Himachal Pradesh High Court
Krishan Chand vs State Of H.P on 28 June, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 63 of 2010 .
Reserved on : 19.6.2018 Decided on : _28.6.2018 Krishan Chand ...Appellant Versus State of H.P. ...Respondent ___________________________________________ Coram Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting?
____________ For the appellant: Mr. Bimal Gupta, Senior Advocate with Ms. Rubeena Bhatt, Advocate.
For the respondent : Mr.Vikrant Chandel, Deputy Advocate General.
Sureshwar Thakur, Judge The instant appeal stands directed, against, the verdict of conviction, pronounced by the learned Sessions Judge, Kinnaur, Sessions Division at Rampur Bushahr, in Sessions Trial No. 5 of 2007, for his committing offences punishable, under Sections 376, 452, and, under Section 506 of the Indian Penal Code.
::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 22. Brief facts of the case are that on 24.3.2005, a written complaint under Section 156 (3) Cr. P.C. was received in the Police Station over which FIR was .
regeistered and the complainant Sh. Hoshiar Singh had alleged in the complaint that the victim being minor, and being his niece and the father of the victim, and thereby the complaint has been filed on behalf of the minor, being her naturalguardian as the victim in the care and custody of the complainant.
The complainant further disclosed in his written complaint that the victim has been pregnant for about 7-8 months as a result of forcible sexual assault on her person when the victim had gone to the nearby forest for grazing her cattle and collection of fuel wood in the month of August, 2004 and the accused Krishan Chand came over there and outraged her modesty and when she raised hue and cry, the accused closed her mouth with his hand and threatened her to her life and thereafter the victim was frightened and being helpless despite her struggle and resistance she was molested and forcibly raped by the accused. The victim disclosed the facts to her maternal aunt and victim further claimed that she 2 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 3 had been given threats to her life by accused in case she discloses these facts to her parents or anyone as the victim being rustic villager, innocent and illiterate .
girl of tender age, thereby did not disclose these facts to anyone. The accused being neighbour of the victim when she was all done and forcibly committed sexual intercourse with the victim by making allurements and false promise to marry her in near future as well as further threatened her to her life if she discloses these facts to anyone including her parents. The victim remained under constant threat of the accused to her life despite her pregnancy as a result of rape committed by the accused. The mother of the victim was worried about the health of the victim and thereby victim was sought to be medically examined with the help of Sh. Tota Ram,brother of Krishan Chand when the victim was taken by Sh. Tota Ram to some private practitioner at Rampur Bushahr, instead of Govt. Hospital where Tota Ram was employed and further persuaded the victim to terminate the pregnancy but the victim refused to do so and thereafter the victim disclosed these facts to her mother and her maternal aunt. The mother of the 3 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 4 victim asked her to leave the parental house after knowing these facts and thereafter the victim came to the house of the complainant and the victim also .
contacted the accused by disclosing to be pregnant by the act of Krishan Chand. The complaint has been filed under Section 156 (3) Cr. P.C. before Sub Divisional Judicial Magistrate, Ani, District Kullu, on the basis of which the FIR has been registered against the accused. The medical examination of the victim was sought in which the doctor has opined the victim to be pregnant approximately one month and the radiological age of the victim has been opined between 15 to 16.5 years. The date of birth of the victim was sought from the record of Gram Panchayat in which the date of birth of the victim was found 4-5.1990 and thereby the age of the victim at the time of occurrence is found 14 years 3 months. The accused was arrested after disclosure of grounds of arrest and on conclusion of the investigation, the police came to the conclusion that the accused has committed offences under Sections 376, 452 and 506, IPC and thereafter the final report has been presented under Section 173 Cr. P.C. before Sub Divisional Judicial Magistrate, 4 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 5 Ani, District Kullu, on 27.4.2006 and vide order of 7.11.2006 the case has been committed for session trial by SDJM, Karsog Camp at Ani, District Kullu.
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The accused stood was charged for committing an offence punishable under Section 376, 452 and 506.
In proof of the prosecution case, the prosecution examined ten witnesses. On conclusion of recording, of prosecution evidence, the statement of the accused under Section 313 Cr.P.C., was, recorded by the trial Court, wherein he claimed false implication. However, thereafter he examined four witnesses' in his defence.
4. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein.
5. The accused/appellant, is, aggrieved by the judgment of conviction, recorded, by the learned trial Court. The learned Counsel appearing for the accused/appellant has concertedly and vigorously contended qua the findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-
appreciation, by it, of the material on record. Hence, 5 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 6 he contends qua the findings of conviction, being reversed, by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of .
acquittal.
6. On the other hand, the learned Additional Advocate General has with compatible force and vigour, contended qua the findings of conviction, as, recorded by the Court below, standing, based on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating interference, rather theirs meriting vindication.
7. This Court with the able assistance, of, the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
8. The prime prosecution witness is PW-1, the prosecutrix. In her deposition, borne in her examination-in-chief, she testifies with aplomb, qua the accused holding her to coitus, on the date, and, at the place, mentioned in the FIR. Also, her deposition, as, borne in her examination-in-chief does visibly bear concurrence, with all the prima donna factum encapsulated, in the FIR. The aforesaid testification, rendered by the prosecution, in her 6 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 7 examination-in-chief, remains unshred, of, its efficacy, even during the course, of, hers' being subjected to a rigorous and scathing cross-
.
examination, thereupon it is construable, to be both credible and inspiring. The defence has a statutory right to impeach, the, credit of the prosecutrix by holding her, to a rigorous cross-examination. Also, therein, the learned counsel for the accused, is enjoined to, vis-à-vis her, hence mete all the apposite suggestion(s), for the ensuring, hers' rather making articulations; a) whereupon she can be inferred to contradict her previous statement recorded in writing, b) AND also wherefrom it may be inferable qua hers' grossly improving and embellishing, upon, her previously recorded statement in writing, ( c) whereupon alone her credibility would be shattered, and, concomitantly her deposition qua the genesis of the occurrence, as comprised in her examination-in-
chief, would be rendered, both un-inspiring and incredible. The learned counsel for the accused, in his endeavour, to, shatter the prosecutrixs', testimony, rendered qua the occurrence, and as comprised in her examination-in-chief, had during 7 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 8 the course of his holding her to cross-examination, rather proceeded to, vis-à-vis her hence, mete apt incriminatory affirmative suggestions, whereto .
affirmative answers hence stood meted, by the prosecutrix. Even beyond, the aforestated suggestion(s), being meted, to the prosecutrix, by the learned counsel, for the accused, yet the latter further meted suggestion(s),vis-à-vis, her (i) qua the filing of the FIR being a sequel, of, the accused, refusing to marry her. The effect of meetings, of, the aforesaid incriminatory suggestions, by the learned defence counsel, vis-à-vis the prosecutrix, whereto apposite therewith incriminatory acquiescing(s), hence emanated from her, especially with theirs devolving upon the accused, upon her meteing consent, to him qua his holding her to coitus, (i) and, concomitantly, of, his also rather rearing, the apposite defence, of, his inculpable misdemeanor, of, holding, the prosecutrix, to sexual intercourse, being a sequel of hers, hence meteing consent to him, (ii) ARE hence cumulatively, of the defence acquiescing, vis-à-vis, the accused holding consensual sexual intercourse with the prosecutrix. Furthermore, when 8 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 9 the mother, of the prosecutrix, was, also held to cross-examination, by the learned defence counsel, she also, during the course thereof, stood meted .
incriminatory suggestion(s), by the learned defence counsel, qua subsequent, to the marriage of the prosecutrix, and, upon payment of a sum of Rs.
20,000/-, the matter being settled, and, only upon further demands, for enhancing the sum(s) of settlement money, rather remaining un-acceded, to, thereupon the matter being reported to the Police.
Even though, the aforestated suggestion(s), were, answered in the dis-affirmative, by the prosecutrix, and by her mother, (iii) yet mere meteing(s), of, any dis-affirmative answers', by both, vis-à-vis, the aforestated incriminatory suggestion(s), purveyed to each, by the learned defence counsel, while holding both to cross-examination, is rather, inconsequential, rather the perse meteing(s) thereof, to the mother of the prosecutrix hence galvanizes, an inference, of the accused, hence unraveling his acquiescing(s), qua his guilt, and also hence his rearing, the apposite defence, (iv) devolving upon the capacity of the prosecutrix, to mete consent qua hence, his 9 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 10 acquiescing misdemeanor, of, his holding the prosecutrix, to coitus.
