Himachal Pradesh High Court
Sanjeev Kumar Son Of Shri Hardayal vs State Of H.P on 28 December, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
Cr. Appeal No. 104 of 2013
Judgment reserved on: 26th October 2015
.
Date of Judgment: 28th December 2015
________________________________________________________
Sanjeev Kumar son of Shri Hardayal ....Appellant
Versus
State of H.P. ....Respondent
________________________________________________________
of
Coram
The Hon'ble Mr. Justice Sanjay Karol, J.
The Hon'ble Mr. Justice P.S. Rana, J.
rt Whether approved for reporting?1 Yes.
______________________________________________________________ For the Appellant: Mr. N.S. Chandel, Advocate.
For the Respondent: Mr. Kush Sharma, Deputy
Advocate General with
Mr.J.S.Guleria Assistant
Advocate General.
P.S.Rana, Judge
JUDGMENT: Present appeal is filed against the judgment
and sentence passed by learned Additional Sessions Judge Shimla in Sessions Trial No. 19-S/7 of 2010 titled State of H.P. vs. Sanjeev Kumar decided on 27.02.2013.
1Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 2Brief facts of the case
2. It is alleged by prosecution that on 5.4.2010 at .
about 10.11 PM at Palli Tehsil and P.S. Chirgaon District Shimla appellant kidnapped minor prosecutrix from lawful guardianship of her parents without their consent. It is alleged by prosecution that on the aforesaid date time and place appellant kidnapped minor prosecutrix with intention to of commit illicit intercourse with her. It is alleged by prosecution that on intervening night of 5.4.2010 and 6.4.2010 appellant rt committed rape with minor prosecutrix in tin posh room in orchard and on the intervening night of 6.4.2010 and 7.4.2010 appellant again raped the prosecutrix in a room of hotel Anand near Bus Stand Shimla and further alleged that on the intervening night of 7.4.2010 and 8.4.2010 appellant again committed rape on minor prosecutrix in his house at Palli Khashdar. It is alleged by prosecution that prosecutrix was student of HPSEB Middle School Sandhasu Tehsil Chirgaon in the year 2010. It is further alleged by prosecution that minor prosecutrix was born on 15.9.1998. It is also alleged by prosecution that appellant asked the minor prosecutrix to marry him and when minor prosecutrix denied then appellant declared that he would commit suicide by consuming poison.
::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 3It is alleged by prosecution that missing report Ext.PW7/A was recorded in P.S. Chirgaon and same was recorded by PW7 .
Tilak Singh. It is alleged by prosecution that FIR Ext.PW3/A was registered in police station Chirgaon District Shimla and on 8.4.2010 when ASI Om Parkash PW15 was in Chirgaon market with PW3 Ghan Shyam and Parkash the minor prosecutrix was found roaming near bus stand. It is alleged by of prosecution that recovery memo Ext.PW3/B was prepared and prosecutrix was brought to CHC Sandhasu for medical rt examination. It is alleged by prosecution that Dr.Anjana Sharma examined minor prosecutrix, prepared slides, took pubic hairs of minor prosecutrix and also preserved salwar Ext.P8, shirt Ext.P9 and vest of minor prosecutrix for examination and sealed them in a parcel. It is alleged by prosecution that report of medical officer obtained relating to minor prosecutrix and medical officer opined that possibility of recent sexual intercourse could not be ruled out. It is alleged by prosecution that MLC of accused was also obtained and medical officer has opined that accused was capable of performing sexual intercourse. It is alleged by prosecution that medical officer prepared slides and sealed them and handed over to investigating officer. It is alleged by ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 4 prosecution that site plan prepared and minor prosecutrix identified bed sheet on which rape was committed by .
accused. It is further alleged by prosecution that extract of guest register of Anand hotel also obtained and bed sheet from room No. 5 of hotel where rape was committed was also obtained. It is alleged by prosecution that case property was deposited in malkhana and entries were recorded in register of and thereafter case property was sent to FSL Junga. It is alleged by prosecution that I.O. also obtained school leaving rt certificate of minor prosecutrix and also obtained record from Panchayat Secretary relating to age of minor prosecutrix. It is alleged by prosecution that sample of seal also obtained.
3. Charge was framed by learned Additional Sessions Judge Shimla (H.P.) against appellant Sanjeev Kumar under Sections 363, 366 and 376 IPC on dated 25.10.2010. Accused did not plead guilty and claimed trial.
4. Prosecution examined fifteen oral witnesses in support of its case and also tendered documentary evidence.
5. Statement of accused recorded under Section 313 Cr.P.C. One witness was examined by appellant in defence evidence. Learned trial Court convicted appellant under Sections 363, 366 and 376 IPC and sentenced the appellant to ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 5 simple imprisonment for a period of three years and fine to the tune of ` 10,000/- (Rupees ten thousand only) for criminal .
offence under Section 363 IPC. Learned trial Court further directed that in default of payment of fine the appellant would undergo simple imprisonment for six months. Learned trial Court sentenced the appellant for a period of four years and fine to the tune of ` 10,000/- (Rupees ten thousand only) for of criminal offence punishable under Section 366 IPC and learned trial Court further directed that in case of non-
rt payment of fine the appellant would further undergo simple imprisonment for one year. Learned trial Court further sentenced the appellant for a period of ten years and fine to the tune of ` 10,000/- (Rupees ten thousand only) for criminal offence punishable under Section 376 IPC. Learned trial Court also directed that in default of payment of fine the appellant would further undergo simple imprisonment for one year.
