Himachal Pradesh High Court
Sunny vs State Of H.P on 14 October, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.311 of 2015 Reserved on : 2.9.2015 .
Date of Decision : October 14, 2015 Sunny ...Appellant.
Versus
State of H.P. ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes.
rt 1For the Appellant : Mr. Manohar Lal Sharma, Senior Advocate, with Mr. Aman Parth Sharma, Advocate.
For the Respondent : Mr. R.S.Verma, Additional Advocate General.
Sanjay Karol, Judge Appellant-convict Sunny, hereinafter referred to as the accused, has assailed the judgment dated 24.6.2015, passed by Special Judge, Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No.14/2014, titled as State of Himachal Pradesh v. Sunny, whereby he stands convicted of the offence punishable under the provisions of Section 342 of the Indian Penal Code Whether reporters of the local papers may be allowed to see the judgment?
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(hereinafter referred to as IPC) and Section 4 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as the Act) read with Section .
376 IPC, and sentenced as under:
Offence Sentence Section 342 IPC Rigorous Imprisonment for a period of one month and fine of `1,000/-
and in default thereof to further undergo simple imprisonment for a of period of seven days.
Section 4 of the Rigorous imprisonment for a period Act, read with of seven years and fine of `10,000/- Section 376 IPC and in default thereof to further rt undergo simple imprisonment for a period of six months.
The prosecutrix has also been held entitled for a sum of `25,000/- under Victim Compensation Scheme, and on realization the fine amount of `10,000/- has also been ordered to be paid to her.
2. It is the case of prosecution that prosecutrix (PW-1), who was a student of 10+1, Government Senior Secondary School, Maseran, was born on 15.3.1997. On 2.12.2013, on the pretext of purchasing cheaper school bag at Hamirpur, accused allured her and from Sarkaghat, took her to Hamirpur, where he made her stay in his room and forcibly subjected her to sexual intercourse. The following morning, i.e. ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...3...
4.12.2013, he made her meet his mother, where she was assured that upon attaining the age of majority, he would solemnize marriage with her. Mother of the .
accused disclosed the whereabouts of the prosecutrix to Smt. Rajni Devi (PW-2), mother of the prosecutrix, who took her back home. Having reached home, prosecutrix narrated the entire incident to her mother, of which led to the lodging of a complaint (Ex.PW-1/A), on the basis of which FIR No.301, dated 7.12.2013 (Ex.PW-
rt 11/A), for commission of offence punishable under the provisions of Section 366A/376 of the Indian Penal Code, was registered by SI Satish Kumar (PW-11) at Police Station Sarkaghat, District Mandi, Himachal Pradesh. Prosecutrix was got medically examined from Dr. Anita Thakur (PW-7), who issued MLC (Ex.PW-1/B).
Inspector Purshotam Dhiman (PW-14) to whom investigation was handed over by SI Satish Kumar, recovered incriminating articles, i.e. bed sheet (P-7) and clothes (Ex.P-2 to P-5) etc. vide Memo (Ex.PW-1/C and Ex.PW-9/A), from the tenanted premises owned by Shri Pradeep Sharma (PW-9). Statement of the prosecutrix (Ex.PW-1/F) was got recorded before ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...4...
Additional Chief Judicial Magistrate, Sarkaghat, under the provisions of Section 164 of the Code of Criminal Procedure. Record pertaining to the date of birth of the .
prosecutrix, i.e. Birth Certificate and Age Certificate from the School (Ex.PW-4/B and Ex.PW-5/B) as also report of the FSL (Ex.PW-7/B) were taken on record.
With the completion of investigation, which, prima of facie, revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
3. rtAccused was charged for having committed offences punishable under the provisions of Section 342 IPC and Section 4 of the Act read with Section 376 IPC, to which he did not plead guilty and claimed trial.
4. In order to establish its case, prosecution examined as many as 14 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, was also recorded, in which he took plea of innocence and false implication.
Accused did not lead any evidence in defence.
5. Based on the testimonies of the witnesses and the material on record, trial Court convicted the ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...5...
accused of the charged offences, and sentenced him as aforesaid. Hence, the present appeal by the accused.
6. I have heard learned counsel for the parties .
as also perused the record.
