Himachal Pradesh High Court
Naresh Kumar vs Of on 24 August, 2015
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 110 of 2011.
Reserved on: 17.08.2015.
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Date of Decision: 24th August, 2015.
Naresh Kumar .....Appellant.
Versus
of
State of H.P. ....Respondent.
Coram
The Hon'ble
rt Mr. Justice Sureshwar Thakur,
Judge.
Whether approved for reporting?
For the Appellant: Mr. Vikrant Chandel, Advocate.
For the Respondent: Mr. Vivek Singh Attri, Dy. A.G. _______________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the judgment of the learned Addl. Sessions Judge, Mandi, District Mandi, Himachal Pradesh, rendered on 28.03.2011 in Sessions trial No.11/2010 whereby, the learned trial Court convicted the accused/appellant for his having allegedly committed offences punishable under Sections 363, 366 and 376 of the Indian Panel ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 2 Code (hereinafter referred to as "IPC") and sentenced him as under:-
Sections Sentenced imposed
.
376, IPC Sentenced to undergo rigorous imprisonment
for a period of seven years and to pay fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months.
363, IPC Sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months.
366, IPC Sentenced to undergo rigorous imprisonment for a period of four years and to pay fine of rt Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months.
All the substantive sentences of imprisonment were ordered to run concurrently.
2. The facts relevant to decide the instant case are that the prosecutrix was studying in Government Senior Secondary School, Sundernagar in class 8 th. She had gone to school on 3.2.2010 but did not return.
Efforts were made by her parents to search her but in vain. She told her mother telphonically that she had left and thereafter disconnected the phone. The parents of the prosecutrix came to know that accused Niju was also missing and hence they suspected that ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 3 the accused was responsible for the missing of their daughter. The matter was reported to the police and FIR Ex.PA was registered. Investigation was conducted .
by ASI Chhota Ram, who recorded the statements of the witnesses as per their version. The accused and prosecutrix were brought to police station by the parents of the accused on 11.2.2010. An application of Ex.PQ was filed before the medical officer for conducting rtthe medical examination of the prosecutrix. PW-7 Dr. Rafia Bano conducted her medical examination and found that there was sufficient evidence to suggest that she was subjected to sexual intercourse. She issued MLC. The accused was also subjected to medical examination and as per the opinion of the doctor concerned he was found capable of performing sexual intercourse. During the course of the investigation, the Investigating Officer on an application having been moved at his instance, obtained the date of birth certificate of the prosecutrix. As per the birth certificate procured by the Investigating Officer from the school of the prosecutrix, the date of birth of the prosecutrix was ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 4 recorded to be 19.08.1994. Cowshed of Prem Chand was shown by the prosecutrix. Site plan Ex.PK was prepared. Bed sheet lying on the double bed was .
seized vide separate seizure memo. It was sealed in a parcel with eight impressions of seal 'R'. Samples of seal were taken separately on a piece of cloth. The Investigating Officer, has further taken into possession of for Municipal Committee date of birth certificate of the prosecutrix showing her date of birth to be 19.8.1994.
rt The case property was deposited with HC Santosh Kumar, who deposited the same in Malkhana and made an entry in the register of malkhana. The case property was sent to FSL Junga on 15.11.2010 through HHC Baldev vide R.C. No. 190/09-10, who deposited the same there and handed over the receipt to MHC on his return. As per the opinion of the FSL, blood was not detected on the pajami of prosecutrix but human semen was detected on it. However, human blood and semen were not detected on the shirt, sweater, vaginal smear slides, pubic hair, vaginal swab of the prosecutrix and under wear and pubic hair of Naresh Kumar and on the bed sheet. It was found on the ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 5 basis of the investigation that the accused had kidnapped and raped the prosecutrix, who was minor on the date of incident.
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3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
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4. The accused was charged by the learned trial Court for his having committed offences under rt Sections 363, 366 and 376 of the IPC. In proof of the prosecution case, the prosecution examined 16 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, in which the accused claimed innocence and pleaded false implication in the case.
