HARNAM SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) This appeal stands directed against the judgement rendered on 21/30.05.2015 by the learned Special Judge, Kangra at Dharamshala, Himachal Pradesh in Sessions Case No. 9 -K/VII -2013, whereby the appellant stands convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 25000/ - and in default to undergo simple imprisonment for two more years for commission of offence punishable under Sec. 6 of the Protection of Children from Sexual Offences Act, 2012.

(2.) The prosecution story, in brief, is that the prosecutrix is in close relation of the accused. She is related to him as niece. In the year, 2013 she was a student of 10th class in Sauhra School. On 27.1.2013 at about 11 a.m., she had gone to Kedar Studio Sauhra for getting her photographs. The photographer told the prosecutrix that the photographs were not ready and, therefore, the prosecutrix was coming back to her house from there. On the way, the accused Harnam Singh had met her near the house which was under construction and belonged to the father of the prosecutrix. The accused asked the prosecutrix to accompany him in order to make love. The prosecutrix being of immature age could not understand as to what the accused had told her and she accompanied him. He took her to one room of that house which was under construction. He had kissed her there and thereafter he started pressing her breasts. She could not understand as to what the accused was doing. Thereafter the accused had forcibly removed the Salwar of the prosecutrix and then forcibly made her lie down in the room with her back on the ground and thereafter, he had put off his pant and then had committed penetrative sexual assault with the prosecutrix for 8 -10 minutes. After performing this forcible sexual intercourse with her, the accused had given a hundred rupee note to her and directed her not to disclose about this occurrence to any one. The prosecutrix had thereafter gone to her house and had not talked to anybody about this occurrence. She was under fear and kept on thinking about the occurrence all alone. Realizing that the accused had committed a wrong act with her for which the accused should be punished, she gathered some courage and thought of getting justice for herself. Then she had straightaway gone to the Police Post Gaggal, all by herself. She narrated the occurrence to ASI/Incharge of the Police Post, Gaggal. The said ASI on hearing the prosecutrix, informed her mother telephonically on which her mother, grandmother, Taya and Tai came to the Police Post Gaggal and in their presence, the statement of the prosecutrix was reduced into writing vide rapat No. 8 Ex. PW -3/A. Videography of her statement had also been conducted vide CD Ex. PW -13/E. The said rapat was sent to Police Station, Kangra, through Constable Bhinder Singh, on the basis of which FIR Ex. PW -10/A came to be registered against the accused. The currency note of Rs. 100/ - was also handed over by the prosecutrix to the Police which had been given to her by the accused after committing penetrative sexual assault with her. The currency note of Rs. 100/ - was taken into possession by the Police vide memo Ex. PW -3/B. The prosecutrix had herself given in her own handwriting Ex. PW -3/C about the occurrence which had taken place with her. The lady constable Surendra Kumari was deputed to get the prosecutrix medically examined from the doctor vide application Ex. PW -2/A and accordingly she was medically examined vide MLC Ex. PW -2/C. Her x -ray examination had also been conducted vide form Ex. PW -2/B and x -ray films Ex. PW -2/D to Ex. PW -2/F and report Ex. PW -2/G was procured according to which the age of the prosecutrix was more than 13 1/2 years, but less than 15 years. As per medical examination, the prosecutrix was found to have been subjected to sexual intercourse, but the final opinion was reserved till receipt of the FSL report. The pubic hair, vaginal swabs and slides were prepared and preserved and the clothes and undergarments of the prosecutrix were sealed by the doctor in accordance with codal formalities and were handed over to the police, which were deposited with the MHC, who entered the same in Malkhana register, the entry abstract of which are Ex. PW -8/A to Ex. PW -8/C. The accused was arrested and his medical examination was got conducted vide application Ex. PW -1/A and as per MLC Ex. PW -1/B, he was found capable to perform sexual intercourse. At the time of medico -legal examination of the accused, the pubic hair, garment including undergarments of the accused had been sealed in two parcels and were handed over to the Police which were deposited with the MHC. The same had also been entered in the Malkhana register, the entry abstract of which is Ex. PW -8/A. The blood sample of the accused had also been taken for which application Ex. PW -13/B was moved and the blood sample of the accused was taken for which forms Ex. PW -14/A and Ex. PW -14/B were filled in. The police had moved application Ex. PW -6/A before the Secretary Gram Panchayat Sauhara, for obtaining the birth certificate of the prosecutrix, who had issued the birth certificate Ex. PW -6/B. He had also issued family register copy Ex. PW -6/C of the prosecutrix to the police. The Police had also moved application Ex. PW -7/A before the Head Master Govt. High School, Sauhara, for obtaining the date of birth certificate of the prosecutrix and accordingly the Head Master of the said school issued date of birth certificate Ex. PW -7/B to the Police, according to which the date of birth of the prosecutrix was 15.7.1998. The police also visited the spot and prepared site plan Ex. PW -12/A and thereafter the photographs of the spot, Ex. PW -13/D -1 to D -9 were taken and CD of these photographs had also been prepared.

(3.) The case property of this case was sent to FSL Junga with docket Ex. PW -12/E, vide RC Ex. PW -8/D through constable Hans Raj No. 514 on 3.2.2013, who had deposited the case property in FSL Junga on 4.2.2013 in the same condition. The FSL Junga sent the report Ex. PA to the Police and thereafter the police had shown that report to the doctor, who had then given final opinion Ex. PW -2/H according to which the prosecutrix had been found to have been subjected to sexual intercourse on 27.1.2013.