P.S Rana Judge
Judgment:-
Present appeal is filed against the judgment and sentence passed by learned Sessions Judge Mandi in Sessions Trial No 38 of 2011 titled State v. Kuldeep Thakur decided on dated 28.6.2012 and quantum of sentence announced on dated 29.6.2012
Brief facts of the case as alleged by the prosecution:-
2. It is alleged by the prosecution that on dated 2.2.2011 prosecutrix left her home in order to attend Government Senior Secondary School Chowk where she was studying. It is alleged by prosecution that age of prosecutrix was 14½ years. It is alleged by prosecution that prosecutrix did not come back and her father inquired about prosecutrix from her relatives. It is also alleged by prosecution that one Ishwar Dass noticed the prosecutrix in Baba bus which was enrouted to Kullu and on dated 4.2.2011 prosecutrix was found at Bhunter along with co-accused Kuldeep and thereafter prosecutrix and co-accused Kuldeep were brought to police station Sarkaghat and FIR Ext.PW3.A was registered. It is alleged by prosecution that on dated 2.2.2011 co-accused Kuldeep met the prosecutrix and pursuaded the minor prosecutrix to go to Rewalsar and also pursuaded the minor prosecutrix to throw away her school bag. It is alleged by prosecution that thereafter prosecutrix accompanied co-accused Kuldeep to Rewalsar in private bus namely Baba bus service and thereafter accused took the prosecutrix to Kullu. It is alleged by prosecution that co-accused Kuldeep expressed his desire to marry the prosecutrix and took the minor prosecutrix to village Kharahal in the house of co-accused Hari Singh. It is alleged by prosecution that co-accused Kuldeep committed forcible sexual intercourse with minor prosecutrix in the house of co-accused Hari Singh in the night of dated 3.2.2011 It is alleged by prosecution that Investigating Officer moved application Ext.PW9.A and requested the medical officer CHC Sarkaghat to conduct medical examination of prosecutrix. It is alleged by prosecution that no lady doctor was available in hospital CHC Sarkaghat and thereafter minor prosecutrix was forwarded to Zonal Hospital Mandi where PW9 Dr. Renu conducted the medical examination of minor prosecutrix and medical officer opined that age of prosecutrix was between 14 to 16½ years. It is alleged by prosecution that accused was also medically examined and MLC of accused Ext.PA was obtained. It is alleged by prosecution that birth certificate of prosecutrix from family register was also obtained. It is alleged by prosecution that date of birth of minor prosecutrix is dated 11.12.1996 and birth certificate of prosecutrix is Ext.PW1.C. It is alleged by prosecution that father of prosecutrix produced the photocopy of middle standard certificate of minor prosecutrix which was took into possession vide seizure memo Ext.PW2.A. It is alleged by prosecution that attendance certificate of minor prosecutrix from school was obtained and copies of school admission and withdrawal certificate were also obtained. It is alleged by prosecution that spot map Ext.PW11.C was prepared and room of co-accused Hari Singh where co-accused Kuldeep committed forcible sexual intercourse upon minor prosecutrix was located and prosecutrix identified blanket Ext.P2 which was took into possession vide seizure memo Ext.PW11.D. It is alleged by prosecution that case property was deposited in malkhana and entry was recorded in malkhana register at Sr. No. 1225/11 and abstract of malkhana register is Ext.PW5.A. It is alleged by prosecution that case property was sent to FSL Junga through PW3 Nanak Chand vide RC No. 49 of 2011 and further alleged that DNA profiling was conducted and report was obtained.
3. Learned trial Court on dated 7.9.2011 framed the charge against co-accused Kuldeep under Sections 363, 366-A and 376 IPC and learned trial Court framed the charge against co-accused Hari Singh under Section 368 IPC. Both accused persons did not plead guilty and claimed trial.
