Himachal Pradesh High Court
Ajay Kumar Alias Punjabi vs State Of Himachal Pradesh on 13 June, 2019
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 121 of 2018
Reserved on: 10.06.2019
Decided on: 13.06.2019
Ajay Kumar alias Punjabi ...Appellant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. Virender Singh Rathore, Advocate.
For the respondent: Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocate Generals, with Mr. Bhupinder Thakur and Ms. Svaneel Jaswal, Deputy Advocate Generals.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellantaccusedconvictAjay Kumar alias Punjabi 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 2(hereinafter referred to as 'the accused') against judgment dated 30th November, 2017, passed by learned Special Judge, .
Kangra at Dharamshala, H.P. in Sessions Trial No. 25 P/VII/2016, whereby the accused has been convicted for commission of offence punishable under Section 6 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'), and sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of ₹ one lac and in default of payment of the fine, to further undergo simple imprisonment for a period of one year.
2. The brief facts giving rise to the present appeal are as under:
An information was received in Police Station Palampur on 24th March, 2016 that a girl had been brought to C.H. Palampur in a sexual exploitation case. On receiving such information, Rapat No. 15 (Ex. PW15/A) was entered in rapat roznamcha, whereupon ASI Pushap Raj (PW17) alongwith other police officials proceeded to the hospital and recorded the statement (Ex. PW1/A) of mother of the prosecutrix (PW1) under Section 154 of the Code of Criminal ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 3 Procedure (hereinafter referred to as 'CrPC'). The said statement was sent to the Police Station, on the basis of which .
FIR (Ex. PW15/B) was registered. The prosecutrix was got medically examined by the police. Thereafter, statements of the mother of the prosecutrix (Ex. PW1/B) and that of the prosecutrix (Ex. PW2/A) were recorded before the concerned Magistrate under Section 164 CrPC. The statement (Ex. PW 5/B) of one Isha Charan under Section 164 CrPC was also procured by the police. One sealed parcel, three sealed plastic containers and one sealed glass bottle containing the sample of prosecutrix alongwith sample seals were deposited by ASI Pushp Raj in the Malkhana vide entry at serial No. 38/16 (Ex.
PW16/A). On the same day, HHC Prem Chand also deposited two parcels, three sealed containers and one sealed glass bottle containing the samples of the accused alongwith sample seal in the Malkhana and entries in this regard were made in the Malkhana register at serial No. 39/16 (Ex. PW16/B). On the next day, i.e. 25th March, 2016, Forensic Team from RFSL, Dharamshala visited the spot, lifted the blood samples, packed the said samples in eight pieces of paper and the same were ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 4 taken into possession vide memo (Ex. PW5/A). Pajjami, underwear and slippers of the prosecutrix were also taken into .
possession vide memo (Ex. PW5/A) after sealing the same with seal, specimen whereof had been taken on a separate piece of cloth vide memo (Ex. PW19/A). On the same day, two sealed parcels alongwith seal were deposited in the Malkhana by Inspector Gurbachan Singh, entries whereof had been made in the Malkhana register at serial No. 40/16 (Ex. PW16/C).
HHC Jaimal Singh deposited one FTA card sealed in a sealed parcel alongwith seal impression in the Malkhana vide entry at serial No. 42/16 and Lady Constable Reema Devi also deposited one sealed parcel containing blood samples of the prosecutrix for DNA sampling alongwith sample seal in the Malkhana vide entry at serial No. 43/16 (Ex. PW16/D). On 28th March, 2016, thirteen parcels alongwith sample seals were deposited in RFSL, Dharamshala through HHG Neeraj vide RC No. 71/16. On 27th April, 2016, HHC Suresh Kumar deposited 15 parcels alongwith sample seals in SFSL Junga, which were handed over to him vide RC No. 85/16. The birth certificate (Ex. PW4/A) of the prosecutrix was procured by the ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 5 police, wherein the date of birth of the prosecutrix was recorded as 3rd August, 2010. The Investigating Officer visited .
the spot and on the basis of the demarcation of the place by witnessesIsha Charan and Ram Baksh, prepared the spot map (Ex. PW19/1). The photographs (Ex. PW19/B1 to PW 19/B10) of the spot were also got clicked by the Investigating Officer. During the course of investigation, the accused was got medically examined. After receipt of reports (Ex. PA and Ex. PB) from RFSL, Dharamshala, final opinion (Ex. PW19/F) of the Doctor, on the basis of the reports and treatment summary, was procured. The statements of the witnesses were recorded and after completion of the investigation, challan was presented in the Court.
