Himachal Pradesh High Court
Yagya Dutt Alias Rinku vs State Of H.P on 5 April, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 99 of 2015.
Reserved on: April 04, 2016.
.
Decided on: April 05, 2016.
Yagya Dutt alias Rinku ......Appellant.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. Chander Shekhar Sharma, Advocate.
For the respondent: Mr. Neeraj K. Sharma, Dy. AG.
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Justice Rajiv Sharma, J.
rt This appeal is instituted against the judgment and order dated 26.9.2014 and 27.9.2014, respectively, rendered by the learned Special Judge, Hamirpur, H.P., in Sessions Trial No. 21 of 2013, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 376, 366-A, 506 IPC read with Section 4 of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act), has been convicted and sentenced to undergo seven years rigorous imprisonment and to pay fine of Rs. 20,000/- under Section 4 of the POCSO Act and in default of payment of fine to further undergo three months simple imprisonment. He was also sentenced to undergo one month's rigorous imprisonment and fine of Rs. 1000/- for offence punishable under Section 506 Part II, IPC and in default to further undergo simple imprisonment for 15 days. Both the sentences were ordered to run concurrently. The 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 2accused was acquitted of the charges under Sections 363 and 366 IPC.
Since the POCSO Act is a special enactment, therefore, charge under .
Section 376 IPC merged under Section 4 of the POCSO Act.
2. The case of the prosecution, in a nut shell, is that on 10.8.2013, complainant Babu Ram, resident of Village Kohla submitted a complaint to the SHO concerned, to the effect that his daughter PW-2 of (name withheld) aged around 17 years on 2.8.2013 left for the Government School, Bijhar where she was studying in 10th standard. She had not returned home and on inquiry from Physical Education Teacher, it was rt informed that she had not visited the school on the relevant date. She was searched out in his relations' house. He came to know that on 4th and 5th August, 2013, she was seen roaming in Sector 43, Chandigarh. Thereafter, he alongwith his brother-in-law Mohinder visited Chandigarh Police, but it was informed that she had boarded the bus for Hamirpur. On receipt of the written complaint, the case was registered and investigation was carried out. The copy of the birth certificate was obtained, according to which, the date of birth of the prosecutrix was 30.10.1996. The accused was arrested. The victim was medically examined at RH Hamirpur. Her vaginal swabs and slides were retained and got analyses. During the course of investigation/trial, PW-2 prosecutrix delivered a female child and was adopted by one Attri Devi. On the request of the police, the doctor retained the blood samples of victim, accused and newly born female child for DNA profile. PW-2 prosecutrix is the biological mother and accused is biological father of newly born female baby Kanak. The statement of the ::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 3 victim was also recorded under Section 164 Cr.P.C. by the JMIC, Barsar.
The investigation was completed and the challan was put up after .
completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 23 witnesses. The accused was also examined under Section 313 Cr.P.C. He pleaded innocence. The learned trial Court convicted and of sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Chander Shekhar Sharma, Advocate, has vehemently argued that the prosecution has failed to prove its case against the rt accused. On the other hand, Mr. Neeraj K. Sharma, Dy. Advocate General for the State has supported the judgment of the learned trial Court dated 26/27.9.2014.
5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-1 Sheetla Devi is the mother of the prosecutrix. Her daughter was 17 years of age. She was studying in 10th class in Government Senior Secondary School Bijhari. On 2.8.2013, her daughter had gone to school as usual but she did not return back to home till evening. In the evening, she received a telephone call from village Bharari that her daughter had not attended school and has gone to Chandigarh.
She knew Sushma Devi who belongs to village Bharari. She also inquired from her who told her that the prosecutrix used to talk on telephone with Sanjay Kumar alias Yagya Dutt, accused. She also disclosed that the prosecutrix told her that the accused was working at Chandigarh. The ::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 4 prosecutrix returned home on 17.8.2013 from Chandigarh. She informed that the accused used to meet her in the fields and there he had committed .
sexual intercourse with her. She also disclosed her that the accused threatened her with dire consequences if she disclosed the incident to her parents. On 3.8.2013, when the prosecutrix had become pregnant she was called by the accused at Mehre for abortion but the accused did not turn of up. He told the prosecutrix to meet him at Chandigarh. At Chandigarh, she was intercepted by the police. She boarded the bus to Hamirpur at the instance of the police. She stayed during night in the shed near Jahu. The rt prosecutrix gave birth to a female child in District Hospital, Hamirpur. The female child was adopted by Smt. Attri Devi, resident of Village Kuthera, Tehsil Ghumarwin. In her cross-examination, she deposed that the prosecutrix was born in her parental house in Tehsil Ghumarwin. Her marriage took place about 18 years back. The name of the prosecutrix was entered in the Panchayat record by her brother-in-law (Dever) Suresh after five months of her birth.
