Himachal Pradesh High Court
Resident Of Village Sarswa vs And on 24 March, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 24th DAY OF MARCH, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.487 of 2019
Between:-
RESIDENT OF VILLAGE SARSWA,
RAHUL KUMAR S/O SH. HARBANS LAL,
P.O. BHADRENA, TEHSIL PALAMPUR,
DISTRICT KANGRA, H.P. AGE 25 YEARS.
.... APPELLANT
(BY MR. LAKSHAY THAKUR, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. PARVEEN KUMAR BHATTI,
ADDITIONAL ADVOCATE GENERAL)
This appeal coming on for hearing this day, Hon'ble Ms.
Justice Sabina, delivered the following:
JUDGMENT
Appellant has filed the appeal challenging the Judgment/Order dated 23.07.2019, passed by the trial Court, whereby, he has been convicted and sentenced as under:-
::: Downloaded on - 29/03/2022 20:10:24 :::CIS 2Section 6 of Protection : Rigorous imprisonment for ten years and to of Children from pay a fine of `50,000/- (Rs. fifty thousand Sexual Offences Act, only). In default of payment of fine, he .
2012 shall further undergo simple imprisonment for six months.
2. Complainant Rajni Devi moved a complaint before Station House Officer, Police Station, Panchrukhi, stating therein, that on 8 th May, 2018 at about 3.20 p.m., after school time, she had been informed by Payal, that appellant Rahul had done wrong act with the prosecutrix. Then the complainant inquired from the prosecutrix as to why she had not narrated the incident to her. She (prosecutrix) told her (complainant) that Rahul had instructed her not to tell anyone about the incident. Then she asked about the incident from the prosecutrix and the complainant was told by the prosecutrix that when she was playing in the courtyard, Rahul had come to the spot and had taken her inside the room. Thereafter, he had taken off his Pajama and had done wrong act with her. After doing the wrong act, Rahul had threatened her that she should not narrate the incident to anybody otherwise he would pick her up and her mother. Thereafter, she (complainant) had gone to the house of Rahul and had inquired about his whereabouts from his mother and younger brother. They told them that Rahul was sleeping inside. In the meantime, Rahul came out and she (complainant) inquired from Rahul as to what he had done with her ::: Downloaded on - 29/03/2022 20:10:24 :::CIS 3 daughter. Rahul fell at her feet and sought pardon and said that he had committed a mistake and his life will be ruined, if the incident is .
narrated to anybody. Then the complainant told Rahul that he should have thought about the prosecutrix also. She could not immediately report the matter to the Police, keeping in view the family's honour, but had narrated the incident to her husband. Thereafter, the complaint was filed.
3. On the basis of the statement of the complainant, formal FIR No.38 dated 11th May, 2018 was registered at Police Station Panchrukhi, District Kangra under Section 452, 376, 506 of the Indian Penal Code (hereinafter referred to as 'the IPC') and Sections 4 & 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act').
4. After completion of investigation and necessary formalities, challan was presented against the appellant.
5. Vide order dated 31st October, 2018, charges were framed against the appellant by the trial Court under Section 6 of the POCSO Act and Section 506 of the IPC. Appellant did not plead guilty to the charges framed against him and claimed trial.
6. In order to prove its case, during trial, prosecution examined 13 witnesses.
::: Downloaded on - 29/03/2022 20:10:24 :::CIS 47. After the close of prosecution evidence, appellant when examined under Section 313 of the Code of Criminal Procedure, 1973 .
prayed that false case had been registered against him. On 9 th May, 2018, father and brother of the prosecutrix had asked him to disclose the name of the boy, who had committed intercourse with the prosecutrix and when he had shown his ignorance, he was beaten by them. He had reported the matter to the Panchayat and he was forced defence.
to feel sorry. His mother had made complaint to the Police.
8. Appellant examined his mother Ujala Devi as DW-1, in his
9. Mr. Lakshay Thakur, learned counsel for the appellant has submitted that the appellant has been falsely involved in this case.
FIR had been lodged against the appellant as mother of the appellant had moved a complaint before the Police on 10 th May, 2018 with regard to beatings given to the appellant by the family of the prosecutrix.