4. Prosecution examined as many as twelve witnesses in support of its case and accused persons examined one witness as defence witness:
Sr. No.Name of WitnessPW1Jia LalPW2Sita DeviPW3Ramjit SinghPW4HC Nanak ChandPW5HC Dharam SinghPW6Pinki DeviPW7Dev RajPW8Pyar ChandPW9Dr. Renu BehlPW10ProsecutrixPW11ASI Vikram SinghDW12Ayesha PatialDW1Ludar
4.1 Prosecution and accused also produced following piece of documentary evidence in support of its case:-
Sr. No.Description.Ext.PW1.AApplication.Ext.PW1.BCopy of family registerExt.PW1.CBirth certificate of prosecutrixExt.PW2.AMemoExt.PAMLC of co-accused Kuldeep SinghExt.PW3.AFIRExt.PW4.AReceiptExt.PW4.BCopy of RC.Ext.PW5.AExtract of malkhana registerExt.PW6.AApplicationExt.PW6.BCopy of attendance registerExt.PW7.ACertificateExt.PW9.AApplicationExt.PW9.BEndorsementExt.PW9.CMLC of prosecutrixExt.PW9.DNotingExt.PW11.AApplicationExt.PW11.BCertificateExt.PW11.CSpot mapExt.PW11.DMemoExt.PW11.ECopy of forwarding noteExt.PW11.FIdentification form of prosecutrix Ext.PW11.G Copy of forwarding noteExt.PW11.HIdentification form of co-accused Kuldeep SinghExt.P1BlanketExt.PW11.JSeal impressionExt.PW12.AReportExt.PW12.BFTA card of co-accused Kuldeep SinghExt.PW12.CFTA card of minor prosecutrixExt.DACopy of family register.
5. Learned trial Court convicted appellant Kuldeep Singh under Sections 363 and 376 IPC and acquitted him under Section 366-A IPC. Learned trial Court acquitted co-accused Hari Singh qua criminal offence punishable under Section 368 IPC. Learned trial Court awarded rigorous imprisonment for a period of three years and fine to the tune of Rs. 10,000/- (Rupees ten thousand only) for the offence punishable under Section 363 IPC and further directed that in default of payment of fine convicted shall further undergo simple imprisonment for six months. Learned trial Court also awarded rigorous imprisonment for a period of seven years and fine to the tune of Rs. 10,000/- (Rupees ten thousand only) for offence punishable under Section 376 IPC and further directed that in default of payment of fine convicted shall further undergo simple imprisonment for a period of six months.
6. Feeling aggrieved against the judgment and sentence passed by learned trial Court appellant filed present appeal. Court heard learned Advocate appearing on behalf of the appellant and learned Assistant Advocate General appearing on behalf of the respondent-State and also perused the entire record carefully.
7. Question that arises for determination in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice as mentioned in memorandum of grounds of appeal.
8. ORAL EVIDENCE ADDUCED BY PROSECUTION:
8.1 PW1 Jia Lal has stated that he is posted as Panchayat Secretary in G.P Dhanalag from November 2009 and on dated 19.3.2011 police of P.S Sarkaghat moved application Ext.PW1.A before Pardhan G.P Dhanalag. He has stated that family register of father of prosecutrix and birth register of prosecutrix obtained by police. He has stated that copy of family register is Ext.PW1.B and copy of birth certificate is Ext.PW1.C. He has stated that as per record date of birth of prosecutrix is 11.12.1996 He has stated that entry in the family register is not in his hands. He has stated that as per record information was given by one Meera Kumari. He has denied suggestion that both certificates were issued by him on the basis of wrong information.
8.2 PW2 Smt. Sita Devi has stated that she is Pardhan of G.P Dhanalag and on dated 3.2.2011 at about 4 AM Pyar Chand resident of Majyath telephonically informed that some pony wallas had enticed away his daughter. She has stated that thereafter she advised Pyar Chand to inform the police and thereafter information was given to police officials. She has stated that she along with Pyar Chand and his relatives visited police post Bhunter and disclosed the entire matter to police. She has stated that thereafter she and relatives of prosecutrix along with one police official went to the house of accused Kuldeep. The witness identified the accused in Court. She has stated that on dated 4.2.2011 Pyar Chand handed over the middle standard examination of prosecutrix which was took into possession by police vide seizure memo Ext.PW2.A. She has stated that memo was signed by her and was also signed by one another marginal witness Ludar Chand. She has stated that she did not visit the house of Kuldeep at Bhunter.