7. PW-2 is the prosecutrix. According to her, in the month of February, 2013, she came in contact with accused Yagya Dutt. The accused used to call her from his mobile number. In the month of February, 2013, her mother was admitted in RH Hamirpur. She used to stay at her house. She had gone to fields to bring grass and accused was already there. The accused committed sexual intercourse with her and threatened with dire consequences if she disclosed this fact to anyone. The accused used to meet her in the fields as and when she went to bring ::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 5 grass. In the month of May/June, she skipped her menstruation period.
She informed the accused who told that he would get the same aborted.
.
On 1.8.2013, accused told her to meet at Mehre on 2.8.2013. When she reached at Mehre accused did not turn up. She was having Rs. 700/- with her. She rang him up, upon which accused told her to come to Chandigarh. When she went to Chandigarh, accused did not meet her.
of Chandigarh police inquired the prosecutrix. She boarded the bus and reached Hamirpur at 6:00 PM. At Hamirpur bus stand she met with one lady who took her to her house as it was dark. Her medical examination rt was conducted at RH Hamirpur vide MLC Mark "C". On 5.11.2013, she gave birth to a female child at RH Hamirpur. The female child was adopted by Smt. Attri Devi resident of Village Kuthera, Tehsil Ghumarwin.
8. PW-3 Babu Ram is the father of the prosecutrix. According to him, the prosecutrix was studying in 10th class in Government Senior Secondary School Bijhari. On 2.8.2013, his daughter left to school but did not return home. He inquired from a teacher and told him that she has not attended the school. On 2.8.2013, he was in the house of his in-laws and his wife informed him on telephone and told that the prosecutrix did not come home. On 3.8.2013 one driver told him that his daughter was at Chandigarh. Then, they went to Chandigarh but she was not found. On inquiry from police at Chandigarh, it was revealed that she had boarded the bus to Hamirpur. Thereafter, they came back from Chandigarh. His daughter was 17 years old. On 10.8.2013, he moved an application vide Ext. PW-3/A to the police. On 17.8.2013, he was informed telephonically ::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 6 by one lady of Ropari about the prosecutrix. He went there and brought his daughter to home. In his cross-examination, he deposed that he .
searched for his daughter at Shimla, Hamirpur and various other places.
9. PW-4 Meeran Devi deposed that she was running a Karyana shop at Ropari. She knew the prosecutrix and her mother as they used to visit her shop. On 17.8.2013 at about 5:15 PM the prosecutrix was of roaming nearby her shop and she called her to her shop and made her to sit. At about 6:00 PM, she rang up her relative Asha Devi in village Kohla and told her that the prosecutrix was sitting in her shop.
rt Thereafter, father of the prosecutrix came at Ropari and took her with him.
10. PW-5 Surinder Kumar deposed that on 26.8.2013 I.O. moved an application for issuance of date of birth certificate of the prosecutrix.
He issued it vide Ext. PW-5/A. In his cross-examination, he deposed that the date of birth of the prosecutrix was entered in the Birth Register on 13.7.2001. The informant was Babu Ram. The age of mother of the prosecutrix was 23 years in the Birth Register. Within one year and one month of birth of a child, the entry was made by the orders of the CMO and thereafter the concerned Sub Divisional Magistrate. In this case, there were no orders of CMO/SDM.
11. PW-7 Dr. Ms. Rajneesh Thakur, has examined the prosecutrix.
According to her opinion, there was evidence of sexual intercourse and patient was pregnant with gestational age of 28 weeks one day. She issued MLC Ext. PW-7/B. ::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 7
12. PW-12 Sushma Devi deposed that she was studying in Plus One in Government Senior Secondary School Bijhari. She knew the .
prosecutrix. They also visited the fair together. The prosecutrix was having mobile but she did not disclose its number. She used to talk with some boy named, Sanju and that boy was doing some job at Chandigarh.
13. PW-13 ASI Jai Devi is the I.O. He visited the spot and of prepared site plan vide Ext. PW-13/A. The accused was arrested on 19.8.2013. He was taken for medical examination. The victim was also got medically examined. In his cross-examination, he deposed that as per the rt version of the father of the prosecutrix, she told Chandigarh police her age to be 19 years, student of B.A-I and belonging to place Ropar.