Learned trial Court further directed that all sentences shall run concurrently and period undergone by appellant w.e.f.
9.4.2010 till annoucement of sentence during investigation and trial shall be set off.
::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 66. Feeling aggrieved against the judgment and sentence passed by learned Trial Court appellant filed present .
appeal.
7. Court heard learned Advocate appearing on behalf of the appellant and learned Deputy Advocate General appearing on behalf of the respondent and also perused the entire record carefully.
of
8. Following points arises for determination in the present appeal:-
rt Point No. 1 Whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court caused miscarriage of justice to the appellant as mentioned in memorandum of grounds of appeal?Point No. 2
Final Order.
9. Reasons for findings on point No.1:
9.1. PW1 minor prosecutrix aged 13 years has stated that she along with her parents, sister and three brothers is residing in village Kashdhar of Tehsil Chirgaon District Shimla.
She has stated that Rakesh, Rajesh and Devinder are her brothers and they are elder to her. She has stated that in the ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 7 year 2010 she was student of HPSEB Middle school Sandhasu and she left her house at 9 AM for school. She has stated that .
her parents used to sell milk in Sandhasu colony and she also used to take milk with her for selling purpose daily. She has stated that on 4.4.2010 at about 9/9.30 AM she sold the milk at Sandhasu colony and went to house of Hardayal who was resident of village Palli near Kashdhar and is related to her as of her brother-in-law. She has stated that in the house of Hardayal his wife Dropti and her daughter were present. She rt has stated that on request of Dropti she stayed in their house during night. She has stated that son of Dropti namely appellant Sanjeev who is present in Court was also present.
She has stated that on 4.4.2010 she stayed in the house of Hardayal during night and on 5.4.2010 at about 10 AM when she was going to house of Sawali her maternal aunt to village Masli then appellant came behind her and stopped her. She has stated that appellant told her that he intended to marry her. She has stated that when she declined then appellant declared that he would consume poison and would commit suicide. She has stated that thereafter she told that she would marry the appellant. She has stated that thereafter they both went to field where fruit bearing apple plants were present ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 8 and in the night of 5.4.2010 she and accused stayed in the room of one person which was situated about a considerable .
distance of orchard. She has stated that in the room of third person (Gorkha) none else than she and appellant were present. She has stated that appellant committed rape upon her and on 6.4.2010 at about 7 AM she and appellant came upto Chirgaon and thereafter came to Shimla in bus. She has of stated that thereafter on 6.4.2010 in night appellant took her to a hotel Anand at Shimla and appellant took room No. 5 in rt said hotel. She has stated that after making some entry in guest register on the night of 6.4.2010 appellant again committed rape upon her in hotel room. She has stated that thereafter on 7.4.2010 they came to Lakkar bazar after leaving the hotel and boarded into the bus and boarded down at Hatkoti. She has stated that from Hatkoti they came to Patsari and from Patsari they took bus for Chirgaon and thereafter they came to house of Sanjeev appellant at 8/9 PM.
She has stated that again appellant committed rape upon her on 7.4.2010. She has stated that on 8.4.2010 she came to Chirgaon market from house of appellant and in market her parents and police were there and further stated that she and appellant were brought by them to police station Chirgaon.
::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 9She has stated that she was brought to Sandhasu hospital for her medical examination and her medical examination was .
conducted. She has stated that she was also brought to the house of appellant Sanjeev and police took into possession one bed sheet from bed upon which appellant had committed rape upon her. She has stated that bed sheet was sealed with seal and she identitied the bed sheet. She has stated that of thereafter she was brought to dera (Residential room) of Gorkha by police officials and one bed sheet was took into rt possession upon which rape was committed and she identified bed sheet. She has stated that thereafter she was brought to Anand hotel at Shimla and bed sheet was recovered from room No.5. She has stated that police also prepared site plan.
She has also identified salwar Ext.P8 shirt Ext.P9 and vest P10 which were took into possession by medical officer. She has denied suggestion that she has attained the age of 18 years.
She has denied suggestion that no bed sheets Ext.P2, Ext.P4 and Ext.P6 were took into possession by police officials. She has denied suggestion that articles have been planted in police station. She has denied suggestion that her parents were pressurising the parents of appellant to marry the minor prosecutrix with appellant. She has denied suggestion that ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 10 she had relations with Rajput boy in village and when he refused to marry she filed false criminal complaint against .
appellant. She has denied suggestion that her parents have given her beatings and asked her to implicate the appellant.
She has denied suggestion that even her parents were negotiating with parents of appellant for marriage. She has denied suggestion that appellant did not commit any wrong of act/rape with her. She has denied suggestion that appellant did not take her to residential room of Gorkha. She has denied rt suggestion that appellant did not take her to a hotel at Shimla. She has denied suggestion that clothes Ext.P8 to Ext.P10 did not belong to minor prosecutrix. She has denied suggestion that she has deposed falsley.