7. Neither before the trial Court nor this Court, age of the prosecutrix was ever disputed. Birth certificates issued by the Panchayat (Ex.PW-4/B), of issued by the school (Ex.PW-5/B) and Pariwar Register (Ex.PW-3/B), so proved on record by Shri Manohar Lal rt (PW-3), Shri Narender Pal (PW-4), Shri Rajni Kant (PW-
5) and Shri Guru Dutt Sharma (PW-6), establish the prosecutrix to have been born on 15.3.1997. This is apart from the testimony of the prosecutrix as also her mother (PW-2). Thus, as on the date of commission of alleged crime, age of the prosecutrix was 16 years 8 months.
8. With the statutory amendment having come into force, w.e.f. 3.2.2013, as on the date of crime, prosecutrix was below 18 years of age and as such minor.
9. Dr. Anita Thakur (PW-7), who medically examined on 7.12.2013, found no injury marks on the ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...6...
body of the prosecutrix, save and except that there was abrasion, measuring 5cm x 4cm, brown in colour, on the right side of the neck. The hymen was torn in .
different positions. It was tender on touch and there was redness on the labia minora. One finger could be easily inserted inside the vagina as also there was tenderness. With the receipt of report of the Chemical of Examiner, which did not report presence of any blood or semen, doctor still reiterated her opinion of the rt possibility of sexual assault not to be ruled out.
10. It is a settled principle of law that even in the absence of medical opinion, corroborating the statement of prosecutrix, which is otherwise found to be fully inspiring in confidence, Court can proceed to convict the accused. However, in the present case, medical evidence is corroborative of sexual intercourse.
11. No substantial defence, save and except, false implication stands taken by the accused in his statement, recorded under the provisions of Section 313 of the Code of Criminal Procedure. Also, no witnesses in defence stand examined.
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12. It is argued on behalf of the accused that prosecutrix is a wholly unreliable witness, as her statement is full of improbabilities, rendering her .
version to be extremely shaky and doubtful, if not false. Much emphasis is laid on the fact that no marks of injury, indicating forcible sexual intercourse were found on the body of the prosecutrix; accused made of the prosecutrix meet his mother, who assured the girl of getting her married to the accused but in rt accordance with law; it was the mother of the accused who disclosed the whereabouts of the prosecutrix to her mother; before the Magistrate, prosecutrix got recorded her statement under pressure and coercion from her parents; prosecutrix did not disclose the factum of sexual assault in her statement (Ex. PW-1/F), as is so admitted by Shri Purshotam Dhiman (PW-14).
13. On the other hand, learned Additional has supported the judgment of conviction and sentence, rendered by the trial Court, for the reasons so assigned therein.
14. In support, learned counsel have referred to and relied upon the following decisions rendered by the ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...8...
Hon'ble Supreme Court of India and various High Courts.
15. In Indian Woman Says Gang-Raped on .
Orders of Village Court Published in Business and Financial News Dated 23.10.2014, In Re, (2014) 4 SCC 786, the Apex Court has highlighted the need for having an effective State police machinery for curbing of the menace of rape, for such crime is not only in contravention of the domestic laws, but is also in direct rt breach of obligations under International Law, treaties whereof stand ratified by the State, which is under an obligation to protect its women from any kind of discrimination.
16. The Apex Court has highlighted the need for prompt disposal of cases of crime against women and children. (Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353).
17. In Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77, the Apex Court held as under:
"27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...9...
only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, .
impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the of individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against rtthe holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court."
18. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, the apex Court has cautioned the Court to adopt the following approach:
"The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...10...
probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character."
.
19. The Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle that testimony of prosecutrix is almost at par with an immediate witness and can be acted upon of without corroboration.
20. Even in the absence of categorical opinion about rape, opinion of the doctor about such act not rt being totally ruled out is relevant. Mere absence of spermatozoa would not cast doubt on correctness of the prosecution case. (See: Datta v. State of Maharashtra, (2013) 14 SCC 588; and Prithi Chand v.
State of H.P., (1989) 1 SCC 432).
21. In Ravindra v. State of Madhya Pradesh, (2015) 4 SCC 491, the Hon'ble Supreme Court of India held that absence of semen/spermatozoa on the clothes/vaginal smear would not render the testimony of the prosecutrix to be doubtful.
