IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 368 of 2016
Reserved on: 05.04.2018
Decided on: 12.04.2018
.
_
Uttam Kumar …..Appellant.
Versus
State of Himachal Pradesh ……Respondent.
_
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? No.
_
For the appellant: Mr. Rajesh Mandhotra, Advocate.
For the respondent/State: Mr. Sudhir Bhatnagar and Mr. Vinod
Thakur, Additional Advocates
General with Mr. J.S. Guleria,
Deputy Advocate General.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the
appellant/accused/convict (hereinafter referred to as “the accused”),
laying challenge to judgment dated 28.10.2015, passed by learned
Special Judge, Sirmaur, at Nahan, District Sirmaur, H.P., in
Sessions Trial No. 48-ST/7 of 2014, whereby the accused was
convicted for the commission of offence punishable under Section
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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376(2) of Indian Penal Code, 1860 (IPC) and Section 6 of The
Protection of Children from Sexual Offences (POCSO) Act, 2012.
2. The background facts, which gave rise to the prosecution
.
of the accused, can tersely be portrayed as under:
On 16.01.2014, at about 01:50 p.m., Smt. Vijay Laxmi
informed Police of Police Station, Kala Amb, that at village Khairi an
incident of rape took place. Acting upon the information, SI/SHO
Inspector Mohar Singh Chauhan alongwith other police personnel
reached on the spot. Smt. Sunita Devi (complainant) got her
statement recorded under Section 154 Cr.P.C. As per the
complainant, her husband used to work in a factory and they have
two children, viz., a daughter 10 months old and a son 3 years of
age. She has further stated that their family and her mother-in-law,
two brothers-in-law and two sisters-in-law live in a rented
accommodation of Shri Jaideep. The accused also used to reside in
their neighbourhood. When, at about 10:30 a.m., the complainant
was washing utensils the accused came to their accommodation and
started playing with her daughter (prosecutrix, name withheld) and
subsequently he took the prosecutrix to his room. After about an
hour the accused came back with the prosecutrix and at that time
the prosecutrix was crying loudly. The accused disclosed that the
prosecutrix fell down with a toy and he returned to his room. The
prosecutrix became unconscious and while the complainant was
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3
bathing her, she noticed blood stains on her underwear and the
blood was oozing from her rectum. The complainant washed blood
and the clothes of the prosecutrix. The mother-in-law and sister-in-
.
law of the complainant also reached and they also saw the condition
of the prosecutrix. The complainant had suspicion that the accused
might have done something to her daughter. Thus, Smt. Vijay
Laxmi, sister-in-law of the complainant, telephonically informed the
police. The statement of the complainant, as recorded by the police
under Section 154 Cr.P.C., formed basis for registration of the FIR
and the investigation ensued. The prosecutrix was medically
examined and her medico legal certificate was obtained. Pursuant to
the statement made by the accused, the place of occurrence was got
identified by him. Police prepared the site map. The samples, which
were preserved by the Medical Officer, during the medical
examination of the prosecutrix, were sent for chemical examination
at State Forensic Science Laboratory, Junga. After conclusion of the
investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as
many as fifteen witnesses. Statement of the accused was recorded
under Section 313 Cr.P.C., wherein he pleaded not guilty. The
accused did not lead any evidence in his defence.
4. The learned Trial Court, vide impugned judgment dated
28.10.2015, convicted the accused for the offence punishable under
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Section 376(2) IPC and sentenced him to undergo rigorous
imprisonment for ten years and also to pay fine of `5000/- (rupees
five thousand). In default of payment of fine the accused was
.
ordered to undergo simple imprisonment for a month. The accused
was also convicted under Section 6 of the POCSO Act and sentenced
to undergo rigorous imprisonment for ten years and also to pay fine
of `5,000/- (rupees five thousand) and in default of payment of fine
he was ordered to undergo simple imprisonment for a month. The
sentences were ordered to run concurrently and out of the fine
amount `9,000/- (rupees nine thousand) was ordered to be paid to
the prosecutrix under Section 357(1) Cr.P.C.
