SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Krishan @ Chuhiya vs State Of Himachal Pradesh on 17 May, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 391 of 2017
Reserved on: 03.05.2018
Decided on: 17.05.2018

.

_

Krishan @ Chuhiya …..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. H.S. Rangra, Advocate.

For the respondent/State: Mr. Vinod Thakur, Additional

Advocates General with Mr. J.S.

Guleria and Mr. Bhupinder Thakur,
Deputy Advocates 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 30.09.2016/27.10.2016, passed

by learned Special Judge, Shimla, District Shimla, H.P., in Sessions

Trial No. 27-S/7 of 2014, whereby the accused was convicted and

sentenced for the commission of offence punishable under Section 6

of the Protection of Children from Sexual Offences Act, 2012

(hereinafter referred to as “POSCO Act) and under Section 506 of the

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

17/05/2018 23:10:11 :::HCHP
2

Indian Penal Code, 1860 (hereinafter referred to as “IPC”).

2. The factual matrix of the prosecution case can tersely be

summarized as under:

.

On 24.05.2014, at about 02:45 p.m., the complainant,

who is father of the victim/prosecutrix (name withheld), through

mobile phone, got recorded his statement under Section 173 Cr.P.C.

in Police Station, Nerwa. He, in his statement, averred that when

the prosecutrix was on her way to school, a person from his village

took her in the apple orchard, so he requested the police to visit the

spot and take action against the said person. Upon the statement of

the complainant, police machinery was put into motion and

statement of the mother of the prosecutrix was recorded under

Section 154 Cr.P.C. She has deposed that her husband works in

Forest Department and they have three children, viz., two daughters

and a son. Their youngest daughter is 12 years of age and studying

in 5th class. On 24.05.2014, around 09:00 a.m., when she was

collecting grass, the prosecutrix started for school and around 02:00

p.m. she was informed by his brother-in-law (jeth) that the

prosecutrix is in the house of Roshni Devi and she seems to be

scared. She has further deposed that she went to the house of Smt.

Roshni Devi and found the prosecutrix scared. The prosecutrix was

not wearing trousers and her school bag was also not there. The

17/05/2018 23:10:11 :::HCHP
3

prosecutrix, in presence of Roshni Devi, divulged that she was on

her way to school, near the apple orchard of one Mehar Singh,

accused met her and he caught hold of her. The accused took her to

.

the orchard and gagged her mouth. The accused committed bad act

with her and upon hearing that someone is coming, the accused fled

away from the spot. Subsequently, the mother of the prosecutrix

divulged the incident to her husband and he telephonically reported

the matter to the police. Police, on the basis of the statement of the

mother of the prosecutrix, recorded under Section 154 Cr.P.C.,

registered a case against the accused and the investigation ensued.

On 24.05.2014, upon the identification of the prosecutrix, the police

visited the spot of occurrence and the same was photographed and

videographed. Spot map was prepared and a white trouser, a blue

and red school belt, which was having name of the school printed on

it, and a school bag were recovered from the spot, which were taken

into possession. The prosecutrix was medically examined. On

24.05.2014, the accused was arrested and on his medical

examination, he was found capable of performing sexual intercourse.

The accused also identified the spot of occurrence. During the

course of investigation, scientific evidence was also collected and

sent for forensic analysis. The statements of the witnesses were

recorded and after conclusion of the investigation, challan was

17/05/2018 23:10:11 :::HCHP
4

presented in the Court.

3. The prosecution, in order to prove its case, examined as

many as twenty seven 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

30.09.2016/27.10.2016, convicted the accused for the offence

punishable under Section 6 of POCSO Act, being greater in degree by

keeping in view the mandate of Section 42 of the POCSO Act. The

accused was sentenced to undergo rigorous imprisonment for eleven

years and also to pay fine of `50,000/- (rupees fifty thousand). In

default of payment of fine the accused was ordered to undergo

simple imprisonment for one year. The accused was also convicted

under Section 506 IPC and sentenced to undergo simple

imprisonment for a period of six months, hence the present appeal.

5. The learned Counsel for the appellant has argued that

the appellant has been falsely implicated in the case in hand and the

judgment, as passed by the learned Trial Court, is without

appreciating the evidence and the law to its true and correct

perspective. He has further argued that the learned Trial Court has

failed to take into consideration the fact that the prosecution has

miserably failed to prove the guilt of the appellant beyond the

17/05/2018 23:10:11 :::HCHP
5

shadow of reasonable doubts and convicted the appellant on the

basis of surmises and conjectures, so the appeal be allowed and the

appellant be acquitted. Contrastingly, the learned Additional

.

Advocate General has argued that the learned Trial Court has passed

the judgment after properly appreciating the evidence to its true and

correct perspective and law has been correctly applied. He has

further argued that the prosecution has proved the guilt of the

appellant (convict) conclusively and beyond the shadow of

reasonable doubts, so the judgment, as passed by the learned Trial

Court, needs no interference by this Court, so the appeal be

dismissed.

6. In rebuttal, the learned Counsel for the appellant has

argued that as the learned Trial Court has not 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. Avowedly, in sexual offences medical evidence is crucial

aid to Courts to convict or acquit the accused, however, the same

cannot at all be read in isolation without important ancillary

material. In the case in hand, the prosecutrix was allegedly raped by

the accused in the morning of 24.05.2014, when she was going to

17/05/2018 23:10:11 :::HCHP
6

school and subsequently the matter was reported to the police. So,

the testimony of the prosecutrix, who was examined as PW-2, is very

vital in the case in hand.

.

