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 totime, 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 in17/05/2018 23:10:12 :::HCHP
13the 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 fromexhibits 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 beidentified. 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 profileobtained 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