Himachal Pradesh High Court
Fateh Chand vs State Of Himachal Pradesh on 4 September, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 384/2014 Reserved on: 3.9.2015 Decided on: 4.9.2015 .
_________________________________________________________________ Fateh Chand ...Appellant Versus State of Himachal Pradesh ...Respondent _________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge. Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? 1 Yes.
---------------------------------------------------------------------------------- For the Appellant: rt Mr. Lovneeesh Kanwar, Advocate.
For the Respondent: Mr. P.M. Negi, Deputy Advocate General. _________________________________________________________________ Rajiv Sharma, Judge This appeal is instituted against Judgment dated
2.7.2014 rendered by learned Special Judge, Kullu, District Kullu, Himachal Pradesh in Session trial No. 25/2013(2671 of 2013), whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence punishable under Sections 376 and 506 IPC and Section 6 of the Prevention of Children from Sexual Offences Act, 2012, has been convicted and sentenced to undergo imprisonment for life and to pay a fine of `30,000/- for the commission of offence under Section 6 of the Prevention of Children from Sexual Offences Act, 2012, and in default of 1 Whether reporters of the local papers may be allowed to see the judgment? yes.
::: Downloaded on - 15/04/2017 18:52:28 :::HCHP 2payment of fine, to further undergo rigorous imprisonment for one year. He has also been sentenced to undergo rigorous .
imprisonment for three years for the commission of offence under Section 506 IPC.
2. Case of the prosecution, in a nutshell, is that the prosecutrix was a student of 8th class. She was 13 years of age and had lost her parents. She alongwith her elder sister Gyatri of Devi was residing in the house of her maternal grand father Kaile Ram at village Bashkola. Accused was her maternal uncle.
rt Prosecutrix had gone to the jungle to bring wood. Gyatri Devi had gone to attend her job. Prosecutrix was alone. Accused came and forcibly took her inside the room and thereafter he forcibly committed sexual intercourse with her. He threatened her not to divulge this fact to anybody. Thereafter, on so many occasions accused had been coming to the house of the prosecutrix and committed forcible sexual intercourse with her.
Prosecutrix had stomach-ache 3-4 days back. She was taken to a Doctor at Patlikuhal by Gyatri Devi. They were told that prosecutrix was pregnant by 26-28 weeks. Gyatri Devi telephoned child helpline Aleo, who asked Gyatri Devi to bring prosecutrix to their office. Thereafter, FIR was registered on 25.12.2012. Prosecutrix was medically examined. It has come in the MLC that prosecutrix was exposed to coitus and she was ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP 3 pregnant for 26-28 weeks. Vaginal swabs and sample of prosecutrix were taken and sent for medical examination at .
Regional Forensic Science Laboratory Gutkar. Accused was arrested. He was medically examined. DNA profiling of the accused and prosecutrix was conducted. Investigation was completed and Challan was put up in the Court after completing all codal formalities.
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3. Prosecution has examined as many as 12 witnesses to prove its case against the accused. Accused was also rt examined under Section 313 CrPC. His case was that of denial simpliciter. Accused was convicted and sentenced as noticed herein above. Hence, this appeal.
4. Mr. Lovneeesh Kanwar, Counsel appearing on behalf of the appellant, argued that the prosecution has failed to prove its case against accused.
5. Mr. P.M. Negi, Deputy Advocate General, has supported the judgment of conviction.
6. We have heard the learned counsel for the parties and also gone through the record carefully.
7. PW-1 Pawan K. Kashyap has deposed that he was posted as Regional Coordinator, Child Helpline Manali. On 25.12.2012 at about 1.15 pm, he received a telephonic call from an unknown lady that prosecutrix aged 13 years, had become ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP 4 pregnant due to sexual intercourse committed by her maternal uncle Fateh Chand. He asked them to come to their office.
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Gyatri Devi alongwith prosecutrix reached their office. Ranjana and Lalita were the female staff. Prosecutrix told them that Fateh Chand committed sexual intercourse and she had become pregnant due to the same. Sexual intercourse was committed against her wishes. It transpired during the medical of examination that she was carrying 5/6 months pregnancy.
8. PW-2 Dr. Shashi Wapa has medically examined the rt prosecutrix. She issued MLC Ext. PW-2/D According to her opinion, victim was exposed to coitus. She was pregnant for 26- 28 weeks. It was confirmed by ultra-sound.
9. PW-3 Dr. M.K. Kapoor has proved his report Ext.
PW-3/A. Age of the victim was estimated to be between 12 ½ years to 15 ½ years. He found in the ultra-sound examination one living foetus with normal skull and spine in the uterus.