5. The learned Counsel for the appellant has argued that
the learned Trial Court has not appreciated the evidence in its true
and correct perspective. He has further argued that there is no
evidence against the appellant so he be acquitted and the appeal be
allowed. Conversely, the learned Additional Advocate General has
argued that the prosecution has proved the guilt of the accused
beyond the shadow of reasonable doubt. He has argued that when
the appellant took the prosecutrix, there was no injury and when she
was brought back by him, her anus and rectum were having
injuries. The evidence on record proves the guilt of the accused. He
has also argued that the medical evidence also establishes the guilt
of the accused beyond the shadow of reasonable doubt, so the
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appeal be dismissed.
6. In rebuttal, the learned Counsel for the appellant has
argued that as the learned Trial Court has not been correctly and
.
rightly appreciated the evidence, so the present appeal be allowed
and the appellant be acquitted.
7. In order to appreciate the rival contentions of the parties
we have gone through the record carefully.
8. Precisely, as per the prosecution story, on the day of
occurrence, the accused took the minor prosecutrix to his room.
After an hour the accused alongwith the prosecutrix came to the
accommodation of the complainant and at that time prosecutrix was
weeping loudly. The mother of the prosecutrix (complainant) noticed
that blood is oozing from the rectum of her daughter. The
complainant suspected that the accused might have done something
wrong to her daughter, so the police was informed and a case was
registered against the accused.
9. In the above backdrop, the statements of the witnesses of
the spot are very important. The complainant, who is mother of the
minor prosecutrix, was examined as PW-1. She has deposed that
her husband used to work in Knight Queen Factory at village Khairi.
They have two children, a son aged 4 years and a daughter aged 1½
years. She has further deposed that at the time of the incident, the
prosecutrix was aged about ten months. Their family, alongwith
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other family members, i.e., her mother-in-law, three brothers-in-law
and two sisters-in-law used to reside at Khairi in a rented
accommodation in the house of one Shri Jaideep. On 16.10.2014,
.
the complainant alongwith the children were at home and all other
family members had gone for labour work in the factory. The
accused, who is resident of Uttar Pradesh, also used to reside in the
neighbourhood and was doing night duty in some factory. On the
day of occurrence, at about 10:00 a.m., the accused came and
starting playing with the prosecutrix, who was on a cot in the
courtyard. The accused asked the complainant to take the
prosecutrix to his room and the complainant permitted. This witness
has further deposed that the prosecutrix remained with the accused
for about an hour and she presumed that he is playing with her.
After an hour the accused came with the prosecutrix and the
prosecutrix was weeping loudly. As per the version of PW-1, the
prosecutrix became unconscious. On asking, the accused divulged
that the prosecutrix fell down, while she was playing with toys in his
room. PW-1 sprinkled water on the mouth of the prosecutrix and
only then she regained consciousness, however, she again started
crying. Thus, she called her husband and started bathing the
prosecutrix. She noticed that underwear of the prosecutrix was
stained with blood, her rectum was having injury and blood was
oozing out of it. She washed the underwear and frock of the
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prosecutrix and also cleaned oozing blood from her rectum. The
prosecutrix was still weeping and in the interregnum Smt. Manju
Devi (mother-in-law of the complainant) reached there and
.
subsequently Smt. Vijay Laxmi (sister-in-law of the complainant)
also reached there. After seeing the condition of the prosecutrix,
they all suspected that the accused might have done some unnatural
crime with the prosecutrix, so Smt. Vijay Laxmi (PW-2) telephonically
informed the police of Police Station Kala Amb. The complainant has
further deposed that police came to their room and her statement,
Ex. PW-1/A, was recorded under Section 154 Cr.P.C. The police also
visited the site of occurrence and her daughter was got medically
examined. She gave consent for medical examination and at that
time the prosecutrix was ten months old. At that time her husband
was also there and she alongwith her husband put their signatures
on the medico legal certificate of the prosecutrix. She has further
deposed that she handed over the clothes of the prosecutrix to the
police, which were worn by her at the time of the incident and the
same were taken into possession, vide recovery memo, Ex. PW-1/B.
