CR.A/5/2016 of CHANDER PAL Vs STATE OF HP on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

Cr. Appeal No. 5 of 2016.

Reserved on: 18th December, 2018.

Date of Decision: 31st December, 2018.

Chander Pal

…..Appellant.

Versus

State of H.P.

....Respondent.

Coram

The Hon’ble Mr. Justice Sureshwar Thakur, Judge.

Whether approved for reporting? Yes.

For the Appellant: Mr. Umesh Kanwar, Advocate. For the Respondent:Mr. Hemant Vaid and Mr. Desh Raj Thakur, Additional Adv.Generals with Mr. Y.S. Thakur and Mr. Vikrant Chandel, Dy. A. Gs. For the Respondent:Mr. Hemant Vaid and Mr. Desh Raj Thakur, Additional Adv.Generals with Mr. Y.S. Thakur and Mr. Vikrant Chandel, Dy. A. Gs.

_______________________________________________________

Sureshwar Thakur, Judge.

The instant appeal, is, directed by the convict/accused/appellant, against, the pronouncement made bythe learned Special Judge, Kullu, District Kullu, H.P., upon,Sessions Trial No.136 of 2013, whereunder, he convicted,besides imposed consequent sentence, upon, theconvict/accused/appellant, for his committing offences punishable under Sections 452, 363, 376/511 and 506 ofthe IPC, and, under Section 8 of the Protection of Childrenfrom Sexual Offences Act (hereinafter referred to as the“POCSO Act”).

2. The facts relevant to decide the instant caseare that the prosecutrix was residing with her maternalgrandmother (PW-4) in village Jindour, and, was studyingin 5[th] class. On 26.6.2013, PW-4 and husband of PW-3 hadgone to their field for night watch. Prosecutrix and heraunt (PW-3) were at home. At about 2.00 A.M in the night,when prosecutrix and her aunt were sleeping in a room,accused entered their room and lifted the prosecutrix bygagging her mouth and took her to his house situated atvillage Nangcha. PW-3, who had recently delivered a childand was having weak physic, tried to save the prosecutrixfrom the clutches of the accused, but she could not.Accused threatened PW-3 to do away with her life.Accused committed sexual assault and attempted to rapeon the prosecutrix in his house. In the morning, PW-4,maternal grandmother of prosecutrix, came back from thefield, to whom, PW-3 told that during the night, accusedentered their house and took away the prosecutrix.Thereafter PW-4 went to the house of accused. She found the prosecutrix there and noticed that there were injurieson the body of prosecutrix and her “salwar” was also torn.Thereafter, PW-4 alongwith prosecutrix came to the policestation and got FIR, Ex.PW4/A registered against theaccused. Partial investigation of the case was conductedby PW-11, S.I. Firoj Khan, who sent the prosecutrix to thehospital for her medical examination through LC Saroj.Investigating officer also prepared spot map and recordedthe statements of the witnesses. The prosecutrix was gotmedically examined from PW-5 Dr. Tanu Sharma. Thedoctor, on examination, found marks of violence on theperson of prosecutrix and opined that there was nophysical interference with the genitalia and then issuedMLC Ex.PW5/B. However, prosecutrix was referred by PW-5 for x-ray examination and opinion for age estimation.During the course of investigating clothes of theprosecutrix were also taken into possession and sealed ina parcel. Thereafter, the police also completed otherformalities with respect to the investigation. 3.On conclusion of the investigation, into theoffences, allegedly committed by the accused, a report,under Section 173 of the Code of Criminal Procedure, wasprepared, and, filed before the learned trial Court.

4. The accused/appellant herein stood charged, by

4. The accused/appellant herein stood charged, by the learned trial Court, for, his committing offences,punishable under Sections 452, 363, 376 read with Section511, Section 506 of the IPC, and, under Section 8 read withSection 18 of the POCSO Act. In proof of the prosecutioncase, the prosecution examined 11 witnesses. Onconclusion of recording, of, the prosecution evidence, thestatement of the accused, under, Section 313 of the Codeof Criminal Procedure, was, recorded by the learned trialCourt, wherein, 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 uponthe accused/ appellants herein, for theirs hencecommitting the aforesaid offences.

