Himachal Pradesh High Court
Ramesh Kumar vs State Of Himachal Pradesh on 24 June, 2016
Bench: Rajiv Sharma, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 80/2016 Reserved on: June 23, 2016 Decided on: June 24, 2016 .
_________________________________________________________________ Ramesh Kumar ...Appellant Versus State of Himachal Pradesh ...Respondent _________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge. Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? 1 Yes.
---------------------------------------------------------------------------------- For the Appellant: rt Mr. Devender K. Sharma, Advocate.
For the Respondent: Mr. M.A. Khan, Additional Advocate General.
_________________________________________________________________ Rajiv Sharma, Judge This appeal is instituted against Judgment/Order dated 24.12.2015/2.1.2016 rendered by learned Additional Sessions Judge (II), Mandi, District Mandi, Himachal Pradesh in Session Trial No. 23/2013, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offences punishable under Sections 452, 342 and 376 IPC, has been convicted and sentenced to undergo simple imprisonment for a period of one month and to pay fine of Rs.500/- under Section 342 IPC, in default of payment of fine, to further undergo simple imprisonment for one week. He has been further sentenced to 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 2
undergo rigorous imprisonment for seven years under Section 452 IPC and to pay a fine of Rs.10,000/-, in default of payment .
of fine, to further undergo simple imprisonment for two months.
Accused has further been sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine to the tune of Rs.50,000/- under Section 376 IPC, and in default of payment of fine, to further undergo simple imprisonment for six of months. All the sentenced were ordered to run concurrently.
2. Case of the prosecution, in a nutshell, is that, rt prosecutrix (PW-1) is the eldest daughter of her parents. In the year 2012, she was studying in 9th standard. Her date of birth is stated to be 20.8.1998. PW-2 is the mother of the prosecutrix.
She noticed that the belly of prosecutrix was bulging. She took her to Banga Diagnostic Centre, Sundernagar and doctor after conducting ultrasound found that there was a live foetus of 24 weeks. Parents of the prosecutrix took her to Kamla Nehru Hospital, Shimla for the purpose of abortion. On 4.9.2012 at about 10.05 AM, Rapat No. 22(A) Ext. PW-16/A was drawn in Police Station, Shimla East, on the basis of telephonic message of Constable Ravi Kumar of Kamla Nehru Hospital, booth. He informed that one girl aged about 14 years has been brought by her parents for the purpose of abortion in Kamla Nehru Hospital, Shimla and Medical Officer had informed this fact to him. On the basis of aforesaid Rapat, ASI Taranjit Singh (PW-
::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 314) alongwith constable Sandeep Kumar visited Kamla Nehru Hospital, Shimla. He recorded the statement of the prosecutrix .
Ext. PW-1/A under Section 154 CrPC. According to the contents of Ext. PW-1/A, prosecutrix was raped in her house and due to this reason she became pregnant. ASI Taranjit Singh sent a Rukka through Constable Sandeep Kumar (PW-15) to the Police Station, Balh. PW-11 Bahadur Singh, PS Balh, after of receipt of Rukka has drawn case FIR Ext. PW-11/A. ASI Om Parkash (PW-18) recorded supplementary statement of the rt prosecutrix, in which she disclosed that she was taking bath in her kitchen when accused entered into her house, opened the door and forcibly committed rape upon her. Due to fear, she could not tell this fact to her parents. Accused was medically examined. Investigating Officer moved an application Ext. PW-
4/A to the Principal, Government Senior Secondary School, Dessehra to obtain the date of birth certificate of the prosecutrix. He obtained the birth certificate Ext. PW-4/B from PW-4 Smt. Kiran Kumari, Trained Graduate Teacher(Medical).
He also obtained date of birth certificate from PW-17 Suresh Kumar, Secretary Gram Panchayat Bairkot. According to HC Raj Kumar (PW-5), after the birth of male child, his blood on the FTA card was taken for the purpose of DNA profiling. Dr. Richa Sharma (PW-13) has taken blood of the accused on FTA card and blood sample of prosecutrix was also taken on FTA card.
::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 4These samples were deposited with him and sent on 4.1.2013 to FSL Junga. The result of the DNA was received on 1.3.2013 vide .
report Ext. PW-20/A. Investigation was completed and Challan was put up in the Court after completing all codal formalities.