3. The accused was charged under Section 5(m), punishable under Section 6 of the POCSO Act by the learned trial Court, to which he pleaded not guilty and was put to trial.
The prosecution, in order to prove its case, examined as many as nineteen witnesses. Statement of the accused was recorded under Section 313 CrPC, wherein he has denied the case of the ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 6 prosecution and pleaded innocence. However, the accused did not lead any evidence in his defence.
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4. Learned trial Court, vide impugned judgment dated 30th November, 2017, convicted the accused for the offence under Section 6 of the POCSO Act and sentenced him to undergo rigours imprisonment for ten years and pay a fine of ₹ one lac and in default of payment of the fine, to further undergo simple imprisonment for a period of one year. Hence, the present appeal.
5. Learned counsel for the appellant has vehemently argued that the prosecution has failed to connect the accused with the commission of an offence as his identity was not proved. He has relied upon the statement of the mother of the prosecutrix before the Doctor, wherein she had stated that some unknown person had committed the crime. He has argued that, in these circumstances, when the identity of the accused was not certain, the accused be acquitted.
6. On the other hand, learned Additional Advocate General has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt and the ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 7 identity of the accused was duly proved by the mother of the prosecutrix as he had run away after pushing the mother of .
the prosecutrix after committing the crime and in these circumstances, the prosecution has been able to bring home the guilt of the accused, so the appeal be dismissed.
7. In rebuttal, learned counsel for the appellant has argued that the judgment of the learned trial Court is based upon surmises and conjectures and the same is not sustainable in the eyes of law. He has further argued that the present is a fit case where the accused is required to be acquitted.
8. In order to appreciate the rival contentions of the parties, we have gone through the record carefully.
9. The prosecution, in order to prove its case, has examined nineteen witnesses. It would be appropriate to discuss the medical evidence at the first instance.
10. PW7, Dr. Karan Singh, deposed that on 24 th March, 2016, on the application (Ex. PW7/A) moved for medical examination of the accused, he examined the accused and issued MLC (Ex. PW7/B) opining that there was nothing ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 8 to suggest that the person was incapable of performing sexual intercourse.
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11. PW8, Dr. Raj Kumar, deposed that on 24 th March, 2016, at about 10.30 p.m., he examined the prosecutrix and observed that she was conscious, oriented; her pulse rate was 90 and on abdominal examination, tenderness and guarding was present. Urinal bladder was palpable. He further observed as under:
"On local examination: Bruising over the perineal region and abrasions over labia majora and minora were present. There was no fresh bleeding. Dribbling of urine was present. On passing urinary catheter clear urine was drained. C/T abdomen: revealed pneumoperitoneum with mild to moderate free fluid. The patient was taken up for examination under anaesthasia and exploratory laparotmy.
On examination under anaesthasia, it was observed that vulval abrasions were present.
Vulval edema was present. There was slight external bleeding. There was parautherethal laceration approximately 1.5 to 2 cms on both sides of urethra. There was 4th degree perineal tear. This tear was extending for 45 cms involving anal sphincter and rectal mucosa. Laterally on vaginal wall, there was tear extending up to 2 cm upward. On left side vaginal wall there was 45 cms tear extending upwards towards fornix.::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 9
On Loparotany : There was 1520 ml of blood in peritoneal cavity. There was a rent 2 x 2 cms on left wall of pouch of douglas. Solid organs small gut, large gut were normal.
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Rectal mucosa and anal sphincter repaired. Vaginal mucosa repaired. Posterior urethral tear repaired. Rent in the pouch of douglas repair and diverting transverse loop colostomy done. Abdomen was closed and a pack kept in vagina for 24 hours.