9. The prosecutrix was examined as PW-2 and as at the

time of her examination she was only 12 years of age, her perception

level was checked by the Trial Court by asking questions of general

nature. The Court found that she did not understand the sanctity of

truth, thus her statement was recorded without administering oath.

The prosecutrix has deposed that she is youngest among her

siblings. She was studying in 5th standard and on 24.05.2014, she

started to school at about 09:00 a.m. As per the prosecutrix,

distance from her village to school is about two kilo meters and she

used to go on foot to the school. She has further deposed that she

was walking alone and when she reached near the fields of Mehar

uncle, accused obstructed her way and she objected that she has to

attend the school. As per her testimony, as the accused obstructed

her way, she got scared and took a slew to come back to her house,

but the accused caught hold of her from her left hand. She has

further deposed that when she tried to squall, the accused gagged

her mouth by his hand. She felt suffocated and the accused dragged

her to fields. The prosecutrix has further deposed that accused also

threatened to kill her, in case she tries to flee or to disclose anything

17/05/2018 23:10:11 :::HCHP
7

to anyone. The accused, in the middle of the field, removed her as

well as his pants and laid on her. She felt giddiness and also felt

that someone is coming. Subsequently, the accused fled away from

.

the spot. The prosecutrix in reply to the court question deposed that

she does not know what had happened with her. According to her

testimony, when she stood up, she felt pain in her private part and

the blood started oozing out of it, so she hide in a pit. The accused

again came there, called her and left the spot. She secretly reached

the house of Roshni (PW-17) her sister in law. When she was

standing underneath the house of Roshni, one Parvati was in the

veranda, so she called her. She was scared and had tied her sweater

around her waist, as her pants remained on the spot. Parvati took

her to the house of Roshni and Roshni came there and gave her a

red coloured pajami. Subsequently, PW-19, Surat Singh, of her

village informed her mother and she reached on the spot and

informed her father. Her father informed the police and the police

reached the spot. She identified the spot, where she was outraged.

Photographs were clicked and her school bag and pants were found

lying on the spot. The school bag, pants and a patti (belt), with the

aid of which the accused tied her mouth, were taken into possession.

She has further deposed that initially the police brought her to

Nerwa and then to Shimla. She was medically examined at Shimla

17/05/2018 23:10:11 :::HCHP
8

and her blood samples were taken. She divulged the entire incident

to the doctor, who has examined her. Subsequently, she was

produced before the Court at Chopal and her statement was

.

recorded. The prosecutrix was subjected to intensive cross-

examination, but the defence could not extract anything favourable.

Starting from the medical and forensic evidence, PW-1, Dr. Nitesh

Kanwar, deposed that on 24.05.2016, application, Ex. PW-1/A, was

moved by the police for medical examination of the prosecutrix, but

as there was no lady doctor in the hospital, he, through his report,

Ex. PW-1/B, referred her to Deen Dayal Upadhayaya (DDU) Hospital,

Shimla. PW-3, Dr. Parshant Sharma, deposed that on 26.05.2014,

the accused was brought by the police for routine examination and

at that time accused was showing abnormal behavior. He kept the

accused under his observation for an hour. He did not notice any

fresh injuries on the person of the accused. His report in this regard

is Ex. PW-3/A. He has further deposed that on 28.05.2014, the

accused was again brought before him for routine examination and

on that day he did not show any abnormal behavior. His report qua

his second examination of the accused is Ex. PW-3/B. PW-4, Dr.

P.L. Gaunta, Senior Medical Superintendent, DDU Hospital, Shimla,

deposed that on 25.05.2014 the prosecutrix was brought to DDU

Hospital and Dr. Aarti Sarin (PW-26) medically examined her. He

17/05/2018 23:10:11 :::HCHP
9

has further deposed that as there was no Gynecologist in the

hospital, the prosecutrix was referred to Kamla Nehru Hospital

(KNH), Shimla. He made report, Ex. PW-4/A, over the medico legal

.

certificate of the prosecutrix.

10. Now, in the wake of testimony of the prosecutrix, as

discussed hereinabove, and in view of the alleged story of the

prosecution, the medical evidence needs to be scrutinized. PW-8.

Dr. Pritam Singh Thakur, Medical Officer, Civil Hospital Nerwa,

deposed that on 25.05.2014, through application, Ex. PW-8/A,

police requested him to conduct medical examination of the accused.

He took into possession the undergarments of the accused. He

found the accused capable of performing sexual intercourse. He

issued medico legal certificate, Ex. PW-8/B, and his final opinion is

Ex. PW-8/C. PW-9, Dr. Atul Chauhan, Assistant Professor,

Department of Radiology, Government Dental College, Shimla,

deposed that he referred the prosecutrix to DDU Hospital. He after

examining the radiographs, opined the dental age of the prosecutrix

in between 12 to 14 years. His report is Ex. PW-9/A and X-rays are

Ex. PW-9/B-1 to Ex. PW-9/B-4. PW-10, Dr. Ashwani Sood,

Radiologist, DDU, Hospital, Shimla, deposed that on 27.05.2014 the

prosecutrix was referred to him for determination of her bony age.

He, after taking X-rays of the body parts of the prosecutrix, opined

17/05/2018 23:10:11 :::HCHP
10

her bony age between 8 to 12 years. His opinion is Ex. PW-10/A and

skygrams are Ex. PW-10/B-1 to Ex. PW-10/B-4. As per this

witness, X-ray forms are Ex. PW-10/C-1 and Ex. PW-10/C-2.

.