9.2 PW2 Devinder has stated that minor prosecutrix is his sister. He has stated that his mother informed him that minor prosecutrix had eloped with someone. He has stated that he came to Chirgaon and during the course of investigation he visited the house of appellant Sanjeev present in Court. He has stated that during the course of investigation bed sheet took from bed and same was took into possession by I.O. vide memo Ext.PW1/A. He has stated that bed sheet Ext.P4 is same bed sheet which was took from ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 11 house of accused and bed sheet was wrapped in a cloth parcel. He has stated that thereafter he went to residential .
house of Gorkha and one bed sheet Ext.P2 took into possession which was sealed. He has stated that thereafter he went to hotel at Shimla and bed sheet was took into possession. He has denied suggestion that minor prosecutrix was admitted late in school. He has denied suggestion that of age of minor prosecutrix was wrongly recorded in school record. He has denied suggestion that they were negotiating rt with parents of appellant for marriage.
9.3 PW3 Ghanshyam has stated that he has five children including the minor prosecutrix. He has stated that on 7.4.2010 when he was on tour he received a call from house that minor prosecutrix was taken away by someone. He has stated that thereafter he came to Chirgaon and went to police station and further stated that his daughter was there in police station. He has stated that thereafter minor prosecutrix was brought for her medical examination. He has stated that FIR Ext.PW3/A bears his signatures. He has denied suggestion that minor prosecutrix was admitted late in school. He has denied suggestion that minor prosecutrix was admitted in school at the age of nine years. He has denied suggestion that ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 12 school record did not show correct age of minor prosecutrix.
He has denied suggestion that he intended to marry minor .
prosecutrix with appellant and when parents of appellant refused thereafter he filed the present case. He has denied suggestion that minor prosecutrix told him that she had gone with another boy namely Parkash.
9.4 PW4 Dr. Anjana Sharma has stated that she was of posted as medical officer at CHC Sandhasu w.e.f. April 2008 to July 2011. She has stated that on 8.4.2010 at about 4 PM rt minor prosecutrix was produced by police officials for her medical examination with alleged history of sexual assault.
She has stated that after examination she observed as follows. She has stated that on general physical examination minor prosecutrix was conscious cooperative and well oriented to time place and person and pulse was 80 per minute and blood pressure was 110/70 mg. She has stated that on local examination secondary sexual characters were found well developed, pubic and axillary hairs were found well developed and breast was also found well developed. She has stated that labia majora was covering the labia minora but there was gapping at lower end exposing the introitus. She has stated that within introitus two fingers were admitted ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 13 easily and hymen was torn and she prepared two slides one from vaginal smear and second from posterior fornix. She has .
stated that salwar, shirt and undergarments of minor prosecutrix took into possession and were sealed with seals in a parcel and thereafter given to I.O. along with pubic hairs.
She has stated that possibility of sexual intercourse could not be ruled out. She has stated that semen and blood were of detected in salwar. She has stated that she issued MLC Ext.PW4/B. She has stated that minor prosecutrix had rt disclosed her age 12 years. She has stated that she did not refer the minor prosecutrix for determination of dental and radiological age. She has denied suggestion that prosecutrix was not produced before her and also denied suggestion that she did not examine minor prosecutrix. She has denied suggestion that Ext.PW4/B is not correct.
9.5 PW5 Satya Pal has stated that he remained posted as teacher in HPSEB Middle School Sandhasu from July 1997 to June 2010 and further stated that police came in school and filed application Ext.PW5/A for obtaining school leaving certificate of minor prosecutrix. He has stated that he issued certificate Ext.PW5/B and certificate is correct as per ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 14 original and bears his signatures. He has stated that prosecutrix was born on 15.9.1998 as per record. He has .
denied suggestion that date of birth of prosecutrix is not correct. He has denied suggestion that record was prepared by him at the instance of police officials.
9.6 PW6 Gulab Singh Secretary G.P. has stated that he is working as Secretary in G.P. Kashdhar for the last 5/6 years of and he has brought the register of G.P. He has stated that application Ext.PW6/A was filed and thereafter he supplied rt birth certiifcate of minor prosecutrix. He has stated that birth certificate of minor prosecutrix is Ext.PW6/B and other certificate issued by him is Ext.PW6/C. He has stated that as per family register date of birth of minor prosecutrix was 15.9.1998. He has denied suggestion that he has recorded entry in register at the instance of police officials to support the prosecution case.
9.7 PW7 C. Trilok Singh has stated that he remained posted in police station Chirgaon w.e.f. September 2007 to July 2011. He has stated that on 5.4.2010 Rakesh Kumar came to police station Chirgaon and lodged missing report regarding his sister. He has stated that report was entered by him in roznamcha and further stated that copy is Ext.PW7/A which ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 15 bears his signatures. He has stated that report was recorded as per version of Rakesh Kumar.
.