22. The Apex Court had the occasion to deal with the case where there was a conflict between ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...11...
medical evidence and ocular evidence of the prosecution. There the Court held as under:
"23. In any case, to establish a conflict between .
the medical and the ocular evidence, the law is no more res integra and stands squarely answered by the recent judgment of this Court in the case of Dayal Singh v State of Uttaranchal, (2012) 8 SCC 263 (SCC p.283, paras 35036) "35. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of of some variations in the exhibits, medical and ocular evidence cannot be ruled out. But it is not that every minor variation or inconsistency would tilt the balance of rt justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect the prosecution. In Kamaljit Singh v. State of Punjab, (2003) 12 SCC 155, the Court, while dealing with discrepancies between ocular and medical evidence, held: (SCC p. 159, para 8) '8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...12...
the testimony of the eyewitnesses cannot be thrown out.'
36. Where the eyewitness account is found credible and trustworthy, medical opinion .
pointing to alternative possibilities may not be accepted as conclusive.
'34. ....The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so of that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert rt opinion is accepted, it is not the opinion of the medical officer but that of the Court.'
23. The Apex Court in Madan Gopal Makkad v.
Naval Dubey and another, (1992) 3 SCC 204, has held as under:
"34. A medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court.
35. Nariman, J. in Queen v. Ahmed Ally, (1989) 11 Sutherland WR Cr 25, while expressing his view a on medical evidence has observed as follows:::: Downloaded on - 15/04/2017 19:12:05 :::HCHP
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"THE evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination .
of circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion."
36. Fazal Ali, J. in Pratap Misra v. State of Orissa, (1977 3 SCC 41, has stated thus:
"... [l]t is well settled that the medical jurisprudence is not an exact science and of it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused ... as to the exact time when the appellants may have rt had sexual intercourse with the prosecutrix."
37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369 which reads thus:
"THUS to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen.
Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...14...
officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, .
not a medical one. "
38. In Parikh 's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
"SEXUAL intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with of or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any rt seminal stains."
39. In Encyclopedia of Crime and Justice (Vol. 4 at page 1356, it is stated:
"... [E]ven slight penetration is sufficient and emission is unnecessary."
40. In Halsbury's Statutes of England and Wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of S. 44 of the Sexual Offences Act, 1956. Vide (1) R. v. Hughes, (1841) 9 C&P 752, (2) R. v. Lines and R. v. Nicholls, (1844) 1 Car & Kir 393.
41. See also Harris's Criminal Law, (Twenty- second Edition) at page 465.
42. In American Jurisprudence, it is stated that slight penetration is sufficient to complete the crime of rape. Code 263 of Penal Code of Califomia reads thus:
"RAPE; essentials Penetration sufficient. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...15...
penetration, however slight, is sufficient to complete the crime."
43. The First Explanation to S. 375 of Indian Penal Code which defines 'Rape' reads thus:
.
"EXPLANATION.PENETRATION is sufficient to constitute the sexual intercourse necessary to the offence of rape."
44. In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High courts have taken a consistent view that even of the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial. Reference may be made to (1) Natha v. Emperor, (1925) 26 CrLJ rt1185, (2) Abdul Majid v. Emperor, AIR 1927 Lah 735(2), (3) Mst. Jantan v. Emperor, (1934) 36 Punj LR 35, (4) Ghanashyam Misra v. State, 1957 CriLJ 469, (5) Das Bernard v. State, 1974 CriLJ 1098. In re Anthony, AIR 1960 Mad 308 it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary.
In Gour's The Penal Law of India, 6th Edn. 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape." "
24. Also, it is a settled principle of law that absence of injuries on the external or internal parts of the victim by itself cannot be a reason to disbelieve the testimony of the prosecutrix. (See: Mukesh v. State of Chhattisgarh, (2014) 10 SC 327); State of Haryana v.
Basti Ram, (2013) 4 SCC 200; O.M. Baby (Dead) by Legal Representative v. State of Keral, (2012) 11 SCC ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...16...
362; and State of U.P. v. Chhotey Lal, (2011) 2 SCC
550).
