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Jaswant Singh vs State Of H.P on 19 December, 2019

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

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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

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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

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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

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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

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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

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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,

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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

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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,

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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

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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

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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

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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

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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

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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.

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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)

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