11. PW-11, Dr. Sangeet Komal, Resident Doctor, KNH,

Shimla, deposed that the prosecutrix was brought for gynecological

examination before her. She has deposed that the prosecutrix was

brought to her with an alleged history of sexual assault. The

prosecutrix was examined in KNH, Shimla. She had already

changed her clothes and washed her perineal area 2-3 times. The

prosecutrix was well oriented to person, place and time and she was

found alert and responding to verbal commands. This witness did

not notice any injury on her back, breasts, abdomen and thigh area

and her vitals were normal. She has found the genitalia of the

prosecutrix were normal, developed appropriately, according to the

age. She did not notice pubic hair and there was no evidence of any

discharge of bleeding. This witness separated labia majora for

examination. Hymen was found intact. No evidence of any injury,

induration or tenderness around the introitus. However, she noticed

small abrasion on parauretheral area on right side, which was not

bleeding actively and was lightly tender to touch. This witness, on

rectal examination of the prosecutrix, found uterus normal. Little

finger could be introduced without pain. She found uterus

17/05/2018 23:10:11 :::HCHP
11

anteverted, firm fornix clear. She did not rule out sexual assault.

Her report on medico legal certificate, mark-4, is Ex. PW-11/A. This

witness, in her cross-examination, has deposed that in forcible

.

sexual intercourse the hymen must be ruptured. She has further

deposed that it is possible that despite sexual assault the hymen

could not rupture. This witness, during the examination of the

prosecutrix, collected the vaginal smear and vaginal swab of the

prosecutrix and the same were handed over to Lady Constable Meera

(PW-15). This witness, in her cross-examination, has further

deposed that in a case of sexual intercourse by an adult 25 years of

age with a girl of 11-12 years of age, injuries may or may not occur

over any body part or over the labia minora and majora.

12. PW-11, Dr. Vinod Gupta, Medical Officer, DDU Hospital,

Shimla, deposed that on 05.05.2015, police, through application, Ex.

PW-24/A, requested him to obtain blood samples of the accused and

the prosecutrix on FTA cards for DNA profiling. He has further

deposed that he obtained the blood samples accordingly and put the

same in a sealed cover, which was handed over to the police. This

witness, in his cross-examination, has deposed that in letters, Ex.

PW-24/C and Ex. PW-24/F, the facsimile of seal, with which the

parcels were sealed, has not been mentioned. He has voluntarily

deposed that they use only one seal to seal every sample. PW-26,

17/05/2018 23:10:11 :::HCHP
12

Aarti Sarin, Medical Officer, DDU Hospital, deposed that on

25.05.2014, through application, Ex.PW-1/A and endorsement made

by Medical Officer, Civil Hospital, Nerwa, Ex. PW-1/B, the

.

prosecutrix was brought for medical examination before her. The

prosecutrix was 11 years of age and was accompanied by her mother

and a Lady Constable. The prosecutrix and her mother gave history

of bleeding from her private part. The prosecutrix urinated twice

and defeacated once after the occurrence and also washed her

private parts. She has further deposed that according to the mother

of the prosecutrix, the prosecutrix did not attain menarche. As per

this witness, she has found as under:

“On general physical examination:

The victim was found conscious,
cooperative and well orientated to

time, place and person. All the vitals
were normal.

On systemic examination – within normal
limit.

She found three injuries on the person of the
prosecutrix:

(i) Linear abrasion with reddish brown
scap about 2.5 cm x .1 cm placed
vertically over centre of right cheek.

(ii) Superficial scratch over right ring
finger on ventral aspect of distal
phallnx about .8 cm in length.

(iii) The prosecutrix had also given the
history of pain in the neck. However,
no external injury seen. However, soft
issue tenderness was present.

(iv) The victim had not allowed for
breast and local genitalia
examination. So examination was
planned under anesthesia after
consultation with anesthesiologist
which was planned for 26.05.2014 in

17/05/2018 23:10:12 :::HCHP
13

the morning.”

She has further deposed that on 26.05.2014, the prosecutrix was to

be examined by administering anesthesia and the findings were to be

.

confirmed by gynecologist, but as no female gynecologist was

available in DDU Hospital, hence the case, after discussion with

Senior Medical Superintendent, was referred to KNH. She has

deposed that she also advised X-ray as well as dental opinion for

ascertaining the age of the prosecutrix. She issued medico legal

certificate, which is Ex. PW-26/A. As per her testimony, on

26.05.2014, she again medically examined the prosecutrix. She

perused the opinion, Ex. PW-11/A, from KNH and KNH authorities

have also sent three unsealed vaginal smear slides and one high

vaginal swab from the posterior fornix. She, after taking back, the

vaginal slides and smears, handed over the same to the police. This

witness, in her opinion, which is based upon the opinion of

gynecologist, did not rule out the possibility of sexual assault. The

possible duration of injuries were opined to be between 2 to 5 days.

Medico legal certificate dated 26.05.2014 is Ex. PW-26/B. She has

further deposed that injuries No. 1 to 3 could be caused, if a small

child is dragged. She, after perusing the report of Radiologist,

Dental Surgeon, opined the age of the victim between 8 to 12 years.

This witness, after perusing the report of Forensic Science

Laboratory, Junga, which is Ex. PA, gave her final opinion that

17/05/2018 23:10:12 :::HCHP
14

sexual intercourse took place with the prosecutrix. PW-26, in her

cross-examination, has deposed that as per report, Ex. PA, the

grouping of the semens found on the exhibit was not done.

.

