Himachal Pradesh High Court
Vinod Kumar Alias Vinu vs State Of Himachal Pradesh on 5 January, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.372 of 2020.
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Reserved on : 02.01.2024.
Date of decision: 05.01.2024.
Vinod Kumar alias Vinu .....Appellant.
of Versus State of Himachal Pradesh .....Respondent. Coram rt The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No For the Appellant : Mr. Mukul Sood, Advocate.
For the Respondent : Mr. I.N. Mehta, Mr. Yashwardhan
Chauhan, Senior Additional
Advocate Generals with
Mr. Navlesh Verma and Ms.
Sharmila Patial, Additional
Advocate General.
Tarlok Singh Chauhan, Judge
The appellant has been convicted and sentenced by the learned Special Judge for the offence punishable under Section 376 of the Indian Penal Code ('IPC') and under Section 4 of the Protection of Children from Sexual Offences Act, 2012, (for short 'POCSO ACT') and aggrieved thereby has filed the instant appeal.
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 2
2. Brief facts of the case are that on 14.07.2015, victim came to the police station, Sarkaghat, District Mandi, H.P. along with .
her mother and grandmother and reported the matter to the police stating therein that on 12.07.2015, she went to the house of her maternal grandmother at village Patti. On 13.07.2015, she was coming from the house of her maternal grandmother and when at of about 3.30 p.m. reached at place "Rissa bridge", the appellant caught her from her hands and took her forcibly towards fields in the rt upper side "Amla-Ka-Ridhu" and committed sexual intercourse with her. At that time, her "Mausi" (mother's sister) Smt. Bohri Devi (PW-10), Smt. Beasa Devi (PW-9) and Smt. Kamla Devi (PW-7) came there and on seeing them, the appellant ran away from the spot. Smt. Bohri Devi (PW-10) called her mother and she had come on the spot. Thereafter, the victim narrated the whole incident to her mother.
3. On the next day, they reported the matter to the police because her mother was not having any money to pay bus fare.
She moved an application Ext. PW-5/A on the basis of which, FIR Ext. PW-18/A was registered.
4. The Investigating Officer (I.O.) inspected the place of occurrence i.e. "Ambla-Ka-Ridhu" at village Rissa at the instance of victim and prepared the spot map Ext. PW-18/C. During ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 3 investigation, the soil, grass and some leaves were lifted by the I.O.
from the place of occurrence on the identification of the victim which .
were put in a cloth parcel and the parcel was sealed with seal impression 'I' at four places in presence of Jamna Devi and the victim, which were taken into possession vide memo Ext. PW-5/B. The victim was got medically examined at Zonal Hospital, Mandi of and samples were preserved. Victim produced one shirt and salwar to the police which were sealed in a cloth parcel with seal rt impression "SK" at four places in presence of Sohan Lal and Ramesh Chand and the parcel was taken into possession by the police vide memo Ext. PW-11/A.
5. The statement of the victim under Section 164 Cr.P.C.
was got recorded before the Court of learned Judicial Magistrate 1 st Class, Court No.2, Sarkaghat. The appellant was interrogated and was arrested on 15.07.2015. The I.O. moved an application before the Medical Officer (M.O.), CHC, Sarkaghat and the appellant was got medically examined. Samples were preserved and handed over to the police. The appellant while in police custody gave identification of the place of occurrence at "Rissa" and thereafter I.O. had prepared the spot map Ext. PW-18/H.
6. On 20.07.2015, I.O. moved an application Ext. PW-4/A to the Secretary, Gram Panchayat, Chauri, for obtaining the date of ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 4 birth certificate and copy of pariwar register of the victim. The date of birth certificate Ext. PW-4/B and copy of pariwar register Ext.
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PW-4/C were obtained.
7. On 03.09.2015, I.O. moved an application Ext. PW-2/A to Smt. Kamlesh Kumari (PW-2), Principal Govt. Senior Secondary School, Rissa for obtaining the age proof i.e. birth certificate of victim of and procured the birth certificate Ext. PW-2/B as per which the date of birth of victim is 09.03.2000.
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8. During the course of investigation, on 17.07.2015, ASI Manohar Lal (PW-17) applied for the CDRs, billing address of mobile No. 86795-44527 and tower location of mobile Nos.86795- 44527 and 88941-74412 for the period from 12.07.2015 to 13.07.2015 vide application Ext.PW-17/A and thereafter billing address of mobile No. 86795-44527 Ext. PW-17/B and call details of the aforesaid mobile numbers Ext. PW-17/C were also obtained.
The SIM of mobile phone No.86795-44527 was in the name of husband of PW-9 Smt. Beasa Devi. The samples preserved by doctors of the victim as well as appellant and the clothes worn by the victim at the time of occurrence were sent to RFSL, Mandi.
9. After receiving the RFSL report Ext. PX, the final opinion was obtained on the MLC of the victim. On 09.09.2015, doctor Dharam Pal (PW-20) obtained the blood samples of the ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 5 victim and the appellant on FTA cards Ext. PW-20/D-1 and Ext.