Complainant and her husband had felt sorry before the Panchayat on 9th May, 2018, but had again abused her on 10 th May, 2018. The prosecutrix had not named the appellant when her statement was recorded under Section 164 Cr.P.C. The Forensic Science Laboratory report as well as the medical evidence did not support the version given by the prosecutrix with regard to the offence alleged to have been committed by the appellant.
::: Downloaded on - 29/03/2022 20:10:24 :::CIS 510. Mr. Parveen Kumar Bhatti, learned Additional Advocate General, on the other hand, has opposed the appeal and has .
submitted that from the testimony of the prosecutrix, which was duly corroborated by the medical evidence, it was duly established that the appellant had committed the offence in question.
11. Present case relates to commission of offence of rape. As per the prosecution story, the prosecutrix was aged about 8 years at the time of incident. In order to establish the age of the prosecutrix, prosecution has examined PW-7 Inderjeet, who proved the birth certificate of the prosecutrix. As per the said certificate, the date of birth of the prosecutrix was 7th June, 2010. Thus, prosecutrix was aged about 8 years at the time of alleged incident.
12. Complainant while appearing in the witness-box as PW-1, has deposed as per the contents of the FIR.
13. PW-3 Anita Devi has corroborated the statement of PW-1.
14. PW-4 Payal, who was aged about 14 years, has deposed that on 8th May, 2018, when they were returning home after school hours, prosecutrix told her that Rahul had come to the courtyard of her house and had taken her inside the house, while she was playing in the courtyard. Prosecutrix further told her that Rahul had undressed her inside the house and had done wrong act with her. On reaching home, ::: Downloaded on - 29/03/2022 20:10:24 :::CIS 6 she informed about the incident to her aunt/complainant. Her statement was recorded before the Magistrate.
.
15. Prosecutrix deposed that on the day of incident she had gone to school and had returned home after school hours. She had changed her clothes. While she was playing in the courtyard, Rahul came there and after lifting her, he took her inside the room. He removed his pants and removed her Pajami. Then he put his private part into her private part. On hearing some noise from outside, Rahul fled away from the spot and told her not to reveal the incident to her parents. She narrated the incident to Gunjan and then to Payal. Payal narrated the incident to her mother. When her mother inquired about the incident from her, she told her about the occurrence. Her mother narrated the incident to her father and then the matter was reported to the police. She identified the appellant present in the Court as Rahul.
16. PW-5, Dr. Shalini Gautam, deposed that on 11th May, 2018, she had medically examined the prosecutrix and had observed as under:-
" On Local Examination: Pubic hair not developed. Vulva healthy. No injury marks seen. Hymen intact but congested, Mucosa around the introitus congested. Fourchette= a bluish coloured small bruise was visible. Vagina was healthy."::: Downloaded on - 29/03/2022 20:10:24 :::CIS 7
17. PW-5 has further deposed that the prosecutrix had been brought by the Police with alleged history of assault by Rahul son of .
Harbans Lal. She proved the medico-legal certificate Ex.PW-5/B and stated that after going through the contents of the Forensic Science Report, she had given the opinion that from clinical findings, it was a case of sexual assault.
18. PW-13 Dr. Umesh Kashyap, has proved the medico-legal certificate of the appellant as Ex.PW-13/B.
19. Thus, in the present case prosecutrix while appearing in the witness-box, has deposed to the effect that the appellant had committed sexual intercourse with her. The said version of the prosecutrix is corroborated by medical evidence. As per PW-5, Dr. Shalini Gautam, although, hymen of the prosecutrix was intact, but it was congested, mucosa around the introitus was congested and there was a bluish coloured small bruise on Fourchette.
20. Section 3 of the POCSO Act reads as under:
3. Penetrative Sexual Assault - A person is said to commit "penetrative sexual assault" if-
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the ::: Downloaded on - 29/03/2022 20:10:24 :::CIS 8 urethra or anus of the child or makes the child to do so with him or any other person; or .
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.
