Himachal Pradesh High Court
State Of H.P vs Of on 8 September, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. Appeal No. 4276 of 2013
Reserved on : 2.9.2016
Decided on : 08.09.2016
State of H.P. .....Appellant.
Versus
of
Pawan Kumar .....Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
rt The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Ramesh Thakur, Deputy Advocate General.
For the Respondent: Mr. Devinder K Sharma, Advocate. _______________________________________________________ Sureshwar Thakur, Judge The instant appeal stands directed against the impugned judgment of 19.2.2013 rendered by the learned Additional Sessions Judge, Mandi, District Mandi, H.P. in Sessions trial No. 21 of 2010, whereby the learned trial Court acquitted the respondent (for short "accused") for the offences charged.
2. Brief facts of the case are that on 8.1.2010 an apposite FIR under Sections 376 and 506 of IPC stood registered by the 1 Whether reporters of the local papers may be allowed to see the judgment?
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prosecutrix against the accused alleging therein that she is 17 .
years of age and in the month of May, 2009 the accused i.e her "jija" subjected her to forcible sexual intercourse 7-8 times during her stay at the house of her maternal grandmother at village Sakroha. She further alleged that the accused also threatened of her to do away with her life if she disclosed anything about it to anyone. It is further alleged by her that she is carrying about 8 rt month pregnancy owing to illicit intercourse with her by the accused. It is further alleged by her that the accused provided her medicine to get foetus aborted. After registration of the FIR the police agency conducted the investigation into the matter.
On completion of all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court.
3. The accused stood charged by the learned trial Court for his committing offences punishable under Sections 376 and 506 of the Indian Penal Code to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 15 witnesses. On closure of prosecution evidence, the statement of ::: Downloaded on - 15/04/2017 21:12:30 :::HCHP ...3...
the accused under Section 313 of the Code of Criminal .
Procedure was recorded in which he claimed false implication.
However he does not choose to lead evidence in defence.
5. On an appraisal of evidence on record, the learned trial Court returned findings of acquittal in favour of the of accused.
6. The learned Deputy Advocate General has concertedly rt and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction.
8. This Court with the able assistance of the learned counsel for the parties has with studied care and incision, evaluated the entire evidence on record.
9. Qua the occurrence which took place in the month of May, 2009 an apposite FIR comprised in Ex.PW-1/A holding a narrative therein of the accused subjecting the prosecutrix to ::: Downloaded on - 15/04/2017 21:12:30 :::HCHP ...4...
forcible sexual intercourse during the spell of her stay at the .
house of her maternal grand mother at Sakroha stood recorded on 8.1.2010. The accused is the 'Jija' of the prosecutrix. For determining the trite factum of the prosecutrix, at the time contemporaneous to hers standing subjected to forcible sexual of intercourse, holding the relevant capacity to mete consent to his sexual overtures, an allusion to Ex. PW-7/C and PW-7/D is rt imperative wherewithin revelations stand encapsulated of the prosecutrix at the relevant time standing aged 16 years.
Consequently, with the prosecutrix at the time contemporaneous to the alleged incident holding the relevant age besides the apposite capacity to mete consent to the accused for his holding her to coitus would not perse besides ipso-facto render the alleged sexual encounter which occurred inter-se both to be bereft of any penally inculpable mens rea unless evidence surges forth qua the prosecutrix while holding coitus with the accused hers meteing volitional consent to him.
The meteing of volitional consent by the prosecutrix to the accused for the latter holding her to coitus would emanate only on a close and incisive perusal of her testimony.
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10. The imminent factum of hers disclosing in the FIR of .
hers during the spell of her stay in the month of May, 2009 at the house of her maternal grandmother at Sakroha standing subjected thereat to forcible sexual intercourse by the accused whereas with belatedly lodging an apposite FIR qua the of incident aforesaid on 8.1.2010 without hers purveying visibly a plausible explanation therein for the inordinate delay which has rt occurred since the alleged incident vis-à-vis the lodging of the aforesaid FIR qua it by her, gives amplifying vigor to a firm inference of the prosecutrix meteing volitional consent to the accused for his holding her to coitus.
11. Moreover with hers omitting to make an apt disclosure to her grandmother whereat she stood subjected to forcible sexual intercourse by the accused also hers clothes not suffering any tearings nor hers in quick spontaneity thereto asking for her medical examination standing conducted by the Doctor concerned for facilitating the latter to unearth the relevant fact qua hers resisting the sexual overtures of the accused rather hers continuing to attend school normally, is a ::: Downloaded on - 15/04/2017 21:12:30 :::HCHP ...6...
visible pronouncement of hers volitionally consenting to the .
accused for his holding her to sexual intercourse.
12. Be that as it may, the prosecutrix delivered a male child who stands opined by the expert concerned to be the biological son of the accused and the biological son of the of prosecutrix. Even during the entire course of the prosecutrix conceiving a baby in her womb also thereafter upto 8 months rt when the incident stood unraveled by her to the police station concerned she given the aforesaid protuberance of hers belly omitted to disclose the relevant incident to the police agency concerned nor her parents concerted to elicit from her qua the alleged incident throughout the course of her belly exemplifying a visible protuberance cumulatively hold a loud echoings of the prosecutrix while holding the relevant capacity to mete consent to the accused for his holding her to coitus hers meteing volitional consent to the accused.
13. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in ::: Downloaded on - 15/04/2017 21:12:30 :::HCHP ...7...
recording findings of acquittal has committed any legal .
misdemeanor, in as much, as, its mis-appreciating the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of acquittal recorded by the of learned trial Court merit interference.
14. In view of the above discussion, we find no merit rt in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith.
( Rajiv Sharma ), Judge.
8th September, 2016 (Sureshwar Thakur)
(priti) Judge
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