13. PW-27, Dr. Vivek Sahajpal, Assistant Director DNA, State

Forensic Science Laboratory, Junga, deposed that on 30.06.2014

fourteen sealed parcels were received in the laboratory for

examination from Biology and Serology Division, State Forensic

Science Laboratory, and two more sealed parcels were received for

examination in the DNA Division on 08.05.2015. As per the

testimony of this witness, from those exhibits DNA profling was

carried out and the same was tested positive for presence of semen

through biological and serological examination by Biology and

Serology Division State Forensic Science Laboratory, Junga. Blood

samples were subjected to DNA profiling, whereupon he issued

report, Ex. PW-25/B, and concluded as under:

“I) A mixed DNA profile was obtained

from Ext. 2-A (Pajami of prosecutrix)
from which two DNA profiling could be
identified. One DNA profile matches
with the DNA profile obtained from

exhibits 2-2 (blood sample of accused
on FTA card), and the other DNA
profile matches with the DNA profile
obtained from exhibit 1-1 (blood
sample of victim).

II) The DNA profile obtained from exhibit
3-B (Vaginal swab victim) matches
with the DNA profile obtained from
exhibit 1-1 (Blood sample of FTA card
of victim).”

17/05/2018 23:10:12 :::HCHP
15

He has further deposed that as per his request, Ex. PW-27/A, on

12.03.2015, he requested SHO, Police Station Nerwa for providing

fresh blood sample of the accused and the prosecutrix. This witness

.

was cross-examined at length, but nothing favourable to the defence

was extracted.

14. After comprehensively discussing the medical evidence, it

is amplified that sexual intercourse has taken place with the

prosecutrix and the DNA profiling leaves no iota of doubt qua the

involvement of the accused, as the samples of the victim were tested

positive for the presence of semen and also the mixed DNA profile

obtained from the pyjami of the prosecutrix was found to be

matching with DNA profile of the blood sample of accused as also the

prosecutrix. Thus, as per the medical evidence, it is clear that

accused has committed sexual intercourse with the prosecutrix.

However, medical evidence cannot be made sole basis for convicting

the accused.

15. Now, the statements of other prosecution witnesses are

to be scrutinized and it is to be seen that medical evidence, which

stands fortified with the testimony of the prosecutrix, has lateral

support from other evidence or not. PW-5, Shri Lakhi Ram,

Panchayat Secretary, deposed that on 04.06.2014, through

application, Ex. PW-5/A, the police requested him for issuance of

17/05/2018 23:10:12 :::HCHP
16

date of birth certificate of the prosecutrix. The date of birth of the

prosecutrix, according to pariwar register, is 27.03.2003 and copy of

pariwar register is Ex. PW-5/B. The Police also procured a copy of

.

pariwar register, Ex. PW-5/C. He also prepared date of birth

certificate of the prosecutrix, Ex. PW-5/D. PW-6, Jai Lal, Teacher,

deposed that on 27.05.2014, the police, through application Ex. PW-

6/A, moved before the Principal of school, requested for issuance of

date of birth certificate of the prosecutrix. As per this witness, it was

also requested that whether on 24.05.2014 the prosecutrix has

attended the school or not. He prepared birth certificate, Ex. PW-

6/B, as per the records maintained by the school. The date of birth

of the prosecutrix is 27.03.2003. As per the school records, on

24.05.2014 the prosecutrix was absent and to this effect he has

issued certificate, which is Ex. PW-6/C. He also handed over the

copy of admission and withdrawal register qua the prosecutrix,

which is Ex. PW-6/D. This witness has further deposed that he has

supplied to the police admission form/identification (Ex. PW-6/E) of

the prosecutrix. This witness, in his cross-examination, has deposed

that certificate, Ex. PW-6/E, was to be filled by the parents at the

time of the admission. In certificate, Ex. PW-6/E, the date of birth of

the prosecutrix is mentioned as 27.03.2002. In the year 2014

Devinder Shashtri was class teacher of 6th class and he used to

17/05/2018 23:10:12 :::HCHP
17

maintain the attendance register. PW-7, Padam Singh (uncle of the

prosecutrix), deposed that on 24.05.2014, at about 02:00 p.m., after

taking lunch he was on his way back to duty and his nephew, Surat

.

Singh, called him and told to inform the family of the prosecutrix

that she is there. So, he telephoned and informed the mother of the

prosecutrix. This witness was cross-examined, but nothing

favourable could be extracted from him.

16. PW-16, Kulbhushan, deposed that on 24.04.2014 he

alongwith Jai Lal was associated in the investigation by the police.

He alongwith the prosecutrix and her father went to the spot of

occurrence, wherefrom police took into possession a school bag,

pants and a belt. As per this witness, the school bag was handed

over to the father of the prosecutrix, whereas belt and pants were

put in a cloth parcel, which was sealed with nine seals having

impression ‘A’ and memo, Ex. PW-16/A was prepared, which was

signed by him and Jai Lal. Specimen impression of seal ‘A’ was also

obtained, which is Ex. PW-16/B. On 31.05.2014 he and Jai Lal

were again associated in the investigation and mother of the

prosecutrix handed over a shirt and a pajami, which was having

blood stains, to the police. The above said clothes were taken into

possession and put in a parcel, which was sealed with nine seals

having impression ‘H’. As per this witness, specimen seal

17/05/2018 23:10:12 :::HCHP
18

impression of seal ‘H’ was also taken into possession, which is Ex.

PW-16/C and the seal after its use was handed over to him. The

parcel was taken into possession vide memo, Ex. PW-16/D, which

.

bears his signatures and also the signatures of Jai Lal. The parcel of

cloth also bears his signatures. This witness, in his cross-

examination, has deposed that on 24.05.2014 he was called by the

father of the prosecutrix. The spot of occurrence was in an orchard.

