Himachal Pradesh High CourtBholu Ram vs State Of H.P on 22 August, 2016Bench:Rajiv Sharma,Sureshwar ThakurIN THE HIGH COURT OF HIMACHAL PRADESH,
                   SHIMLA




                                                                                   .Cr. Appeal No. 189 of 2016

                                                              Reserved on : 4.8.2016





                                                              Decided on : 22-08-2016

    Bholu Ram                                                                  .....Appellant.




                                                        of
                                            Versus
    State of H.P                                                            .....Respondent.

    Coram                    rtThe Hon'ble Mr. Justice Rajiv Sharma, Judge.The Hon'ble Mr. Justice Sureshwar Thakur, Judge.Whether approved for reporting?1 Yes.For the Appellant:               Mr. Lovneeesh Kanwar, Advocate.For the Respondent: Mr. P.M Negi, Deputy Advocate General.
    _______________________________________________________




                  Sureshwar Thakur, Judge





                  The instant appeal stands directed against the impugned judgment of





    24.12.2015 rendered by the learned Additional Sessions Judge, Ghumarwin

    District Bilaspur, Himachal Pradesh (Camp at Bilaspur) in Sessions trial No.

    4/7 of 2015, whereby the learned trial Court convicted the appellant

    (hereinafter referred to as "accused") for his committing an offence punishable

    underSections 376of the Indian Penal Code also sentenced him as under:-1Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...2..."..............he is sentenced to undergo rigorous imprisonment for a




                                                                        .period of ten years and fine of Rs.10,000/- (Rupees Ten Thousand





              Only) for the commission of offence punishable underSection 376of
              the Indian Penal Code. In default of payment of fine he shall further
              suffer rigorous imprisonment for a period of six months........."2.        Brief facts of the case are that the prosecutrix is the wife of Amit




                                              of
    Chand (PW-7) and was residing in village Khungan.                 Her husband is a

    driver by profession and he seldom visits home.           Accused alongwith the
                       rt
    prosecutrix and her three daughters and one son had been residing together.On the intervening night of 9/10.9.2014 at about 12.30 a.m. accused came

    to the room of the prosecutrix and forcibly committed sexual intercourse


    upon her. The prosecutrix had communicated qua the aforesaid act of the

    accused to her father by her mobile phone. In the company of her father




    (PW-5) she had gone to the police station for lodging a report.                    The





    accused for the past 15-16 days had regularly been teasing the prosecutrix.Earlier also on 3-4 occasions the accused had forcibly made physical





    relations with the prosecutrix.      On 8.9.2014 during the night time the

    accused by entering in her room had made physical relation with her

    forcibly. The accused on each and every occasion holding out threats to

    the prosecutrix to kill her if she made a disclosure to anyone. Out of fear,

    except for her husband, the prosecutrix had not disclosed anything to

    anyone. Her husband had been abusing her. Owing to the threatening::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...3...meted by the accused the prosecutrix had not reported the matter to the




                                                                  .police earlier. On the matter being reported to the police, FIR Ex.PW-10/A

    came to be registered.    Medical examination of the prosecutrix was





    conducted on an application. Dr. Shilpa (PW-9) conducted her medical

    examination and observed that the possibility of sexual intercourse and




                                          of
    rape could not be ruled out.   The accused was also medically examined

    and on his examination it stands found that there was nothing to suggest
                      rt
    that the accused was not capable of performing sexual acts. Site plan Ex.PW-12/A was prepared. Vaginal swabs, pubic hair and slides of the

    prosecutrix were preserved by the medical officer and handed over to the


    police. The underwear, sample of blood, pubic hair and semen of the

    accused were also taken and sealed. Further the case of the prosecution is




    that the prosecutrix had handed over to the police her shirt (Ex.P-2) and





    salwar (Ex.P-3), which were sealed in a parcel and seized vide seizure





    memo Ex.PW-2/A. A khandolu (Mattress) (Ex.P-5) was also produced by

    the prosecutrix which was seized under memo Ex.PW-2/B. Mobile phone

    alongwith sim card was also taken into possession by the police vide

    seizure memo Ex.PW-3/A. The case property was handed over to the

    MHC, who sent the same to the Regional Forensic Science Laboratory,

    Mandi.     On receipt of RFSL report comprised in Ex. PW-8/C and

    completion of all codal formalities and on conclusion of the investigation::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...4...into the offence, allegedly committed by the accused challan was prepared




