Kunwar Lal vs State Of Himachal Pradesh on 25 August, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA

Cr.Appeal No. 494 of 2016

.

Date of Decision: August 25, 2017

Kunwar Lal …Appellant.

Versus

State of Himachal Pradesh ..Respondent.
Coram:

The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 No.
For the Appellant: Mr.Raju Ram Rahi, Advocate as
r Legal Aid Counsel for the appellant.

For the Respondent: Mr. R.S. Verma, Additional Advocate
General, for the respondent-State.

Sanjay Karol, Acting Chief Justice (oral).

In this appeal filed under Section 374 Cr.P.C.,

convict Kunwar Lal has assailed the judgment dated

30.06.2016, passed by learned Special Judge, Chamba,

H.P., in Sessions Trial No. 34 of 2014, titled as State of

Himachal Pradesh Versus Kunwar Lal, whereby he stands

convicted for having committed offences punishable

under the provisions of Sections 452, 376 of the Indian

Penal Code and Section 6 of the Protection of Children

1
Whether reporters of the local papers may be allowed to see the judgment?

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from Sexual Offences Act, 2012 (hereinafter referred to

as the POCSO Act) and sentenced to undergo rigorous

imprisonment for three years and pay fine in the sum of

.

`5,000/-, for commission of offence punishable under the

provisions of Section 452 IPC and in default thereof,

further to undergo simple imprisonment for six months.

Convict was further sentenced to undergo rigorous

imprisonment for a period of ten years and to pay fine of

`5000/- for the offence punishable under Section 376 IPC,

read with Section 6 of the POCSO Act and in default

thereof, further to undergo simple imprisonment for a

period of six months.

2. The challenge is laid on the ground that

without correctly and completely appreciating the

material so placed on record by the prosecution, trial

Court committed an illegality in convicting the accused.

All this resulted into travesty of justice.

3. After examining the record, we find the trial

Court to have fully and correctly appreciated the

testimonies of the prosecution witnesses (fourteen in

number), as also correctly interpreted and applied the

law.

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4. In short, it is the case of prosecution that on

21.04.2014, accused Kunwar Lal trespassed into the

house of Ashok Kumar (PW.4) and subjected his minor

.

daughter i.e. the prosecutrix (PW.1) to sexual assault. At

the relevant time, parents of the prosecutrix had gone to

attend the function in the house of Dile Ram. On return,

they saw the children weeping, when Bhoom Dei (PW.3),

mother of the prosecutrix noticed the accused fleeing

away from her house. On 22.04.2014, Bhoom Dei (PW.3)

lodged a report at Police Station, Nakrod, District

Chamba, H.P.. Investigation was conducted by Sharif

Mohammad (PW.14) and ASI Jagdish Chand (PW.15). The

accused was arrested on 23.04.2014. Prosecutrix was

got medically examined from Dr.Rishu (PW.5). Report of

the Forensic Science Labortory was obtained by the

police. Also the accused was got medically examined

from Dr.Jaswant Singh (PW.6). With the completion of

investigation, challan was presented in the Court for trial.

5. On 31.07.2014, accused was charged for

having committed offences punishable under the

provisions of Sections 452, 376 of IPC and Section 3(A) of

POCSO Act.

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6. The trial Court found the prosecutrix (PW.1) to

be a competent witness, able to testify as such in Court.

Her statement came to be recorded on 11.08.2014. Prior

.

thereto, her statement under Section 164 Cr.P.C. was

recorded on 20.05.2014. In Court, she has affirmed to

have made such statement. There are no contradictions

as she has reiterated the version so narrated therein.

She deposes that accused came to her house and untied

her “paijami” (lower pants), whereafter he laid upon her.

She felt pain in her private parts. At that time, both her

brother and sister were present in the room. She clarifies

that she was taken to the hospital by her mother, where

she was examined by a doctor and her statement was

also recorded in the Court at Chamba. Significantly,

when one examines the cross-examination part of her

testimony, one only notices the defence taken by the

accused is of the witness tutored by her parents. There is

no proof of prior animosity inter se the accused and/or

the family of the prosecutrix. Why would parents falsely

implicate the accused by putting honour of their minor

daughter at stake, is not borne out from record. No

doubt, witness admits that she has deposed as her

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mother had told her to do so, but then, this does not

mean that the mother had tutored the witness. Mother

has only asked the child to depose in Court. The

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suggestion is not that the child has falsely deposed on

the asking of her parents.

7. Testimony of the prosecutrix in fact, is

corroborated by her brother Narinder Kumar (PW.2), who

further states that after shunting the other siblings

outside the room, accused closed the door from inside.

This witness saw the accused committing the crime.

Resultantly, he went and called his mother. Soon his

mother came on the spot. Significantly this witness has

withstood the test of cross-examination. It cannot be

said that he was either tutored or has deposed falsely.

In fact, from the suggestion given by the accused to this

witness, it stands established that there was a function in

the house of Dilo (Dile Ram).

8. When we examine the testimony of

Smt.Bhoom Dei (PW.3), we notice her to have fully

corroborated the version of her child. She further goes

on to state that she saw the accused leaving the room

and when she tried to catch him, he pushed her and fled

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away. Yes, to this extent there is improvement from her

previous statement with which she was confronted, but

then this does not make her an unreliable witness, not

.

worthy of credence. She noticed that her child was

bleeding from the private parts. Immediately she was

told that it was the accused, who had committed the

crime. Her husband and other people from the area

assembled and on their advice, matter was reported to

the police, who got the prosecutrix medically examined

at the Regional Hospital, Chamba. Significantly, in the

cross-examination part, accused does not seriously

challenge his presence on the spot. There is no

suggestion of animosity, save and except that there is a

land dispute inter se the families, but what is the nature

of dispute, remains undisclosed to her. In any event,

such suggestion stands denied by the witness. One only

notices that suggestion given by the accused to Narinder

Kumar (PW.2) was also with regard to alleged beatings

given by the father of the prosecutrix to the accused in

Nawala (religious function), but no such suggestion was

put to Smt. Bhoom Dei (PW.3).