On second post operative day, patient was again taken to operation theater for examination and repair of the perineal tear. Post operative was uneventful and the child was discharged on 4.4.2016 in stable condition and was advised to come for colostomy closer after 6 weeks. The prosecutrix was also observed two weekly interval. The discharge card was prepared under my supervision and copy of which is Ex. PW8/A. It is correct to suggest that the injuries observed in the person of prosecutrix could might be caused by blunt penetrative force including of human organ i.e. penis."
12. PW18, Dr. Shalini Gautam, stated that on application (Ex. PW17/A) moved by the police for medical examination of the victim (prosecutrix), she medically examined the prosecutrix. After her medical examination, the said witness observed as under:
"Date and time when the rape as said to have been committed: 24/3/2016 at around 2:00 p.m. ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 10 Since alleged assault has the victim (1) douched - No. Bathed - No. Defaecate - No. Urinated - Once.
.
On Physical examination:
Child is thin built oriented to time, place and person. B.P. 90/60. Pulse 84 per minute.
Temperature - Normal. Weight around 12 KG.
Clothes were soiled with blood, child face, hands buttocks, thighs and legs were soiled with blood.
She was mentally sound but in pain.
Injuries:
Bluish red bruise seen behind left ear 4 x 3 cms, on both frontal eminences.
Circular bruise reddish blue in colour 4 x 4 cms in size seen on left thigh.
Petechial haemorrhages seen on both the cheeks. Mouth and teeth were normal.
Local examination:
Pubic hair not developed. Vulva was swollen, tenderness +++.
Hymen was torn with tenderness +++.
Vagina not visualized as child was not allowing examination, Bleeding per vagina was seen coming out through the vagina.
Tears were seen on the labia bilaterally extending down.::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 11
Fourchette was torn, tear extending up to anus, bleeding plus.
Smears were made and swab taken from .
vagina.
Finger nails were trimmed finally, wearing nail paint. Clipping still taken.
The patient was referred to Tanda for management by the Gynaecologist."
13. This witness further deposed that during the medical examination, the following articles were preserved and handed over to the police : 1) pink and white frock and gray sweater; two swabs of vaginal secretions; four slides from vaginal material; finger nails scrapings and 5 ml. blood of the prosecutrix. This witness had issued MLC (Ex. PW18/A) on 24th March, 2016 and deferred her opinion till the receipt of chemical examination report as well as the opinion of gynaecologist. As per the version of this witness, on 18 th May, 2016, the relevant record pertaining to the treatment etc. of the prosecutrix was produced before her by the police, on the basis of which she observed as under:
"On the basis of discharge summary (Ex. PW 8/A), diagnosis was vaginal perineal tear with complete perineal tear with ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 12 hemopneumo peritoneum secondary to sexual assault. I had also gone through the RFSL Report (Ex. PA) 432 (B) RFSL BIO (68)/2016 dated 28.3.2016. 1) Human blood group O .
(blood sample of prosecutrix) was detected in vaginal swabs, frock, pajjami, underwear, chappals. Semen was not detected.
2) Human blood was detected in vaginal smear slides but results were inconclusive with respect to blood groups. Semen was not detected.
3) Blood was detected in traces from nail clippings but amount of blood was insufficient for serological examination and semen was not detected.
Final opinion: Injuries are suggestive of sexual assault. In my opinion suck kind of injuries reported in MLC (Ex. PW18/A) are only possible by penetrative force of human penis."
14. The sealed parcels, such as clothes of the accused, prosecutrix as also the blood samples lifted from the spot, alongwith the sealed parcels deposited by the police were examined by RFSL, Dharamshala. It would be apt to reproduce the results of the forensic analysis conducted in RFSL, Dharamshala (Ex. PA) hereunder:
"1. Human blood of group 'O' was detected in exhibit1c (pants, accused), exhibit2 (underwear, accused), exhibit7 (vaginal ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 13 swabs, prosecutrix), exhibit11a (vest/inner, prosecutrix), exhibit11b (frock, prosecutrix), exhibit12a (pyjami, prosecutrix), exhibit12b (underwear, prosecutrix) exhibit 12c .