21. Section 5 (m) of the POCSO Act reads as under:-
'5. Aggravated penetrative sexual assault : -
xxxx xxxx xxxx
xxxx xxxx xxxx
"(m) whoever commits penetrative sexual assault on a child below twelve years; or"
22. Thus, a combined reading of the statement of the prosecutrix as well as the medical evidence shows that the offence committed by the appellant would fall within the definition of Section 5(m) of the POCSO Act. Although, as per the report of the Forensic Science Laboratory, blood and semen were not detected on the samples of the prosecutrix, but from her clinical examination, it stands duly established that it is a case of aggravated penetrative sexual assault.
::: Downloaded on - 29/03/2022 20:10:24 :::CIS 923. Prosecutrix is a child aged about 8 years and has withstood the test of cross-examination. Although, in her statement .
recorded under Section 164 Cr.P.C., prosecutrix has not specifically named the appellant, but the said fact in itself is not fatal to the prosecution case. Statement of the prosecutrix under Section 164 Cr.P.C., was recorded on 12th May, 2018, whereas, the prosecutrix had disclosed the name of the appellant to the doctor, who had conducted her medical examination on 11th May, 2018. The said fact is evident from Ex.PW-5/B. It has been duly recorded therein that the doctor had been told by the complainant as well as the prosecutrix that somedays back, she (prosecutrix) had been sexually assaulted by Rahul son of Harbans Lal. Moreover, the name of the appellant figures in the FIR, which was registered on 11th May, 2018, whereas, the statement of the prosecutrix was recorded on 12th May, 2018. Hence, it cannot be said that the name of the appellant was introduced, at a later stage, after recording of the statement of the prosecutrix under Section 164 Cr.P.C.
The statement of the prosecutrix, being natural, inspires confidence.
24. The statement of DW-1 fails to rebut the testimony of the prosecutrix with regard to the offence committed by the appellant.
DW-1, mother of the appellant has deposed that on 9 th May, 2018, complainant and her father and brother had come to her house at about 8.30/9.00 a.m. Appellant was at home at that time. Complainant ::: Downloaded on - 29/03/2022 20:10:24 :::CIS 10 had asked about the name of the boy, who used to come and visit the appellant. Appellant had stated that no such boy comes to his house.
.
Brother and father of the complainant had given beatings to Rahul and while she tried to rescue Rahul, she was also assaulted by them. At about 3.00/4.00 p.m., she had called the Pradhan, Ward Panch and other villagers to her house and had narrated the incident to them.
Complainant and her husband had also come there and had felt sorry.
25.
r to On 10th May, 2018, complainant started abusing her and she had moved a complaint to the Police.
So far as PW-9 ASI Harbans Kumar Investigating Officer is concerned, he denied, in his cross-examination, that DW-1 had ever moved application Ex.DA before him, on 10 th May, 2018 against the complainant, her father and brother. He also stated that it had not transpired during investigation that on 9 th May, 2018, Panchayat and villagers had gathered or that complainant and her husband had felt sorry before Panchayat.
26. Although, DW-1 has stated that she had called Pradhan, Ward Member and other villagers to her house, where complainant and her husband had felt sorry, but the said persons have not been examined to substantiate her said version. In her cross-examination, DW-1 deposed that she had not obtained any receipt with regard to submission of the application in the Police Station. She did not know ::: Downloaded on - 29/03/2022 20:10:24 :::CIS 11 who had typed the application. As per Ex.PW-13/B, MLC of the appellant, there were no external mark of injury on his person. There is .
no medical corroboration to show that appellant had been inflicted injuries by the complainant party. There is also no medical examination report of DW-1 to corroborate her version that she had been assaulted by the complainant party. Hence, we are of the opinion that the testimony of DW-1 fails to rebut the testimony of the prosecutrix with regard to the offence committed by the appellant.
27. Thus, in the present case, the prosecution had been successful in establishing its case against the appellant with regard to the charge framed against him under Section 6 of the POCSO Act.
Learned trial Court has, thus, rightly ordered the conviction and sentence of the appellant under Section 6 of the POCSO Act.
Therefore, no ground for interference is made out. Accordingly, the appeal is dismissed and the judgment/order dated 23.07.2019, passed by trial Court are upheld.
(Sabina) Judge (Satyen Vaidya) Judge March 24, 2022 (ps) ::: Downloaded on - 29/03/2022 20:10:24 :::CIS