Himachal Pradesh High Court
Chander Pal vs State Of H.P on 31 December, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 5 of 2016.
Reserved on: 18th December, 2018.
.
Date of Decision: 31st December, 2018.
Chander Pal .....Appellant.
Versus
State of H.P. ....Respondent.
Coram r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. Umesh Kanwar, Advocate.
For the Respondent: Mr. Hemant Vaid and Mr. Desh Raj Thakur, Additional Adv.
Generals with Mr. Y.S. Thakur and Mr. Vikrant Chandel, Dy.
A. Gs.
_______________________________________________________ Sureshwar Thakur, Judge.
The instant appeal, is, directed by the convict/ accused/appellant, against, the pronouncement made by the learned Special Judge, Kullu, District Kullu, H.P., upon, Sessions Trial No.136 of 2013, whereunder, he convicted, besides imposed consequent sentence, upon, the convict/accused/appellant, for his committing offences ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 2 punishable under Sections 452, 363, 376/511 and 506 of the IPC, and, under Section 8 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the .
"POCSO Act").
2. The facts relevant to decide the instant case are that the prosecutrix was residing with her maternal grandmother (PW-4) in village Jindour, and, was studying in 5th class. On 26.6.2013, PW-4 and husband of PW-3 had gone to their field for night watch. Prosecutrix and her aunt (PW-3) were at home. At about 2.00 A.M in the night, when prosecutrix and her aunt were sleeping in a room, accused entered their room and lifted the prosecutrix by gagging her mouth and took her to his house situated at village Nangcha. PW-3, who had recently delivered a child and was having weak physic, tried to save the prosecutrix from the clutches of the accused, but she could not.
Accused threatened PW-3 to do away with her life.
Accused committed sexual assault and attempted to rape on the prosecutrix in his house. In the morning, PW-4, maternal grandmother of prosecutrix, came back from the field, to whom, PW-3 told that during the night, accused entered their house and took away the prosecutrix.
Thereafter PW-4 went to the house of accused. She found ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 3 the prosecutrix there and noticed that there were injuries on the body of prosecutrix and her "salwar" was also torn.
Thereafter, PW-4 alongwith prosecutrix came to the police .
station and got FIR, Ex.PW4/A registered against the accused. Partial investigation of the case was conducted by PW-11, S.I. Firoj Khan, who sent the prosecutrix to the hospital for her medical examination through LC Saroj.
Investigating officer also prepared spot map and recorded the statements of the witnesses. The prosecutrix was got medically examined from PW-5 Dr. Tanu Sharma. The doctor, on examination, found marks of violence on the person of prosecutrix and opined that there was no physical interference with the genitalia and then issued MLC Ex.PW5/B. However, prosecutrix was referred by PW-
5 for x-ray examination and opinion for age estimation.
During the course of investigating clothes of the prosecutrix were also taken into possession and sealed in a parcel. Thereafter, the police also completed other formalities with respect to the investigation.
3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report, under Section 173 of the Code of Criminal Procedure, was prepared, and, filed before the learned trial Court.
::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 44. The accused/appellant herein stood charged, by the learned trial Court, for, his committing offences, punishable under Sections 452, 363, 376 read with Section .
511, Section 506 of the IPC, and, under Section 8 read with Section 18 of the POCSO Act. In proof of the prosecution case, the prosecution examined 11 witnesses. On conclusion of recording, of, the prosecution evidence, the statement of the accused, under, Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication in the case.
5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon the accused/ appellants herein, for theirs hence committing the aforesaid offences.
6. The appellant herein/accused, stand aggrieved, by the findings of conviction, recorded, by the learned trial Court. The learned counsel appearing, for, the appellant herein/accused, has concertedly and vigorously contended, qua the findings of conviction, recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 5 material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court, in the exercise of its appellate jurisdiction, and, theirs being .
replaced by findings of acquittal.
7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction, recorded, by the learned trial Court, rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
8. 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.
9. The testimony of the prosecutrix, if, is worthy of gaining, the, confidence of this Court, and, is credible, (a) given it being not ridden, with, any active vice of gross improvements or embellishments, vis-a-vis, her previous statement recorded in writing, (b) AND, it being free from any active taints of inter se contradictions, vis-a-vis, her statement comprised in her examination-in-chief, and, IN her testification borne in her cross-examination, (c) ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 6 thereupon, this Court would be coaxed to succumb to her testification rendered on oath.
10. In making an endeavour to determine whether .
the testification rendered by the prosecutrix, hence being free, from all the afore taints, an incisive perusal thereof, makes imminent disclosure, qua her, in her examination-
in-chief, (a) rendering echoings bearing consonance with her previous statement recorded in writing, excepting the factum qua hers, in purported improvement thereof, rather making a disclosure qua the accused perpetrating sexual inter course upon her, whereas, hers in her previous statement making an articulation qua the accused attempting to hold her, to, coitus. (b) Nonetheless, the afore improvement, is, stripped of its purported adverserial effects, given the prosecutrix, upon, hers being re-examined, hers rendering a statement qua the accused touching his private part, with, her private part. Since, the afore rendered testification, is, uneroded of its vigour, and, further when, she, in her cross-examination, conducted on 19.6.2014, rather has denied a suggestion qua hers rendering a testification, under, active tutorings, meted, upon, her by her relatives, and, the police officials, (c) thereupon, she has proven her statement recorded before ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 7 the Magistrate, especially qua it being free from vices of duress or exertion being exerted upon her, (d) thereupon, when the afore penal misdemeanor ascribed by her qua .
the accused also constitutes an offence, under the amended definition of rape, hence, on the strength of the uneroded testification of the prosecutrix, this, Court concludes qua the prosecution, proving the charge against the accused.