9.8 PW8 Surinder Singh has stated that he works as receptionist in hotel Anand at Shimla w.e.f January 2010 to December 2010 and has also brought guest register of hotel.
He has stated that on 6.4.2010 one Sanjeev came to hotel alongwith girl and took room No. 5 for stay. He has stated that of entry in register was made by him at the instance of Sanjeev.
He has stated that Sanjeev had also signed the entry in his presence.
rt He has stated that Sanjeev told that girl accompanying him was his wife. He has stated that during investigation police came to hotel and he handed over the extract of guest register Ext.PW8/A which is correct as per original entry. He has stated that police went into room No. 5 of hotel. He has denied suggestion that he has given false statement.
9.9 PW9 Kuldeep Singh has stated that he is posted as constable in police station Chirgaon since 2008 and on 10.4.2010 he went to the house of father of appellant with I.O.
Devinder and prosecutrix and from the house of father of appellant one bed sheet was took into possession vide seizure memo Ext.PW1/A and thereafter it was wrapped in cloth parcel ::: Downloaded on - 15/04/2017 19:36:01 :::HCHP 16 sealed with five seals. He identified bed sheet Ext.P4. He has stated that on the same day they went to dera (Residential .
room) of Gorkha which was in orchard and from there one bed sheet was also recovered and was took into possession vide seizure memo. He has stated that bed sheet was identified by prosecutrix and thereafter same was wrapped in cloth parcel and sealed with four seals of 'Y'. He identified bed sheet of Ext.P2. He has denied suggestion that he did not come to the house of father of appellant alongwith police officials. He has rt denied suggestion that he did not come to dera (Room of Gorkha) along with police officials. He has denied suggestion that Ext.PW1/A and Ext.PW1/B were signed by him in police station Chirgaon.
9.10 PW10 Inspector Rajinder Singh has stated that after completion of investigation he prepared challan in case.
9.11 PW11 Rakesh Panjta has stated that they are five brothers and sisters and minor prosecutrix is youngst sister.
He has stated that in the year 2010 minor prosecutrix was studying in school at Sandhasu and her age was 12/13 years.
He has stated that on 4.4.2010 minor prosecutrix came to Sandhasu in order to deliver the milk to customers and thereafter she did not return to her house till evening. He has ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 17 stated that minor prosecutrix was searched but she could not be traced. He has stated that next day her father came to .
police station and reported the matter. He has stated that on 7.4.2010 when he, his father and brothers were in police station Chirgaon then parents of Sanjeev appellant came and told that minor prosecutrix was with appellant. He has stated that on 8.4.2010 minor prosecutrix was recovered. He has of stated that minor prosecutrix was recovered in Chirgaon market by police officials and her custody was given and rt memo Ext.PW3/B was prepared. He has stated that minor prosecutrix told that appellant took the minor prosecutrix to different places including Shimla. He has denied suggestion that prosecutrix had failed 2/3 times. He has denied suggestion that minor prosecutrix informed that accused did not take her to different places including Shimla. He has denied suggestion that he has no speaking terms with appellant and his family. Self stated that appellant and his parents are his relatives. He has denied suggestion that minor prosecutrix was taken away by some Rajput boy.
9.12 PW12 HC Jia Lal has stated that in the year 2010 he was working as constable in police station Chirgaon District Shimla H.P. He has stated that on 27.4.2010 MHC Balbir Singh ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 18 handed over to him eight sealed parcels and two sealed envelopes with direction to deposit in office of FSL Junga vide .
RC No. 8 of 2010. He has stated that he deposited them in FSL Junga on 30.4.2010 vide RC Mark A. He has stated that no tampering was done with case property during the period it remained in his custody. He has stated that he handed over the receipt to MHC. He has denied suggestion that no case of property was handed over to him for depositing in office of FSL Junga and also denied suggestion that he did not deposit rt the case property in office of FSL Junga.
9.13 PW13 HC Balbir has stated that he remained posted as I.O. in police station Chirgaon w.e.f. 2007 to 2012.
He has stated that on 9.4.2010 HHC Bharat Singh deposited three sealed parcels with seal CHR with him along with sealed envelope. He has stated that on 12.4.2010 ASI Om Parkash deposited five parcels with him sealed with seal 'Y' and further stated that he recorded the entry in malkhana register at Sr. Nos. 246 and 247 respectively. He has stated that he has brought the malkhana register and extract of malkhana register is Ext.PW13/A. He has stated that on 27.4.2010 he sent all parcels and articles to office of FSL Junga through HHC Jia Lal vide RC No. 8 of 2010. He has stated that he has ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 19 brought the road certificate and further stated that entries are in his hands. He has denied suggestion that articles were not .
deposited with him and also denied suggestion that he did not send HHC Jia Lal to deposit the articles in office of FSL Junga.
9.14 PW14 Dr. Ravinder Sharma has stated that he was posted as medical officer in civil hospital Rohru since 1998 and on 9.4.2012 on application Ext.PW14/A he examined of Sanjeev Kumar accused son of Hardayal aged 19 years who was brought for medical examination. He has stated that after rt examination he observed that appellant Sanjeev Kumar was capable to perform sexual intercourse. He has stated that his opinion is Ext.PW14/B which is in his hands and bears his signatures in MLC. Appellant was identified by medical officer in Court.
