IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 482 of 2017
Reserved on: December 11, 2018.
Decided on: 2nd April, 2019.

.

Rajinder Kumar ……Appellant.
Versus
State of Himachal Pradesh ……Respondent.

Coram
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.

For the appellant(s) : Mr. Anoop Chitkara, Advocate with
Ms. Sheetal Vyas, Advocate.
For the respondent : Mr. Vikas Rathore, Addl. AG with
Mr. Narinder Guleria, Addl. AG,
r Mr. J.S. Guleria and Mr. Kunal
Thakur, Dy. AGs.

Dharam Chand Chaudhary, J.

Appellant herein is a convict. Learned Special Judge,

Bilaspur has convicted him under Section 376(2) of the Indian Penal

Code and Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as “POCSO Act” in short)

vide impugned judgment dated 15.3.2017 passed in Sessions Trial

No. 22/7 of 2015 and sentenced as under:

Under Section 376(2) of IPC Imprisonment for life and fine of
Rs. 10,000/-. In default of
payment of fine, to undergo
further imprisonment of six
months.

Under Section 6 of Protection of Imprisonment for life and fine of
Children from Sexual Offences Rs. 10,000/-. In default of
Act, 2012. payment of fine, to undergo
further imprisonment of six
months.

1
Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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2. The Himachal Pradesh Voluntary Health Association

(Child Line) Shimla, allegedly supported by the Ministry of Women

and Child Development, Govt. of India, New Delhi and Child Line

.

India Foundation, Mumbai, has put the machinery into motion in the

case in hand. PW-26 Minakshi Kanwar, Coordinator, Child Line

Shimla has made an application Ext. PW-26/A on 7.6.2014 to the

Station House Officer, PS Ghumarwin, District Bilaspur to the effect

that as per call received over telephone at Child Line No. 1098 on

5.6.2014, a girl aged 14 years is pregnant and not going to school.

She requested the police to look into the matter and intervene. On

the basis of the application Ext. PW-26/A, rapat (Ext. PW-21/A) No.

41(A) dated 7.6.2014 was entered in the Police Station Ghumarwin.

Another rapat (Ext. PW-21/B) No. 47(A) was entered in the Police

Station on the same day, which reveals that ASI Duni Chand

accompanied by LHC Anita and HC Raj Kumar went to the house of

the prosecutrix where her mother and grandmother met them. They

disclosed that the prosecutrix was not in the house having gone to

the house of someone in her relations. They ensured to produce her

in the Police Station on the next day. On this, police party returned

to Police Station as the prosecutrix was not found in the house

during the search they conducted there. The information was given

to Station House Officer and also SDPO Ghumarwin, accordingly.

3. On the next day, i.e. 8.6.2014, PW-2 Meeran Devi,

mother of the prosecutrix accompanied by prosecutrix went to Police

Station Ghumarwin. At her instance, FIR Ext. PW-14/A came to be

recorded. She reported to the police that her husband had already

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expired about 10-12 years ago. She had three issues born to her

from the lions of her deceased husband. After the birth of the elder

son, the prosecutrix and another son (twins) have born to her. At

.

the time of incident, the prosecutrix was studying in 10th class.

About 15 days ago, she felt pain in her stomach. Her mother-in-law

Bimla Devi had taken the prosecutrix to Government Hospital at

Ghumarwin. When the ultra sound was got conducted privately, it

transpired that she was pregnant. On enquiry about the same from

r to
the prosecutrix, she revealed that about 5-6 months ago, on her way

to school, a boy had forcibly subjected her to sexual intercourse.

That boy was not known to her. She allegedly did not disclose

anything about it in the home to anyone being afraid of their wrath.

It was also reported by PW-2 Meeran Devi that since she was ill,

therefore, she could not visit the police station immediately.

4. After registration of the FIR, PW-16 ASI Sita Ram,

Investigating Officer moved application Ext. PW-9/A to the Medical

Officer for conducting medical examination of the prosecutrix. MLC

Ext. PW-9/B was collected and the opinion Ext. PW-9/E of the

doctor also obtained. The prosecutrix had delivered a male dead

child on 9.6.2014 in Zonal Hospital, Bilaspur. An application Ext.

PW-9/F was made by the I.O. for obtaining medical opinion qua the

age of foetus. The opinion Ext. PW-9/G was also obtained. The

blood sample of the prosecutrix and baby were taken for chemical

examination. On 11.6.2014, the extract of birth and death register

Ext. PW-3/A and the birth certificate Ext. PW-3/B was obtained from

PW-3 Ravinder Kumar, Secretary, Gram Panchayat, Kothi, Tehsil

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Ghumarwin, Distt. Bilaspur. Her date of birth was found recorded

as 24.6.1998. The date of birth certificate Ext. PW-11/E was also

supplied by PW-11 Kiran Lata, Headmaster Govt. Primary School,

.