17. PW-17, Roshani Devi, deposed that on 24.05.2014,

Parwati had come to her house seeking some domestic help and

around 02:00 p.m. when. Parwati was sitting in veranda and she

was inside the room,. Parwati told her that a girl, who is in the field,

calling her (Roshani Devi). Parwati brought her to the house. As per

this witness, the said girl was the prosecutrix. She has further

deposed that the prosecutrix was wearing a shirt and she has tied a

sweater across her waist. She has not worn anything on her legs. In

the interregnum, Surat Ram (PW-19) came there and the prosecutrix

requested him to inform her family. Surat Ram requested Padam

Singh, who was having phone, to inform the family of the

prosecutrix. She noticed blood on the person of the prosecutrix, as

the prosecutrix was not wearing pants. Subsequently, mother of the

prosecutrix came there and in her presence inquired from the

prosecutrix about the incident. The prosecutrix divulged that the

17/05/2018 23:10:12 :::HCHP
19

accused Krishan @ Chuhiya ravished her. This witness gave pajami

(Ex. P-6) to the prosecutrix, which she wore. She, in her cross-

examination, has deposed that the prosecutrix came to their house

.

around 02:00 p.m. and from the spot of occurrence one could reach

within ten minutes.

18. One of the important witnesses is PW-18, mother of the

prosecutrix (name withheld). She has deposed that prosecutrix is

about 12 years of age and in the year 2014 she was studying in 5th

standard. As per this witness, on 24.05.2014, as usual, the

prosecutrix had gone to school and she went to fields for collecting

grass. Around 02:00 p.m. her brother-in-law (jeth), Padam Singh,

informed on her mobile phone that prosecutrix is present in the

house of Roshani Devi and she is scared. When she reached the

house of Roshani Devi, she found the prosecutrix scared and she

was not wearing pants. As per this witness, the prosecutrix was not

having school bag or belt. On inquiry, the prosecutrix disclosed that

when she was on her way to school, the accused Krishan @ Chuhiya

met and forcibly took her to the orchard of Mehar Singh. The

prosecutrix further disclosed to her that accused had put his hand

over her mouth and after removing her pants, he ravished her. She

was further informed that accused, on hearing someone’s voice, fled

away from the spot. This witness has deposed that she

17/05/2018 23:10:12 :::HCHP
20

telephonically informed her husband. As per this witness,. Roshani

Devi, gave a pajami (Ex. P-6) to the prosecutrix. PW-18 has

identified belt, Ex. P-2, shirt, Ex. P-5 and pants, Ex. P-3, as of the

.

prosecutrix. Subsequently, police came to their village and her

statement, Ex. PW-18/A, was recorded. Again, this witness was also

extensively cross-examined, but nothing favourable to the defence

came out from her.

19. PW-19, Surat Singh, deposed that on 24.05.2014, at

about 02:00 p.m., when he was present in his house, he noticed the

prosecutrix standing near the apple trees. He has further deposed

that he had also noticed that the prosecutrix was wearing a white

shirt, but she was not wearing anything over her legs. He has

deposed that she had tied a school sweater around her waist. As per

this witness, the prosecutrix requested him to inform her mother.

He did not have the mobile phone, so he requested Padam to inform

the mother of the prosecutrix. Parwati brought the prosecutrix to

the house. This witness, in his cross-examination, has deposed that

he did not inquire from the prosecutrix as to what had happened.

He did not notice blood on the person of the prosecutrix.

20. Now, after discussing the medical evidence as also the

testimonies of independent witnesses, it would be apt to scrutinize

the evidence of official prosecution witnesses. PW-12, Constable

17/05/2018 23:10:12 :::HCHP
21

Rajnish, deposed that he, on the direction of I.O., took the accused

to Civil Hospital, Nerwa, and application to this effect is Ex. PW-8/A.

He has further deposed that after the examination of the accused,

.

his medico legal certificate was given to him, which he handed over

to MHC, Police Station, Nerwa. PW-13, LHC Suresh Kumar, deposed

that on 24.05.2014 he alongwith Station House Officer, Police

Station, Nerwa, went to village Himgram, where statement of mother

of the prosecutrix was recorded under Section 154 Cr.P.C. He has

further deposed that upon the statement of the mother of the

prosecutrix, SHO made an endorsement, which was handed over to

him. He took the same to Police Station, Nerwa, whereupon FIR was

registered. Thereafter, the case file was handed over to him, which

he submitted to the I.O. on the spot at about 09:00 p.m. PW-14,

LHC Shamim, has deposed that on 24.05.2014, at about 10:00 p.m.,

the then SI/SHO deposited with him a sealed parcel, which was

sealed with nine seals of impression ‘A’ alongwith sample of seal ‘A’.

He entered the said articles at Sr. No. 149 in register No. 19,

abstract whereof is Ex.PW-14/A. He has further deposed that on

25.05.2014, Constable Rajnish deposed a sealed envelop, which was

sealed with seal of Medical Officer. The envelop stated to have

contained the undergarments of the accused. Constable Rajnish

also deposited with him four envelops stated to have contained two

17/05/2018 23:10:12 :::HCHP
22

small vials having body hair and head hair of the accused. He has

further deposed that said vials were sealed with seals of Medical

Officer. Constable Rajnish has deposited with him three vials

.

containing pubic hair, blood samples, nails scraping of the accused

and the same were also sealed with three seals of Medical Officer.