9.15 PW15 ASI Om Parkash has stated that he remained posted as I.O. in police station Chirgaon w.e.f. 2009 to 2011. He has stated that on 8.4.2010 complainant Ghan Shyam came to police station Chirgaon and reported that his minor daughter was kidnapped by Sanjeev Kumar accused and FIR Ext.PW3/A was registered. He has stated that prior to this son of complainant namely Rakesh Kumar came to police station Chirgaon on 5.4.2010 and filed missing report ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 20 Ext.PW7/A in police station. He has stated that missing report was prepared by MHC Tengin Chering which is Ext.PW15/A. He .
has stated that after registration of FIR file was given to him for investigation. He has stated that on 8.4.2010 he went to Chirgaon market with complainant and his son Rakesh in search of minor prosecutrix and near bus stand Chirgaon minor prosecutrix was found and recovery memo Ext.PW3/B of was prepared. He has stated that minor prosecutrix was medically examined in CHC Sandhasu and her MLC Ext.PW4/B rt was obtained. He has stated that on the basis of MLC Section 376 IPC was incorporated. He has stated that three sealed parcels which were prepared by medical officer CHC Sandhasu were given to him on 12.4.2010 and were deposited with MHC Chirgaon. He has stated that on 9.4.2010 appellant was arrested and he was medically examined and MLC Ext.PW14/B was obtained. He has stated that on 9.4.2010 he went to house of appellant and prepared site plan Ext.PW15/B where minor prosecutrix was raped by appellant. He has stated that bed sheet was took into possession upon which rape was committed and same was wrapped and sealed vide memo Ext.PW1/A in presence of witnesses. He has stated that bed and bed sheet were identified by minor prosecutrix. He has ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 21 stated that on same day appellant, minor prosecutrix and Devinder were taken to residence of Gorkha. He has stated .
that site plan of residence of Gorkha Ext.PW15/C was prepared. He has stated that dera (Residential place) of Gorkha was found vacant as none was residing there. He has stated that bed sheet was also took into possession vide seizure memo Ext.PW1/A in presence of witnesses. He has of stated that place of incident was identified by minor prosecutrix. He has stated that thereafter minor prosecutrix rt and her brother Devinder and appellant were took to Anand hotel near bus stand Shimla and from receptionist extract of hotel register was obtained where appellant disclosed his address and signed the entries and where appellant introduced the minor prosecutrix as his wife. He has stated that from room No. 5 of hotel bed sheet upon which rape was committed took into possession vide seizure memo. He has stated that sample of seal separately took. He has stated that he also obtained school leaving certificate Ext.PW5/B and also obtained birth certificate Ext.PW6/B from Gram Panchayat. He has stated that he also obtained FSL report Ext.PW15/G and recorded statements of prosecution witnesses as per their versions. He has stated that age of minor prosecutrix was ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 22 found below 18 years at the time of commission of offence and after completion of investigation file was handed over to .
SHO. He has stated that charge sheet was prepared by SHO and further stated that for determination of medical age of minor prosecutrix ossification test and opinion of dental surgeon was not obtained. He has denied suggestion that medical examination of minor prosecutrix was not conducted of and also denied suggestion that birth certificate of minor prosecutrix was not obtained. He has denied suggestion that rt age of minor prosecutrix was above 16 years at the time of alleged offence. He has denied suggestion that prosecutrix had told that she was not raped by anyone. He has denied suggestion that false case filed against appellant in collusion with minor prosecutrix and her parents. He has denied suggestion that prosecutrix had affairs with boy of locality belonging from upper caste. He has denied suggestion that parents of minor prosecutrix pressurised the appellant to solemnise the marriage with minor prosecutrix. He has denied suggestion that he did not visit house of father of appellant and also denied suggestion that he did not visit residential house of Gorkha and further denied suggestion that he did not visit hotel at Shimla. He has denied suggestion that no bed ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 23 sheets took into possession. He has denied suggestion that bed sheets were manipulated.
.
10. Prosecution tendered the following documentary evidence. (1) Ext.PW1/A recovery memo of bed sheet. (2) Ext.PW1/B recovery memo of bed sheet. (3) Ext.PW1/C recovery memo of bed sheet from room No. 5 of hotel at Shimla. (4) Ext.PW3/A FIR No. 24 of 2010 dated 8.4.2010. (5) of Ext.PW3/B identification report. (6) Ext.PW4/A application for medical examination of minor prosecutrix before medical rt officer CHC Sandhasu. (7) Ext.PW4/B MLC of minor prosecutrix aged 12 years. (8) Ext.PW5/A application to head master of Middle School Sandhasu for issuance of birth certificate of minor prosecutrix. (9) Ext.PW5/B birth certificate issued by Headmaster HPSEB Middle School Sandhasu Chirgaon District Shimla H.P. where date of birth of minor prosecutrix has been shown as 15.9.1998. (10) Ext.PW6/A application moved to Panchayat Secretary to issue age certificate of minor prosecutrix and appellant Sanjeev Kumar. (11) Ext.PW6/B birth certificate of minor prosecutrix issued by Panchayat Secretary under Section 12/17 of Registration of Birth and Death Act 1969 and rule 8 of H.P. Registration of Birth and Death Rules 2003. (12) Ext.PW6/C certificate issued by Gram ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 24 Panchayat under Birth and Death Registration Act 1969. (13) Ext.PW7/A missing report of minor prosecutrix dated 5.4.2010.