9 Be that as it may, before dwelling, upon, the .
trite factum, of, the capacity of the prosecutrix, to mete consent, to the accused, for the latter holding her hence to coitus, it is imperative to adjudicate, upon, the espousal(s) addressed before this Court, by the learned counsel for the convict, (i) qua the prosecution being enjoined to prove the charge to the hilt, and, any meteing of any incriminatory suggestion(s), by the learned defence counsel, to the prosecutrix, and, to the mother of the prosecutrix, while holding each, to cross-examination, and, also the effect of any affirmative or dis-affirmative answers, being meted thereto, by the prosecution witnesses concerned, ipso facto not, proving the charge to the hilt, (ii) rather the meteing(s), of, incriminatory suggestion(s), by the learned defence counsel, vis-à-vis, each of the prosecution witnesses', and, rendition(s), of, any affirmative or dis-affirmative answers thereto, by them, being discardable,(iii) given all the aforesaid incriminatory suggestion(s), being not amenable, for being construable to be 10 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 11 comprising any incriminatory statement, of the accused nor hence being construable, to be binding upon the accused, )iv) corollary whereof being, on .
anvil thereof, no findings of conviction being pronounceable, upon, the convict.
10 In making the aforesaid submission, the learned counsel, for the accused has placed reliance, upon, a judgment of the Division Bench of Gujarat High Court reported in AIR (1969) 10 GLR 245, rendered in case titled as Koli Trikam Jivraj & another versus The State of Gujarat, relevant para 21 whereof stands extracted hereinafter:
"The learned Sessions Judge was obviously, in our opinion, in error in relying on the suggestions put in the cross-examination of prosecution witnesses Dharamshi and Premji by the lawyer of the accused, accepting them as statements of the accused and binding on them, and treating the case put forward therein as a circumstance against the accused. In the present case, the evidence led by the prosecution is totally insufficient to prove that the accused had committed the crime and no question of lending assurance to prosecution arises. The circumstance that suggestions were put to the prosecution 11 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 12 witnesses in their cross-examinations that Dharamshi and Talshi beat the accused no.1 and 2 outside their vadi cannot be used against the accused to fill in the gap in the .
evidence of prosecution."
11. Moreover, this Court is inclined, not to accept the aforesaid submission, for the reason a) it being the trite principle of law, of, the solitary deposition of the prosecutrix, if is both credible and inspiring, hence perse thereupon, the apt findings of conviction, being pronounceable upon the accused,
b) the apt right, of, the accused to, through his counsel, hold the prosecutrix, to cross-examination, being a right to be exercised, with grave caution, and, being meant, for shattering, the efficacy of the testification, rendered, in her examination-in-chief, by the prosecutrix, ( c) also is meant for ensuring emanation(s) from her, during, the course of hers being held to cross-examination, vis-à-vis hers hence making rife contradiction(s) or gross embellishment(s), vis-à-vis, her previously recorded statement in writing or her mother doing likewise (
d) furthermore, during the course of the defence 12 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 13 Counsel, holding the prosecutrix to cross-
examination, he is also empowered to rear the apposite defence, qua the prosecutrix meteing the .
apposite consent to the accused, (e) since the learned counsel for the accused, while holding the prosecutrix, and, the mother of the prosecutrix, to cross-examination, rather meted, the, aforesaid incriminatory suggestion(s) to each of them, with loud, candid unveiling(s) therein, qua the sexual encounter which occurred interse the accused, and, the prosecutrix, being a sequel of consent, hence being purveyed by the prosecutrix to the accused; f) thereupon with the counsel for the defence, rearing an apposite defence, vis-à-vis the charge, hence, he cannot be construed to be not efficaciously, defending, the accused nor it cannot be said, that the appropriate defence, reared by the learned defence counsel, being beyond the domain, of, the apt briefing(s) meted to him, by the accused (g) nor it can be concluded of the incriminatory suggestion(s) meted by the learned defence counsel, while holding, each of them, to cross-examination, nor the answers meted thereto, by the prosecutrix, and, the mother 13 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 14 of the prosecutrix, being hence held to be not binding upon the accused, h) moreso, when subsequent, to, the closure of recording, of, the .
prosecution evidence, whereat proceedings under Section 313 Cr. P.C. were drawn, therein also the accused omitted to make any disclosure(s) qua the meteings, by his counsel, of, any apposite incriminatory suggestion(s), to the prosecutrix, and to her mother, being a sequel of his not, making any apposite thereto, hence briefing(s) to his defence counsel, nor with his therein making any candid echoing(s) qua of theirs' being hence construed, to be not binding upon him.