                                                                     .and filed in the Court.3.        The accused stood charged by the learned trial Court for his





    committing offences punishable underSections 376and506of IPC to

    which he pleaded not guilty and claimed trial.of4.        In order to prove its case, the prosecution examined 13

    witnesses.   On closure of prosecution evidence, the statement of the
                       rt
    accused underSection 313of the Code of Criminal Procedure was

    recorded in which he pleaded innocence and claimed false implication.However he did not choose to lead evidence in defence.5.        On an appraisal of evidence on record, the learned trial Court

    returned findings of conviction against the accused for his committing an




    offence punishable underSection 376of the IPC.6.        The learned counsel appearing for the accused has concertedly





    and vigorously contended qua the findings of conviction recorded by the

    learned trial Court standing not based on a proper appreciation of evidence

    on record rather theirs standing sequelled by gross mis-appreciation of

    material on record. Hence he contends qua the findings of conviction

    being reversed by this Court in the exercise of its appellate jurisdiction and

    theirs being replaced by findings of acquittal.::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...5...7.        The learned Deputy Advocate General has with considerable




                                                                   .force and vigour contended qua the findings of conviction recorded by the

    Court below standing based on a mature and balanced appreciation of





    evidence on record and theirs not necessitating interference rather meriting

    vindication.of8.        This Court with the able assistance of the learned counsel on

    either side has with studied care and incision evaluated the entire evidence
                       rt
    on record.9.        An FIR stood lodged with the police station concerned qua the

    ill-fated incident which occurred in the intervening night of 9/10.9.2014 at


    12.30   a.m.   wherein a narrative is held of the prosecutrix standing

    subjected to forcible sexual intercourse by the accused/her father-in-law.The sole deposition qua the ill-fated occurrence of the prosecutrix when





    bereft of any vice of any visible inter-se contradiction vis-à-vis her





    respective examination-in-chief with her cross-examination would ipso

    facto constitute sinewed evidence of probative worth for constraining this

    Court to return findings of conviction against the accused. For disinterring

    the factum aforesaid an incisive reading of her deposition is imperative.She has in her deposition made both loud and vivid underscorings therein

    qua on the relevant date hers standing subjected to forcible sexual

    intercourse by the accused. She with utmost promptitude made a revelation::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...6...qua the occurrence to PW-5, her father. PW-1 (Ashwani Kumar) has




                                                                     .deposed a version corroborative to the version qua the occurrence spelt out

    by the prosecutrix in her testification. PW-1 who alongwith PW-5 on the





    latter receiving a cellular communication from the prosecutrix proceeded

    to the matrimonial home of the latter has recorded a vivid pronouncement




                                            of
    in his testification qua theirs thereat noticing the prosecutrix sitting in the

    courtyard of her house alongwith her three daughters whereas the accused
                       rt
    stands testified by them to be noticed by them to be hurling abuses from

    the room of the upper storey of his house. The aforesaid pronouncement

    occurring in the testification of the PWs aforesaid holds the effect of theirs


    countervailing the concert of the defence to herebefore espouse of with the

    prosecutrix not raising outcries for inviting the presence of the inhabitants




    of the homesteads located in close vicinity to the relevant site of





    occurrence apparently unveiling of hers holding consent to the accused for





    his subjecting her to sexual intercourse. Even otherwise reiteratedly the

    factum of hers purveying with utmost promptitude a communication qua

    the occurrence to her father by holding a communication with him over a

    cell phone, factum whereof stands vigorously corroborated by call detail

    reports Ex.PC and PE, unfolds the imminent factum of hers not contriving

    the implication of her father-in- law/ the accused nor also it can be

    concluded of hers by omitting to raise outbursts not rendering herself::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...7...amenable to an inference standing foisted qua hers consensually




                                                                    .succumbing to the sexual misdemeanors of the accused given hers holding

    a perception qua her reputation standing stigmatized by hers, during the





    ordeal of hers standing subjected to forcible sexual intercourse by the

    accused, raising outcries inviting thereat the presence of the neighbors,




                                           of
    hence hers deeming it fit to on its conclusion make an intimation thereof to

    her father. Also the perpetration of sexual intercourse upon her person by
                       rt
    the accused for it to be not amenable to a construction of its standing

    committed by hers purveying consent to the accused did not entail upon

    her to during its course or during the ordeal which beset her to raise


    outcries especially when as manifested by hers on consummation of the

    occurrence making a prompt cellular communication to her father rather




    tellingly bespeaks of hers not meteing consent to the sexual misdemeanors





    of the accused moreso when the aforesaid concert would stand unresorted





    to by her given its distracting her married life, as a corollary, dehors hers

    not during the ordeal which beset her, hers not raising outbursts for

    inviting the presence thereat of the neighbours holding residences in

    proximity thereof, is, consequential, given the prevalence hereat of

    singularly peculiar facts nor it can hence be concluded of hers by omitting

    to raise shrieks held consent to the accused qua his subjecting her to sexual

    intercourse.::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...8...10.       The defence has assayed qua the implication of the accused by




