IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
Cr. Appeal No. 374 of 2019
.
Reserved on: 28.11.2019
Decided on : 19.12.2019
Jaswant Singh
…Appellant
Versus
State of H.P.
…Respondent
_
Coram
Hon’ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? yes
For the appellant: Mr. H.S. Rangra, Advocate.
For the respondent : Mr. Hemant Vaid and Mr.
Arvind Sharma, Additional
Advocate Generals.
Sureshwar Thakur, Judge
The instant appeal, stands directed, by the
accused/convict, against, the judgment rendered,
on 28.6.2019, by the learned Special Judge, Mandi,
upon, Sessions trial No. 67 of 2016 whereon, he
returned findings of conviction, against, the
21/12/2019 20:25:58 :::HCHP
2
accused/convict in respect of charges framed,
under, Sections 376 and 506 of the IPC, and, under
.
Section 4 of the POCSO Act, AND also consequently
sentenced him, to, undergo seven years’ rigorous
imprisonment, and to pay a fine of Rs. 50,000/- for his
committing an offence punishable under Section 4
of POCSO Act, and further sentenced him to
undergo seven years’ rigorous imprisonment, and, to
pay a fine of Rs. 50,000/- for his committing an
offence punishable under Section 376 IPC, and
further sentenced him to undergo one year simple
imprisonment, and, to pay a fine of Rs. 1000/- and
for his committing an offence, punishable under
Section 506 of the IPC, AND in default, he was
sentenced to undergo simple imprisonment for a
period of one year, for the offences punishable
under Sections 376 of IPC and under Section 4 of
POCSO Act, and simple imprisonment, for one
2
21/12/2019 20:25:58 :::HCHP
3
month, for his committing an offence punishable
under Section 506 IPC.
.
2. The facts relevant to decide the instant case
are that the victim is the daughter of complainant,
who was about sixteen years old on 11.8.2016.
Complainant PW-4 had gone to his relations and his
and their daughter
r to
wife PW-2 had also gone for work at Ghogarhdhar
was allalone in the house. At
about 8:00 p.m. when the complainant and his wife
returned back to their home, they found that the
victim was sitting quite in the room. Mother of the
victim asked her the reason that why she was quite,
the victim disclosed to her that accused had
committed sexual intercourse with her forcibly, when
she had gone to Atta Chakki of accused at about 2
½-3 p.m. The victim also disclosed that accused had
threatened her that in case she would tell about the
aforesaid occurrence to anyone, he would killher.
On 12.8.2016, complainant moved an application
3
21/12/2019 20:25:58 :::HCHP
4
Ext. PW4/A to the police at police station Padhar, on
the basis of which FIR Ext. PW11/A was registered.
.
Medical examination of the victim was conducted at
Zonal Hospital Mandi by PW-1 Dr. Sonali Mahajan
vide MLC Ext. PW1/B. At the time of medical
examination of the victim her vaginal slides, vaginal
swan, pubic hair and clothes i.e. blue and pink
coloured shirt and blue coloured salwar were taken
into possession by the doctor and the same were
sealed in a parcel and handed over to the police.
The police visited the spot and victim gave
indentification of the spot and police also clicked the
photographs of the spot. On 13.82016,Inspector
Vinod Thakur (PW-12) visited the spot at Himri-Ganga
and prepared the spot map, at the instance of the
victim. During investigation, on 16.8.2016, the
statement of victim under Section 164 Cr. P.C. was
got recorded before learned JMIC Jogindernagar.
Medical examination of the accused was
4
21/12/2019 20:25:58 :::HCHP
5
conducted. On 19.8.2016, Inspector Vinod Thakur
moved an application to the Secretary Gram
.
Panchayat Seiun, forl obtaining the birth certificate
of the victim and procured the birth certificate of the
victim. Report of FSL was obtained. The statements of
the witnesses under Section 161 of Cr. P.C. were
recorded
3. to
On conclusion of investigations, into the
offences, allegedly committed by the accused, a
report under Section 173, of, the Code of Criminal
Procedure, was prepared, and, was filed in the Court
concerned.
4. The accused was charged by the learned trial
Court, for, his committing offence(s) punishable
under Sections 376 and 506 of the IPC, and, under
Section 4 of the Protection of Children from Sexual
Offences Act, 2012. In proof of the charge, the,
prosecution examined 12 witnesses. On conclusion of
recording of prosecution evidence, the statement of
5
21/12/2019 20:25:58 :::HCHP
6
the accused, under, Section 313 of the Code of
Criminal Procedure, was, recorded by the trial Court,
.
wherein, the accused claimed innocence, and,
pleaded false implication in the case. Accused
examined one defence witness in his defence.
5. On an appraisal of evidence on record, the,
learned trial Court, recorded findings of conviction
against the accused/appellant herein.