Glassin, Distt. Bilaspur along with the extract of admission and

withdrawal register Ext. PW-11/B and the application submitted for

admission is Ext. PW-11/C. The documents Ext. PW-11/B and PW-

11/E were also supplied by PW-11 Kiran Lata, Headmaster Govt.

Primary School, Glassin, Distt. Bilaspur. In the school record also,

suspicion.

the date of birth of the prosecutrix was found mentioned as

24.6.1998. On 17.6.2014, the accused was interrogated on

5. PW-17 SI Indu has recorded the statement of the

prosecutrix under Section 161 Cr.P.C. on 19.6.2014. According to

her, about 5-6 months ago, while on the way to her school around

8:00 AM, one boy came from behind when she was at a place,

namely, Chehar. He cought hold of her arm and took her inside the

bushes. It was an isolated place. Though, she cried for help but

there was none present nearby to help her. That boy removed her

clothes (salwar) and subjected her to sexual intercourse forcibly. He,

therefore, left the place of occurrence and she went to school. She

did not disclose the incident to anyone in the school nor in the

house. She was afraid of being scolded by her family members, had

the incident been disclosed to them. When she felt pain in her

stomach after few months, her grandmother had taken her to

hospital. It is in the hospital, the doctor told that she was pregnant.

It was also disclosed by the prosecutrix that said boy never met her

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thereafter nor he is known to her. She even was not in a position to

identify his face also.

6. Application Ext. PW-25/A was made to Addl. Chief

.

Judicial Magistrate, Ghumarwin, District Bilaspur with a prayer to

record the statement of the prosecutrix under Section 164 Cr.P.C.

Consequently, statement Ext. PW-1/B came to be recorded by

learned ACJM, Ghumarwin (PW-25 Sh. Anil Sharma). The blood

sample of accused was obtained on 19.6.2014 for DNA profiling. On

analysing the same, the Asstt. Director DNA, FSL Junga has

submitted the report that the prosecutrix is the biological mother of

the still born baby whereas the accused biological father. On this,

the investigation was taken in hand by PW-19 ASI Kewal Singh. He

interrogated the accused further on 18.11.2014 and on finding the

evidence qua his involvement in the commission of the offence, he

was arrested. During further interrogation on 21.11.2015, the

prosecutrix and her mother identified the room in their house where

the accused allegedly subjected her to sexual intercourse thrice. The

identification memo is Ext. PW-1/A. The medical examination of the

accused was conducted by PW-8 Dr. Bikram Singh and found him

capable of committing sexual intercourse.

7. It is on the completion of the investigation, challan was

filed in the Court. Learned Special Judge, on appreciation of the

challan and documents annexed therewith as well as finding prima-

facie that the accused has repeatedly subjected the prosecutrix, a

minor below 18 years of age to sexual intercourse, has framed charge

against him under Section376(2) of the Indian Penal Code and

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Section 6 of the Protection of Children from Sexual Offences Act.

Since the accused has not pleaded guilty to the charge and claimed

trial, therefore, the prosecution has produced the evidence collected

.

during the course of investigation.

8. The material prosecution witnesses are PW-1, the

prosecutrix, her mother PW-2 Meeran Devi, PW-3 Ravinder Kumar,

Secretary Gram Panchayat Kothi, PW-8 Dr. Bikram, PW-9 Dr. Isha

Sharma, PW-10 Dr. Sumeet, PW-11 Kiran Lata, Headmaster, Govt.

Primary School Glassin, District Bilaspur, PW-12 Piar Chand, Ward

Member, Gram Panchayat Kothi, PW-15 Keshava Nand, the then

Ward Member, Gram Panchayat Kothi at whose instance, the entries

qua date of birth were made in the birth and death register. PW-20

Parwati though belongs to Reckong Peo, District Kinaur to which

Manju Devi (PW-22, the wife of accused belongs), however, married

in Tehsil Ghumarwin, District Bilaspur. PW-25 Anil Sharma,

learned ACJM, Ghumarwin and PW-26 Minakshi Kanwar,

Coordinator, Child Line, Shimla. The remaining prosecution

witnesses are police officials/I.Os who remained associated during

the investigation of the case in one way or the other.

9. On the other hand, accused in his statement recorded

under Section 313 Cr.P.C. has admitted that in relation, he is Uncle

of the prosecutrix and also that he was got medically examined by

the police, however, denied the remaining incriminating

circumstances appearing against him in prosecution evidence being

incorrect as according to him, he has been falsely implicated.