10. PW-4 Dr. Tenzin Norbhu, has examined the accused and issued MLC Ext. PW-4/B.
11. PW-6 is the prosecutrix (name withheld). She was examined on oath. Her parents have expired. Her maternal uncle Fateh Chand came to her house. She was alone at that time. He asked about her maternal grand father. She told that he had gone to fetch wood. Her sister had gone to farm. Fateh ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP 5 Chand came inside the room and committed sexual intercourse with her forcibly. He threatened to do away with her life if she .
revealed the incident to anybody. Thereafter, accused used to come and commit sexual intercourse by threatening her. One day she had stomach-ache. She went to Patli-kuhal Hospital.
Doctor told her that she was pregnant. Her sister contacted child helpline. Thereafter FIR Ext. PW-6/A was registered.
of Police got her medically examined. She also clarified that accused has committed rape on 25.12.2012 and also for the rt first time about 3-4 months prior to that.
12. Dr. R.J. Mahajan, deposed that an application Ext.
PW-7/A was moved by the prosecution for preserving blood samples of prosecutrix and her bay for DNA profiling. She preserved blood samples of mother as well as of the baby.
13. Statement of sister of prosecutrix Gyatri Devi (PW-8) was also recorded. She testified that on 22.12.2012, her sister (prosecutrix) had a stomach-ache and she took her to the Doctor, who told her that her sister (Prosecutrix) was pregnant by 5/6 months. They came to the house of their maternal grand father. Her sister told them that her maternal uncle had made her sister pregnant after committing sexual intercourse with her. She told her that the accused was committing sexual intercourse since long. They went to the police station and ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP 6 lodged FIR Ext. PW-6/A. In her cross-examination, she deposed that the house was at a lonely place. Her sister did not go to .
school after 22.12.2012.
14. PW-9 Ashok Kumar deposed that the prosecutrix alongwith her sister Gyatri Devi , Pawan Kashyap, Ranjana and Lalita came to police station and registered FIR Ext.PW-6/A. He visited the spot and prepared spot map. He got accused of medically examined. Medical examination of the prosecutrix was also got conducted.
15. rt PW-10 ASI Mahant Ram Sharma deposed that on 14.3.2013, information at PS Manali was received from CHC that prosecutrix had delivered a child at DDU Hospital Shimla.
16. PW-11 Kaile Ram deposed that his daughter was married to Hari Chand. After marriage, his daughter Pritma used to reside with him. Pritma had two daughters, elder one Gyatri Devi and younger one is the Prosecutrix. At the time of occurrence, age of prosecutrix was 13 years. His daughter Pritma and his son-in-law had already died. Gyatri Devi and prosecutrix were residing with him. His sons Joginder and Fateh Chand were living separately. Accused Fateh Chand used to visit his house off and on. He used to go out in connection with work. His grand daughter told him about stomach-ache.
She was taken to hospital at Patli-kuhal. Doctor told that ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP 7 prosecutrix was pregnant. Fateh Chand was questioned. He admitted his mistake and tendered apology. He denied the .
suggestion in cross-examination that Gyatri Devi used to remain in the house. PW-12 Neel Chand has proved FSL report Ext. PX and PY.
17. Prosecution has proved conclusively that the accused had raped prosecutrix. Prosecutrix became pregnant.
of She went to the police station and lodged FIR. She was medically examined. Accused was also medically examined. PW-
rt 2 Shashi Wapa in her report has deposed that prosecutrix was pregnant for 26-28 weeks. Hymen was fully ruptured. Vaginal swabs were taken. At the time of examination, interoitus was allowing two fingers with ease. Prosecutrix has appeared as PW-
6. She has narrated entire sequence and manner in which accused used to rape her whenever she happened to be alone in the house. PW-8 is the sister of prosecutrix. According to her, prosecutrix told her that accused had committed sexual intercourse with her. Incident was also reported to Kaile Ram.
He has summoned his son. He has admitted his mistake. Blood samples of the prosecutrix and her baby were preserved.
According to report, Ext. PY, baby of prosecutrix was biological daughter of accused. Prosecutrix was minor at the time of the incident. Accused being maternal uncle instead of protecting ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP 8 the orphan has indulged in a heinous crime by repeatedly raping her. Prosecutrix was living with PW-1 Kaile Ram after .
loosing her parents. Delay in lodging FIR has been duly explained by the prosecution. Prosecutrix was minor and she did not know the consequences of becoming pregnant at the age of 13 years. Prosecution has fully proved its case against the accused.
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18. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.
rt (Rajiv Sharma) Judge (Sureshwar Thakur) Judge September 4, 2015 vikrant ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 384/2014 Reserved on: 3.9.2015 _________________________________________________________________ .
Fateh Chand ...Appellant
Versus
State of Himachal Pradesh ...Respondent
_________________________________________________________________ Judgment for consideration please.
of (Justice Rajiv Sharma) Judge rt I agree/I do not agree.
(Justice Sureshwar Thakur) Judge List for pronouncement of judgment on 4.9.2015.
(Justice Rajiv Sharma) Judge Court master ::: Downloaded on - 15/04/2017 18:52:28 :::HCHP