8.3 PW3 Inspector Ranjit Singh has stated that he remained posted as SHO in P.S Sarkaghat from November 2010 to July 2011 and on dated 4.2.2011 complainant Pyar Chand got recorded FIR Ext.PW3.A. He has stated that contents of FIR Ext.PW3.A were read over and explained to complainant Pyar Chand who accepted the same as correct and thereafter signed on FIR. He has stated that thereafter investigation of case was entrusted to ASI Vikram Singh for further investigation and after completion of investigation file was produced before him and as he found prima-facie case under Sections 363, 366-A and 376 IPC against accused persons he prepared challan and submitted the same in Court of JMIC Sarkaghat. He has stated that when the complainant came to police station for lodging FIR Ext.PW3.A his daughter and Kuldeep were with him. He has denied suggestion that accused Kuldeep was not accompanied with complainant when he came to police station to file FIR. He has denied suggestion that FIR was recorded on concocted facts. He has denied suggestion that no case under Section 368 IPC was made out against co-accused Hari Singh.
8.4 PW4 HC Nanak Chand has stated that he is posted as HHC in P.S Sarkaghat for the last one and half years and on dated 1.4.2011 MHC Dharam Singh handed over to him one parcel stated to be containing blanket with direction to take the same to FSL Junga vide RC No. 49/2011 and further stated that on the same day he deposited the case property with FSL Junga vide receipt Ext.PW4.A. He has further stated that RC is Ext.PW4.B and case property remained intact in his custody. He has stated that his departure as well as arrival reports were recorded in daily diary of P.S Sarkaghat. He has denied suggestion that no case property was given to him and also denied suggestion that he did not take the case property to FSL Junga.
8.5 PW5 HC Dharam Singh has stated that he is posted as MHC in P.S Sarkaghat since 2010 and on dated 7.2.2011 ASI Vikram Singh deposited with him a parcel sealed with seven seals of T along with sample seal and he entered the parcel in Malkhana register at Sr. No. 1225/11. He has further stated that on dated 1.4.2011 he handed over the said parcel to Nanak Chand vide RC No. 49/2011. He has stated that abstract of malkhana register is Ext.PW5.A.
8.6 PW6 Pinki Devi TGT has stated that she has been posted as TGT in Government Senior Secondary school Chowk since 2006 and on dated 19.3.2011 police of P.S Sarkaghat moved an application Ext.PW6.A and demanded copy of attendance register of 9th class for the moth of February 2011 and copy of age proof. She has stated that she was class teacher of 9 class and as such she submitted the copy of attendance register after attested from Principal. She has stated that copy of attendance register is Ext.PW6.B and name of prosecutrix is entered as Sr. No. 22 of attendance register. She has stated that as per record prosecutrix remained absent from school w.e.f 2.2.2011 to 8.2.2011 She has stated that she has brought the original attendance register in Court. She has denied suggestion that she has wrongly marked the absence of prosecutrix in the attendance register at the instance of police. She has denied suggestion that prosecutrix did not remain absent from school w.e.f 2.2.2011 to 8.2.2011
8.7 PW7 Dev Raj has stated that he has brought the original admission register of Government Senior Secondary School Chowk Tehsil Sarkaghat District Mandi. He has stated that on dated 19.3.2011 police of P.S Sarkaghat moved an application Ext.PW6.A to the Principal, Government Senior Secondary school Chowk requesting him to supply the copy of attendance register as well as copy of age proof on the basis of admission register. He has stated that thereafter he prepared certificate Ext.PW7.A on the basis of official record. He has stated that as per record prosecutrix got admitted in Government Senior Secondary School Chowk on dated 19.4.2010 and date of birth of prosecutrix is recorded as 11.12.1996 He has denied suggestion that wrong birth certificate was issued.