.
(14) Ext.PW8/A extract of entries of guests from hotel Anand, Bus stand Shimla. (15) Ext.PW13/A extract of malkhana register. (16) Ext.PW13/B extract of RC register. (17) Ext.PW14/A application moved to medical officer CHC Sandhasu for conducting medical examination of appellant.
of (18) Ext.PW14/B MLC of appellant. (19) Ext.PW15/A missing report of minor prosecutrix dated 4.4.2010. (20) Ext.PW15/B rt site plan. (21) Ext.PW15/C site plan. (22) Ext.PW15/D site plan.
(23) Ext.PW15/F sample seals obtained upon plain cloth. (24) Ext.PW15/G FSL report. (24) Ext.PW15/H and Ext.PW15/J statements of prosecution witnesses.(25) Ext.DA statement of prosecutrix.
11. Statement of accused recorded under Section 313 Cr.P.C. Accused has stated that he is innocent and he did not commit any criminal offence as alleged by prosecution.
Accused examined one witness in defence.
12. DW1 Sanjeev Kumar Secretary has stated that he is working as Secretary G.P. Nakrari and he has brought the death and birth register of G.P. Nakrari w.e.f. 1994 to 1999.
::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 25He has stated that there is no entry dated 15.9.1998 of prosecutrix in death and birth register of G.P. Nakrari.
.
13. Submission of learned Advocate appearing on behalf of the appellant that age of prosecutrix was above 16 years at the time of alleged incident and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is well of settled law that facts can be proved by way of oral and documentary evidence as per Indian Evidence Act 1872. As rt per Section 59 of Indian Evidence Act 1872 facts can be proved by way of oral evidence. Minor prosecutrix when appeared in witness box on 5.12.2011 has stated her age as 13 years. Even as per school leaving certificate issued by Headmaster Middle School Sandhasu Tehsil Chirgaon Ext.PW5/B placed on record date of birth of minor prosecutrix has been recorded as 15.9.1998. Even as per birth certificate issued under Sections 12 and 17 of Birth and Death Act 1969 age of minor prosecutrix has been recorded as 15.9.1998.
School leaving certificate Ext.PW5/B has been issued by public servant in discharge of his public official duty and is relevant fact under Section 35 of Indian Evidence Act 1872. It was held in case reported in AIR 2011 SC 1691 titled Murugan alias Settu ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 26 vs. State of Tamilnadu that documents made ante litem motam can be relied upon safely when such documents are .
admissible under Section 35 of Indian Evidence Act 1872. Birth certificate of prosecutrix Ext.PW6/B wherein date of birth of minor prosecutrix is shown as 15.9.1998 is issued under Section 12/17 of Registration of Birth and Death Act 1969. Any certificate issued under statutory act is relevant fact under of Section 35 of Indian Evidence Act 1872 unless rebutted in accordance with law. School leaving certificate Ext.PW5/B and rt birth certificate Ext.PW6/B are proved on record by way of oral testimony of PW5 Satya Pal school teacher and PW6 Gopal Singh Secretary Gram Panchayat. Testimonies of PW5 Satya Pal school teacher and PW6 Gopal Singh Panchayat Secretary are trustworthy reliable and inspire confidence on Court.
There is no reason to disbelieve the testimonies of PWs 5 and
6. There is no evidence on record in order to prove that PWs 5 and 6 have hostile animus against appellant at any point of time.
14. Submission of learned Advocate appearing on behalf of appellant that investigating officer was aware of the fact that PW3 father of minor prosecutrix is shifted to village Kashdhar from some other village and birth certificate of ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 27 original village not produced on record intentionally and on this ground appeal filed by appellant be accepted is rejected .
being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that birth certificate Ext.PW6/B placed on record relating to minor prosecutrix remained unrebutted on record. Appellant did not adduce any rebuttal documentary evidence on record in order to rebut of birth ceritifcate Ext.PW6/B placed on record. In absence of any rebuttal document relating to birth of minor prosecutrix we rt have no option except to rely upon birth certificate Ext.PW6/B placed on record because birth certificate Ext.PW6/B has been prepared by public official in discharge of his official duty under Section 12/17 of Registrationof Birth and Death Act 1969 and rules framed therein and is relevant fact under Section 35 of Indian Evidence Act 1872.
15. Submission of learned Advocate appearing on behalf of appellant that application for conducting ossification test of minor prosecutrix was filed by appellant and same was dismissed by trial Court on 7.8.2012 illegally and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. We have perused the entire record carefully. It is proved on record that on ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 28 8.6.2012 prosecution evidence was closed and thereafter case was listed for statement of accused under Section 313 Cr.P.C.