11. The afore uneroded testification qua the charge, and, as rendered by the prosecutrix, acquires corroboration from PW-3, who in her testification, embodied in her examination-in-chief, renders, an echoing qua the accused, hence, kidnapping the prosecutrix from her abode, (i) despite hers abortively attempting to repulse the endeavour, of, the accused, given a critical weakness befalling upon her, on account, of, hers delivering, a child, 12 days, prior to the occurrence, (ii) and, with hers also deposing qua hers noticing injury marks on the body of the prosecutrix, and, with the afore testification remaining uneroded, (iii) despite hers being subjected to an exacting, and, rigorous cross-examination, by the learned defence counsel, also constrains this Court ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 8 to conclude qua the prosecution succeeding, in, proving the charge against the accused.
12. Be that as it may, PW-5, during. the course of .
hers stepping into the witness box, proving, the apt MLC, borne, in Ex.PW5/B, and, with hers in consonance with the apt MLC, also making disclosures qua hers noticing, the, existence of marks of violence, upon, her person, (i) and, hers also making a disclosure, in her examination-in-chief qua the injury marks noticed by her, and, as reflected in Ex.PW5/B, being possible, upon, resistance being meted by the prosecutrix, to an assault being perpetrated, upon, her person, (ii) thereupon, the afore disclosure made by PW-5, during, the course of her examination-in-chief, supports the version qua the occurrence, rendered by both, the prosecutrix, and, by PW-3, thereupon, corroborative vigour, thereto, also stands reinforcingly acquired.
13. However, the learned counsel appearing for the accused/appellant has contended with much vigour, before this Court, (a) that with the prosecutrix in her deposition comprised in her cross-examination, disclosing, qua existence of a family dispute inter se, her maternal grand father, and, the family of the father of the accused, (b) ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 9 and, with hers, in her cross-examination further making an articulation qua the existence of a shop, en-route, the abode of the accused, whereat, the penal act stood .
perpeterated, upon, her person, (c) and, with hers also testifying qua hers not raising any alarm, (d) thereupon, it being maybe inferable qua the prosecutrix consensually succumbing to the sexual overtures of the accused. The tenacity, if any, of the afore espousal reared before this Court by the learned counsel, appearing for the accused/appellant, would gain an aura of immense potency, (e) upon, evidence being adduced, qua the prosecutrix, at the relevant time, acquiring the age of consent. In the afore endeavour, the learned counsel for the accused/appellant, relies, upon the deposition rendered by PW-6, who, in his cross-examination, has rendered an echoing qua the results, of, the ossification test being amenable, to, variation, upto, 2 to 3 years on either side, (f) and, with a catena of judicial verdicts, propounding a trite proposition of law, that, the benefit of the upper margin being bestowable upon the accused, (g) thereupon, he further contends that when, the, ossification age of the prosecutrix, rather, is,testified by PW-6, to be within the range of 10 to 14 years, hence after adding ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 10 three years, on, the upper margin thereof, (h) hence, the prosecutrix is to be concluded to be acquiring the age of consent. Even if, the afore testification has some vigour, .
yet it would acquire formability, only upon failure of the prosecution, to, adduce the best documentary evidence, comprised in the birth certificate, of, the prosecutrix.
However, the prosecution, through PW-7, rather has proven, date of birth of the prosecutrix, date of brith whereof, stands embodied in Ex.PW7/B. A perusal thereof, discloses that at the relevant stage, hers being a minor. Even if, the afore reflections, as, borne in Ex.PW7/B qua the relevant factum probandum, were ridden with any gross infirmity, (i) thereupon, it was incumbent, upon, the defence to after holding PW-7, to, a rigorous cross-
examination, hence, prove qua the reflections borne in Ex.PW7/B rather being fictitious, and, being doctored, and,
(ii) theirs not being made at the instance of the parents of the prosecutrix, (iii) and, also it was incumbent, upon, the defence to, through the aegis of the Court, seek summoning of the records, from, the school concerned, wherefrom Ex.PW7/B emanated, for, hence enabling determination, qua, the reflections borne in Ex.PW7/B, being anvilled, upon surmises or conjectures or remaining ::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 11 unanvilled either upon abstract of Pariwar Register or upon the birth register maintained, with, the Panchayat concerned, or with the Registrar, Birth and Deaths. (iv) .
The afore endeavours remained unrecoursed by the defence, and, hence, all the reflections as borne in Ex.PW7/B qua the relevant factum probandum, are, to be construed to be bearing, an aura of formadibility, and, on anvil thereof, it is to be concluded that the prosecutrix hence being a minor at the relevant stage, and, obviously hers not holding an apt capacity, to, mete consent to the accused, for the latter holding her to coitus. Therefore, consent, if any, purveyed by the prosecutrix, to accused, for holding her to sexual coitus, is both irrelevant or stands subsided.
14. 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, hence, also does not suffer from any gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record.
::: Downloaded on - 03/01/2019 20:02:07 :::HCHP 1215. Consequently, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the impugned judgment is affirmed and maintained. All .
pending applications also stand disposed of. Records be sent back forthwith.
(Sureshwar Thakur) Judge 31st December, 2018.
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