8.8 PW8 Pyar Chand has stated that prosecutrix is his daughter. He has stated that on dated 2.2.2011 prosecutrix had gone to attend the school at Government Senior Secondary School Chowk. He has stated that prosecutrix was student of class 10 and her age was about 14½ years. He has stated that prosecutrix did not come back to her home and he inquired from her class mates who disclosed that prosecutrix did not attend the school. He has stated that thereafter he inquired by way of telephone from his relatives about whereabouts of prosecutrix. He has stated that on same day one Ishwar Dass who was his relative and who was working as Lecturer in Pattrighat school disclosed him that he noticed that prosecutrix was sitting in Baba bus. He has stated that thereafter he reported the matter to police officials. He has stated that his relative Ishwar Dass also disclosed that Baba bus was approaching to Kullu and thereafter he hired a private vehicle and then went to Bhunter, Kullu. He has stated that on dated 4.2.2011 prosecutrix was found at Bhunter. He has stated that prosecutrix was travelling in three-wheeler along with co-accused Kuldeep. He has stated that thereafter he brought prosecutrix as well as accused Kuldeep and handed over both of them to police at P.S Sarkaghat. He has stated that he also lodged criminal report against accused Ext.PW3.A which bears his signatures at point ‘A’. He has stated that during investigation police took into possession school certificate of prosecutrix vide seizure memo Ext.PW2.A. He has stated that he also inquired whole incident from prosecutrix and prosecutrix disclosed him that she was took by accused Kuldeep to Kharahal. He has stated that prosecutrix disclosed him that she was brought to Kharahal District Kullu at the residence of maternal uncle of accused Kuldeep. He has stated that prosecutrix also disclosed him that accused Kuldeep had committed galat kaam with her twice. He has stated that prosecutrix was also medically examined. He has stated that he started search of prosecutrix at 4/4.30 PM when other students came back. He has stated that he inquired about his daughter from his brother-in-law and sister-in-law. He has stated that on dated 2.2.2011 his daughter left the home along with school bag for school. He has stated that on the same day the school bag was found at a distance of 1-1½ K.m from his house. He has stated that bag was found during search operation. He has denied suggestion that no bag was found. He has stated that he hired the private taxi and went to Bhunter Kullu along with five persons. He has stated that prosecutrix and accused were found at Bhunter bus stand. He has stated that accused and prosecutrix told him that they came to bus stand Bhunter in three-wheeler. He has denied suggestion that prosecutrix was failed in her annual examination once or twice. He has stated that accused started living in rice sheller of his brother for about 1-1½ months prior to the incident. He has denied suggestion that accused was not living in rice sheller of his brother. He has denied suggestion that prosecutrix did not meet them at Bhunter and also denied suggestion that he did not go to Bhunter. He has denied suggestion that false case filed against the accused just to extract money from him. He has denied suggestion that age of prosecutrix was 18-19 years. He has denied suggestion that accused had no concern with prosecutrix.
8.9 PW9 Dr. Renu has stated that in the month of February 2011 she was posted as Medical Officer in Zonal Hospital Mandi and on dated 5.2.2011 lady C. Anjana brought prosecutrix present in Court and she conducted medical examination of prosecutrix. She has stated that prosecutrix aged 14 years was brought with alleged history of sexual assault by one Kuldeep who took the prosecutrix to Kullu where he assaulted her sexually. She has stated that on examination she found no injury on person of prosecutrix and on local examination a fresh mucosal injury to hymen at 9 and 6 O'clock position was found which bleeded on touch. She has further stated that an abrasion on left side of labia minora was found and vaginal swab were taken from posterior fornix of cervix and also two slides of vaginal smear were obtained and seen under microscope but no dead or alive spermatozoa was seen at the time of examination. She has also stated that on per vaginal examination one finger was introduced easily but it was difficult to introduce two fingers and uterus of prosecutrix was found ante-verted normal sized and fornices were clear. She has stated that samples were collected, sealed and handed over to police for chemical analysis. She has stated that as per her opinion prosecutrix was exposed to coitus and probable duration was less than 48 hours and she proved MLC Ext.PW9.C and has further stated that MLC bears her signatures. She has stated that as per report of Radiologist age of prosecutrix was found between 14 to 16½ years. She stated that it was bleeding on touch as such she opined it to be fresh and within 48 hours. She has denied suggestion that such injuries could be caused due to poor hygiene. She has denied suggestion that no reports of radiologist were produced before her and she also denied suggestion that she had not conducted the MLC of prosecutrix.