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10. Learned trial Court, as noticed at the outset, has

convicted and sentenced the accused for the commission of the

offence punishable under Section 376(2) IPC and under Section 6 of

.

the POCSO Act.

11. Aggrieved by the findings of conviction and sentence

recorded against him, the accused has questioned the legality and

validity thereof on the grounds inter alia that the evidence available

on record has not been appreciated in its right perspective and to the

contrary learned

Special Judge has based the

conjectures and surmises. Without admitting and conceding to the

prosecution case, it was pointed out that the prosecutrix had
findings on

attained the age of discretion and as such competent to give consent

for commission of sexual intercourse with her. It is also submitted

that under Indian Law, incest is not a penal offence and only

exception is the age of consent. The statement made by PW-3

Ravinder Kumar that the prosecutrix had filed a Civil Suit regarding

correction of date of birth has not been taken into consideration by

the learned trial Court. The prosecutrix and also her mother, both

have stated that the prosecutrix was born on 24.6.1996. While

admitting that the prosecutrix and her brother born as twin, the

mother also stated that due to illness and weakness, the prosecutrix

started schooling at the age of 7 years, however, such evidence has

also been ignored. The statement of the prosecutrix that the accused

did not commit any wrong act with her is also not taken into

consideration. The signatures of the accused on the documents were

obtained under threat, hence stated to be violative of Sections 25

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26 of the Indian Evidence Act and also Article 20(3) of the

Constitution of India. The investigating agency has not made any

effort to verify the factual position by associating the local residents,

.

therefore, an adverse inference under Section 114(g) of the Indian

Evidence Act has been sought to be drawn against the prosecution.

The burden of proof that the accused has committed the offence was

on the prosecution. The same has not been discharged and as such,

the evidence on record not trustworthy should have not been relied

upon. The appellant-convict, therefore, has prayed for quashing the

impugned judgment and consequently his acquittal of the charges

framed against him.

12. Sh. Anoop Chitkara, Advocate assisted by Ms. Sheetal

Vyas, Advocate, learned counsel representing the accused has

vehemently argued that the prosecutrix and her mother have not at

all supported the prosecution case while in the witness-box.

According to Mr. Chitkara, no doubt, the prosecutrix at one point of

time during her cross-examination by learned Public Prosecutor has

admitted that her statement Ext. PW-1/B under Section 164 Cr.P.C.

is voluntary and she had signed the same after its contents read over

and explained to her, however, when further cross-examined by

learned defence counsel she has come forward with the version that

no such statement was made by her before learned Magistrate. It

has, therefore, been canvassed that the present is a case where the

prosecutrix herself has caused major dent in the prosecution story.

In view of her statement and the statement of her mother, two

possible views have emerged and according to Mr. Chitkara, as per

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the settled legal principles, in a case of this nature, the view of the

matter favourable to the accused has to be taken as compared to the

one in favour of the prosecution. In order to buttress the arguments

.

so addressed, Mr. Chitkara has placed reliance on the judgment of

the Apex Court in T. Subramanian vs. State of Tamil Nadu (2006) 1

SCC 401. It is further canvassed that a statement recorded under

Section 164 Cr.P.C. cannot have overriding effect on the statement

recorded on oath by the Court. Therefore, when the prosecutrix has

Cr.P.C Ext. PW-1/B.

not supported the prosecution case, no findings of conviction could

have been recorded on the basis of her statement under Section 164

It has also been alleged that even if sexual

assault is believed to have been committed on the prosecutrix on and

around 20.3.2014, the prosecutrix was 15 years 8 months and 26

days old, therefore, according to Mr. Chitkara, she has already

attained the age of discretion and as such should have disclosed the

sexual assault if committed by the accused to other family members.

It has also been urged that the oral as well as documentary evidence

is not sufficient to show her date of birth as 24.6.1998. She,

according to Mr. Chitkara was rather born on 24.6.1996 and it is for

this reason, a suit has been filed by her for correction of date of

birth. The accused, therefore, has been sought to be acquitted of the

charge. In the alternative, the sentence of life imprisonment is stated

to be disproportionate to the offence committed as according to him,

the prosecutrix was about 16 years of age at the time of occurrence,

hence little short of 18 years, the age when in the given facts and

circumstances she could have understood to be a consenting party to

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the alleged sexual intercourse with her. Therefore, in the alternative,

the sentence, as such, has been sought to be reduced.

13. On the other hand, Mr. Vikas Rathore, learned Addl.

.