.
on 22.6.2012. It is proved on record that statement of accused was recorded on 24.8.2012 under Section 313 Cr.P.C. and application for ossification test was filed on 22.6.2012 prior to recording statement of accused under Section 313 Cr.P.C. and it is also proved on record that application for ossification test of was dismissed by learned trial Court on 7.8.2012 prior to recording statement of accused under Section 313 of Code of rt Criminal Procedure 1973 and it is also proved on record that thereafter case was listed for defence evidence. When the case was listed for defence evidence then appellant has examined Sanjeev Kumar Secretary Gram Panchayat Nakrari in defence evidence and thereafter appellant closed the defence evidence as per statement dated 22.11.2012 placed on record. We are of the opinion that appellant was at liberty to file application for ossification test of minor prosecutrix when the case was listed for defence evidence by learned trial Court. Appellant did not file any application for ossification test of minor prosecutrix when case was listed for defence evidence. It is well settled law that as per Section 233 of Code of Criminal Procedure 1973 where accused is not acquitted ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 29 under Section 232 of Cr.P.C. he would be called upon to enter into a defence and to adduce any evidence in support of his .
defence. Accused person did not file any application during the period when the case was listed for defence evidence under Section 233 Code of Criminal Procedure 1973 for ossification test of minor prosecutrix. In view of the fact that appellant did not file any application under Section 233 Cr.P.C.
of when the case was listed for defence evidence we are of the opinion that no miscarriage of justice is caused to appellant in rt present case. It is held that right to adduce any defence evidence starts to accused person in session trial when case is listed for defence evidence under Section 233 of Code of Criminal Procedure 1973.
16. Another submission of learned Advocate appearing on behalf of appellant that semen sample of appellant obtained and such samples of appellant did not match with semen present on salwar of minor prosecutrix worn by her at the time of incident and bed sheet and in absence of such evidence appellant cannot be convicted for offence of rape is also rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the chemical analyst report Ext.PW15/G placed on record. As ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 30 per chemical analyst report Ext.PW15/G placed on record human blood and human semen was detected on salwar of .
minor prosecutrix and human semen was also detected upon semen sample of Sanjeev Kumar and human semen was also detected upon bed sheet which were took into possession vide seizure memo.
17. Submission of learned Advocate appearing on of behalf of appellant that in alternative sexual intercourse was conducted with consent of minor prosecutrix and on this rt ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that minor prosecutrix was minor at the time of alleged incident. It is well settled that consent of minor is immaterial as per Clause VI of Section 375 IPC wherein rape is defined. In present case it is proved on record by way of positive oral as well as documentary evidence that prosecutrix was minor at the time of commission of criminal offence of rape. Hence it is held that consent of minor is immaterial in rape cases.
18. Submission of learned Advocate appearing on behalf of appellant that recoveries proved by prosecution are also doubtful and on this ground appeal filed by appellant be ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 31 accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Prosecution has recovered three bed .
sheets as per recovery memos and as per testimony of minor prosecutrix appellant has committed rape with minor prosecutrix at three different places several times. Recovery memos are proved as per testimony of marginal witnesses.
Testimonies of marginal witness are trustworthy reliable and of inspire confidence of Court. There is no reason to disbelieve the testimonies of marginal witnesses of recovery memos.
rt There is no evidence on record that marginal wtiensses of recovery memos have hostile animus against the appellant at any point of time.
19. Submission of learned Advocate appearing on behalf of appellant that testimony of minor prosecutrix is not trustworthy and reliable and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the testimony of minor prosecutrix. Minor prosecutrix has specifically stated in positive manner that appellant has committed rape with her at three different places during night period many times. Minor prosecutrix has specifically stated in positive manner that in night of 5.4.2010 the appellant ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 32 committed rape with minor prosecutrix in dera (Residential room) of one Gorkha which was situated at a considerable .
distance of orchard. Minor prosecutrix has specifically stated in positive manner that thereafter on night of 6.4.2010 appellant again committed rape upon her in hotel room at Shimla. Minor prosecutrix has specifically stated that thereafter again on intervening night of 7.4.2010 and of 8.4.2010 appellant again committed rape upon her in residential house of accused at Chirgaon. Testimony of minor rt prosecutrix is corroborated by medical evidence. Medical officer i.e. PW4 Dr. Anjana Sharma has specifically stated in positive manner that hymen of minor prosecutrix was torn.
PW4 has further stated that semen and blood was detected upon salwar of minor prosecutrix. PW4 Dr. Anajana Sharma has stated in positive manner when she appeared in witness box that recent sexual intercourse could not be ruled out because semen and blood were detected upon salwar of minor prosecutrix. Oral testimony of PW4 is also corroborated by MLC Ext.PW4/B placed on record. It is also proved on record by way of testimony of PW14 Dr. Ravinder Sharma that appellant was capable of performing sexual intercourse.