In aftermath, the aforesaid omission(s), of, the accused, to, in his statement recorded under Section 313 Cr. P.C., hence making the aforesaid apposite voicing(s), rather hence bolsters an inference, of his being estopped, to contend, qua all the incriminatory suggestion(s) meted by his counsel, to the prosecutrix, and, to her mother being beyond the domain, of his imparting the apt briefing(s) to him (i) nor he can contend qua the apposite incriminatory statements, holding no binding effect 14 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 15 upon him, contrarily it is to be concluded, that, the apt meteing(s), of, incriminatory suggestion(s), being binding upon him.
.
12. The effect of the aforesaid discussion, is, of, the accused acquiescing(s), to his subjecting, the prosecutrix, to sexual intercourse. However, the learned counsel for the appellant, has contended, that with evidently, and, at the relevant stage, the prosecutrix, hence arriving at the age of consent, for the accused holding her, to coitus, and concomitantly with hers' meteing an apposite valid consent to the accusd, thereupon the charge is amenable to falter. In making the aforesaid submission, he has depended, upon, the radiological report, borne in Ext. PW9/B, wherein, a disclosure exists, qua the prosecutrix, in close proximity, to the alleged occurrence, being aged between 15 and 16 ½ years. However, the radiological age of the prosecutrix, is a mere estimation, of the age of the prosecutrix, and, would acquire vigor, only, when the best documentary evidence, comprised in the birth certificate or in the Pariwar Register of the prosecutrix, rather remains unadduced into evidence 15 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 16 or is amiss. However, hereat both the birth certificate, and, the Pariwar Register, of, the prosecutrix, respectively borne in Ext, PW6/B, and .
in Ext. PW6/A, make apparent disclosure(s) of the prosecutrix, at the relevant time, rather being a minor, (i) thereupon hence with hers thereat, not holding the apt capacity to mete any valid consent to the accused, for the latter holding her to coitus, thereupon the radiological determination, of the age of the prosecutrix, is unworthwhile, given its standing superseded by the aforesaid best documentary evidence, hence standing adduced, in respect thereof. Nonetheless, the learned counsel for the accused, has proceeded to impeach the probative vigor, of, both on anvil, of, a) though PW-6, in his examination-in-chief, hence proving PW6/A, whereas in his cross-examination, his making a disclosure qua the belated recording , of, the apt entry in the relevant register, rather being a sequel of an order standing pronounced, by the Executive Magistrate, Nirmand, (b) thereupon it being incumbent, for, the prosecution, to tender into evidence, the apposite order recorded, by the 16 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 17 Executive Magistrate, Nirmand, wherein, a direction is borne, to, make a belated recording, of, an apt entry, vis-à-vis, the birth of the prosecutrix, and, as .
finds reflected, in Ext. PW6/A. However, the aforesaid submission is bereft of vigor, ( c) given it being also open for the learned defence counsel, to, through an appropriate application, cast under Section 311 Cr. P.C., hence seeking elicitation from the appropriate records, of the orders made by the Executive Magistrate, Nirmand. However, the learned defence counsel, omitted to make the aforesaid endeavour, whereupon it is to be concluded, of, the apt entry, vis-à-vis, the age of the prosecutrix, and as reflected in Ext.PW6/A, being a sequel of an order pronounced by the Executive Magistrate, Nirmand,
(d) and, hence thereupon, the, order made by the Executive Magistrate, Nirmand, is to be concluded, to be holding binding effect, vis-à-vis, the relevant factum probandam, (e) thereupon the apt corollary thereof is, of, the apt reflections in Ext.PW6/A, also enjoining solemnity, besides sanctity. Furthermore, the effect of the aforesaid omissions, of, the learned defence counsel, to ensure elicitation(s), from the 17 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 18 apposite records, of the order made by the of Executive Magistrate, Nirmand, is qua hence an adverse inference being drawable against the .
accused, besides of the accused acquiescing, qua the apt reflection(s), borne in Ext.PW6/A, being a sequel of a valid order being made, by the Executive Magistrate, Nirmand.