Advocate General for the State has urged that the prosecution with

the help of cogent and reliable evidence has succeeded to prove

beyond all reasonable doubt that the accused being in near relation

of the prosecutrix and a major person has subjected her to sexual

intercourse repeatedly by taking undue advantage of her tender age

and resultantly out of his physical relations with her, she became

pregnant. As per the scientific investigation got conducted by the

Investigating Agency while prosecutrix was biological mother of the

foetus, the accused happens to be the biological father. No doubt,

the prosecutrix, according to learned Addl. Advocate General has

turned hostile to the prosecution, however, her testimony as a whole

supports the prosecution case qua it is the accused who subjected

her to sexual intercourse. The statement of the prosecutrix Ext. PW-

1/B under Section 164 Cr.P.C. and the identification memo Ext. PW-

1/A has also been pressed into service in this regard. The appeal,

as such, has been sought to be dismissed.

14. On analyzing the record of this case and also the

evidence, comprising oral as well as documentary, the present is a

case where the father of the prosecutrix has already expired. PW-2

Meeran Devi is her mother. PW-2 Meeran Devi has given birth to

twins i.e. the prosecutrix female child and son, a male on 24.6.1998.

The prosecutrix during the year 2013-14 was studying in 10th class.

Admittedly, she stopped going to school on coming to know that she

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was pregnant. The Child Line Shimla received information in this

regard and PW-26 Minakshi Kanwar, its Coordinator has sought

intervention of the police in the matter by making application Ext.

.

PW-26/A. As noticed supra, the police swung into action and took

the prosecutrix to hospital for her medical examination on 8.6.2014.

She was found pregnant and ultimately delivered a male baby,

however, dead. As per Ext. PW-9/G, the opinion of the Medical

Officer, the still born baby was more than 7 months, however, less

15.

r to
than 8 months, meaning thereby that the prosecutrix had conceived

the baby somewhere in November/December, 2013.

There is again no dispute so as to blood of the

prosecutrix and still born baby was preserved for DNA profiling as is

apparent from the MLC Ext. PW-9/C. The blood of the prosecutrix

and baby and also the blood sample of the accused reveals that the

same was found matching with each other. The opinion of the

Medical Officer Ext. PW-9/E based upon the scientific investigation

hereinabove reveals that the prosecutrix was the biological mother of

the baby whereas the accused is biological father. The Medical

Officer, on perusal of the report Ext. PW-9/D submitted by FSL has

opined that the possibility of sexual intercourse cannot be ruled out.

The accused, as per the MLC Ext. PW-8/B was found capable of

performing sexual intercourse.

16. It is in this background, this Court has to determine

firstly the age of the prosecutrix and secondly the person who

assaulted the prosecutrix sexually is the accused or someone else.

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17. As a matter of fact, in a case of this nature, it is the age

of the prosecutrix which assumes considerable significance.

Admittedly, the prosecutrix is one of the twins born to PW-2 Meeran

.

Devi. The date of birth of the prosecutrix and her brother in the

birth and death register is mentioned as 24.6.1998. The reference in

this behalf can be made to the extract of Register Ext. PW-3/A and

the certificate Ext. PW-3/B. Such date of birth of the prosecutrix

and her brother has been entered in the birth and death register at

r to
the instance of PW-15 Keshava Nand, the then Ward Member, Gram

Panchayat Kothi. PW-15 Keshava Nand when appeared in the

witness-box has corroborated the prosecution case as according to

him, the date of birth of the prosecutrix and her brother as

24.6.1998 was entered in the birth and death register at his

instance. The entry qua date of birth in the birth and death register

of the prosecutrix thus stands fully proved and we have no hesitation

to place reliance on Ext. PW-3/A and Ext. PW-3/B being the primary

evidence and admissible under Section 35 of the Indian Evidence

Act. The another material piece of evidence is Ext. PW-11/P, the

extract of Admission and Withdrawal Register maintained in Govt.

Primary School Glassin, Tehsil Ghumarwin, District Bilaspur. The

application made by Balak Ram on 23.4.2003 Ext. PW-11/C for

seeking admission of the prosecutrix in first standard also

substantiates the prosecution case. The same was accompanied by

the date of birth certificate Ext. PW-11/D issued by the Secretary,

Gram Panchayat, Kothi on 1.4.2003. The date of birth certificate

Ext.PW-11/E issued by PW-11 Kiran Lata, Headmaster Govt.

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Primary School Glassin, Tehsil Ghumarwin, District Bilaspur is

based upon the old record i.e. entries in the Admission and

Withdrawal Register. The application supported by date of birth

.

certificate supplied on 1.4.2003 by the Secretary, Gram Panchayat

concerned for seeking her admission in first standard in that school

was made by Balak Ram, none else but grandfather of the

prosecutrix on 23.4.2003. The documentary evidence Ext. PW-11/C

to PW-11/E is also primary evidence, hence, legally admissible. The

prosecutrix,

hereinabove,
ras

she
such,

November/December, 2013.

was

is born

sexually
on 24.6.1998.

exploited
As

somewhere

She, at that time was, therefore, 15
observed

in

years, 7-8 months old, hence below 18 years of age.

