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
.
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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