Another vials, which was sealed in a cloth parcel, stated to have

contained the semen sample of the accused, was also deposited with

him. In addition to the above articles, a sealed envelop, which was

addressed to Chemical Examiner, FSL, Junga, was also deposited

with him and another envelop, which was duly sealed and addressed

to HOD, Department of Pathology, IGMC, Shimla, was also deposited

with him. He entered all the articles at Sr. No. 150 in register No.

19, abstract whereof is Ex. PW-14/B. He has further deposed that

on 28.05.2014, Lady Constable Meera, deposited with him a sealed

envelop, which was sealed with three seals of CMOS and the said

envelop contained blood samples, vaginal slides and vaginal swabs

alongwith envelop addressed to Chemical Examiner, FSL, Junga and

sample of seal of CMOS. As per the testimony of this witness, on

31.05.2014, ASI Kuldeep Singh, deposited with him a sealed parcel,

which was sealed with nine seals having impression ‘H’ and a sample

seal of seal ‘H’. He entered the above articles at Sr. No. 152 in

register No. 19, abstract whereof is Ex. PW-14/D. He has further

17/05/2018 23:10:12 :::HCHP
23

deposed that all the above articles were sent, through Constable

Pankaj, vide RC No. 27 of 2014 and RC No. 28 of2014, to FSL, Junga

and to IGMC Shimla. Copy of RC No. 27 is Ex. PW-14/E and RC No.

.

28 is Ex. PW-14/F. The case property remained intact under his

custody. Constable Pankaj returned RC No. 27 to him, whereas the

case property, which was sent to IGMC, vide RC No. 28, was not

accepted and the same was deposited in Civil Hospital, Nerwa. He

has deposed that receipt of Nerwa Hospital is Ex. PW-14/G and the

receipt of FSL is Ex. PW-14/H. He, during the course of

investigation, also handed over CIPA certificate, Ex. PW-14/J. Copy

of rapat rojnamcha No. 15 is Ex. PW-14/K.

21. PW-15, Lady Constable Meera, deposed that she brought

the prosecutrix to Civil Hospital, Nerwa, wherefrom she was referred

to DDU Hospital, Shimla. She was medically examined in DDU,

Shimla, and was refered to KNH, Shimla. She has further deposed

that the articles, which were handed over to her by the doctors, she

deposited the same with MHC, Police Station, Nerwa. PW-20, ASI

Kalyan Singh, deposed that on 24.05.2014 SI/SHO Jasbir Singh

sent the statement of the mother of the prosecutrix, Ex. PW-18/A,

through HHC Suresh, whereupon he got registered FIR, Ex. PW-

20/A, which bears his signatures. He also made an endorsement,

Ex. PW-20/B, qua the registration of the FIR and sent back the case

17/05/2018 23:10:12 :::HCHP
24

file to the Investigating Officer. PW-21, Constable Pankaj Kumar,

deposed that on 03.06.2014 MHC Shamim handed over to him

articles, as mentioned in RC No. 27 of 2014, copy whereof is Ex. PW-

.

14/E. He has further deposed that on 04.06.2014 he deposited

those articles in FSL, Junga, receipt whereof Ex. PW-14/H. The case

property remained intact under his custody. On the same day, vide

RC No. 28, copy whereof is Ex. PW-14/F, two sealed envelops were

given to him, which were not received by HOD, Pathology IGMC,

Shimla, so he returned them to MHC, Police Station, Nerwa.

However, on the same day, the parcel was again given to him by the

MHC, which he, vide receipt Ex. PW-14/G, handed over to Medical

Officer, Civil Hospital, Nerwa.

22. In the line of official prosecution witnesses, the

statement of PW-22, SI Jasbir Singh (Investigating Officer) is

valuable in order to link other evidence with the occurrence. He has

deposed that on 24.05.2014 he was telephonically informed by one

Gian Chand that his daughter has been taken away by a villager. He

was also informed that the girl is scared and requested him to come

to the village. Upon such information rapat was entered in DDR vide

rapat No. 15A, Ex. PW-14/K. He alongwith ASI Kuldeep, LHC

Suresh and Driver Madan Lal went to village Himgram and recorded

the statement of the mother of the prosecutrix under Section 154

17/05/2018 23:10:12 :::HCHP
25

Cr.P.C., which is Ex. PW-18/A. His endorsement on the said

statement is Ex. PW-22/A. He has further deposed that Ex. PW-

18/A was sent to Police Station, Nerwa, through LHC Suresh,

.

whereupon FIR, Ex. PW-20/A, was registered and endorsement on

the FIR is Ex. PW-20/B. Subsequently, LHC Suresh submitted the

case file to him and he alongwith the police personnel, prosecutrix

and witnesses went to the spot. He prepared spot map, Ex.PW-22/B

and clicked photographs Ex. PW-2/A-1 to Ex. PW-2/A-10 were. The

spot was also videographed. He has further deposed that from the

spot a white trouser, a school belt and a school bag was also found

lying. The trousers and belt were put in a sealed parcel, which was

sealed with nine seals having impression ‘A’, and were taken into

possession vide memo, Ex. PW-16/A, which was signed by Gian

Chand and Kulbhushan. The school bag was handed over to the

father of the prosecutrix. He has also procured specimen seal

impression ‘A’, which is Ex. PW-16/B, and the seal after its use was

handed over to Kulbhushan. The prosecutrix alongwith her parents

were taken to Nerwa and application, Ex. PW-1/A, was moved to

Medical Officer, Civil Hospital, Nerwa, for medical examination of the

prosecutrix. As there was no lady Medical Officer, the prosecutrix

was referred to DDU, Shimla, vide endorsement, Ex. PW-1/B. On

25.05.2014 the prosecutrix alongwith her parents and Lady

17/05/2018 23:10:12 :::HCHP
26

Constable Meera was sent to DDU Shimla for medical examination.