(chappals/sandals, prosecutrix), exhibit13a (blood lifted from the adjacent corridor out side the toilet), exhibit13b (blood lifted from the floor of the toilet), exhibit13c (blood lifted from inside wall above the toilet seat), exhibit 13d (blood lifted from the toilet seat), exhibit 13e (blood lifted from outside the toilet door), exhibit13f (blood lifted below the stairs out side the toilet), exhibit13g (blood lifted from inside wall near the toilet door) and exhibit 13h (blood lifted from courtyard near the stairs). Semen was not detected in the exhibits.
2. Human blood was detected in exhibit1a (Tshirt, accused), exhibit1b (track suit upper, accused), exhibit1d (sock, accused) and exhibit8 (vaginal smear slides, prosecutrix), but the results were inconclusive in respect of blood groups. Semen was not detected in the exhibits.
3. Blood was detected in traces in exhibit3 (pubic hair, accused), exhibit4 (coronal sulcus and smegma swab, accused), exhibit5 (smegma slide, accused) and exhibit9 (nail clippings, prosecutrix), but the amount of blood was insufficient for serological examinations. Semen was not detected in the exhibits.
4. Human blood of group 'B' was detected in exhibit6 (blood sample, accused).
5. Human blood of group 'O' was detected in exhibit10 (blood sample, prosecutrix)."::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 14
15. Now, adverting to the statements of the non official prosecution witnesses. PW1, mother of the prosecutrix, .
stated that in the year 2016, they were residing in the house of Amar Singh at Ghuggar Ghogri Muhalla. She did not remember the exact date, however, stated that last year, it was in the month of Holi festival, that her husband had gone out in connection with his work and she was at home with her daughter (prosecutrix). At about 2.00 p.m., both of them came out of the room, sat down on the stairs and her daughter (prosecutrix) started playing there. By that time, the accused came there in a drunkard state asking as to where his shoes had been kept, on which the witness told him that neither she knew him nor about his shoes, whereafter the accused left the place. Thereafter, the said witness went on the lintel asking her daughter (prosecutrix) also to accompany her in order to bask in the sun, who told her to come after bringing her toys.
When for quite some time, the prosecutrix did not come up, this witness loudly called her, but the prosecutrix did not respond, whereupon the said witness, after not finding her daughter (prosecutrix) on the stairs, searched for her in all the ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 15 rooms, but she was not found anywhere. Then she heard a sound of deep breath coming from a bathroom underneath the .
stairs. She rushed there but the bathroom was bolted from inside. When she knocked the door repeatedly, then the accused came out of the said bathroom; pushed her and ran away. Thereafter, the said witness went inside the bathroom, the prosecutrix was found unconscious in bad condition, without any trousers and there was blood in her private part as well as anus. She also noticed marks of teeth bite on the thighs of the prosecutrix. She raised noise on which the local people caught hold of the accused. Thereafter, she took her daughter (prosecutrix) to the hospital, where the police also arrived and recorded her (mother of the prosecutrix) statement (Ex. PW1/A). This witness also deposed that her daughter (prosecutrix) was medically examined with her consent and clothes of her daughter were also taken by the doctor. When the prosecutrix regained consciousness, she was taken to Medical College and Hospital at Tanda, where she remained admitted for three months. She further stated that during the course of investigation, her statement and the statement of ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 16 prosecutrix were recorded by the Magistrate. She has identified the stairs and the bath room where the accused had .
committed sexual assault with the prosecutrix. In her cross examination, this witness has admitted that there were may tenants in the building where they were residing as tenants, however, self stated that at the time of occurrence, nobody was in those rooms and the same were locked. She admitted that the toilets were used commonly by all the tenants. This witness also admitted that at the time of medical examination of her daughter, she had disclosed to the doctor that some unknown person had committed the offence with her daughter.
