Himachal Pradesh High Court
Sumit Sharma vs State Of H.P on 4 November, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 490 of 2019.
Reserved on: 29th October, 2020.
.
Date of Decision: 4th November, 2020.
Sumit Sharma .....Appellant.
Versus
State of H.P. ....Respondent.
Coram
r to
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Chander Bhusan Barowalia, Judge. Whether approved for reporting? Yes.
For the Appellant: Mr. Manoj Pathak, Advocate.
For the Respondent: Mr. Hemant Vaid, and, Mr. Ashwani Sharma, Addl. Advocates General with Mr. Vikrant Chandel, Dy. A.Gs.
_______________________________________________________ Sureshwar Thakur, Judge.
The accused/appellant herein, became charged for, the, commission of an offence punishable, under, Section 376(2)(f)(n) of the IPC, and, also became charged, for, commission of an offence punishable, under, Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short "POCSO" Act). The learned trial Court concerned, made an order of conviction, vis-a-vis, the afore charged offences, and, also sentenced the convict, ::: Downloaded on - 05/11/2020 20:18:30 :::HCHP 2 to, undergo simple imprisonment for a period of 10 years, and, to pay a fine of Rs.10,000/-, for commission, of, offences punishable under Section 376 (2)(f)(n) of the IPC, .
and, under, Section 6 of the POCSO Act, and, in default of payment of fine amount, he was sentenced, to, undergo simple imprisonment for one year.
2. The convict/accused/appellant herein, becomes aggrieved therefrom, hence, through, casting the extant appeal before this Court, has strived to beget reversal(s) of the afore made verdict, of, conviction, and, the afore consequent therewith order, of, sentence(s) hence imposed, upon him.
3. The genesis of the prosecution story, is, embodied in Ex.PW1/A, exhibit whereof, is, a complaint made by the father of the victim, to, the SHO Police Station concerned, wherein, he makes penally inculpable scribings against the accused, inasmuch, as, on 10.07.2017, after medical examination of the prosecutrix being made, by a private practitioner, his becoming intimated, vis-a-vis, the minor prosecutrix rather developing pregnancy. The afore intimation, was made, to the author of Ex.PW1/A, by the, mother of the prosecutrix.
Thereafter, upon, the minor prosecutrix being queried by ::: Downloaded on - 05/11/2020 20:18:30 :::HCHP 3 her mother, one Bhuvneshwari, the former revealed, vis-a-
vis, since November, 2016, the accused subjecting her to repeated forcible sexual intercourses, and, also his .
intimidating her, against hers disclosing, the, afore incident to anybody. On anvil of the afore complaint, an FIR came to be recorded, by, the SHO Police Station, Jhakri, FIR whereof is embodied, in, Ex.PW18/A. During the course of investigations into the allegations, occurring, in the afore alluded FIR, the prosecutrix made a statement under Section 164, of, the Cr.P.C., before the learned Addl.
Chief Judicial Magistrate, (i) and, therein she makes echoings carrying corroborations, vis-a-vis, the disclosure(s), as, made in Ex.PW1/A. Furthermore, during the course of investigations, the Investigating Officer concerned, through, memo borne in Ex.PW14/B, hence, collected blood samples of the accused, on FTA card, and, through memo, borne in Ex.PW15/C, he collected blood samples, on FTA card, of, the minor prosecutrix, and, also through memo borne in Mark-A, he collected the blood samples, on FTA card, of, the minor baby, of, the minor prosecutrix. The afore collected blood samples, on FTA cards, respectively of the accused, the minor prosecutrix, and, of the minor baby, were all sent, for their inter se ::: Downloaded on - 05/11/2020 20:18:30 :::HCHP 4 comparison, to, the FSL concerned. The FSL concerned, after making the apposite inter se profiling(s), of, the afore collected blood samples, on FTA cards, of, each of the .
afore, made a pronouncement, as become(s) borne in Ex.PY, vis-a-vis, each carrying inter se compatibility.
4. Though, the afore best scientific evidence existing on record, unflinchingly proves the charge against, the, accused, (i) nonetheless, the learned counsel appearing, for the appellant, strives to make an argument(s), that, the sexual intercourses, which occurred inter se the accused, and, the prosecutrix, rather being consensual. However, to succeed in his endeavour, he has to ensure, the ripping(s) apart, of the efficacy, of, all the effects, of, the reflections, as, become borne in Ex.PW3/B, reflections whereof, are personificatory qua the prosecutrix, being a minor, at the relevant time, whereupons, she became completely defacilitated, to, mete any valid apposite consent, to, the accused.
5. The afore birth certificate, borne in Ex.PW3/B, is, issued by the Secretary, Gram Panchayat concerned, and, therefrom, it, obviously, emanates, from, a valid source, and, also when it is issued, during the course of his discharging, his public duties, (I) thereupon, the mandate ::: Downloaded on - 05/11/2020 20:18:30 :::HCHP 5 of Section 35 of the Indian Evidence Act, becomes attracted thereon, (ii) and, when mandate thereof(s) hence impute a rebuttable presumption, of, truth to the all acts, .
and, functions performed by a public servant, during the course, of, discharge of his public duties, as, is, the one appertaining, to, the incorporation, of, the date(s) of birth(s), (iii) thereupon, the, reflections, qua the date, of, birth, of, the prosecutrix hence occurring, Ex.PW3/B, rather enjoy, a, statutory rebuttable presumption of truth.
However, a reading, of, the cross-examination of PW-3, unveils qua it not containing any suggestion(s), wherefrom, any conclusion, can be drawn, vis-a-vis, Ex.PW3/B becoming falsely recorded or it being not recorded, at the instance of the father of the minor prosecutrix, nor any evidence exists on record, in display(s), hence, personificatory, of, falsity of authorship of Ex.PW3/B. The, effects, of, omission(s) of the afore suggestions, being purveyed to PW-3, and, also when Ex.PW3/B, emanates from a valid source, is qua, (iv) thereupon, the afore rebuttable presumption of truth enjoyed by Ex.PW3/B, upon, evidently remaining un- benumbed, and, un-dislodged, through, adduction, of, ::: Downloaded on - 05/11/2020 20:18:30 :::HCHP 6 cogent evidence, rather acquires an aura, of, conclusive probative sanctity.
6. 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, and, the analysis thereof, by the learned trial Court, hence does not suffer, from, any perversity or absurdity of mis-appreciation, and, non-appreciation, of evidence, on record.
7. Consequently, there is no merit, in, the extant appeal, and, it is dismissed accordingly. The impugned judgment is maintained, and, affirmed. All pending applications also stand disposed of. The records be sent down forthwith.
(Sureshwar Thakur) Judge (Chander Bhusan Barowalia) Judge.
4th November, 2020.
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