He has further deposed that on 25.05.2014 the accused was

medically examined at Civil Hospital, Nerwa, and his medico legal

.

certificate is Ex. PW-8/B. As per the testimony of this witness, the

case property was taken into possession and entrusted to MHC,

Police Station, Nerwa. The accused was arrested and the statement

of the prosecutrix was recorded under Section 164 Cr.P.C. He

handed over the case file for further investigation to ASI Kuldeep

Singh, as he was busy investigating another case. This witness was

also cross-examined extensively, however, nothing favourable to the

accused could be extracted from him.

23. PW-23, ASI Kuldeep Singh, partially investigated the

matter. He has deposed that on 25.05.2014 SI Jasbir Singh

entrusted to him the investigation the case. On 27.05.2014 the

accused identified the place of occurrence qua which memo, Ex. PW-

23/A, was prepared, which was signed by Paras Ram and

Kulbhushan. He has further deposed that upon identification of the

spot by the accused, he has prepared spot map, Ex.PW-23/B. He

moved application, Ex.PW-6/A, to the Principal of the school,

whereupon certificates, Ex.PW-5/B and Ex. PW-6/C, were given to

him. He has also procured copy of admission and withdrawal

register qua the prosecutrix, which is Ex. PW-6/D and identification

17/05/2018 23:10:12 :::HCHP
27

form, Ex.PW-6/E. On 28.05.2014 opinion of the doctor was sought

and on 30.05.2014 statement of the prosecutrix was recorded under

Section 164 Cr.P.C. On 31.05.2014, he visited the spot and the

.

mother of the prosecutrix handed over to him a shirt and a pajami,

which were put in a parcel and the same was sealed by affixing nine

seals of impression ‘H’. The said parcel was taken into possession

vide seizure memo, Ex. PW-16/D, and it was signed by Jai Lal and

Kulbhushan. He also procured specimen seal impression of seal ‘H’,

which is Ex. PW-16/C. Subsequently, through application, Ex. PW-

5/A, moved to Secretary Grma Panchayat Tikkari, he obtained

copies of pariwar register, Ex. PW-5/B and Ex. PW-5/C. Secretary

also gave him certificate, Ex. PW-5/D. Again, this witness was

cross-examined at length, but nothing favourable to the accused

could be elicited from him.

24. The evidence, in the case in hand, as discussed

hereinabove, is in three different groups, viz., medical evidence,

evidence of non-official prosecution witnesses and the evidence of

official prosecution witnesses. After discussing the all three groups

of prosecution evidence punctiliously, we find that nothing specific

or positive material has come on record, which could justify that the

accused has been wrongly convicted by the learned Trial Court after

mis-appreciating the evidence. It is a well-settled proposition that in

17/05/2018 23:10:12 :::HCHP
28

rape cases the conviction can be based on the sole testimony of the

prosecutrix, if it inspires confidence, but in the present case whole of

the prosecution evidence speaks volumes that it was the accused,

.

who perpetrated the crime. We cannot overlook that the prosecutrix

was subjected to sexual assault, as the medical evidence

perspicuously demonstrate that she was sexually assaulted, so her

statement alone, in conjunction with medical evidence, can form

basis for convicting the accused.

25. No doubt, the testimony of a child witness is to be

evaluated very carefully and with greater circumspection, as a child

is susceptible to be swayed by many factors, however, in the case in

hand, the testimony of the prosecutrix went unshaken in her

extensive cross-examination. At the cost of repetition, the

prosecutrix deposed that in the morning of 24.05.2014, she was on

her way to school and was walking alone. When she was walking

near the fields of one Mehar, accused prevented her movement

towards the school and when she again tried to move he prevented

her movement, so she got scared. Thereafter, the accused caught

hold of her from her left hand and when she screamed, the accused

gagged her mouth with his hand. He dragged her to fields and

threatened to kill her, in case she divulges anything to anyone or

tries to flee. Accused removed his trousers and also her trousers

17/05/2018 23:10:12 :::HCHP
29

and laid on her. She felt giddiness and the accused fled away, as it

was felt that someone is coming. Admittedly, the prosecutrix could

not answer to the Court question as to what had happened when the

.

accused removed her salwar and his trousers, but we cannot

overlook that the tendency and inherent bashfulness of the females

is to conceal any minor or major sexual aggression and here is the

case of a female child, so her testimony cannot be seen with

suspicion, as that would amount to adding insult to her injury. The

prosecutrix has further deposed that she felt pain in her private part,

when she stood up and the blood was oozing out of it, so she hide

herself in a pit. The accused again came there and called her. She

secretly reached the house of PW-19, Roshani Devi, and found one

Parwati, so she called her while standing underneath the said house.

As she was afraid, her trousers remained on the spot, so she had

tied sweater on her waist. She has categorically deposed that

Parwati took her to the house of Roshani Devi and she was given

pajama. PW-19, Surat Singh, informed her mother. Now, in the

wake of her deposition, there is nothing which necessitates this

Court to look for corroboration of her version, as her testimony

inspires confidence and is found reliable. However, the version of

the prosecutrix stands fully corroborated by PW-17, PW-18 and PW-

19.

17/05/2018 23:10:12 :::HCHP
30

26. PW-17, Roshani Devi, categorically deposed that on

24.05.2014, one Parwati came to her house seeking domestic help.