The identification of the accused was got done by the police from her. At the time, when she was searching for her daughter, only one tenant of that building, who had come from his work at that time, had met her who had told her that he had not seen her daughter. She had admitted it to be correct that during the time of occurrence, many people from other States, who had come to participate in Ghuggar fair, had been residing in that building and many people had been passing through the passage in front of the building. This witness ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 17 stated that she had seen the accused for the first time on that day and was not knowing him earlier. She volunteered that .
she had seen the accused coming out from the bath room and running away. This witness had denied the suggestions put to her with regard to the facts that she had not seen the accused coming out from the bathroom, the accused had not come to her, he had not committed forcible sexual intercourse with her daughter (prosecutrix), no blood was found on the clothes of her daughter and that she had got the case fabricated against the accused in connivance with the police.
16. PW2 is the prosecutrix. Certain questions were put to her in order to ascertain her understanding and capability as she was a child witness, whereupon the Court, after judging her capability to answer the questions, found that the prosecutrix was in a position to perceive as to what was happening around her, thus, was a competent witness.
However, keeping her tender age in view, the statement of this witness was recorded without oath. This witness stated that on the day of occurrence, when she was playing on the stairs of the house and her mother had gone on the lintel to bask in the ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 18 sun, one person had come there. She stated that if the person is shown to her, she could identify him, whereupon the .
accused, who was behind the screen in the corner of the Court room, was asked to come out and he was identified by the witness (prosecutrix) as the same person who had come there.
Further stated that the said person took her inside to the bathroom, took off her payjami and gave teeth bite on her thighs. This witness did not know as to what the accused had done with her thereafter, as she had fallen unconscious. This witness deposed that when she regained consciousness, she was in the hospital with her mother, having pain in her private part and blood was oozing out. Also deposed that her statement (Ex. PW2/A) was recorded in the Court. This witness had also identified her sandles, payjami and underwear to be belonging to her and worn by her at the time of occurrence. In her crossexamination, this witness stated that though she did not know the names of the tenants residing in that building but she could identify them if shown to her. Further stated that the accused, shown to her in the Court, was seen by her on the date of occurrence, who took her ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 19 to the bathroom. She had denied the suggestion put to her that she had seen the accused for the first time in the Court;
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that he had not taken her to the bathroom; and that he had not committed anything wrong with her. She had also denied the suggestion put to her that she had been asked by her parents to give a particular type of statement before the Magistrate. This witness had selfstated that she had given the statement before the Magistrate of her own.
17. PW3, Ravi Kumar, a shopkeeper by profession, running a shop at Palampur, stated that on 24 th March, 2016, at about 3.00/4.00 p.m., when he was standing on the road outside his house at Ghuggar alongwith his friends, namely Vijay and Munish Walia, there was a noise and people were running after the accused, whom he knew as he had been working there as labourer. On seeing the people running after the accused, they caught hold of him, by which time, the police also reached there and they handed over the accused to the police. He identified the accused to be the person who was apprehended by them and handed over to the police. This witness further stated that at the time when they caught hold ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 20 of the accused, he was drunk and his clothes were not in good condition and that they came to know from the people that he .
had committed forcible sexual intercourse with a small girl. In his crossexamination, this witness stated that family of the victim was not known to him. Though this witness had admitted that at the time of occurrence, Ghuggar fair was going on in the area and many people had been coming and going from the place, but had denied the suggestions put to him that the accused was not present there; that they had not apprehended the accused and that he has seen the accused for the first time in the police station.
18. PW4, Nathu Ram, father of the prosecutrix, is a hear say witness. He reiterated the facts as stated by PW1 (mother of the prosecutrix). He further deposed that he had provided copy of the birth certificate of his daughter (prosecutrix) to the police, certified copy whereof was issued by the school, in terms of which and otherwise also, the date of birth of the prosecutrix was 3rd August, 2010. In his cross examination, this witness stated that by the time he reached Hospital at Palampur, the police was already present there ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 21 and medical examination of his daughter was conducted in his presence. This witness denied the suggestion put to him that .
his wife (mother of the prosecutrix) had not told him about the offence of rape having been committed with their daughter by the accused.