8.10 PW10 prosecutrix aged 15 years has stated that on dated 2.2.2011 at about 8 AM she was present in her house and at about 8 AM she moved for her school and when she reached at bus stop Nahalan then accused Kuldeep met her and he offered her to go to Rewalsar. She has stated that accused also requested her to throw away her school bag and thereafter she threw away her school bag. She has stated that thereafter accused Kuldeep took her to Rewalsar in a private bus namely Baba Bus Service and at Rewalsar she requested the accused to return back to her house but accused Kuldeep insisted her to go to somewhere. She has further stated that thereafter accused Kuldeep took her to Kullu in same bus and at Kullu accused disclosed her that he wanted to marry her. She has also stated that thereafter accused Kuldeep took her to village Kharahal in house of his maternal uncle. She has stated that co-accused Hari Singh present in Court kept the prosecutrix in his house and further stated that accused Kuldeep forcibly committed the sexual intercourse with her in the house of his maternal uncle. She has stated that accused Kuldeep kept her in his maternal uncle's house for two days. She has stated that on the second night also accused committed forcible sexual intercourse/rape with her. She has stated that after spending two days at Kharahal accused Kuldeep brought her back. She has stated that when she and co-accused Kuldeep reached at Bhunter her father along with Ghop Chand, Pardhan and other persons met them. She has stated that thereafter they were brought to P.S Sarkaghat and thereafter her custody was handed over to her father. She has stated that her medical examination was conducted and thereafter police officials took her and co-accused Kuldeep to village Kharahal where co-accused Kuldeep identified the house of his uncle. She has stated that police also took into possession the blanket. She has stated that blanket was taken from bed from the house of maternal uncle of accused and further stated that accused committed forcible sexual intercourse with her. She has stated that accused Kuldeep took her to Kullu on the pretext of marrying her. She has stated that she was not interested to marry with co-accused Kuldeep and thereafter co-accused Kuldeep committed forcible sexual intercourse twice at Kharahal. She has stated that her date of birth is dated 11.12.1996 She has stated that accused was working in rice sheller of her uncle. She has stated that rice sheller is situated nearby to her residential house. She has stated that seven persons were found in the house where co-accused Kuldeep kept her for two days. She has stated that four of them were women and three of them were male. She has stated that on dated 3.2.2011 she remained inside the house at Kharahal and due to language problem she could not understand the language of other members of house. She has denied suggestion that co-accused Kuldeep did not work in the rice sheller of her uncle. She has denied suggestion that co-accused did not go to her village. She has denied suggestion that co-accused Kuldeep did not take her to Kullu and also denied suggestion that co-accused did not keep her in his maternal uncle's house. She has denied suggestion that accused did not commit any forcible sexual intercourse with her. She has denied suggestion that accused did not allure her to marry. She has denied suggestion that her date of birth is 1992. She has denied suggestion that accused was falsely implicated in present case.