This witness, in her re-examination, has deposed that she handed
over underwear (Ex. PW-3/8) of the prosecutrix to the Medical
Officer. She and her husband also signed recovery memo, Ex. PW-
1/B. She has further deposed that when the accused took the
prosecutrix to his room, Smt. Suman (PW-14), who used to live
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nearby, was also present there. This witness, in her cross-
examination, has deposed that when the accused brought the
prosecutrix back, she was crying and many people crossed from
.
there. She did not divulge the incident to anyone.
10. The statement of PW-1 (mother of the prosecutrix) in
isolation cannot be made basis for convicting the accused. So, the
testimony of PW-1 is to be seen in juxtaposition with the testimonies
of other key witnesses. PW-2, Smt. Vijay Laxmi (sister-in-law) of the
complainant, who telephonically informed the police, qua the
incident, has deposed that she works in Pritam Shoes Factory at
Kala Amb (Khairi). As per her version, she alongwith her husband,
brother, sister-in-law and parents, reside in a rented accommodation
at Khairi. On 16.10.2014, at about 01:00 p.m., when she came for
lunch she saw the complainant (PW-1) and her mother, Smt. Manju
Devi, weeping. The complainant divulged that accused took the
prosecutrix to his room and when he brought her back blood was
oozing from her private part. As per the testimony of this witness,
she had also seen the condition of the prosecutrix, so she telephoned
the police. This witness, in her cross-examination, has deposed that
family members of their neighbourer were in their home at the
relevant time. She has deposed that after the incident, persons of
the neighbourhood gathered there.
11. PW-14, Smt. Suman, is one of the important witnesses,
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as according to the testimony of PW-1 (complainant) when the
accused brought the prosecutrix back, PW-14 was present there.
PW-14 has deposed that her husband used to work in a factory at
.
Khairi and they reside in a rented accommodation. She has further
deposed that the accused had also hired a room in the same
building. As per this witness, when PW-1 was washing utensils in
her room, the prosecutrix was weeping and despite pacifying her, she
did not stop weeping. This witness was declared hostile, as she has
resiled from her previous statement. She, in her cross-examination,
denied that she divulged to the police that accused took the
prosecutrix to his room for playing and when he brought her back,
the prosecutrix was weeping. She denied the prosecution story, but
she was repeatedly confronted with her version given to the police.
12. In the case in hand, medical evidence is also very
relevant. PW-3, Dr. Sana Sandhu, Medical Officer, R.H. Nahan,
deposed that on 16.10.2014 police, through application, Ex. PW-
3/A, requested her to conduct medical examination of the
prosecutrix. She medically examined the prosecutrix and made
following observations:
“1. Alleged history of child was taken by
someone (neighbour) today morning at about
10.00 a.m., as per history given by mother.
When she brought back home, the child was
crying loudly. After that the child slept at
about 11:00 a.m. Mother took the child for12/04/2018 23:11:14 :::HCHP
10bath. While giving her bath, mother noticed
blood stained clothes and swelling around
anul region, on which, they reported the
matter to police.
2. Alleged history of sodomy at around 10.00
a.m. Clothings have been changed. Mother.
has washed blood stained clothes as per
history given by mother. Clothings at time
of examination has been sealed with the
seal of hospital. Short light green coloured
underwear having blood stains. I also drewthe sample seal.
3. On examination, per abdomen, no injury
found.
PER VAGINA
No injury found.
PER RECTUM
Call was sent to surgeon as per examination
rectly multiple parianal lacerations present.
Blood oozing was present around
lacerations. Discharge was seen. Slides
were made and sample slides sealed.
During examination, flatus was passed.