19. PW5, Isha Charan, working as peon in IPH Department and residing as a tenant in the same house where mother of the prosecutrix (PW1) and her family members also used to reside, stated that in the year 2016, on the day of Holi festival, when he was standing on the terrace of the building, mother of the prosecutrix (PW1) shouted and called him down to see as to what had been done with her daughter. When he saw downwards, he had seen the accused (present in the Court) running away from there, who was chased and apprehended at some distance by the public. He further stated that when he came down, he saw that the prosecutrix was in a very bad state and thereafter, they arranged to send her to the Hospital. This witness acknowledged the factum of visiting of the police alongwith FSL Team to the spot, taking of the samples of blood and the clothes of the prosecutrix by the ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 22 police vide memo Ex. PW5/A, on which he had put his signatures as a witness alongwith one Ram Baksh, and also .
clicking of the photographs by the police. In his cross examination, this witness denied the suggestion put to him that he had not seen the accused running from the street on that date and that he was not present in the building at the time of occurrence.
20. PW6, Munish Walia, stated that on 24th March, 2016, at about 2.45 p.m., when he alongwith Ravi Kumar (PW
3) and Vijay Kumar was standing on the road near Ghogri Mohalla, accused (present in the Court) was running towards Ram Chowk and people were chasing him. He further stated that they also chased the accused and apprehended him at some distance and handed over him to the police on arrival.
They had come to know from the public that the accused had committed offence of rape with a small child. This witness also stated that he had gone to Hospital at Palampur to see the prosecutrix, who was unconscious and was admitted in the emergency ward of the Hospital. In his crossexamination, this witness admitted that the other two persons ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 23 accompanying him (Vijay and Ravi) were knowing the accused being local. He denied the suggestion put to him that he was .
not present at Ghuggar on the day of occurrence and that he and his friends had not caught hold of the accused.
21. PW9 HHC Prem Chand, PW10 HHG Neeraj Kumar, PW11 LC Reema Devi, PW12 HC Jaimal Singh, PW 13 SI Kiran Bala, PW14 HHC Suresh Kumar, PW15 HC Devender, PW16 HC Shailender, PW17 ASI Pushap Raj and PW19 Inspector Gurbachan Singh are the official prosecution witnesses.
22. PW9 HHC Prem Chand is the witness to the fact of moving application for conducting medical examination of the accused at Civil Hospital, Palampur and after medical examination, handing over copy of the MLC of the accused alongwith six seal parcels in the Malkhana on the same day.
23. PW10 HHC Neeraj Kumar has proved handing over of thirteen sealed parcels vide RC No. 71/16 by MHC Shalender to him for depositing the same in RFSL Dharamshala and after depositing the same, handing over of the receipt to the MHC.
::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 2424. PW11 LC Reema Devi and PW12 HC Jaimal Singh are the witnesses to handing over of the blood samples .
of prosecutrix and accused, respectively, on FTA cards.
25. PW13 SI Kiran Bala stated that on 6 th April, 2016, when the case file was handed over to her for investigation, she recorded the statements of the prosecutrix and her mother. She further stated that the prosecutrix was in a frightened state of mind due to camera flashes, therefore, videography of her statement had not been conducted. This witness, in her crossexamination, stated that though the prosecutrix had addressed the accused as Lambu, the mother of the prosecutrix had given the name of the accused. She denied the suggestions put to her that mother of the victim (prosecutrix) had told her that the accused was some unknown person and that she deliberately had not videographed the statement of the prosecutrix.
26. PW14 HHC Suresh Kumar deposited 15 parcels alongwith sample seal in SFSL, Junga and handed over the receipt to MHC.
::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 2527. PW15 HC Devender has proved entries of general diary No. 15 (Ex. PW15/A) and FIR No. 45/16 (Ex. PW15/B) .
in the official computer of the Police Station.
28. PW16 HC Shailender has proved deposit of one sealed parcel, three sealed plastic containers and one sealed glass bottle containing the samples of the prosecutrix alongwith sample seals vide entries at serial No. 38/16 (Ex.