3. Prosecution has examined as many as twenty four witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. His case was that of of denial simpliciter. Accused was convicted and sentenced as noticed herein above. Hence, this appeal.
4. rt Mr. Devender K. Sharma, Advocate, argued that the prosecution has failed to prove its case against accused.
5. Mr. M.A. Khan, Additional Advocate General, has supported the judgment/order of conviction dated 24.12.2015/2.1.2016.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. Prosecutrix (name withheld)(PW-1) deposed that she was a student of 9th standard in Senior Secondary School Dessehra. It was Sunday. It was about 11.00 AM. She was in her house alongwith her younger sister. She was taking bath in the kitchen. Her father had gone out of the home in connection with his work. Her mother had gone to jungle to bring fuel wood. Her younger sister was playing in the house. Door of the house was open. Accused entered the house and bolted the ::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 5 door. She was taking bath in the kitchen. She had applied soap on her head. Accused caught hold of her and laid her on the .
floor. At that time, her younger sister was playing outside the house. Accused caught hold of her throat. He committed rape on her. She became unconscious. He went away from the house. She did not disclose the incident due to fear to anybody.
Accused was her uncle. She was threatened. Her mother of noticed her bulging belly. She took her to Hospital at Sundernagar. She was got checked from a doctor. Ultrasound rt was done. Doctor opined that she was pregnant. She went to Kamla Nehru Hospital on 3.9.2012. She was checked on 4.9.2012. Doctor informed the police. Her statement was recorded by the police vide Ext. PW-1/A. On that day, she did not disclose to the police due to fear that accused had committed rape on her. When she went back to home on 8.9.2012, she disclosed the name of accused. Her statement was recorded by the police in her house. Police prepared spot map of the place of occurrence. She delivered a male child on 10.12.2012, in Kamla Nehru Hospital, Shimla. In her cross-
examination, she deposed that there was only one door in the kitchen from verandah. She was taking bath without bolting door of the kitchen. She disclosed to the police that she was caught hold by the accused from throat and thereafter she became unconscious. (Confronted with Ext. PW-1/A, wherein it ::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 6 is not so recorded). Initially, she did not disclose to the mother who raped her, due to fear. However, she narrated the incident .
to her mother subsequently.
8. Vidya Devi (PW-2) is the mother of the prosecutrix.
She deposed that the prosecutrix was a student of 9th standard in Government Senior Secondary School Dessehra. She checked the belly of the prosecutrix on 1.9.2012. She tried to ascertain of the reason from the prosecutrix but she did not reply. She took her to the hospital at Sundernagar. She was checked up. Ultra rt sound was done. Doctor, after examining the report of ultrasound, opined that the prosecutrix was carrying a pregnancy of six months and five days. Doctor advised to get her checked up at Kamla Nehru Hospital, Shimla. They went to Shimla on 3.9.2012. Prosecutrix was checked up on 4.9.2012.
Matter was reported to the police. Prosecutrix disclosed to the police that she was taking bath on Sunday in the kitchen. She (PW-2) had gone to jungle for fuel wood. Her husband had gone out of house with the mules. Prosecutrix also disclosed before the police at Shimla that rape was committed on her. They came back on 7.9.2012. On 8.9.2012, police came from Rewalsar. Police asked the prosecutrix to disclose the truth and she thereafter disclosed that accused had committed rape on her.
::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 79. Smt. Mamta Devi (PW-3) testified that on 8.9.2012, she was called by the police to the house of Roop Lal in village .
Gehri. Vice President and Ward Panch were there. Statement of the prosecutrix was recorded by the police in her presence.
Prosecutrix stated that she was taking bath in the kitchen.
Accused caught hold of her and committed rape upon her.
10. Smt. Kiran Kumari (PW-4) testified that an of application Ext. PW-4/A was moved by the police for issuing date of birth. She had brought the original record to the Court.
rt Copy of certificate is Ext. PW-4/B. Date of birth of the prosecutrix was 20.8.1998. In her cross-examination, she categorically admitted that the entries in the register were made by her. Entries were made on the basis of certificate of primary school.
11. Dr. Richa (PW-13) has examined the accused. She issued MLC Ext. PW-13/A. Accused was produced before her for the purpose of taking blood sample for DNA profiling. She identified accused on the basis of photograph, which was affixed on Ext. PW-13/B. Blood sample was taken on FTA, which was initially sent to FSL Junga and was not opened. She filled form Ext. PW-13/B and sample alongwith Ext. PW-13/B was sent to PFA (DNA profiling).