18. No doubt, the defence has made an effort to prove

otherwise that her correct date of birth is 24.6.1996, however,

without producing in evidence the copy of complaint and the

averments on the basis of the alleged suit for declaration that she

was born on 24.6.1996 was filed. True it is that in a criminal case,

the burden to prove its case lies upon the prosecution and the

accused is not answerable to the evidence or any plea he raised in

his defence, however, in the case in hand, the prosecution has

satisfactorily pleaded and proved that the prosecutrix is born on

24.6.1998. Learned Special Judge, as such, has not committed any

illegality or irregularity while arriving at a conclusion that the date of

birth of the prosecutrix is 24.6.1998 and she was minor, below 18

years of age at the time when sexually assaulted and became

pregnant.

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19. In a similar situation, in the case of Hemudan Banbha

Gadhvi vs. The State of Gujarat, 2018 (2) SCC Online 1688,

where the prosecutrix and the witnesses did not support the

.

prosecution case and turned hostile, however, the close scrutiny of

the evidence suggests that the prosecutrix was subjected to sexual

intercourse by the accused coupled with the fact that semen found

on the clothes of the prosecutrix and that of the accused belong to

group B. The same was found sufficient to connect the accused with

r to
the commission of the offence. This judgment reads as follows:-

8. The family of the prosecutrix was poor. She was one of the five
siblings. The assault upon her took place while she had

taken the buffalos for grazing. Her deposition was recorded nearly six
months after the occurrence. We find no infirmity in the
reasoning of the High Court that it was sufficient time and
opportunity for the accused to win over the prosecutrix and PW1 by a

settlement through coercion, intimidation, persuasion and undue
influence. The mere fact that PW2 may have turned hostile,
is not relevant and does not efface the evidence with

regard to the sexual assault upon her and the identification of the
appellant as the perpetrator. The observations with regard to

hostile witnesses and the duty of the court in State vs. Sanjeev Nanda,
2012 (8) SCC 450 are also considered relevant in the

present context:

“101…..if a witness becomes hostile to subvert
the judicial process, the court shall not stand as
a mute spectator and every effort should be made
to bring home the truth. Criminal justice system
cannot be overturned by those gullible witnesses who act
under pressure, inducement or intimidation.
Further, Section 193 IPC imposes punishment for giving
false evidence but is seldom invoked.”

9. A criminal trial is but a quest for truth. The nature of
inquiry and evidence required will depend on the facts of each
case. The presumption of innocence will have to be balanced with the
rights of the victim, and above all the societal interest for

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preservation of the rule of law. Neither the accused nor
the victim can be permitted to subvert a criminal trial by
stating falsehood and resort to contrivances, so as to make it the theatre
of the absurd. Dispensation of justice in a criminal trial is a

.

serious matter and cannot be allowed to become a mockery by

simply allowing prime prosecution witnesses to turn hostile as a
ground for acquittal, as observed in Zahira Habibullah Sheikh vs. State
of Gujarat, (2006) 3 SCC 374 and Mahila Vinod

Kumari vs. State of Madhya Pradesh, (2008) 8 SCC 34. If the medical
evidence had not confirmed sexual assault on the prosecutrix,
the T.I.P. and identification therein were doubtful, corroborative

evidence was not available, entirely different
considerations may have arisen.

10. It would indeed be a travesty of justice in the peculiar facts

of the present case if the appellant were to be acquitted merely

because the prosecutrix turned hostile and failed to identify the

appellant in the dock, in view of the other overwhelming evidence

available. In Iqbal vs. State of U.P., 2015 (6) SCC 623, it was

observed as follows:

“15. Evidence of identification of the miscreants in the
test identification parade is not a substantive

evidence. Conviction cannot be
based solely on the identity of the dacoits by the

witnesses in the test identification parade. The
prosecution has to adduce substantive evidence by

establishing incriminating evidence connecting the
accused with the crime, like
recovery of articles which are the subject matter
of dacoity and the alleged weapons used in the
commission of the offence.”

11. The corroboration of the identification in T.I.P is to be found
in the medical report of the prosecutrix considered in conjunction
with the semen found on the clothes of the prosecutrix and the
appellant belonging to the Group B of the appellant. The vaginal smear
and vaginal swab have also confirmed the presence of
semen. A close analysis of the facts and circumstances of the case,
and the nature of the evidence available unequivocally
establishes the appellant as the perpetrator of sexual assault on the

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prosecutrix. The serologist report was an expert opinion under
Section 45 of the Evidence Act,1872 and was therefore
admissible in evidence without being marked an exhibit formally
or having to be proved by oral evidence.