6. The appellant herein/accused, stand aggrieved, by the findings of conviction, recorded, by the learned trialCourt. The learned counsel appearing, for, the appellantherein/accused, has concertedly and vigorouslycontended, qua the findings of conviction, recorded by thelearned trial Court, standing not, based on a properappreciation of the evidence on record, rather, theirsstanding sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findingsof conviction warranting reversal by this Court, in theexercise of its appellate jurisdiction, and, theirs beingreplaced by findings of acquittal.

7. On the other hand, the learned AdditionalAdvocate General has with considerable force and vigour,contended qua the findings of conviction, recorded, by thelearned trial Court, rather standing based, on a matureand balanced appreciation, by it, of the evidence onrecord, and, theirs not necessitating any interference,rather theirs meriting vindication.

On the other hand, the learned Additional

8. This Court with the able assistance of thelearned counsel on either side, has, with studied care andincision, evaluated the entire evidence on record.

This Court with the able assistance of the

9. The testimony of the prosecutrix, if, is worthy of gaining, the, confidence of this Court, and, is credible, (a)given it being not ridden, with, any active vice of grossimprovements or embellishments, vis-a-vis, her previousstatement recorded in writing, (b) AND, it being free fromany active taints of inter se contradictions, vis-a-vis, herstatement comprised in her examination-in-chief, and, INher testification borne in her cross-examination, (c)

thereupon, this Court would be coaxed to succumb to hertestification rendered on oath.

10. In making an endeavour to determine whetherthe testification rendered by the prosecutrix, hence beingfree, from all the afore taints, an incisive perusal thereof,makes imminent disclosure, qua her, in her examination-in-chief, (a) rendering echoings bearing consonance withher previous statement recorded in writing, excepting thefactum qua hers, in purported improvement thereof, rathermaking a disclosure qua the accused perpetrating sexualinter course upon her, whereas, hers in her previousstatement making an articulation qua the accusedattempting to hold her, to, coitus. (b) Nonetheless, theafore improvement, is, stripped of its purportedadverserial effects, given the prosecutrix, upon, hers beingre-examined, hers rendering a statement qua the accusedtouching his private part, with, her private part. Since, theafore rendered testification, is, uneroded of its vigour, and,further when, she, in her cross-examination, conducted on19.6.2014, rather has denied a suggestion qua hersrendering a testification, under, active tutorings, meted,upon, her by her relatives, and, the police officials, (c)thereupon, she has proven her statement recorded before

the Magistrate, especially qua it being free from vices ofduress or exertion being exerted upon her, (d) thereupon,when the afore penal misdemeanor ascribed by her quathe accused also constitutes an offence, under theamended definition of rape, hence, on the strength of theuneroded testification of the prosecutrix, this, Courtconcludes qua the prosecution, proving the charge againstthe accused.

11. The afore uneroded testification qua thecharge, and, as rendered by the prosecutrix, acquirescorroboration from PW-3, who in her testification,embodied in her examination-in-chief, renders, an echoingqua the accused, hence, kidnapping the prosecutrix fromher abode, (i) despite hers abortively attempting torepulse the endeavour, of, the accused, given a criticalweakness befalling upon her, on account, of, hersdelivering, a child, 12 days, prior to the occurrence, (ii)and, with hers also deposing qua hers noticing injurymarks on the body of the prosecutrix, and, with the aforetestification remaining uneroded, (iii) despite hers beingsubjected to an exacting, and, rigorous cross-examination,by the learned defence counsel, also constrains this Court to conclude qua the prosecution succeeding, in, provingthe charge against the accused.

12. Be that as it may, PW-5, during. the course ofhers stepping into the witness box, proving, the apt MLC,borne, in Ex.PW5/B, and, with hers in consonance with theapt MLC, also making disclosures qua hers noticing, the,existence of marks of violence, upon, her person, (i) and,hers also making a disclosure, in her examination-in-chiefqua the injury marks noticed by her, and, as reflected inEx.PW5/B, being possible, upon, resistance being metedby the prosecutrix, to an assault being perpetrated, upon,her person, (ii) thereupon, the afore disclosure made byPW-5, during, the course of her examination-in-chief,supports the version qua the occurrence, rendered byboth, the prosecutrix, and, by PW-3, thereupon,corroborative vigour, thereto, also stands reinforcinglyacquired.