13. Furthermore, the learned defence counsel, while holding the mother, of the prosecutrix to cross-examination, had meted suggestion(s) to her qua one Chander Prakash, son of the younger brother of her husband, being three years elder, to the prosecutrix and one Rakesh, son of younger brother of her husband, being younger, by 1-1 ½ years, to the prosecutrix. In supporting the vigor of the aforesaid suggestion(s), whereto affirmative answers, were meted by PW-4, the mother of the prosecutrix, also, the respective birth certificate(s), of the aforesaid were hence tendered into evidence.
The apposite birth certificate(s) of Chander Prakash, and, of Rakesh, were respectively, tendered into evidence, and bears respectively Ext. DW1/A, and, Ext. DW1/B, and, Ext.DW2/A,. The aforesaid 18 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 19 evidence would acquire vigor, only upon both Rakesh and Ranjit, also stepping into witness box, besides their respective parents also stepping into .
witness box, for, hence proving qua all the apt reflections, borne therein, bearing concurrence with their date of birth, borne in Ext. DW1/A, and, in Ext.
DW1/B, and, in Ext. DW2/B. However, neither Chander Prakash nor Rakesh nor their respective parents stepped into witness box, for, either proving the trite factum, qua the birth certificates of the aforesaid, rather carrying veracity (a) whereas, thereupon alone, it, was inevitable, to conclude, qua hence the prosecutrix, at the relevant stage, rather arriving at the age of consent, (b) and also, thereupon alone the credibility(s) of the apt entries, recorded in the pariwar register, and, in the birth certificate, appertaining, vis-à-vis, the age of the prosecutrix, would obviously stand belied. The effect of the aforesaid omissions, when are entwined, with, the omissions of the accused, to seek elicitation from the apt record(s), appertaining, to, the order of Executive Magistrate, Nirmand and, further, with the parents' of the prosecutrix, upon, theirs 19 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 20 stepping into witness box also obviously not standing confronted therewith, cumulatively is hence, qua thereupon it being concluded, that, (c) neither the .
oral testification(s) of the mother, of, the prosecutrix, vis-à-vis, the latter's age, nor the deposition of any other witness qua the aforesaid factum, hence acquiring any vigor.
14. Consequently, the aforesaid defence evidence, omits to overcome the efficacy, of, the apt entry(s) qua the date of birth, of, the prosecutrix respectively borne, in the pariwar register, and, in the birth certificate, contrarily, the effect thereto, is of hence the accused, rather concerting to strive to propagate, the apposite defence, of the prosecutrix meteing consent to him, in the latters subjecting her to sexual intercourse, hence, any reliance placed by the learned counsel for the convict, upon, the verdict (supra), is emphatically rendered not acceptable to this Court.
15. The learned counsel for the convict, has argued, that since the prosecutrix, was carrying a fetus, aged about five months, and, since the report q(i) thereupon the belated lodging of the report, vis-
20 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 21à-vis, the relevant occurrence, does acquire visible taints of concoction, and, invention. The aforesaid submission also falters, given this Court meteing the .
aforesaid effects, vis-à-vis the aforesaid apposite incriminatory suggestion(s) meted by the learned defence counsel, to the prosecutrix, and, to her mother, while his holding each to cross-examination, also vigor thereof fades, in view of the incapacity, of the prosecutrix, to mete consent to the accused, in the later holding her hence to coitus.
16. 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 wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from perversity or absurdity of mis-appreciation and non-
appreciation of evidence on record.
17. Consequently, there is no merit in the instant appeal which is accordingly dismissed. The Judgment impugned before this Court is maintained 21 ::: Downloaded on - 05/07/2018 22:59:04 :::HCHP 22 and affirmed. Records be sent back forthwith.
(Sureshwar Thakur) Judge .
June 28, 2018
(Kalpana)
r to
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