.

20. A coordinate Bench of this Court in Cr. Appeal No. 620

of 2015 titled Krishan Chand vs. State of Himachal Pradesh

decided on 16.3.2018, a similar case where the prosecutrix, her

mother and grandmother did not fully support the prosecution case,

however, during scientific investigation it surfaced that the semen on

the clothes of the prosecutrix was that of the accused, has upheld

the findings of conviction and sentence recorded against the accused

and dismissed the appeal.

21. Now, if coming to the controversy that it is the

accused who has subjected her to sexual intercourse, the

prosecution has placed reliance on the identification memo Ext. PW-

1/A prepared at the instance of the prosecutrix, her statement Ext.

PW-1/B under Section 164 Cr.P.C. and also the report Ext. PW-9/D.

As per Ext. PW-1/A, the prosecutrix and her mother identified the

bed room in the upper floor of the house where she was subjected to

sexual intercourse, most probably on 20.3.2014 by the accused. He,

according to her subjected her to sexual intercourse twice during day

time and once during night. She as per this document was,

therefore, subjected to sexual intercourse thrice by the accused.

While in the witness-box, she has admitted her signature encircled

“A” on this document. Her mother PW-2 Meeran Devi, however,

expressed her ignorance that the signature encircled red at point “B”

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is of her or not. Anyhow, Ext. PW-1/A stands proved because the

prosecutrix has admitted her signature thereon and she has not

been cross-examined qua this aspect of the matter, therefore, as per

.

this document it is the accused who subjected her to sexual

intercourse thrice.

22. Now, if coming to Ext. PW-1/B, the statement of the

prosecutrix recorded under Section 164 Cr.P.C., in her cross-

examination conducted by learned Public Prosecutor, she has

r to
admitted the said statement having been made in the Court without

any fear etc. Not only this, but she has also admitted that the

contents thereof were read over and explained to her and it is after

acknowledging the same, she appended her signature on it. She has

also admitted her signature on Ext. PW-1/B encircled red at point

“A”. No doubt, in her examination-in-chief, the version of the

prosecutrix is that the accused, her real Uncle in relation has not

committed wrong act with her. In her cross-examination conducted

by learned defence counsel also, she has denied that the statement

Ext. PW-1/B has been made by her in the Court. She has denied

portion ‘A’ to ‘A’ and ‘B’ to ‘B’ thereof as incorrect. She has rather

admitted that at the time of recording her statement in the Court,

she stated that accused had not committed sexual intercourse with

her. Therefore, she has blown hot and cold in the same breath.

However, her admission during her cross-examination by learned

Public Prosecutor that the statement Ext. PW-1/B was given by her

in the Court without any fear and that she signed the same after

acknowledging the contents thereof read over and explained to her

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coupled with the testimony of PW-25 Sh. Anil Sharma, the then

ACJM, Ghumarwin, the only inescapable conclusion would be that

before recording her statement, the Magistrate made her aware that

.

she was not bound to make any statement and in case she opt for it,

such statement can be used against her. It is thereafter she made

the statement Ext. PW-1/B voluntarily, the contents whereof were

read over and explained to her which she has also admitted while in

the witness-box as PW-1. She has acknowledged the statement so

made and put her signature thereon at point ‘A’ encircled red.

Nothing contrary has come in his statement in the cross-examination

that Ext. PW-1/B is not recorded in accordance with law, hence not

legally admissible. True it is that the statement recorded in the

Court on oath has evidentiary value as compared to a statement

recorded under Section 164 Cr.P.C. The present, however, is a case

where irrespective of the prosecutrix having denied the accused

subjected her to sexual intercourse, admitted in her cross-

examination conducted on behalf of the prosecution by learned

Public Prosecutor that she had made the statement Ext. PW-1/B in

the Court. The statement Ext. PW-1/B reveals that it is the accused

who had subjected her to sexual intercourse. No doubt, the

prosecutrix tried to confuse the whole issue, may be due to pressure

of family members because the accused is none else but her real

Uncle with a view to save him from his prosecution, however, her

admission that identification memo bears her signature and that the

statement Ext. PW-1/B was given by her in the Court without any

fear and signed the same after acknowledging its contents which

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were read over and explained to her, coupled with the expert opinion

i.e. report of Forensic Science Laboratory Ext. PW-9/D and the

opinion based upon the same given by PW-9 Dr. Isha Sharma,

.

learned trial Judge has rightly concluded that the accused has

subjected her to sexual intercourse.