Testimony of minor prosecutrix is also corroborated by ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 33 chemical analyst report placed on record wherein it has been specifically mentioned that human blood and semen was .
detected upon salwar of minor prosecutrix. It is proved on record that prior to medical examination of minor prosecutrix minor prosecutrix remained in company of appellant at different places. There is no positive cogent and reliable evidence on record that third person remained in company of of minor prosecutrix. In view of the fact that only appellant remained in company of minor prosecutrix it is held that rt criminal offence of rape was committed by appellant only with minor prosecutrix in absence of evidence of intervention of any third person. It is well settled law that in rape cases direct evidence is not available beyond the evidence of victim only.
It is well settled law that testimony of victim in sexual offence is vital and unless there are compelling reasons looking for corroboration of her statement Court should find no difficulty to act upon testimony of victim of sexual assault alone to convict the accused where testimony of prosecutrix inspires confidence and is found to be reliable. It is well settled law that corroborative evidence is not an imperative component of judicial credence in every rape case. It is well settled law that a woman or girl subjected to sexual assault is not an ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 34 accomplice to the crime but is victim of another person lust and it is improper and undesirable to test her evidence with .
suspicion treating her as if she was an accomplice. It is well settled law that normally no woman would come forward to make a humiliating statement against her honour of having been raped unless it was true. It is well settled law that testimony of prosecutrix must be appreciated in the of background of entire case and Court must be alive to its responsibility and should be sensitive while dealing with cases rt involving sexual molestation. See: (1996)2 SCC 384, titled State of Punjab vs. Gurmit Singh and others. See (2000)5 SCC 30 titled State of Rajasthan vs. N.K. the accused. See (2000)1 SCC 247 titled State vs. Lekh Raj and another. See (1992)3 SCC 204 titled Madan Gopal Kakkad versus Naval Dubey and another. It was held in case reported in (1994) SCC 728 titled Narayanamma vs. State of Karnataka that discovery of spermatozoa in private parts of prosecutrix is not must for offence under Section 376 IPC. It was held that there are sufficient factors which may negate spermatozoa.
20. Rape is not only a crime against a person of a victim but it is a crime against the entire society. It destroys the entire psychology of woman and pushed the woman into ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 35 deep emotional crisis. Rape is a crime against the basic human rights and is violative of the victim's most cherished .
fundamental rights as mentioned in Article 21 of Constitution of India. See AIR 1996 SC 922 titled Bodhisattwa Gautam vs. Miss Subhra Chakraborty It is well settled law that sexual intercourse with a woman under the age of 16 years is a rape irrespective of consent. Consent age enhanced to 18 years w.e.f. 3.2.2013 of as per Act No. 13 of 2013. See AIR 1981 SC 361 titled Harpal Singh and another vs. State of H.P.
21. rt Submission of learned Advocate appearing on behalf of appellant that there is material improvement and contradiction in testimony of prosecution witnesses and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Learned Advocate appearing on behalf of appellant did not point out any material contradiction which goes to the root of case. Minor contradictions are bound to come in prosecution case when testimonies of prosecution witnesses are recorded after a gap of sufficient time. In present case incident took place on 5.4.2010 and testimonies of prosecution witnesses recorded on 5.12.2011, 6.12.2011, 5.1.2012, 6.1.2012, 5.5.2012, 8.6.2012. It was held in case ::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 36 reported in (2010)9 SCC 567 titled C. Muniappan and others vs. State of Tamil Nadu that if there are some omissions, .
contradictions and discrepancies the entire evidence cannot be disregarded. It was further held that an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of prosecution's witness. It was held of that minor discrepancies are bound to occur in statements of witnesses when testimony of witness is recorded after a gape rt of time. See: AIR 1972 SC 2020 titled Sohrab and another vs. The State of Madhya Pradesh. See AIR 1985 SC 48 titled State of U.P. vs. M.K. Anthony. See AIR 1983 SC 753 titled Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat See AIR 2007 SC 2257 titled State of Rajasthan vs. Om Parkash. See (2009)11 SCC 588 titled Prithu alias Prithi Chand and another vs. State of Himachal Pradesh. See(2009)9 SCC 626 titled State of Uttar Pradesh vs. Santosh Kumar and others.
See AIR 1988 SC 696 titled Appabhai and another vs. State of Gujarat. See AIR 1999 SC 3544 titled Rammi alias Rameshwar vs. State of Madhya Pradesh. See (2000)1 SCC 247 titled State of H.P. vs. Lekh Raj and another. See (2004) 10 SCC 94 titled Laxman Singh vs. Poonam Singh and others. See (2012)10 SCC Kuriya and another vs. State of Rajasthan .
::: Downloaded on - 15/04/2017 19:36:02 :::HCHP 3722. In view of above stated facts it is held that learned trial Court has properly appreciated the oral as well as .
documentary evidence placed on record and it is further held that no miscarriage of justice is caused to appellant. Point No.1 is answered in negative against the appellant.
Point No. 2 (Final Order)
23. In view of findings upon point No.1 appeal filed by of appellant is dismissed. Judgment and sentence passed by learned trial Court affirmed. File of learned trial Court along Appeal rt with ceritified copy of this judgment be sent back forthwith.
stands disposed of. Pending miscellaneous application(s) if any also stands disposed of.
(Sanjay Karol),
Judge
December 28,2015 (P.S. Rana)
(ms). Judge
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