PW16/A) by ASI Pushap Raj; deposit of two parcels, three sealed plastic containers and one sealed glass bottle alongwith sample seal vide entry at serial No. 39/16 (Ex. PW16/B) by HHC Prem Chand; deposit of two sealed parcels alongwith sample seal vide entry at serial No. 40/16 (Ex. PW16/C) by Inspector Gurbachan Singh; deposit of one FTA card sealed in a parcel alongwith sample seal by HHC Jaimal Singh vide entry at serial No. 42/16; deposit of one sealed parcel alongwith sample seal vide entry at serial No. 43/16 (Ex. PW 16/D); handing over of 13 parcels alongwith sample seal to HG Neeraj for depositing the same in RFSL Dharamshala vide RC No. 71/16 (Ex. PW16/E); handing over of 15 parcels alongwith ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 26 sample seal to HHC Suresh Kumar for depositing the same in SFSL Junga vide RC 85/16 (Ex. PW14/A).
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29. PW17 ASI Pushap Raj stated that on 24th March, 2016, on receiving information from CH Palampur that one girl was brought in the hospital in a rape case, he alongwith other police officials went to CH Palampur vide rapat (Ex. PW 15/A), where he recorded the statement (Ex. PW1/A) of mother of the prosecutrix, on the basis of which offence under Section 376 IPC and 6 of POCSO Act were made out and the same was sent to Police Station for registration of the case, on the basis of which FIR (Ex. PW15/B) was registered. This witness further stated that he moved application (Ex. PW 17/A) for medical examination of the prosecutrix, whereupon she was medically examined. In his crossexamination, this witness has denied the suggestion put to him that the mother of the prosecutrix had disclosed the name of the unknown person as the accused.
30. PW19 Inspector Gurbachan Singh stated that on 24th March, 2016, information was received from the Medical Officer, CH Palampur that one girl was brought in the hospital ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 27 in a rape case, on which information, ASI Pushap Raj was deputed alongwith other police officials to CH Palampur, who .
recorded the statement of mother of the prosecutrix (Ex. PW 1/A), on the basis of which FIR (Ex. PW15/B) was registered.
Further stated that he had received some inputs about the whereabouts of the accused that he had fled away towards Ghughar Chowk from the spot, whereafter he alongwith other police officials went to Ram Chowk and saw that people had gathered and encircled one person (accused), who, on interrogation, was found to be the person who committed penetrative sexual assault and then he was apprehended by the police with the help of local persons. He has also stated that after ascertaining the grounds of arrest, the accused was arrested and sent for medical examination. On 25 th March, 2016, this witness had visited the spot alongwith the team members of RFSL, who lifted the blood samples from various places of the spot with the help of pieces of threads, which were packed in pieces of paper and all the eight packets were taken into possession vide seizure memo (Ex. PW5/A). One pajami and underwear of the prosecutrix alongwith two ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 28 slippers, one lying inside the bathroom and the other outside the bathroom, were also taken into possession vide the seizure .
memo (Ex. PW5/A). He stated that he had prepared the site plan (Ex. PW19/A1 on the basis of factual position of the spot and the demarcation of the place by witnessesIsha Charan (PW5) and Ram Baksh. The photographs (Ex. PW19/B1 to Ex. PW19/B10) were also got clicked by him and he had collected the birth certificate of the prosecutrix, according to which her date of birth was 3 rd August, 2010. On 26th March, 2016, this witness moved application (Ex. PW19/C) for recording statement under Section 164 CrPC of witnessIsha Charan, who was a tenant of the building of Amar Singh, Ghughar, wherepon the statement of the said Isha Charan under Section 164 CrPC (Ex. PW5/B) was procured. After discharge of the prosecutrix from RPGMC Tanda, this witness had also moved application (Ex. PW19/D) for recording the statement of the prosecutrix as well as her mother under Section 164 CrPC, pursuant to which statements of mother of the prosecutrix (Ex. PW1/B) and that of the prosecutrix (Ex.
PW2/A) were procured and attached with the challan. On ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 29 receipt of reports (Ex. PA and PB) from RFSL Dharamshala as well as treatment summary (Ex. PW8/A), final opinion of the .