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9. Further, when we notice the cross-

examination part of testimony of Ashok Kumar (PW.4),

father of the prosecutrix, who otherwise corroborates the

.

version of the prosecutrix, Narinder Kumar (PW.2) and

Smt.Bhoom Dei (PW.3), one finds that there is no

suggestion of either any land dispute or alleged beatings.

Here suggestion is totally different and that being that

Bhika Ram, brother of Ashok Kumar had closed the path

of Mahajan, father of the accused by constructing a shed

thereupon. Now when was this shed constructed; who is

this Mahajan; and who is this Bhika Ram, there is nothing

on record to establish their identity. In fact, witness has

clarified that Nawala function in the house of Dile Ram

was not on the date of incident, but later on. Hence,

defence taken by the accused of the alleged beatings

given on the day of Nawala, as is so put to Narinder

Kumar (PW.2), is not believable.

10. Ocular version of the prosecutrix and her

parents also stands corroborated by a co-villager Dilla

Ram (PW.9), who had organized a function in his house.

11. From the ocular version of these witnesses, it

is quite evident that prosecution has been able to

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establish: (a) parents of the prosecutrix being not at

home at the time of commission of crime; (b) accused

being present in the house of the victim on 21.04.2014 at

.

8.30 PM; (c) accused having committed the crime for

which he was charged for; (d) accused seen fleeing away

from the spot; and (e) there being no reason for the

parents of the victim to falsely implicate the accused.

12. One finds the ocular version of the witnesses

more so that of the prosecutrix to have been fortified by

corroborative evidence.

r Dr. Rishu (PW.5), who issued

MLC (Ex.PW.5/B), is categorical that on the basis of his

clinical findings, he opined possibility of sexual

intercourse could not be ruled out. There was bleeding in

and around the vagina of the victim, which was least

possible by scratching, as suggested by the accused.

Suggestion put by the accused to the doctor contradicts

the version of false implication. The accused wants the

Court to believe that prosecutrix sustained such injuries

by fall on some sharp edged object, which stands

clarified by the doctor that had it been so, injuries ought

to have been not only on the private parts, but also on

other portion of her body.

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13. Insofar as ability of the accused to commit

sexual assault is concerned, such fact stands established

through the testimony of Dr.Jaswant Singh (PW.6).

.

14. On the question of age of the prosecutrix, we

find there cannot be much challenge. At the time of

commission of offence, prosecutrix was less than 4 years

of age. Such fact also stands established through the

testimony of Pritam Singh (PW.8), who has proved the

birth certificate (Ex.PW.8/B), which records date of birth

to be 20.07.2010.

15. On examination of the testimonies of the

police officials, we find the investigation to have been

conducted in a fair manner. Despite having expressed his

desire, accused chose not to lead any evidence. Only

defence taken was that of false implication on account of

his having constructed the house and the complainant

i.e. Bhoom Dei (PW.3), mother of the prosecutrix,

harbouring animosity towards him, which defence we

find not to have been probablized on record.

16. Testimonies of the prosecution witnesses,

more so that of minor cannot be said to be unbelievable.

Witnesses are trustworthy and in the opinion of the Court

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have deposed truthfully. Safely it can be held that

prosecution has discharged the initial burden of

establishing its case and the statutory burden, so

.

required by the accused under Section 30 of the POCSO

Act, cannot be said to have been discharged. Ocular

evidence stands materially corroborated by other

evidence on record.

17. The ocular version as also the documentary

evidence clearly establishes complicity of the convict in

the alleged r crime. The testimonies of prosecution

witnesses are totally reliable and their depositions

believable. There are no major contradictions rendering

their version to be unbelievable.

18. From the material placed on record, it stands

clearly established by the prosecution witnesses, beyond

reasonable doubt, that the convict is guilty of having

committed the offences charged for. There is sufficient,

clear, convincing, cogent and reliable piece of evidence

on record to this effect. The circumstances stand

conclusively proved by unbroken chain of unimpeachable

testimony of the prosecution witnesses. The guilt of the

convict stands proved beyond reasonable doubt to the

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hilt. The chain of events stand conclusively established

and lead only to one conclusion, i.e. guilt of the convict.

Circumstances when cumulatively considered, fully

.

establish completion of chain of events, indicating the

guilt of the accused and no other hypothesis other than

the same. It cannot be said that convict is innocent or

not guilty or that he has been falsely implicated or that

his defence is probable or that the evidence led by the

prosecution is inconsistent, unreliable, untrustworthy and

unbelievable. It cannot be said that the version narrated

by the witnesses in Court is in a parrot-like manner and

hence is to be disbelieved.

19. Thus, from the material placed on record, it

stands established by the prosecution, beyond

reasonable doubt, by leading clear, cogent, convincing

and reliable piece of evidence, that convict committed

rape with the prosecutrix-child below 4 years of age and

also committed penetrative sexual assault on her.

20. For all the aforesaid reasons, we find no

reason to interfere with the judgment passed by the trial

Court. The Court has fully appreciated the evidence

placed on record by the parties. There is no illegality,

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irregularity, perversity in correct and complete

appreciation of the material so placed on record by the

parties. Findings cannot be said to be erroneous in any

.

manner. Hence, the appeal is dismissed.

Records of the Court below be immediately

sent back.

(Sanjay Karol),

Acting Chief Justice.

August 25, 2017 (Vivek Singh Thakur),
(Purohit)
r Judge.

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