25. The Apex Court in Puran Chand v. State of .
Himachal Pradesh, (2014) 5 SCC 689, observed that even non-rupture of hymen itself would be of no consequence and rape could be held to be proved even if there is slight penetration.
of
26. Mere fact that hymen is intact or that there is no actual wound on the private part of the prosecutrix rt is not conclusive of the fact that prosecutrix was not subjected to rape. (Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC
688).
27. The Apex Court in Ranjeet Goswami v. State of Jharkhand and another, (2014) 1 SCC 588, held as under:
"8. We are of the view that no cogent reasons have been stated by the High court to discard the school leaving certificate which was issued on 10.04.2004 by the then Principal of the school. The certificate reveals the date of birth of the accused as 10.05.1991. The school leaving certificate was proved by examining the Headmistress of the school. She has recognized the signatures of the Principal who issued the school leaving certificate. The evidence adduced by the Headmistress was not challenged.............."::: Downloaded on - 15/04/2017 19:12:05 :::HCHP
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28. The Apex Court in Mohd. Imran Khan v.
State Government (NCT of Delhi), (2011) 10 SCC 192, .
had the occasion to deal with the case, even though the birth certificate issued under the Registration of Births and Deaths Act, 1969, reveals the age of the child to be below 16 years, but the medical report of of the Radiologist reveals the age to be between 16 and 17 years, the Court, relying upon its earlier decisions in Jaya Mala v. Home Secretary, Government of Jammu & rt Kashmir and others, (1982) 2 SCC 538, gave primacy not to the medical report but to the statutory record, hold that the medical report only gives an idea with a margin of 1-2 years on either side. (Also see: Vishnu alias Undrya v. State of Maharashtra, (2006) 1 SCC 283; and Mst. Aqeela and another v. State of U.P., (1998) 9 SCC 526).
29. Reiterating its earlier view in Mohd. Iqbal v.
State of Jharkhand, (2013) 14 SCC 481; Narender Kumar v. State (NCT of Delh), (2012) 7 SCC 171, the Apex Court in Mukesh v. State of Chhattisgarh, (2014) 10 SC 327, has held that sole testimony of prosecutrix ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...18...
is sufficient to establish commission of rape, even in the absence of any corroborative evidence.
30. In Radhakrishna Nagesh v. State of Andhra .
Pradesh, (2013) 11 SCC 688, the apex Court held as under:
"33. It will be useful to refer to the judgment of this Court in the case of O.M. Baby v. State of Kerala, (2012) 11 SCC 362, where the Court of held as follows:-
"17. ..... '16. A prosecutrix of a sex offence cannot be put on a par with an rt accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...19...
nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full .
understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in of accepting her evidence.
18. We would further like to observe that while appreciating the evidence of the prosecutrix, the court must keep in mind that in the context rt of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and has found reiteration in a recent judgment in Rajinder @ Raju v. State of H.P., (2009) 16 SCC 69, para 19 whereof may be usefully extracted:
'19. In the context of Indian culture, a woman - victim of sexual aggression -
would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...20...
unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that .
corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.' "
31. In Satwantin Bai v. Sunil Kumar and another, of (2015) 8 SCC 478, it is held that if the testimony of the prosecutrix is found to be cogent and that she rightly rt identifies the accused in the Court, prosecution case cannot be faulted for not holding the Test Identification Parade, for it not being a rule of law but that of prudence.
32. The Hon'ble Supreme Court of India in State of Madhya Pradesh v. Madanlal, (2015) 7 SCC 681, reiterated the principles laid down in K. Anbazhagan v.
State of Karnataka, (2015) 6 SCC 158, to the following effect:
"The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...21...
said responsibility cannot be abdicated or abandoned or ostracized, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is .
required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record.
The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasonings in appeal of are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind sans passion and sans rt prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test."
33. In Mohd. Ali alias Guddu v. State of Uttar Pradesh, (2015) 7 SCC 272, the Court, while dealing with the unamended provisions of Section 376 of the Indian Penal Code, has held that consent for sexual intercourse of a victim, who is minor (less than 16 years of age) was irrelevant, for if consent of minor is treated as a mitigating circumstance, it will lead to disastrous circumstances. Sexual assault on a minor is a heinous crime, which needs to be abhorred.