Medical Officer (Ex. PW19/E) was procured. During the course of investigation, scene of occurrence report (Ex. PW 19/F) had also been procured. This witness also recorded statements of various witnesses and after completion of the investigation, challan was prepared by him and was put up before the Court. This witness was crossexamined at length but he has supported the prosecution version during the entire crossexamination.
31. From the above discussion, it is clear that on 24th March, 2016, it was the accused who committed the penetrative sexual intercourse with five years old prosecutrix.
The injuries on the person of the prosecutrix, as reported by the Doctor, suggest that there was penetrative sexual intercourse committed upon the prosecutrix. The testimonies of PW1 (mother of the prosecutrix), PW2 (prosecutrix), PW3 (Ravi Kumar) PW4 (father of the prosecutrix), PW5 (Isha Charan), PW6 (Manish Walia), PW18 (Dr. Shalini Gautam) and PW19 (Inspector Gurbachan Singh prove the case against ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 30 the accused conclusively and beyond the shadow of reasonable doubt.
.
32. The statements of the mother of the prosecutrix recorded under Section 154 CrPC and 164 CrPC were fully corroborated by her testimony as PW1 in the Court. From the statement of PW1, mother of the prosecutrix, it is clearly depicted that on 24th March, 2016, she had gone on the lintel of the house to bask in the sun when she called her daughter, who did not turn up. She searched for the prosecutrix in the rooms but was not found anywhere. Then she heard a sound of deep breath coming from a bathroom underneath the stairs.
She rushed there, but the bathroom was bolted from inside and when she knocked the door repeatedly, the accused opened the door and ran away after pushing her. On looking inside the bathroom, the prosecutrix was found lying in the pool of blood in bad condition. On seeing this, mother of the prosecutrix cried for help whereafter PW5 Isha Charan, after noticing the accused to be fleeing from the spot, made hue and cry, upon which, the accused was chased and apprehended by the public and later on, handed over to the police ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 31
33. The testimony of PW1 (mother of the prosecutrix) was duly corroborated by the prosecutrix as well as by Isha .
Charan (PW5), who have also identified the accused. Ravi Kumar (PW3) and Manish Walia (PW6) have also corroborated the prosecution case by stating that they had apprehended the accused while he was trying to flee from the spot and was handed over to the police. There is not even a single iota of evidence which can be made basis to contend that the identity of the accused was not proved. Therefore, the argument of the learned counsel for the appellant that the identity of the accused was not certain, is not sustainable.
34. The Hon'ble Supreme Court in Ajay Kumar Singh versus Flag Officer CommandinginChief and others, reported in (2016) 9 Supreme Court Cases 179, in para 20 of the judgment has held that the lapse in the prosecution cannot result in acquittal of the appellants and that the evidence adduced by the prosecution must be scrutinized independently of such lapses either in the investigation or by the prosecution or otherwise, the result of ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 32 the criminal trial would depend upon the level of investigation or the conduct of the prosecution.
.
35. Applying the ratio laid down by the Hon'ble Supreme Court to the case in hand, this Court is of the view that there is no lapse in the prosecution, rather, the statements of the prosecution witnesses clearly connect the accused with the commission of the charged offence and the prosecution has been able to bring home the guilt of the accused conclusively and beyond the shadow of reasonable doubt.
36. In view of what has been discussed hereinabove, the only conclusion is that it is amply clear that the prosecution has proved the guilt of the accused conclusively beyond the shadow of reasonable doubt and the learned trial Court has rightly appreciated the evidence to its true and correct perspective and has rightly convicted and sentenced the accused vide impugned judgment. There is no infirmity with the judgment of conviction recorded by the learned trial Court and no interference is, thus, called for.
::: Downloaded on - 28/09/2019 23:26:01 :::HCHP 3337. The appeal, which sans merits, deserves dismissal and is accordingly dismissed.
.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge June 13, 2019 ( rajni ) ::: Downloaded on - 28/09/2019 23:26:01 :::HCHP