12. ASI Taranjit Singh (PW-14) deposed that on 4.9.2012 at about 10.05 AM, information was given by the In-
::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 8charge Constable Ravi Kumar No. 1522 of Police Booth from Kamla Nehru Hospital Shimla that the prosecutrix had come .
there for abortion. On this information, he alongwith constable Sandeep Chauhan went to Kamla Nehru Hospital, Shimla. He recorded the statement of the prosecutrix Ext. PW-1/A under Section 154 CrPC.
13. Constable Sandeep Chauhan, (PW-15) deposed that of he alongwith ASI Taranjit Singh went to Kamla Nehru Hospital.
Statement of the prosecutrix was recoded by ASI Taranjit Singh.
14. rt Suresh Kumar (PW-17) deposed that he had prepared the birth certificate of the prosecutrix at the request of police. Her date of birth was 20.8.1998. He proved Ext. PW-
17/A. He had brought the birth register of Gram Panchayat.
15. SI Om Prakash (PW-18) is the Investigating Officer.
He prepared special report and sent to the Superintendent of Police Mandi. He has recorded the statements of witnesses. He also recorded the supplementary statement of the prosecutrix Ext. PW-18/B. He also obtained from the Principal, Government Senior Secondary School, Dessehra, the birth certificate of the prosecutrix vide Ext. PW-4/B.
16. Dr. Jandeep Bagga (PW-19) conducted ultrasound of the patient. His report is Ext. PW-19/A. According to the report, single live foetus of 24 weeks was found in the uterus of the patient.
::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 917. Dr. Aparna Sharma (PW-20) testified that three sealed parcels were received in DNA Division for examination on .
24.1.2013. Seals on the parcels were intact and tallied with the specimen seals sent alongwith the docket. Parcels were signed and opened. According to the report Ext. PW-20/A, the newly born baby was the biological son of the prosecutrix and the accused.
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18. Dr. Birender Trehan (PW-23) testified that on 11.12.2012, he took blood sample of newly born male child of rt the prosecutrix on FTA card to ascertain that who was its biological father. FTA card was sealed in a sample kit and seal impression and specimen of seal impression were embossed upon Ext. PW-23/A. He identified his signatures on Ext. PW-
23/A. He handed over Ext. PW-23/A to the police alongwith sealed FTA card. He identified the handwriting of Dr. Ansu Sharma on MLC Ext. PW-23/B. Prosecutrix delivered a normal child under the supervision of his unit. At that time she was carrying pregnancy of seven months.
19. Dr. Anuradha Sharma (PW-24) deposed that on 15.1.2013, she obtained blood sample of prosecutrix over FTA card after filling identification forms Ext. PW-24/A. She also attested the photographs of prosecutrix and sealed FTA card with seal impression NSCB ZH Mandi. Seal impression was also embossed upon Ext. PW-24/A. ::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 10
20. Prosecution has proved beyond reasonable doubt that the accused has committed rape upon the prosecutrix .
when she was taking bath in her kitchen. She could not narrate the incident out of fear. It was only when mother noticed that her belly was bulging, she was taken to the doctor. Doctor conducted ultrasound. He noticed a live foetus. Thereafter she came to Kamla Nehru Hospital, Shimla. Statement of the of prosecutrix was recorded. Thereafter her supplementary statement was also recorded. She delivered a male child.
rt Prosecutrix while appearing as PW-1 has testified the manner in which accused had entered the kitchen and committed rape upon her. Statement of PW-1 is fully corroborated by her mother, PW-2 Vidya Devi. Date of birth of the prosecutrix as per Ext. PW-4/B was 20.8.1998. PW-17 Suresh Kumar has proved birth certificate Ext. PW-17/A. According to this also the date of birth of the prosecutrix was 20.8.1998. She was minor at the time when offence was committed by the accused by entering the kitchen. Supplementary statement of the prosecutrix was also recorded. PW-13 Dr. Richa has issued MLC Ext. PW-13/A. According to her opinion, accused was capable of performing sexual intercourse. She has also taken blood sample of the accused for DNA profiling. She filled identification form of accused vide Ext. PW-13/B. She identified accused in the Court. Blood sample taken for FTA was sent to FSL Junga.