6. The accused/appellant, is, aggrieved by the
judgment of conviction, as, recorded by the learned
trial Court. The learned Counsel appearing for the
accused/appellant, has, concertedly and vigorously
contended qua the findings of conviction recorded
by the learned trial Court standing, not, based on a
proper appreciation, by it, of the evidence on
record, rather, theirs’ standing sequelled by gross mis-
appreciation, by it, of the material on record.
Hence, he contends qua the findings of conviction
being reversed by this Court in the exercise of its
6
21/12/2019 20:25:58 :::HCHP
7
appellate jurisdiction, AND, theirs being replaced by
findings of acquittal.
.
7. On the other hand, the learned Additional
Advocate General, has also with considerable force
and vigour, contended that the findings of
conviction recorded by the Court below standing
it, of evidence
r to
based on a mature and balanced appreciation, by
on record, and, theirs not
necessitating interference, rather theirs meriting
vindication.
8. This Court with the able assistance of the
learned counsel on either side, has, with studied care
and incision, evaluated the entire evidence on
record.
9. The prosecutrix, as disclosed by her birth
certificate, borne in Ext. PW6/B, and, proven by PW-
6, was, hence at the relevant time, a, minor, and,
was hence incompetent, to, mete any valid
consent, vis-à-vis, the, sexual misdemeanor,
7
21/12/2019 20:25:58 :::HCHP
8
allegedly perpetrated on her person, by the
accused. PW-1, has, in his deposition, made
.
unequivocal voicing, vis-à-vis, upon hers’ examining
the prosecutrix, and, also after hers’ receiving, the,
report, of, the FSL concerned, and, as embodied in
Ext. P-X, hers forming, a, formidable opinion, qua the
prosecutrix, becoming subjected to sexual assault.
However, she has made clear underlining(s), in her
deposition, vis-à-vis, her , at the time of subjecting
the prosecutrix to medical examination, hers’ rather
not noticing, any, external injury, hence becoming
borne, upon, any portion of her body.
10. Be that as it may, the deposition, of, the
prosecutrix, who stepped into the witness box, as
PW-3, has become meted, the, absolutest
corroboration, by her parents, who, respectively,
stepped into the witness box, as PW-2, and, as PW-4.
A closest reading, of, the deposition of the
prosecutrix, wheretowhich, rather hence absolutest
8
21/12/2019 20:25:58 :::HCHP
9
corroboration, stands meted, by her parents, and,
who respectively stepped into the witness box, as
.
PW-2 and PW-4, unfolds, qua it holding vivid
underscoring(s) (i) that the accused perpetrating
sexual assault, upon the victim. The afore rendered
deposition(s), are, free from any taint, of, any intrase
or interse contradictions, thereupon, it becomes
incumbent upon this Court, to, mete, the, absolutest
sanctity thereto, a) moreso, when, their respectively
rendered deposition(s), are, also free from any taint,
of, theirs contradicting, the, versions, qua, therewith,
as spelt by each, of them in their respective
deposition(s), (ii) also, when upon theirs’ becoming
subjected to, the, ordeal, of, a rigorous cross-
examination, by the learned defence counsel,
theirs’ neither grossly improving or embellishing,
upon, their respectively recorded, hence previous
statements, in, writing. Consequently, this Court, is,
constrained to conclude, vis-à-vis, the genesis, of,
9
21/12/2019 20:25:58 :::HCHP
10
the prosecution case, becoming unflinchingly
proven.
.
11. However, the learned counsel for the
accused, has, contended with much vigor, before
this Court, that when PW-4, the father of the
prosecutrix, makes a deposition, in his cross-
examination, vis-à-vis, hers, attaining the age, of,
majority, in the year 2015, hence, on anvil thereof,
the unfoldment(s), borne in the apposite birth
certificate, as, embodied in Ext. PW6/B, (i) and,
hence holding echoing(s), vis-à-vis, the prosecutrix,
at the relevant time, being a minor, (ii) and, also
being incompetent, to mete any valid consent, to,
the accused, vis-à-vis, his allegedly perpetrating any
sexual assault upon her, (iii) rather all becoming
both waned, subsided and blunted. However, the
afore made submission, before this Court, by the
learned counsel for the accused, is, infirm, (iv) as the
mother of the prosecutrix, upon stepping, into the
10
21/12/2019 20:25:58 :::HCHP
11
witness box, has, made a deposition, that, at the
relevant time, though, talks for betrothing the
.
