewiths, becoming granted by the learned trial Court, or to, ensure adduction of best cogent evidence, for, falsifying, the, signatures, of, .
the author of Ex.PW3/C, (iv) and, reiteratedly for belying, the factum, of, an affidavit becoming appended with the apposite application, being, preferred, by the mother or father of the prosecutrix, before the Secretary, Panchayat, hence for, incorporating the afore entries, (v) and/or, ensuring therethrough(s), the adduction, of, the apposite application, if any, as, made for the afore purpose, before the Secretary Panchayat, by the mother or by the father of the minor prosecutrix, and, it becoming accompanied, by the apposite hospital records, if the minor was born thereat, (vi) or for ensuring the adduction, of, the apposite application, as, made before the Secretary concerned, and, its hence making or not making corroboration(s) with the afore, entries. Reiteratedly, in the absence, of, adduction, of, all the afore cogent rebuttal evidence, rather before the learned trial court, through availment(s), of, either of the afore mechanism(s), does constrain, a conclusion from this court, (vii) that the rebuttable presumption of truth, enjoyed by Ex.PW3/C, and, engendering from, its becoming prepared, in the discharge of public duties, by a ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 14 public servant, (viii) hence obviously for want, of, adduction, of, cogent rebuttal evidence thereto, rather assuming conclusive truthfulness, and, thereupons, .
completest sanctity, becoming, enjoined to be meted thereto. The preponderant reason, for, unflinchingly making the afore reason, becomes aroused, from the factum, of, the father of the prosecutrix, in his deposition, comprised in his cross-examination, making an admission, vis-a-vis, his entering the date of birth, of, the minor prosecutrix, in, the Panchayat record(s)..
11. However, at this stage, the learned counsel appearing for the appellant, for tearing apart, the efficacy of the apposite date of birth, as becomes reflected, in Ex.PW2/B, and, in Ex.PW3/C, places reliances, upon, various verdicts rendered, by the Hon'ble Apex Court, and, by other various High Courts and, by this Court, in cases titled, as, Ravinder Singh Gorkhi vs. State of U.P., reported in (2006)5, SCC 584, in a case titled as Ramesh Sharma, vs. State of H.P., reported 2013 (3) SCC 1386, in case case titled, as, Ramesh Soni vs. State of H.P., reported in 2014(2), Him. L. R. 1283, and, G. Parshwanath v. State of Karnataka, AIR 2010, SC, 2914. However, none of the verdicts (supra) are applicable to the facts of the case in ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 15 hand, (i) inasmuch as, all the verdicts (supra), appertain to the entries of date of birth, of, the prosecutrix, being embodied in apposite school leaving certificate(s), (ii) and, .
when the latter, does not, comprise the best evidence qua date of birth of the prosecutrix, rather the best cogent evidence, vis-a-vis, the date of birth, is, the one carried, in, the birth certificate issued, by the competent authority,
(iii) thereupon, all the verdicts (supra) are inapplicable, and, discardable, and, do not carry forwards, the endeavour of the learned counsel appearing, for, the appellant, to falsify the entries, appertaining to the date of birth of the prosecutrix, and, as, become embodied in Ex.PW3/C, exhibit whereof, is, a validly scribed birth certificate, of, the prosecutrix. Even otherwise, all the afore verdicts, would become squarely attracted, vis-a-vis, espousal(s) of the learned counsel, appearing for the appellant, only, upon, firmest evidence, in consonance therewith, existing either in the cross-examination of PW-3, who proved, and, tendered Ex.PW3/C, and, also upon suggestion(s) being meted, to the father of the prosecutrix, who rather admits in his cross-examination, vis-a-vis, his recording the date of the prosecutrix, in the records, of, the Panchayat concerned, for, therefrom(s), ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 16 ensuring qua his making rather echoings, vis-a-vis, his making the afore entry, vaguely, and, surmisely, (iv) besides upon the defence, through adducing, all the .