                                                                     .the prosecutrix holding an aura of falsity it standing reared by the accused

    holding a desire to alienate a part of his land to his sister whereas the





    prosecutrix and her father insisting upon the accused qua his transferring

    his land in their names, resistance whereof of the accused evoking an




                                            of
    altercation inter-se the accused and the father of the prosecutrix wherefrom

    the latter nursed a vendetta vis-à-vis the accused, vendetta whereof found
                       rt
    its outlet in his in collusion with her father falsely implicating the accused.However the aforesaid defence gets stifled by the factum of the prosecutrix

    acquiescing to the suggestion put to her by the learned defence counsel


    while holding her to cross-examination qua her husband not expending any

    money on her maintenance besides on the maintenance of her children




    rather her acquiescing to the apposite suggestion put to her by the learned





    defence counsel when holding her to cross-examination of the accused





    maintaining her besides her children. The effect of the aforesaid

    acquiescences is of there being no estrangement in the relationship inter-se

    the accused and the prosecutrix rather both living harmoniously together

    thereat the accused during the absence from home of the husband of the

    prosecutrix given the latter standing engaged as a driver callings whereof

    of his profession entailing his not staying regularly at his house. Also the

    aforesaid acquiescence blunts the factum of both holding animosity, with a::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...9...concomitant effect of the defence making an engineered espousal on anvil




                                                                     .aforesaid of the prosecutrix in connivance with her father falsely

    implicating the accused.     Apart therefrom the effect of the prosecutrix





    leveling grave allegations upon her father-in-law begetting the ill-sequel of

    her image standing tarnished, protection whereof is the cherished




                                            of
    aspiration of any married lady, she hence cannot at all be inferred to hold

    false allegations against the accused unless the latter had sexually exploited
                       rt
    her.11.       The medical evidence on record held in Ex.PW-9/B holding

    manifestations of the prosecutrix standing subjected to sexual intercourse


    being not overrule able also the report of the FSL concerned holding

    unveilings of the vaginal slides of the prosecutrix sent therebefore holding




    semen, lends succor to the deposition of the prosecutrix. Even though the





    husband of the prosecutrix while appearing as PW-7 has deposed of his on





    the relevant date holding coitus with the prosecutrix hence concerts to

    repel the prosecutrix version yet his testimony is unworthwhile to oust the

    credible testimony of both PW-1 and PW-5 the brother and father

    respectively of the prosecutrix both of whom in prompt sequel to the latter

    making a cellular communication to them qua the occurrence proceeded to

    her matrimonial home whereat they testify qua theirs not noticing PW-7.The un-shattered testimony of both PW-1 and PW-5 qua theirs on theirs::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...10...visiting the matrimonial home of the prosecutrix not noticing thereat the




                                                                   .husband of the prosecutrix is amplifying display of the endeavor of the

    defence to thereupon repel the participation of the accused in the forcible





    coitus to which she stood held by the accused being both feeble besides

    fragile. Consequently, also with the opinion of the FSL concerned qua the




                                           of
    vaginal slides of the prosecutrix as sent to it for examination holding

    semen is to be concluded to be connecting the accused in as much as the
                       rt
    relevant vaginal slides holding the semen of the accused.12.       The effect of delay, if any, of the prosecutrix reporting the

    occurrence to the police station concerned stands effaced given its standing


    explicated in the factum of the police station Ghumarwin standing located

    at a distance of 28 kms from the relevant site of occurrence wheretoat she




    in the company of PW-5 in the morning of 10.9.2014 made a visit.Consequently when the alleged incident occurred in the intervening night





    of 9/10.9.2014 also when in prompt sequel thereto she made a cellular

    communication to her father who visited her matrimonial home rather

    renders hers holding a prompt communication qua the occurrence to her

    father also the factum aforesaid entwined with the evident factum of the

    relevant police station standing located at a distance of 28 kms from the

    site of the occurrence wheretoat given the darkness of the relevant time

    besides unavailability of means of transport she could not be expected to in::: Downloaded on - 15/04/2017 21:03:41 :::HCHP...11...prompt sequel to the occurrence visit it renders the delay, if any, to be




                                                                    .inconsequential.13.                A wholesome analysis of the evidence on record portrays





    that the appreciation of evidence as done by the learned trial Court does

    not suffer from any perversity and absurdity nor it can be said that the




                                            of
    learned trial Court in recording findings of conviction has committed any

    legal misdemeanor, in as much, as, its mis-appreciating the evidence on
                         rt
    record or its omitting to appreciate relevant and admissible evidence. In

    aftermath this Court does not deem it fit and appropriate that the findings

    of conviction recorded by the learned trial Court merit interference.14.                In view of the above discussion, I find no merit in this

    appeal, which is accordingly dismissed and the judgment of the learned




    trial Court is maintained and affirmed. Record of the learned trial Court be





    sent back forthwith.( Rajiv Sharma ),
                                                              Judge.22nd August, 2016                                     (Sureshwar Thakur)
    (priti)                                                         Judge::: Downloaded on - 15/04/2017 21:03:41 :::HCHP