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34. In the light of the aforesaid enunciation of law, testimony of the prosecutrix, her mother (PW-2) and Shri Hem Singh (PW-12), being relevant, needs to .
be examined.
35. Prosecutrix states that on 3.12.2013, at Sarkaghat, she was purchasing a school bag, when accused told her that cheaper are available at of Hamirpur. As such, accused took her to Hamirpur, where the bag was purchased. However, on the pretext rt of taking meals, accused took her to his room and subjected her to sexual intercourse. On 4.12.2013, he made her meet his mother, who assured her that upon attaining the age of majority, accused would marry her.
On 4.12.2013, she slept with the mother of the accused. On 5.12.2013, accused contacted her mother on telephone. She also spoke with her. Thereafter, her mother took her back and the following day, matter was reported to the police, vide complaint (Ex.PW-1/A).
She was got medically examined and her clothes taken into possession by the doctor. She identified the place where sexual assault took place, from where bed sheet (Ex.P-7) was also recovered. She also made statement ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...23...
(Ex.PW-1/F) before the Magistrate, which was so recorded as per version narrated by her.
36. Having perused the cross-examination part .
of her testimony, one does not find the credit of this witness to have been impeached in any manner. It cannot be said that the witness has either deposed falsely or her version is shaky or unbelievable. The of witness cannot be said to be unworthy of credit;
deposed falsely with the motive of falsely implicating rt the accused; or her testimony to be contradictory, inconsistent, false or improbable.
37. It is true that prosecutrix openly travelled with the accused by way of public transport and passed through different public places, but then it was he who took her to Hamirpur, on the pretext of buying a cheaper bag. After all she is a child and was unaware of the evil designs of the accused. In her complaint dated 6.12.2013 (Ex.PW-1/A), prosecutrix is categorical about the alleged act, though she uses the expression "Sunny ne mere saath raat ko jabardasti galat kaam kiya" states that accused forcibly committed sexual intercourse, which colloquially means the same.
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Noticeably, in her statement (Ex.PW-1/F), she has used the word "Batamizi", which, in common parlance also means the very same thing. [Devinder Kumar alias .
Pinku v. State of H.P., 2000 (3) SLC 166; and Criminal Appeal No.370 of 2007, titled as Manohar Lal v. State of Himachal Pradesh, decided on 23.5.2014].
38. There is no contradiction in her initial of version, so disclosed to the police; Magistrate or deposition in Court. The only contradiction, which the rt Court finds in her statement, is of having telephonically informed her mother of being in the company of the accused. But then she satisfactorily explains such fact to have been written out of fear.
39. Version of the prosecutrix stands materially corroborated by her mother (PW-2), on all counts, who has further deposed that having learnt about the whereabouts of the prosecutrix, she spoke with the mother of the accused and then, from a place known as Gutkar, brought her back. At that time her brothers Shri Rajiv and Shri Hem Singh were with her. Such version also stands corroborated by Shri Hem Singh (PW-12).
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40. Parties do not belong to the same caste.
Submission made on behalf of the accused that marriage was not acceptable to the parents of the girl .
and as such she was forced to lodge false report, is not supported by any material on record. Neither was this defence, nor the defence of consent ever taken by the accused.
of
41. It is a settled principle of law that once the prosecution is able to establish commission of sexual rt intercourse, without consent, which fact can be proven through the sole testimony of prosecutrix, the Court is entitled to draw presumption against the accused, under the provisions of Section 114-A of the Evidence Act. (Deepak v. State of Haryana, (2015) 4 SCC 762).
42. In the instant case, no such presumption stands rebutted. It is not the case of the accused that prosecutrix was in love with him. As already observed, there is nothing on record to establish that the complaint was lodged by the prosecutrix under compulsion. The family could not have put the honour of the daughter at stake, only for falsely implicating the ::: Downloaded on - 15/04/2017 19:12:05 :::HCHP ...26...
accused. Also, there was no animosity inter see the parties/families.
43. Hence, in my considered view, prosecution .
has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, not only ocular but also corroborative in the shape of recovery of of incriminating articles that the accused wrongfully confined the prosecutrix, a minor, below 18 years of rt age in a room and also committed penetrative sexual assault upon her.
44. For all the aforesaid reasons, the Court finds no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed.
Appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ),
October 14, 2015(sd) Judge.
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