::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 1121. Dr. Birender Trehan (PW-23) has taken blood sample of the newly born male child of the prosecutrix on .
11.12.2012. Dr. Anuradha Sharma (PW-24) has taken blood sample of the prosecutrix on the FTA card. She attested the photographs of the prosecutrix and sealed FTA card with seal impression NSCB ZH Mandi.
22. Accused has forcibly entered the house of the of prosecutrix and committed rape upon the prosecutrix.
Prosecutrix was minor at the time of commission of offence.
23. rt Thus, the prosecution has fully proved its case against the accused. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court.
24. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any. Learned trial Court has ordered the copy of the judgment to be sent to the Chairman, Legal Services Authority, Mandi for adequate compensation under the Scheme, keeping in view the fact that victim was minor and required rehabilitation.
25. However, before parting with the judgment, it would be pertinent to mention here that the learned trial Court has also ordered adequate compensation to be paid to the prosecutrix through the agency of H.P. State Legal Services Authority in addition to Rs. 60,500/- imposed by way of fine.
The prosecutrix is doubly in disadvantageous position since she ::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 12 has to maintain herself and her baby. She belongs to the lowest strata of the society. She has already suffered a lot. Thus, she needs a special rehabilitation. However, since the prosecutrix has .
to maintain herself and the male child, the judgment of the learned trial Court is modified to this limited extent that the prosecutrix will be entitled to a sum of Rs. 10,000/- per month as victim compensation in addition to Rs. 60,500/- awarded to her by of way of fine till her life, instead of compensation in view of the definitive law laid down by their lordships of the Hon'ble Supreme rt Court in the case of Tekan alias Tekram vs. State of Madhya Pradesh (Now Chhattisgarh), reported in (2016) 4 SCC 461, wherein in has been held as follows:
"9. From the inquiry, it reveals that the victim (now aged about 37 years) lives alone in Village Nandini Kundini, District- Durg, Chhattisgarh. She is unmarried and lives in a kuccha house. She has two brothers who lives separately from her. One of the brothers Ishwari Sahu lives in a different village Dhour (distance 12 kms from Nandini Kundini). Another brother Baldau Sahu lives is district Bhila (distance 22 kms from Nandini Kundini) and works as a daily-labourer. She receives a pension of Rs.300/- per month from the State being a person with disability. She is also a BPL card holder which entitles her 35kg rice per month at the rate of Rs.1/- per kg. and free salt. The financial status of victim's brothers is also not good.
15. Coming to the present case in hand, victim being physically disadvantaged, she was already in a socially disadvantaged position which was exploited maliciously by the accused for his own ill intentions to commit fraud upon her and rape her in the garb of promised marriage which has put the victim in a doubly disadvantaged situation and after the waiting of many years it has worsened. It would not be possible for the victim to approach the National Commission for Women and follow up for relief and ::: Downloaded on - 15/04/2017 20:40:06 :::HCHP 13 rehabilitation. Accordingly the victim, who has already suffered a lot since the day of the crime till now, needs a special rehabilitation scheme.
17. Indisputably, no amount of money can restore the dignity and confidence that the accused took away .
from the victim. No amount of money can erase the trauma and grief the victim suffers. This aid can be crucial with aftermath of crime.
19. In the result, we dismiss the appeal having no merit and issue the following directions:-
1) All the States and Union Territories shall make all endeavour to formulate a uniform of scheme for providing victim compensation in respect of rape/sexual exploitation with the physically handicapped women as required under the law taking into consideration the rt scheme framed by the State of Goa for rape victim compensation;
2) So far as this case is concerned, the respondent State shall pay a sum of Rs.8,000/-
per month as victim compensation to the victim who is physically handicapped, i.e. blind, till her life time."
26. The State Government is also directed to provide free education to the child of the prosecutrix/victim up to post graduate level. A copy of this judgment be sent to the Chief Secretary to the State of Himachal Pradesh/Member Secretary H.P. State Legal Services Authority within one week for necessary compliance.
(Rajiv Sharma) Judge (Vivek Singh Thakur) Judge June 24, 2016 vikrant ::: Downloaded on - 15/04/2017 20:40:06 :::HCHP .
of rt ::: Downloaded on - 15/04/2017 20:40:06 :::HCHP