13. However, the learned counsel appearing for theaccused/appellant has contended with much vigour, beforethis Court, (a) that with the prosecutrix in her depositioncomprised in her cross-examination, disclosing, quaexistence of a family dispute inter se, her maternal grandfather, and, the family of the father of the accused, (b)

and, with hers, in her cross-examination further making anarticulation qua the existence of a shop, en-route, theabode of the accused, whereat, the penal act stoodperpeterated, upon, her person, (c) and, with hers alsotestifying qua hers not raising any alarm, (d) thereupon, itbeing maybe inferable qua the prosecutrix consensuallysuccumbing to the sexual overtures of the accused. Thetenacity, if any, of the afore espousal reared before thisCourt by the learned counsel, appearing for theaccused/appellant, would gain an aura of immensepotency, (e) upon, evidence being adduced, qua theprosecutrix, at the relevant time, acquiring the age ofconsent. In the afore endeavour, the learned counsel forthe accused/appellant, relies, upon the depositionrendered by PW-6, who, in his cross-examination, hasrendered an echoing qua the results, of, the ossificationtest being amenable, to, variation, upto, 2 to 3 years oneither side, (f) and, with a catena of judicial verdicts,propounding a trite proposition of law, that, the benefit ofthe upper margin being bestowable upon the accused, (g)thereupon, he further contends that when, the, ossificationage of the prosecutrix, rather, is,testified by PW-6, to bewithin the range of 10 to 14 years, hence after adding

three years, on, the upper margin thereof, (h) hence, theprosecutrix is to be concluded to be acquiring the age ofconsent. Even if, the afore testification has some vigour,yet it would acquire formability, only upon failure of theprosecution, to, adduce the best documentary evidence,comprised in the birth certificate, of, the prosecutrix.However, the prosecution, through PW-7, rather hasproven, date of birth of the prosecutrix, date of brithwhereof, stands embodied in Ex.PW7/B. A perusalthereof, discloses that at the relevant stage, hers being aminor. Even if, the afore reflections, as, borne in Ex.PW7/Bqua the relevant factum probandum, were ridden with anygross infirmity, (i) thereupon, it was incumbent, upon, thedefence to after holding PW-7, to, a rigorous cross-examination, hence, prove qua the reflections borne inEx.PW7/B rather being fictitious, and, being doctored, and,(ii) theirs not being made at the instance of the parents ofthe prosecutrix, (iii) and, also it was incumbent, upon, thedefence to, through the aegis of the Court, seeksummoning of the records, from, the school concerned,wherefrom Ex.PW7/B emanated, for, hence enablingdetermination, qua, the reflections borne in Ex.PW7/B,being anvilled, upon surmises or conjectures or remaining unanvilled either upon abstract of Pariwar Register or uponthe birth register maintained, with, the Panchayatconcerned, or with the Registrar, Birth and Deaths. (iv)The afore endeavours remained unrecoursed by thedefence, and, hence, all the reflections as borne inEx.PW7/B qua the relevant factum probandum, are, to beconstrued to be bearing, an aura of formadibility, and, onanvil thereof, it is to be concluded that the prosecutrixhence being a minor at the relevant stage, and, obviouslyhers not holding an apt capacity, to, mete consent to theaccused, for the latter holding her to coitus. Therefore,consent, if any, purveyed by the prosecutrix, to accused,for holding her to sexual coitus, is both irrelevant or standssubsided.

14. For the reasons which have been recordedhereinabove, this Court holds that the learned trial Court,has appraised the entire evidence on record in awholesome and harmonious manner, apart therefrom, theanalysis of the material, on record, by the learned trialcourt, hence, also does not suffer from any grossperversity or absurdity of mis-appreciation, and, nonappreciation of germane thereto evidence, on record.

15. Consequently, there is no merit in the instantappeal, and, it is dismissed accordingly. In sequel, theimpugned judgment is affirmed and maintained. Allpending applications also stand disposed of. Records besent back forthwith.

(Sureshwar Thakur)Judge

31[st] December, 2018. (jai)