8.11 PW11 ASI Vikram Singh has stated that in the month of February 2011 he remained posted in P.S Sarkaghat and after registration of FIR No. 23 of 2011 Ext.PW3.A investigation of case was entrusted to him. He has stated that he requested the medical officer to conduct the medical examination of prosecutrix. He has stated that no lady doctor was present in CHC Sarkaghat hence medical officer advised to take the prosecutrix to Zonal Hospital Mandi for medico legal examination of prosecutrix. He has stated that consequently PW9 Dr. Renu conducted the medical examination of prosecutrix and her MLC is Ext.PW9.C. He has stated that he also requested the medical officer CHC Sarkaghat to conduct the medical examination of accused. He has stated that during investigation father of prosecutrix produced the school certificate of prosecutrix which is Ext.PW2.A. He has stated that he also recorded statements of witnesses as per their version. He has stated that he prepared spot map Ext.PW11.C and prosecutrix also located the room of co-accused Hari Singh and blanket which was on the cot. He has stated that blanket was took into possession and recovery memo Ext.PW11.D was prepared. He has stated that he also obtained the copy of family register Ext.PW1.B, birth certificate of prosecutrix Ext.PW1.C by moving application Ext.PW1.A. He has stated that case property was handed over to MHC of P.S Sarkaghat and he also obtained attendance register from GSSS Chowk and date of birth certificate of prosecutrix was also obtained. He has stated that he also filled in FT card/identification forms of prosecutrix and accused which are Ext.PW11.G and Ext.PW11.H. He has denied suggestion that blanket Ext.P2 did not belong to co-accused Hari Singh. He has denied suggestion that when he visited the spot at that time prosecutrix was not with him. He has denied suggestion that prosecutrix did not locate the room in which she was raped. He has denied suggestion that accused has been falsely implicated in present case. He has denied suggestion that accused Kuldeep did not take prosecutrix to Kullu. He has denied suggestion that co-accused Kuldeep has been falsely implicated in present case at the instance of father of prosecutrix. He has denied suggestion that he recorded the statements of prosecution witnesses at his own. He has denied suggestion that co-accused Kuldeep did not visit the house of co-accused Hari Singh.
8.12 PW12 Ayesha Patial Scientific Officer (DNA) has stated that she is posted as Scientific Officer in State Forensic Science Laboratory Junga from 2.11.2010 and on dated 1.4.2011 two sealed parcels were received in DNA division for examination and on dated 5.5.2011 four sealed parcels after biological and serological examination were received from Biology and Serology Division SFSL Junga for examination. She has stated that seals on parcels were intact and tallied with specimen seals sent with docket. She has stated that DNA profile obtained from vaginal swab female DNA fraction of prosecutrix matched with DNA profile obtained from blood sample of prosecutrix on FTA card. She has stated that DNA profile obtained from underwear of co-accused Kuldeep matched with DNA profile obtained from blood sample of co-accused Kuldeep on FTA card. She has also stated that Y-STR DNA profile obtained from salwar of prosecutrix matches completely with Y-STR DNA profile obtained from blood sample of Kuldeep Singh on FTA card. She has stated that co-accused Kuldeep could not excluded as the possible source of male DNA on salwar of minor prosecutrix. She has proved report Ext.PW12.A and proved FTA card of accused Kuldeep as Ext.PW12.B. She has stated that she had qualified M.Sc Micro Biology from Central Institute Kasauli affiliated to HPU and posted as Scientific Officer (DNA) from dated 2.11.2010 She has stated that she also obtained training from CFSL Hyderabad from 17.1.2011 to 28.1.2011 on DNA profiling and also at FSL Sagar on DNA profiling with reference to criminal investigation. She has stated that report Ext.PW12.A was signed by her as well as by Dr. Vivek Sahajpal Assistant Director DNA Division Junga and they both of them examined the exhibits for DNA profiling. She has denied suggestion that underwear of co-accused Kuldeep and blood sample of co-accused Kuldeep on FTA card were in tampering condition. She has denied suggestion that she has not done the DNA profiling in the laboratory.
9. Statement of accused recorded under Section 313 Cr.P.C He has stated that he is innocent and prosecution witnesses have deposed falsely against him. Accused also produced oral evidence in defence.
10. Defence evidence adduced by the accused
10.1 DW1 Ludar Singh has stated that he is mule driver by profession and co-accused Kuldeep present in Court did not work with him.