record(s) contemporaneous, to, the recording of the date of birth, of, the prosecutrix, in, the panchyat records, theirs evincing proof, in negation, of, echoings, carried in Ex.PW3/C, and, in support, of, echoings occurring, in, the cross-examination of the mother of the prosecutrix, vis-a-
vis, the prosecutrix failing twice and thrice. However, most emphasisingly, none of the afore endeavours became recoursed by the defence, thereupon, this Court concludes, vis-a-vis, Ex. PW3/C, carrying truthful narrations, vis-a-vis, the date of birth of the prosecutrix.
The corollary thereof, is, vis-a-vis, the endeavour of the learned counsel, for the appellant, to rely upon the echoings, if any, borne in the testification, of, the prosecutrix, and, theirs being suggestive, vis-a-vis, penal sexual acts, being wholly consensual, being a completely mis-recoursed, and, also a futile endeavour.
12. In summa, this court concludes, that, the best evidence, for, proving the date of birth of the prosecutrix, becoming comprised (i) in the birth certificate, as, issued by the Secretary, Gram Panchayat concerned, (ii) or by the ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 17 Municipal Authorities concerned, and, both the afore become, the valid custodian(s), of, the records appertaining, to the date of birth of the prosecutrix, (iii) .
and, upon, the, officials working thereat or authors thereof, upon, theirs stepping into the witness box, theirs hence proving the birth certificate, (iv) thereupon, the learned trial Courts, being enjoined to emboss thereon(s) exhibition marks, and, also becoming enjoined, to place implicit reliance thereon, for, determining, therefrom hence the date of birth of the prosecutrix. The entries, of, the date of birth, of, the prosecutrix, as, made by the Secretary of the Panchayat concerned, or by the Municipal authorities concerned, being construable, to be, made in the discharge, of, their apposite official functions, hence, as, mandated, in Section 35 of the Indian Evidence Act, a presumption of truth is attached, to the making, of, the afore entries, however, the afore presumption of truth, is, a rebuttable presumption, and, unless, the afore presumption is rebutted through (a) proven falsity of the signatures of the author of the entries; (b) the entry, of, date of birth therein being surmisal, inasmuch, as, no valid scribings qua therewith being purveyed by the natural guardian or by the father of the prosecutrix, to the ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 18 official concerned; (c) hospital records, if any, required for making the afore entries, remaining untendered, before the authority(ies) concerned, however, only if, the .
prosecutrix, has taken birth in a hospital, otherwise not, thereupon, the afore acquiring absolutest conclusivity. In case, the birth certificate, is sourced, from the afore valid sources, and,l if the afore rebuttable evidence is not adduced, thereupon, the courts becoming coaxed, to believe, the veracity of the disclosures as made, therein, vis-a-vis, the apposite date of birth. In the absence of the afore evidence, the school leaving certificate, as, issued by the school concerned, being a valid source, for proving the date of birth of the prosecutrix, if accompanied by an application, of the mother of the prosecutrix or of the father of the prosecutrix, as also, if accompanied, by an affidavit, reflecting therein the date of birth, of, the prosecutrix. In the absence of both the afore evidence(s), the courts, may rely, upon, radiological age determination(s) or upon ossification age determination(s), of the prosecutrix.
13. 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 ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP 19 wholesome and harmonious manner, and, the analysis thereof, by the learned trial Court, hence does not suffer, from, any perversity or absurdity of mis-appreciation and .
non-appreciation, of evidence, on record.
14. Consequently, there is no merit in the extant appeal, and, it is dismissed accordingly. The impugned judgment is maintained, and, affirmed. All pending applications also stand disposed of. The records be sent down forthwith.
(Sureshwar Thakur) Judge (Chander Bhusan Barowalia) Judge.
4th November, 2020.
(jai) ::: Downloaded on - 05/11/2020 20:18:34 :::HCHP