Anul tone decreased. As per the opinion ofsurgeon in red encircle in MLC Ext. PW-3/B
and the gynaechological opinion on the MLC
and as per FSL report Ext. PW-3/C, I gave my
final opinion as under:
As per report of chemical analysis, my final
opinion is that there was evidence of recentanul penetration…..”
This witness has further deposed that she issued Medico Legal
certificate, Ex. PW-3/B. As per the version of this witness, injuries
in rectum of the prosecutrix can be possible by entering of male
private part. One injury around the anal region was grievous in
nature and the probable duration of injury was opined to be 6-7
hours. This witness, in her cross-examination, has deposed that
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injury in the rectum could be caused if a child falls on pebbles or on
concrete. She did not notice any internal injury on the rectum at the
time of examination. This witness, in her re-examination, has
.
deposed that on 16.10.2014, she has preserved rectum slide and
vaginal slide of the prosecutrix and she put the same in a cloth
parcel, which was sealed with seal having impression RH Nahan.
She handed over the sealed parcel to the police. She identified the
cloth parcel, rectum slide and the vaginal slide, which are Ex. PW-
3/3, Ex. PW-3/2 and Ex. PW-3/4, respectively. She has further
deposed in her re-examination that she took blood sample of the
prosecutrix and preserved the same in a vial and sealed the same in
a cloth parcel, having two seals of impression RH Nahan. She
identified the above case property in the Court. This witness has
also preserved the underwear of the prosecutrix and sealed the same
in a cloth parcel, which was sealed with two seals, having impression
RH Nahan. She has also identified the parcel and the underwear in
the Court.
13. PW-4, Dr. Shahida Mubarak Ali, deposed that on
17.10.2014 the prosecutrix was brought before him and he referred
her to Gynaechologist, qua the injuries on her private parts. He,
after examination, has observed as under:
“1. Labia minora, labia majora not well
developed. On parinial area redness was
found. Tenderness found and hymen was
found intact.
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2. Parinial area was red and tender, anul
orifice admits one finger easily. Fecal
matter was coming out, anul orifice was
conjested and tender. No bleeding per
vaginal and per rectum present at the time
of examination.”
.
As per this witness swab was taken by lady doctor and smear was
found sealed, which he handed over to the police. In his opinion, the
injury, Ex. PW-4/A, as mentioned in MLC, Ex. PW-3/A, could be
possible with some thick object. This witness, in his cross-
examination, has deposed that there is remote possibility of injuries
being caused with pebbles in the rectum, however, the injuries could
be caused by a wooden stick. He denied the suggestion that such
type of injury could be caused due to constipation.
14. PW-5, Dr. Manjit Singh Kanwar, deposed that on
16.10.2014 police moved application, Ex. PW-5/A, for conducting
medical examination of the accused. He conducted the medical
examination of the accused and found him capable of performing
sexual intercourse. He preserved the underwear of the accused,
which was sealed with seal having impression RH Nahan, and also
took his blood sample for DNA analysis. This witness has also
sealed pubic hair and swab from the glans of penis of the accused,
which he handed over to the police. He issued MLC, Ex. PW-5/B.
He has identified in the Court underwear of the accused, which is
Ex. PW-5/2, vial containing pubic hair, Ex. PW-5/4 and vial
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containing glans swab, Ex. PW-5/5.
15. PW-6, Shri Raju, deposed that in the year 2014 he used
to work in Amba Enterprises at Kala Amb and he had
.
accommodation near the house of one Rajesh Kumar. On
16.10.2014, at about 12:30 p.m., many people had gathered there,
so he came out and found PW-1 crying. He came to know that the
accused committed bad act with the prosecutrix. As per the
testimony of this witness, he remained associated in the
investigation of the police and the accused disclosed that he could
identify the place where he had done bad act with the prosecutrix.
The statement of the accused to this effect Ex. PW-6/A, was
prepared, which bears his signatures, was prepared. Subsequently,
the accused led them to his room and showed the place of
occurrence and to this effect identification memo is Ex. PW-6/B,
which also bears his signatures. He has further deposed that police
took into possession a white and pink colour frock and underwear of
the prosecutrix, which were put in a cloth parcel and sealed. The
parcel was taken into possession vide seizure memo, Ex. PW-1/B,
which also bears his signatures. This witness was cross-examined
at length, but nothing favourable to the accused could be elicited.
16. Now, the statements of the official prosecution witnesses
is to be looked into. PW-7, Constable Singh, brought rapat No. 17,
dated 16.10.2014, copy of which is Ex. PW-7/A. PW-8, HC Deep
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Chand, deposed that on 16.10.2014 SI/SHO Mohar Singh sent
rukka, through constable Bhupender Singh, to Police Station Kala
Amb. On the basis of rukka, FIR, Ex. PW-79/14, was registered and
.
qua this an endorsement was also made on the rukka, which is Ex.
PW-8/B. As per this witness, FIR and endorsement made on the
rukka, bear his signatures. On the same day, SI/SHO Mohar Singh
deposited with him a sealed parcel and a sample seal and he made
an entry in register No. 19 at Sr. No. 138. He has further deposed
that on the same day, Lady Constable Neha, deposited four cloth
parcels, which were sealed and having seal impressions RH Nahan,
alongwith a sample seal. He made requisite entries in register No.
19 at Sr. No. 139. Constable Dinesh Kumar also deposited with him
four parcels, which were sealed with seal impression RH Nahan,
alongwith sample seal. He has deposed that after deposit of the said
case property in the malkhana, he made an entry to this effect in
register No. 19 at Sr. No. 140, extract of malkhana register is Ex.
PW-8/C. This witness was cross-examined, but nothing favourable
to the accused came out. PW-9, Shri Ehsaan Ahmed, Clerk, M.C.
Nahan, deposed that on 10.12.2014, on the request of police,
through docket, Ex. PW-9/A, he issued date of birth certificate of the
prosecutrix. As per the record, the date of birth of the prosecutrix is
25.09.2013 and to this effect an entry has been made in birth
register of committee at Sr. No. 1079 on 27.09.2013. Date of birth
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certificate is Ex. PW-9/B, which bears the signatures of E.O.,
encircled in red. He has identified the signatures of E.O..
17. PW-10, HC Mam Raj, brought the original record of
.
malkhana register No. 19 and road certificate No. 21. As per the
deposition of this witness, on 20.10.2014 case property, i.e., a
parcel, which was sealed with seal impression ‘T’, containing clothes
of the prosecutrix, another parcel containing vaginal slides of the
prosecutrix, which was having seal of RH Nahan, another parcel
containing rectum slides, parcel containing clothes, which were worn
by the prosecutrix at the time of her medical examination and a
parcel containing blood samples with blood bandage for DNA, was
deposited in malkhana and entry to this effect was made at Sr. Nos.
138 to 140. As per the testimony of this witness, all the above
parcels were sealed with seal RH Nahan and there was a sample seal
also. On the same day he was also handed over a sealed parcel,
having seal RH Nahan, which contained underwear and clothes of
the accused and alongwith the same two more parcels, having seal
RH Nahan were handed over to him, which contained pubic hair and
blood sample of the accused for DNA. He, vide RC No. 91/14, dated
20.10.2014, handed over all the above parcels to HHC Sharafat Ali
(PW-11) for depositing the same in Forensic Science Laboratory and
copy of RC is Ex. PW-10/A. The case property remained intact
under his custody. Again, the accused could not fetch any benefit in
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his favour by cross-examining this witness. PW-11, HHC Sharafat
Ali, deposed that on 20.10.2014, vide RC No. 91/14, Ex. PW-10/A,
MHC Mam Raj (PW-10) handed over the case property to him. He,
.
on the same day, deposited the case property, i.e., eight parcels,
samples seals of T and RH Nahan, in Forensic Science Laboratory
and receipt to this effect is Ex. PW-10/B. He, on his return, handed
over the receipt to MHC, Police Station Kala Amb, on the subsequent
day. As per the version of this witness, the case property remained
intact under his custody.