14. PW-14 Dr. Manish Sharma has medically examined the accused. He issued MLC Ext. PW-14/A. In his opinion, there was nothing to suggest that male examined was not capable of indulging in sexual activity.
15. PW-15 Dr. Sanjeev Sharma, Radiologist, RH Hamirpur has conducted ultrasound examination of the prosecutrix. He proved report Ext. PW-15/A. According to his report, the age of the foetus was 28 weeks.
16. PW-16 Attri Devi deposed that the newly born child was adopted by her with the consent of the prosecutrix and her parents.
17. PW-17 Dr. Pushpinder Verma deposed that on 25.11.2013, an application Ext. PW-17/A was moved for collecting blood sample of the prosecutrix for DNA profiling by the police. It was collected on the same day and put on the FTA card.
::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 818. PW-18 Dr. Rakesh Dhiman deposed that on 23.8.2013 on the request of the police he took blood sample of accused for DNA profiling and .
the same was put on FTA card. On 14.11.2013 he took blood sample of female Kanak and put the same on FTA card.
19. PW-21 HC Ranjit Singh deposed that on 30.11.2013 all the three sealed envelopes alongwith sample seal and other documents were of sent to FSL Junga through Const. Sanjeev Kumar vide RC No. 157/2013 dated 30.11.2013.
20. PW-23 SI Mohinder Singh deposed that on 10.8.2013, Babu rt Ram presented complaint Ext. PW-3/A, on the basis of which FIR Ext. PW-
23/A was registered. The prosecutrix delivered a female child Kanak. By taking notice of it, further investigation was entrusted to ASI Parkash Chand. The report of the FSL, Junga Ext. PW-23/G was obtained.
21. The date of birth of the prosecutrix as per Ext. PW-5/A was 30.10.1996. She was below 18 years of age at the time when she was sexually assaulted by the accused. Ext. PW-5/A birth certificate, has been duly proved by PW-5 Surinder Kumar.
22. PW-2 prosecutrix, in her examination in chief, has categorically stated that the accused used to call her from his mobile number and she came in contact with the accused in the month of February, 2013. When her mother was admitted in RH Hamirpur, she used to stay at her house. She had gone to fields to bring grass. The accused was present there. He committed sexual intercourse with her and threatened her with dire consequences. She skipped her menstruation ::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 9 period in the month of May/June, 2013. She disclosed this fact to the accused. He promised her to get the same aborted. She was told by the .
accused to be present at Mehre but he did not turn up. Thereafter, the accused asked her to meet him at Chandigarh but he was not present even at Chandigarh. The Chandigarh police made her to board bus to Hamirpur. It is, in these circumstances, the prosecutrix returned back to of Hamirpur and delivered a female child, namely, Kanak on 5.11.2013. The child was adopted by Smt. Attri Devi PW-16.
23. Thert statement of PW-2, prosecutrix has been duly corroborated by PW-1 Sheetla Devi and PW-3 Babu Ram, mother and father of the prosecutrix, respectively. PW-2 prosecutrix has informed PW-
1 Sheetla Devi that accused was visiting the fields and committing sexual intercourse with her. The accused has also threatened her with dire consequences. According to her, the age of the prosecutrix was 17 years.
Similarly, PW-3 Babu Ram also deposed that the age of the prosecutrix was 17 years. He was informed on 17.8.2013 on telephone by one lady of Ropari in the evening about the prosecutrix. Thereafter, he brought his daughter back to home. He moved an application Ext. PW-3/A before the police, on the basis of which, FIR was lodged.
24. The prosecutrix was medically examined by PW-7 Dr. Ms. Rajneesh Thakur. The age of the foetus was found to be 28 weeks 1 day.
The blood samples of the prosecutrix, accused and baby Kanak were also retained. The report of the FSL is Ext. PW-23/G. The victim was the biological mother of the newly born baby, namely, Kanak and accused was ::: Downloaded on - 15/04/2017 20:03:34 :::HCHP 10 her biological father, as per the report. Thus, the prosecution has proved its case against the accused beyond reasonable doubt. This Court has no .
occasion to interfere with the well reasoned judgment of the learned trial Court dated 26/27.9.2014.
25. Accordingly, there is no merit in this appeal and the same is dismissed.
of
April 05, 2016, ( Rajiv Sharma ),
(karan) Judge.
rt
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