23. Otherwise also, there is no denial so as to the

prosecutrix was subjected to sexual intercourse and became

pregnant. The factum of the pregnancy came to the notice of

grandmother and ultimately to her mother PW-2 Meeran Devi when

on complaint of pain in her stomach, she was taken to hospital and

on the basis of ultra sound got conducted, the doctor told that she

was pregnant. The matter was not reported to the police, may be the

honour of the family was at stake because it is the accused, her real

Uncle has subjected the prosecutrix to sexual intercourse. Although,

the mother of the prosecutrix PW-2 Meeran Devi while lodging FIR

Ext. PW-14/A and stating that on account of her illness, the matter

could not be reported earlier has made an effort to explain such

unbecoming behavior as normally on coming to know that her

daughter is pregnant, the report should have been lodged in the

Police Station, however, unsuccessfully because the explanation so

forthcoming is nothing but an attempt to save the accused from his

prosecution. It is for this reason that in the FIR also, he has not

named an offender and rather some unknown boy is stated to have

subjected the prosecutrix to sexual intercourse when she was on her

way to school. This part of the statement of PW-2 Meeran Devi in the

FIR Ext. PW-14/A and while in the witness-box as PW-2 cannot be

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20

believed to be true by any stretch of imagination. Therefore, the

statement of the prosecutrix and her mother PW-2 Meeran Devi that

the accused never subjected her to sexual intercourse and rather it

.

is some unknown person who committed sexual intercourse with her

when she was going to school is bound to fall to the ground having

no legs to stand.

24. It is significant to note that PW-12 Piar Chand who has

been associated by the prosecution during the course of investigation

of the case has stated that it is in his presence, the prosecutrix

disclosed that the accused used to do wrong acts with her during the

year 2013-14 in the room of upper floor of their house which she had

identified vide memo Ext. PW-1/A.

25. If coming to the testimony of PW-20 Parwati, her

parents’ house is situated at Reckong Peo. PW-22 Manju Devi, wife

of the accused also belongs to district Kinnaur. The later came to

the former on one day around 12 midnight and disclosed that her

husband (accused) had illicit relations with his sister-in-law (PW-2

Meeran Devi) and also with the prosecutrix. Also that the

prosecutrix became pregnant due to accused subjected her to sexual

intercourse. PW-22 Manju Devi, however, has not supported the

prosecution case as according to her they are not in visiting terms

with the family of PW-2 Meeran Devi. She also seems to have

deposed falsely to save the accused from his prosecution being her

husband.

26. In view of what has been said hereinabove, it is proved

beyond all reasonable doubt that the prosecutrix born on 24.6.1998

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21

was minor below 18 years of age when subjected to sexual

intercourse by none else but her real Uncle (Chacha). She incurred

pregnancy and came to know about it when complained pain in

.

stomach and taken to hospital by her grandmother. No report was

lodged with the police and rightly so because everybody in the family

may be interested to save the accused from his prosecution.

However, fortunately, it is Child Line, Shimla which came to know

that the prosecutrix subjected to sexual intercourse has stopped

going to school on account of being pregnant. The complaint made

to the police is Ext. PW-26/A. The author thereof is none else but

PW-26 Minakshi Kanwar. This has led to the registration of FIR Ext.

PW-14/A. However, during the course of investigation, the person

who subjected the prosecutrix to sexual intercourse was found to be

none else but her real Uncle, the accused. It is satisfactorily proved

that the biological mother of the still born male baby was prosecutrix

whereas biological father, the accused. The report Ext. PW-9/D, the

identification memo Ext. PW-1/A and the statement Ext. PW-1/B

and also the part of the statement of the prosecutrix while in the

witness-box as PW-1 amply substantiate that the offender was none

else but the accused alone who has subjected the prosecutrix to

sexual intercourse thrice.

27. No doubt, the prosecutrix and her mother PW-2 Meeran

Devi turned hostile to the prosecution, however, as per the legal

position well settled at this stage, that part of the statement of a

hostile witness which supports the prosecution case if inspires

confidence can be relied upon. Since in the case in hand, the

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22

prosecutrix has admitted her signature on the identification memo

Ext. PW-1/A and also that the statement Ext. PW-1/B was made and

signed by her in the Court, lead to the only conclusion that she has

.

supported the prosecution case on all material aspects and also that

she has been subjected to sexual intercourse by the accused because

it is so recorded in both the documents referred to hereinabove.