PW-20/D-2 which were packed in envelopes Ext. PW-20/C-1 and .
Ext. PW-20/C-2 after completing the identification forms Ext.
PW-20/A and Ext. PW-20/B, respectively.
10. After completion of the investigation, I.O. (PW-18) prepared the challan and presented the same in the Court. On of receipt of S.F.S.L. result Ext. PW-19/A and on completion of the investigation, Inspector Bharat Bhushan rt (PW-19) prepared the supplementary challan and presented the same in the Court on 08.12.2016.
11. On finding a prima facie case, charge was framed against the appellant for the aforesaid offences to which he pleaded not guilty and claimed to be tried.
12. In order to prove its case, prosecution examined as many as 21 witnesses.
13. After closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. Even though, the appellant had expressed his desire to lead defence evidence, however, he did not lead any evidence in defence.
14. After recording evidence and evaluating the same, the learned Special Judge convicted and sentenced the appellant as under:
::: Downloaded on - 05/01/2024 20:35:11 :::CIS 6Offence u/s Rigorous/Simple Fine In Default .
Imprisonment 376 IPC R.I. 10 years Rs.10,000/- S.I. 1 year 4 POCSO S.I. 7 years Rs.10,000/- S.I. 1 year
15. Both the aforesaid sentences were directed to run of concurrently and the period of detention already undergone by the appellant was ordered to be set off against the sentence of rt imprisonment in view of Section 428 Cr.P.C.
16. It is vehemently argued by Shri Mukul Sood, learned counsel for the appellant that the place of occurrence i.e. "Rissa Bridge" is a very thickly and populated area and there is school, temple, shops, houses of the local residents and, therefore, the case as set up by the prosecution is highly improbable and suspicious and when the alleged occurrence was seen by Beasa Devi (PW-9), who is a close relative of the victim, had not raised an alarm. He would also contend that since PW-9 Beasa Devi has not supported the version of the prosecution and even the mother of the victim has gone beyond the story of the prosecution, thus, these are additional circumstances which also warrant acquittal of the appellant.
17. On the other hand, Ms. Sharmila Patial, learned Additional Advocate General would contend that since the ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 7 prosecution has proved its case beyond all reasonable doubt, therefore, the learned Special Judge has rightly convicted and .
sentenced the appellant and such conviction warrants no interference.
18. We have heard the learned counsel for the parties and have also gone through the records of the case.
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19. At the outset, it needs to be noticed that this Court while dealing with the offences of instant kind is required to bear in mind rt the following observations made by the Hon'ble Supreme Court in its recent judgment Manak Chand @ Mani vs. The State of Haryana,2023 (14) SCALE 895:-
"5. The evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness. It is again true that conviction can be made on the basis of the sole testimony of the prosecutrix. All the same, when a conviction can be based on the sole testimony of the prosecutrix, the courts also have to be extremely careful while examining this sole testimony as cautioned in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384:
"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 8 accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its .
responsibility and be sensitive while dealing with cases involving sexual molestations."
This was reiterated by this Court in Sadashiv Ramrao Hadbe v. State of Maharashtra and Another (2006) 10 SCC 92:
of "It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical rt evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix."
Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence.
Relying upon the case of Gurmit Singh (supra) this court in Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133 held as under:
"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 9 applied to the facts of every case of sexual assault which comes before the court.
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11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in of mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a rt witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
20. Now, the moot question is whether the testimony of the victim in the instant case inspires confidence.
21. The victim appeared as PW-5 and stated that on 12.07.2015, she had gone to the house of her maternal grandmother. While, she was returning back to her house on next day, then at about 3.30 p.m. when she reached near "Rissa Bridge", the appellant met her and caught her hand and taken her forcibly towards field and committed sexual intercourse with her. At that time, her "Mausi"(mother's sister) Bohari Devi had called her mother and she had come on the spot. Then, she narrated the whole incident to her mother. She also stated that on the next day, they had reported the matter to the police because on the previous day her mother was ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 10 not having money to pay bus fare. She had moved an application Ext. PW-5/A to the police pursuant to which she was got medically .
examined by the police. The police had taken grass, soil and leaves from the spot and the same were packed in the paper. She also stated that she had produced her clothes i.e. salwar and shirt to the police in the presence of her parents and Ramesh, which were of sealed by the police and were taken into possession vide memo Ext.
PW-11/A and she also identified her signatures over the same. She rt also stated that the police had also clicked photographs and she identified the same before the Court.
22. On being cross-examined, the victim stated that she had gone to the house of her maternal grandmother on 12 th and came back on 13th. She admitted that near "Rissa Bridge", the place of incident, there was a temple and Senior Secondary School and she also admitted that there were houses and cowsheds of local people on both sides of the path which emerged from bridge to "Amla-Ka-Ridhu". The victim stated that she could not raise cries as her mouth was gagged by the appellant with his hands. Her maternal aunt (Mausi) Bohari Devi and Beasa Devi had seen the appellant while he was taking her away towards "Amla-Ka-Ridhu".