prosecutrix, being underway, yet the apt talks
failing, as, at the relevant time, especially in
contemporaniety, vis-à-vis, the mis-demeanor,
ascribed, to the accused, becoming committed,
articulation,
rhence to
hers not completing hence 18 years. The afore
existing, in, the cross-
examination, of, the mother of the prosecutrix,
obviously, is, contrary, to, the afore deposition,
existing in the cross-examination, of, the father, of,
the prosecutrix, wherein, he makes, a, deposition,
vis-à-vis, rather at the relevant time, hers’ acquiring
the age of majority, and, obviously, the, afore interse
contradictions, existing in the respective cross-
examination(s), of the mother, of, the prosecutrix,
and, the father of the prosecutrix, (v) rather
constrain a conclusion, vis-à-vis, no reliance being
meteable, vis-à-vis, the, deposition, of, the father, of,
11
21/12/2019 20:25:58 :::HCHP
12
the prosecutrix, wherein, he strived to impeach, the,
apt meteable credence, vis-à-vis, the birth
.
certificate, appertaining, to, his daughter, and, as
embodied in Ext. PW6/A, and, wherein, the
prosecutrix, is, shown to be a minor, rather at the
relevant stage.
12.
Dehors the above, the afore interse
contradictions, hence, interse the testification, of,
the mother, of, prosecutrix, and, the father of the
prosecutrix, rendering hence the latters’ testification,
to, not acquire, any aura of credence, yet, it was
open for the accused, to, proceed, to impeach,
the, unfoldments, occurring in Ext. PW6/A, exhibit
whereof, is, the birth certificate, of, the minor
prosecutrix, comprised in (a) his either recalling the
parents, of, the prosecutrix, for, theirs becoming
respectively re-examined, especially qua each
becoming confronted with Ext. PW6/A, (b) his
eliciting from the authorities concerned, holding the,
12
21/12/2019 20:25:58 :::HCHP
13
records, appertaining to the birth, of, the prosecutrix,
hence documents, unraveling, vis-à-vis, despite, no
.
intimation being purveyed, hence by the father, of
the prosecutrix, to the authorities concerned, yet
the, latter proceeding, to, surmisingly make an
opinion, in, Ext. PW6/A, vis-à-vis, the, date of birth, of,
the prosecutrix. However, both the afore endeavors,
remained un-recoursed, by the learned defence
counsel, and, wants thereof, rather draw a
conclusion, vis-à-vis, hence, the, echoing(s) made in
Ext. PW6/A, proven by PW-6, hence obviously
acquiring an aura of truth. Consequently it
becoming inevitable for this Court, to, conclude, vis-
à-vis, the minor prosecutrix, at, the relevant time, not
acquiring the apposite age, to, mete any valid
consent, to, the accused, for, the latters’ hence
perpetrating any sexual intercourse, upon her.
13. Even though, the learned counsel, for the
accused has contended with much vigor, before
13
21/12/2019 20:25:58 :::HCHP
14
this Court, upon his making an allusion, vis-a-vis,
deposition(s), existing in the cross-examination(s), of,
.
PW-2 and PW-4, wherein, each has acquiesced, vis-
à-vis, houses being located, in vicinity, vis-à-vis, the
place of occurrence, upto, the house of the
prosecutrix, and, despite the occurrences thereof,
yet, the prosecutrix, refraining from revealing, the,
occurrence, to, the inhabitants thereof, and, also
with echoing(s), borne therein, vis-à-vis, the
prosecutrix not raising, any, shrieks and outbursts, for,
hers, inviting, the, attention, of, the
persons/residents, of, the neighborhood, as existing,
in proximity, vis-à-vis, the site of occurrence, (i) and,
thereupon, he contends, that, the alleged sexual
intercourse, which occurred interse the accused,
and, the prosecutrix, being consensual. In the afore
endeavour, he also alludes to PW-1, in her
deposition, borne in her cross-examination,
articulating qua upon, her examining the
14
21/12/2019 20:25:58 :::HCHP
15
prosecutrix, hers, not noticing any external injury,
upon her, and hence reiteratedly contends, that,
.
the sexual act, if any, perpetrated by the accused,
upon the prosecutrix, being consensual. However,
the vigor, of, the afore made submission, before this
Court, is, both waned and enfeebled, from, the trite
afore inferences, as drawn by this Court, vis-à-vis,
the prosecutrix, at the relevant time, being minor,
and hence becoming, incompetent, to, mete any
valid consent, to the accused, for his subjecting her,
to, sexual intercourse.
13. For the reasons which have been recorded
hereinabove, this Court holds that the learned trial
Court has appraised the entire evidence on record
in a wholesome and harmonious manner apart
therefrom the analysis of the material on record by
the learned trial Court, does not, suffer, from a
perversity or absurdity of mis-appreciation and non-
appreciation of evidence on record.
15
21/12/2019 20:25:58 :::HCHP
16
14. There is no merit in the appeal, and, the
same is dismissed. The impugned judgment,
.
pronounced by the learned Special Judge, Mandi,
in session trial No. 67 of 2016, is, maintained and
affirmed. Also, the pending application(s), if any,
are also disposed of. No costs.
r to (Sureshwar Thakur)
Judge
19.12.2019
(Kalpana)
16
21/12/2019 20:25:58 :::HCHP