Learned trial Judge, as such, has rightly concluded that the hostile

statement of the prosecutrix and her mother cannot be taken as

r to
ground to disbelieve the prosecution story especially when the

scientific investigation and the link evidence available on record

connect the accused with the commission of offence. It is worth

mentioning that the evidence as has come on record by way of the

testimony of official witnesses supplies necessary links in support of

the prosecution case, because PW-5 HC Mohinder Singh, the then

MHC, Police Station Ghumarwin has supported the prosecution case

qua the case property deposited with him and the same later on was

forwarded by him to FSL. There is nothing to disbelieve his version

as has come on record. PW-4 HHC Dinesh Chand has supported the

prosecution case qua the case property i.e. one vial duly sealed in a

parcel deposited by him in RFSL at Mandi vide RC No. 103/14. PW-

6 LC Anita Devi has deposed that the samples preserved by the

doctor and handed over to her were given by her to ASI Sita Ram.

She remained on duty with the prosecutrix during her hospitalization

on 8/9.6.2014 in the hospital at Bilaspur. The case property was

handed over to PW-7 Const. Suneel Kumar vide RC No. 226/14 and

as per his statement, he deposited the same in safe condition in

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SFSL, Junga. PW-13 SI Mehar Singh has obtained the extract of

birth register Ext. PW-3/A and the date of birth certificate Ext. PW-

3/B from PW-3 Ravinder Kumar, Secretary Gram Panchayat, Kothi.

.

PW-19 ASI Kewal Singh has investigated the case. On receipt of the

FSL report Ext. PW-9/D from SFSL, Junga, according to which the

prosecutrix and the accused were found to be the biological mother

and father of the still born child, the accused was arrested by this

witness after interrogation. He has also prepared the memo Ext. PW-

1/A on identification of the room where the prosecutrix was

subjected to sexual intercourse by the accused thrice on the

identification given by her. It is he who moved to the Medical Officer

for conducting medical examination of the accused and obtained the

MLC Ext. PW-8/B as per which the accused was found to be capable

of committing sexual intercourse. PW-26 Minakshi Kanwar has made

the application to the police.

28. The oral as well as documentary evidence produced by

the prosecution, therefore, has established the guilt of accused

beyond all reasonable doubt. He, as such, has rightly been convicted

for the commission of the offence punishable under Section 376(2)

IPC and under Section 6 of the POCSO Act.

29. In the matter of quantum of sentence, we, however, are

in agreement with the submissions made by Mr. Anoop Chitkara,

learned defence counsel for the reason that the age of the prosecutrix

at the relevant time was little less than 16 years because in case the

date when she conceived is taken as 20.3.2014 as she gave in her

statement, she was about 15 years 9 months old at that time. Of

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24

course, the prosecutrix was minor and as such the arguments that

she had attained the age of discretion and consenting party to the

sexual act, hardly carry any substance. However, while considering

.

the question of quantum of sentence, this Court will be failing in its

duty if not take into consideration the conduct of the prosecutrix

that even after subjected to sexual intercourse thrice by the accused

she did not opt for apprizing her mother PW-2 Meeran Devi or

anyone else in the family, including her grandmother about such an

act committed by the accused with her. The prosecution though has

made an attempt to show that the accused was in physical relations

with the mother of the prosecutrix (his Bhabhi) also, however,

unsuccessful because Manju, his wife who allegedly told PW-20

Parwati in this regard did not support the prosecution case while in

the witness-box as PW-22 and rather turned hostile to the

prosecution. In the totality of the circumstances, more particularly,

the age of the prosecutrix, it is not a rarest of the rare case where

maximum sentence i.e. imprisonment for life for the commission of

offence punishable under Section 376(2)(f) (n) IPC and Section 6 of

the POCSO Act should have been passed against the accused.

30. For all the reasons hereinabove, this appeal partly

succeeds and the same is accordingly allowed. Consequently instead

of life imprisonment, the appellant-convict shall undergo rigorous

imprisonment for a period of 10 years and also to pay a sum of Rs.

50,000/- as fine under Section 376(2)(f) (n). In default to pay the

fine amount, he shall further undergo simple imprisonment for a

period of one year. He is also sentenced to undergo rigorous

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25

imprisonment for a period of 10 years and also to pay Rs. 50,000/-

as fine for the commission of the offence punishable under Section 6

of the POCSO Act. On his failure to pay the fine amount, he shall

.

further undergo simple imprisonment for a period of one year. Both

the sentences, however, shall run concurrently. The amount of fine,

if deposited by the appellant-convict shall be paid to the prosecutrix

through her mother PW-2 Meeran Devi as compensation. The

impugned judgment shall stand modified accordingly.

r to (Dharam Chand Chaudhary),
Judge.

April 2, 2019. (Chander Bhusan Barowalia),
(karan-) Judge.

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