As per her version, when she was in the room and Parwati was

.

sitting in the veranda, Parwati told her that a girl, who is in the field,

is calling her. They brought the girl (prosecutrix) to the house and at

that time the prosecutrix was wearing a shirt and she has tied

sweater around her waist. This witness has affirmatively deposed

that the prosecutrix was not wearing anything on her legs. In the

interregnum PW-19, Surat Singh, came there and on the

prosecutrix’s request, he requested one Padam Singh, who was

having phone, to inform the family of the prosecutrix. So, the family

of the prosecutrix was informed. She has further deposed that she

noticed blood on the person of the prosecutrix and she gave a pajami

(Ex. P-6) to the prosecutrix.

27. Next key witness in this case is PW-18, mother of the

prosecutrix, who got her statement recorded under Section 154

Cr.P.C. She has deposed that on 24.05.2014 when the prosecutrix

left for school, she had gone to fields to collect grass. At about 02:00

p.m. her (jeth), Padam Singh called her on her mobile and informed

that the prosecutrix is present in the house of Roshani Devi and is

scared. When she reached the house of Roshani Devi, she found the

prosecutrix terrified and she was not wearing trousers. She has

17/05/2018 23:10:12 :::HCHP
31

categorically deposed that the prosecutrix did not have her school

bag and belt. Upon her asking the prosecutrix disclosed that the

accused has ravished her by gagging her mouth near the orchard of

.

Mehar Singh. She telephonically informed her husband and Smt.

Roshani Devi gave a pajami to the prosecutrix. On 31.05.2014,

recovery of pajami, Ex. P-6, belt, Ex. P-2, shirt, Ex. P-5 and pants,

Ex. P-3, through memo, Ex. PW-16/D, made by the police, stands

fully proved.

28. PW-19, Surat Singh, is also one of the vital prosecution

witnesses. He has deposed that on 24.05.2014, at about 02:00 p.m.,

when he was present in his house he noticed a girl (prosecutrix)

standing near the apple trees and she was not wearing anything on

her legs. He has further deposed that she had tied a sweater around

her waist. The prosecutrix requested him to inform her mother, so

he requested Padam to inform the mother of the prosecutrix.

Subsequently, Parwati brought the prosecutrix to the house of

Roshani Devi. Thus, the testimonies of PW-17, PW-18 and PW-19

clearly and unambiguously prove the sequences of events, when read

with the testimony of the prosecutrix, which proves the guilt of the

accused conclusively and beyond the scope of reasonable doubt.

29. The veracity and credibility of the version of the

prosecutrix is further fortified by the medical evidence. PW-4, Dr.

17/05/2018 23:10:12 :::HCHP
32

P.L. Gaunta, deposed that on 25.05.2014 the prosecutrix was

brought to DDU, Shimla, pursuant to report made by doctors of Civil

Hospital, Nerwa. The prosecutrix was medically examined by PW-16,

.

Dr. Aarti Sarin. PW-16, while medically examining the prosecutrix,

noticed the injuries, as already discussed, on the person of the

prosecutrix. This witness, after seeking gynecological opinion,

opinion qua her age and also the forensic opinion, did not rule out

the possibility of sexual assault. Thus, the medical opinion also

testifies the truthfulness of the prosecution case.

30. In the case in hand it stands established that the

prosecutrix, at the time of occurrence was only eleven years of age,

so a child of tender age fell prey to lust of the accused. The age of

the prosecutrix at the time of the occurrence was 11 years and it

stands established through the testimonies of PW-18 (mother of the

prosecutrix), PW-5, Lakhi Ram and PW-6 Jai Lal. PW-18, mother of

the prosecutrix deposed that the prosecutrix is 12 years of age. As

PW-18 deposed in the Court on 25.05.2015 so, the prosecutrix was

12 years of age on that day, meaning thereby on the day of

occurrence, she was 11 years of age. PW-5, Lakhi Ram, Secretary

Gram Panchayat, issued copy of pariwar register, Ex. PW-5/B,

wherein the date of birth of the prosecutrix is recorded as

27.03.2003. Similarly, PW-6, Jai Lal, Teacher, also deposed that the

17/05/2018 23:10:12 :::HCHP
33

date of birth, as per the record, is 27.03.2003. Even as per the

medical evidence, the age of the prosecutrix is between 8 to 12 years.

So, the age of the prosecutrix at the time of the occurrence was

.

eleven years and two months.

31. After exhaustively discussing the entire prosecution

evidence, we find that the statement of the prosecutrix is cogent,

credible and it has grain of truth. The testimony of the prosecutrix

inspires confidence and the same is fully substantiated by the

medical evidence and DNA report, which is extracted, as under:

“A mixed DNA profile was obtained
from Ext. 2-A (Pajami of prosecutrix)
r from which two DNA profiling could be

identified. One DNA profile matches
with the DNA profile obtained from
exhibits 2-2 (blood sample of accused
on FTA card), and the other DNA
profile matches with the DNA profile

obtained from exhibit 1-1 (blood
sample of victim).”

There is not even an iota of evidence on record, which could subtly

point out towards the innocence of the accused. The sequence of

events stands fully fortified on all fours, through the testimonies of

PW-18 (mother of the prosecutrix), PW-17, Smt. Roshani Devi, and

PW-19, Shri Surat Singh.

32. 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

accused. We find no reason to reverse the findings rendered by the

17/05/2018 23:10:12 :::HCHP
34

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.

33. In view of the above, the appeal, so also pending

application(s), if any, stand(s) disposed of.
j

(Tarlok Singh Chauhan)
Judge

17th May, 2018
(virender)
r to (Chander Bhusan Barowalia)
Judge

17/05/2018 23:10:12 :::HCHP

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh