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Uttam Kumar vs State Of Himachal Pradesh on 12 April, 2018

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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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 for

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bath. 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 drew

the 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 of

surgeon 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 recent

anul 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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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

12/04/2018 23:11:14 :::HCHP
21

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

12/04/2018 23:11:14 :::HCHP
22

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)

12/04/2018 23:11:14 :::HCHP

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