18. PW-12, Constable Dinesh Kumar, deposed that on
16.10.2014 he obtained MLC of the accused. As per the version of
this witness, M.O. R.H. Nahan has handed over to him a parcel,
which was sealed with seal having impression RH Nahan. The said
parcel contained clothes, underwear, pubic hair and blood sample of
the accused. He deposited the said parcel and sample seal with
MHC, Police Station, Kala Amb. He handed over the MLC to I.O.,
SI/SHO Mohar Singh. The case property remained intact under his
custody. PW-13, Lady Constable Neha, deposed that on 16.10.2014
she obtained the MLC of the prosecutrix and Medical Officer handed
over to her five parcels, containing vaginal slides, rectum slides, shirt
and underwear, blood sample, undergarments of the prosecutrix.
The parcel was sealed with seal having impression RH Nahan. She
deposited the parcels with MHC, Police Station, Kala Amb and the
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17
MLC was handed over to I.O./SHO Mohar Singh. The case property
remained intact under her custody.
19. The last witness in the line of official prosecution
.
witnesses is PW-15, Inspector Mohar Singh Chauhan (Investigating
Officer) deposed that on 16.10.2014 Smt. Vijay Laxmi (PW-2)
telephoned the police and informed about the incident. He recorded
the statement of Smt. Sunita (complainant) under Section 154
Cr.P.C., which is Ex. PW-1/A. Subsequently, rukka was sent to
Police Station whereupon FIR was registered. He moved application,
Ex. PW-3/A, for conducting medical examination of the prosecutrix
and her MLC, Ex. PW-3/B, was obtained. As per the testimony of
this witness, he also recorded the statements of the witnesses under
Section 161 Cr.P.C. The statement of Smt. Sunita is Ex. PW-15/A.
He prepared the spot map, which is Ex. PW-15/B. On the same day,
Smt. Sunita produced frock, which was white and pink in colour,
and an underwear, which was blue in colour, the same were taken
into possession vide recovery memo, Ex. PW-1/B. He arrested the
accused and vide application, Ex. PW-5/A, his medical examination
was conducted. MLC, Ex. PW-5/B, of the accused was obtained.
The accused got his statement recorded that he can identify the
place where he committed sexual intercourse with the prosecutrix
and to this effect his statement is Ex. PW-6/A. Thus, the police
party visited the place and demarcated the place vide memo, Ex. PW-
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6/B, in presence of the witnesses. He also prepared the spot map,
Ex. PW-15/D, and during the course of interrogation the accused
also confessed that he had committed sexual intercourse with the
.
prosecutrix. The date of birth certificate of the prosecutrix was also
obtained, which is Ex. PW-9/B. He completed all the investigation
and after that presented the challan in the Court. This witness, in
his cross-examination, has deposed that there are 10-12 rooms
adjoining to the room of the accused. He, during the course of
investigation, visited twice the place of occurrence. The room of
witness Smt. Suman (PW-14) was adjacent to the room of the
accused.
20. The above evidence unambiguously establishes that on
the day of occurrence, i.e., 16.10.2014, the prosecutrix was playing
on a cot, which was kept outside the room and her mother (PW-1)
was working inside. The evidence also clearly establishes that the
accused used to reside in a nearby room and was in talking terms
with the family of the prosecutrix. The complainant allowed the
accused to take the prosecutrix, who was less than a year old, and
when he brought her back after an hour the prosecutrix was
bleeding and virtually fell unconscious. In the wake of the above
evidence, there is nothing unusual in allowing the accused by the
complainant to take the prosecutrix to his room, as the accused was
not a stranger, rather he was well known to the complainant. It also
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stands proved that in Kala Amb area there are many factories and
labourers from other States used to live in rented accommodations.
Admittedly, the family of the prosecutrix and the accused used to
.
work in the factories and they lived in the rented accommodation.