5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant.
6. The accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 6 Court. The learned defence counsel has concertedly and vigorously contended that the findings of conviction recorded by the learned trial Court are not .
based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-
appreciation of the material on record. Hence, he contends that the findings of conviction be reversed of by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal.
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7. On the other hand, the learned Deputy Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
9. The learned counsel appearing for the accused/appellant alluded to the deposition comprised in the examination-in-chief of the prosecutrix wherein ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 7 there occurs an admission on her part of hers knowing the accused/appellant for the last 2-3 months, besides there is an admission on the part of the prosecutrix of .
hers being in love with the accused/appellant. He has further alluded to the deposition existing in the cross-
examination of the prosecutrix wherein she has conceded to the factum of hers having met the of accused outside her school on 3.2.2010 and had proceeded along with the accused to Hatgarh in a bus, rt wherefrom both in a bus proceeded to Kullu. Besides, therein she has deposed qua existence of many houses and shops between the bus stand and her school at Sundernagar. Hers having not protested to the accused/appellant eliciting her company besides hers on proceeding to accompany the accused/appellant in a bus from Hatgarh to Kullu having omitted to protest to the passengers occupying the bus against the accused forcibly eliciting her company, has been with aplomb canvassed by the learned counsel for the accused/appellant to be connoting the consent of the prosecutrix to the penal misdemeanors allegedly perpetrated upon her by the ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 8 accused/appellant. The above contention though raised by the counsel for the accused/appellant for coaxing an inference from this Court that hence the .
penal misdemeanors, if any, committed by the accused/appellant upon the prosecutrix were wholly consensual, as such, the appeal necessitates its being allowed. However, the aforesaid contention meted of before this Court by the learned counsel appearing for the appellant/accused would have immense succor rt only in the event of it having been proved that the prosecutrix had at the apposite stage arrived the age of consent. In determining the fact whether the prosecutrix had at the apposite stage arrived the age of consent, an advertence to Ex.PE which records the date of birth of the prosecutrix to be 19.8.1994 besides to Ex.PF which in consonance to reflections in Ex.PE records the fact of the prosecutrix being born on 19.8.1994, does constrain a conclusion from this Court that the prosecutrix was a minor at the time of the alleged commission upon her by the accused of the offences attributed to him, hence consensuality, if any, by her to the penal misdemeanors perpetrated ::: Downloaded on - 15/04/2017 18:47:47 :::HCHP 9 upon her person by the accused is wholly inconsequential. Amplifying probative vigour is acquired by the afore referred exhibits on the score of .
the learned counsel while cross-examining the father of the prosecutrix having put a suggestion to him that at the time contemporaneous to the recording of at his instance in the apposite record the date of birth of the of prosecutrix he had furnished an affidavit before the authorities concerned on score whereof an entry of the rt date of birth of the prosecutrix stood recorded therein which suggestion sequeled from him an answer in the affirmative. Consequently, the effect of the aforesaid suggestion and its sequeling an answer in the affirmative by the father of the prosecutrix, for reiteration, lends conclusiveness to the factum of the date of birth of the prosecutrix recorded in Ex.PE and PF.
10. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by ::: Downloaded on - 15/04/2017 18:47:48 :::HCHP 10 the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly .
appreciated the material available on record.
Consequently, the judgment of conviction recorded against the accused/appellant by the learned trail Court is affirmed.
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11. However, keeping in view the facts and circumstances of the case, as also, the fact that the rt accused has remained in custody since February, 2010 and has suffered imprisonment for more than five years, hence, in the interest of justice, the sentence of imprisonment imposed upon the accused/appellant is modified and he is sentenced to imprisonment for the period already undergone by him. He be set at liberty forthwith, if not required in any other offence.
Accordingly, appeal stands disposed of. Records be sent back forthwith.
(Sureshwar Thakur)
24 th
August, 2015 Judge.
(jai)
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