She further stated that houses of Bohari Devi and Beasa Devi were situate at some distance. She admitted that in the year 2015, her ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 11 marriage had been fixed but it did not mature. She denied that she was 18 years of age. She stated that even though the complaint .
Ext. PW-5/A was dictated by her mother and cutting in the complaint was done at her instance (victim). She admitted that her mother was working as maid in the house of SHO Satish Kumar, who had investigated this case. She also stated that her medical examination of was got conducted on 13.07.2015 in the evening time. She lastly admitted that relations of her father with the father of the appellant rt were strained and they were not on talking terms. However, she denied that on the relevant date, the appellant had not met her nor had taken her to "Amla-Ka-Ridhu". She also denied that the appellant had not indulged in sexual intercourse with her.
23. It needs to be noticed that the victim in the instant case was born on 09.03.2000, as is evident from the birth certificate Ext.
PW-4/B and further fortified from the certificate Ext.PW-2/B issued by the Principal of the school. Even if, Ext. PW-2/B is kept out of consideration, as pointed out by the learned counsel for the appellant, even then the date of birth certificate issued under Sections 12 and 17 of the Registration of Births and Deaths Act, 1969, vide memo Ext. PW-4/B, is sufficient to prove that the date of birth of the victim was 09.03.2000. Meaning thereby, that as on date of the incident, the victim was barely 15 years 4 months and ,thus, ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 12 she falls within the definition of "child" as given in Section 2(k) of The Juvenile Justice (Care and Protection of Children) Act, 2000.
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24. Now, testing the veracity of the testimony of the victim with the scientific evidence that has come on record, it needs to be noticed that as per DNA Profiling, the DNA obtained vide Ext. 2c (vaginal swabs) of the victim matched completely with the DNA of profile obtained from the blood sample on FTA card of the appellant which clearly proves that the child-victim had been raped. Moreover, rt the report of the Medical Officer (PW-14) doctor Reetu Sharma, who medically examined the victim, has referred to the report of the Medical Officer wherein she has specifically opined that the possibility of sexual intercourse with the victim cannot be ruled out.
Her opinion coupled with the report of DNA Ext. PW-19/A and the statement of the Investigating Officer and the other evidence produced by the prosecution fully corroborate the version of the victim in particulars which also stands corroborated with medical and scientific evidence.
25. In this background, the submission of the learned counsel for the appellant that the clothes worn by the victim as deposed by various eye-witnesses to the one sent for chemical analysis by the police is of no avail or consequence.
::: Downloaded on - 05/01/2024 20:35:11 :::CIS 1326. That apart, the other contention raised by the learned counsel for the appellant that the place where the alleged incident .
had taken place is busy also loses its significance and is of no consequence. Likewise, the mere fact that Smt. Beasa Devi (PW-9) did not support the version of the prosecution or the mother of the victim went beyond the story of the prosecution, is also of no avail.
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27. As a last ditch effort, the learned counsel for the appellant would contend that since there were no injuries found rt anywhere on the body of the victim, therefore, at best, the case could be said to be a case of consensual sex. We find no merit in this contention as it is more than settled that sexual intercourse or sexual activity by a man with a "child" as defined under POCSO Act is classified as rape.
28. Here, it shall be apt to refer to the observations made by the Hon'ble Supreme Court in Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat (2015) 7 SCC 359, wherein it was observed as under:-
"14. First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows:
"375. Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 14 intercourse with a woman under circumstances falling under any of the six following descriptions:-
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xx xx xx Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
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15. The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is rt incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.
::: Downloaded on - 05/01/2024 20:35:11 :::CIS 1516. Once we put the things in right perspective in the manner stated above, we have to treat it a case where the .
appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of of Children from Sexual Offences Act, 2012."
29. In view of settled position of law, sexual relationship rt with minor is prohibited and the law clearly treats this to be an offence even if the same is based upon alleged consent of a minor.
30. Section 375 of IPC defines "rape" and it provides that a man is said to commit rape if he has sexual intercourse with a woman under the circumstances falling under any of the seven descriptions mentioned in that Section. Clause 6 thereof makes it clear that if the woman is under the age of 18 years, then sexual intercourse with her, with or without consent, is rape.
31. It may also be observed that the sexual exploitation and sexual abuse of children is a heinous crime, which needs to be effectively addressed because it clearly falls under the POCSO Act punishable under Section 6 thereof, even if, it is claimed that the act was consensual. Such incident of alluring a minor and entering into physical relationship thereby claiming that it was a consent of the ::: Downloaded on - 05/01/2024 20:35:11 :::CIS 16 minor cannot be treated in a routine manner since rape is not only a crime against minor victim, but is also a crime against entire society.
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32. From the aforesaid exposition of law, it would be evidently clear that consent of minor is immaterial for the purposes of Section 376 of IPC.
33. In view of the aforesaid discussion and for the reasons of stated hereinabove, we find no merit in this appeal and the same is accordingly dismissed.
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34. Records be sent back forthwith.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 5th January, 2023.
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