PW-1, Smt. Sunita (complainant) clearly deposed that accused is
working in a factory and does night duty and he was present in his
room. PW-1 has further deposed that while she was cleaning
utensils, the prosecutrix was playing on a cot and when the accused
brought the prosecutrix back, she was crying loudly. So, the
presence of accused stands fully proved.
21. The defence has given a suggestion to the doctors that
the injury sustained by the prosecutrix in the rectum could be by fall
on pebbles or on hard surface or wooden object like stick etc., but
had the prosecutrix sustained injuries in such manner, then the
accused could have told this immediately to PW-1, Smt. Sunita
(mother of the prosecutrix). So, the reaction of the accused is very
important and has to be observed carefully. The accused did not tell
anybody about the injuries and left the prosecutrix with PW-1. He
also went away and subsequently PW-1 and other relatives of the
prosecutrix noticed the injuries.
22. Medical evidence clearly establishes that there was no
injury in the vagina of the prosecutrix. As per the testimony of PW-
3, Dr. Dana Sandhu, there was multiple parianal lacerations present
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in the rectum and blood was oozing. She has finally opined, after
gynecological opinion, that there was evidence of recent anal
penetration. She has further deposed that there was one injury with
.
multiple lacerations around the anal region on the person of
prosecutrix, which was grievous in nature. She has deposed that
the said injury on the rectum is possible by entering of male private
part. So, it can be safely said that forcible penetration was made
through anus. This is also fortified by the statement of the Doctor
Sana Sandhu (PW-3). The accused also tried to establish that such
injuries in the rectum could be possible due to constipation, but PW-
4, Dr. Shahida Mubarak Ali, denied that such injury could be the
result of constipation. PW-4 has clearly stated that due to
constipation there could be abrasion and anal sphincter will remain
intact, but in the case in hand the anal sphincter was injured.
Thus, it cannot, by any stretch of imagination said that injuries
sustained by the prosecutrix were due to constipation. Although,
the doctor has admitted that such injury could be caused by wooden
object like stick. If that was the case then also when the accused
took the prosecutrix she did not have any such injury and when he
brought her back she was crying loudly and having injury on her
rectum, so the onus to explain how the prosecutrix sustained such
injury was on the accused. It is for him to establish that the
prosecutrix sustained injury by falling on pebbles or on concrete or
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wooden object like stick. The evidence nowhere suggests that injury
was caused by a wooden stick. The onus to prove the fact that the
prosecutrix sustained injury in her rectum due to wooden stick is on
.
the accused and he has failed to prove the same. The medical
evidence when read in conjunction with the statement of PW-1, it
unambiguously establishes that the accused took the prosecutrix to
his room and subjected her to forcible penetrative sexual assault. It
also stands established that he committed the carnal intercourse
against the order of nature.
23. The offence committed by the accused is covered under
Section 375(A) IPC and he can also be held guilty under Section
376(2) IPC for committing rape upon the minor prosecutrix, as in the
case in hand the accused penetrated his penis into the rectum
through the anus. The rectum is a part of elementary canal. The
rectum is a continuation of the sigmoid colon, and connects to the
anus. It is a section of the digestive tract above the anus, where
stool is held before it passes out of the body through the anus.
Thus, the accused had committed aggravated penetrative sexual
assault on the minor prosecutrix, who, at the time of the occurrence,
was only 10 months old.
24. In view of what has been discussed hereinabove, the only
conclusion is that the learned Trial Court has rightly appreciated the
evidence to its true and correct perspective and rightly convicted the
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accused. We find no reason to reverse the findings rendered by the
learned Trial Court. The appeal, which sans merits, deserves
dismissal and is accordingly dismissed, as the prosecution has
.
proved the guilt of the accused conclusively and beyond the shadow
of reasonable doubt.
25. In view of the above, the appeal, so also pending
application(s), if any, stand(s) disposed of.
26. Copy of this judgment be sent to the convict, who is
lodged in Model Central Jail, Nahan.
r (Tarlok Singh Chauhan)
Judge
(Chander Bhusan Barowalia)
Judge
12th April, 2018
(virender)
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