11. Submission of learned Advocate appearing on behalf of appellant that no criminal offence under Section 376 IPC is proved against the appellant is rejected being devoid of any force for the reasons hereinafter mentioned. Prosecutrix while appearing in witness box has specifically stated that appellant Kuldeep took the prosecutrix to Kullu on the pretext of marrying her and thereafter took the prosecutrix to village Kharahal in his maternal uncle Hari Singh's house where accused Kuldeep committed forcible sexual intercourse with prosecutrix twice during the night period. Court has carefully perused the testimony of minor prosecutrix. Testimony of minor prosecutrix is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of minor prosecutrix. There is no evidence on record in order to prove that minor prosecutrix has hostile animus against the appellant at any point of time. Testimony of minor prosecutrix is corroborated with testimony of medical officer PW9 Dr. Renu Behl who opined that prosecutrix was exposed to coitus and medical officer has given the probable duration of sexual assault as less than 48 hours. Minor prosecutrix was medico legally examined on dated 5.2.2011 Even medical Officer PW9 Dr. Renu has clearly stated in positive manner that injury to hymen was 9 and 6 O'clock position and there was bleeding on touch of hymen. Testimony of minor prosecutrix is also corroborated by documentary evidence i.e MLC of prosecutrix placed on record. Rape is not only a crime against a person of a victim but it is a crime against the entire society. It destroys the entire psychology of woman and pushed the woman into deep emotional crisis. Rape is a crime against the basic human rights and is violative of the victim's most cherished Fundamental Rights as mentioned in Article 21 of Constitution of India. (See AIR 1996 SC 922 titled Bodhisattwa Gautam v. Subhra Chakraborty (Ms).) It is well settled law that sole testimony of prosecutrix is enough to convict the person if the testimony is free from blemish and implicit reliable. (See 2007 Cri.L.J 803 (Mohd. Alam… v. State (Nct Of Delhi)….). It is well settled law that testimony of prosecutrix must be appreciated in the background of entire case and Courts should be alive to its responsibility and should be sensitive while dealing with cases involving sexual molestation. (See (1996) 2 SCC 384 titled State of Punjab v. Gurmit Singh, See (2000) 5 SCC 30 titled State Of Rajasthan v. N.K The Accused the accused, See (2000) 1 SCC 247 titled State of H.P v. Lekh Raj, (1992) 3 SCC 204 Madan Gopal Kakkad v. Naval Dubey. Also see (1990) 1 SCC 550 titled State of Maharashtra v. Chander Prakash. Also see (2011) 2 SCC 550 titled State of U.P v. Chotte Lal)
12. Another submission of learned Advocate appearing on behalf of the appellant that no criminal offence of kidnapping under Section 363 IPC is proved against appellant is rejected being devoid of any force for the reasons hereinafter mentioned. The definition of kidnapping has been defined under Section 361 of Indian Penal Code and as per definition under Section 361 IPC the age of a female should be below 18 years at the time of kidnapping. It is well settled law that kidnapping is of two types. (1) Kidnapping from India as defined under Section 360 of Indian Penal Code and (2) Kidnapping from lawful guardianship as defined under Section 361 of Indian Penal Code 1860. It is proved on record that at the time of incident PW8 Pyare Lal was the lawful guardian of minor prosecutrix and PW8 Pyare Lal has specifically stated in positive manner that on dated 2.2.2011 prosecutrix went to school but did not return back and thereafter she was found at Bhunter along with accused Kuldeep. Testimony of PW8 Pyare Lal is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW8 Pyare Lal. It is proved beyond reasonable doubt that appellant had kidnapped the minor prosecutrix without consent of lawful guardian on dated 2.2.2011 when minor prosecutrix was student of 10 class.
13. Another submission of learned Advocate appearing on behalf of appellant that birth certificate wherein birth of prosecutrix is proved as 11.12.1996 and middle standard examination certificate placed on record wherein date of birth of prosecutrix mentioned as 11.12.1996 and certified copy of family register placed on record have been illegally relied by learned trial Court relating to age of prosecutrix is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that birth certificate was issued under Section 12 and 17 of the Registration of Births and Deaths Act 1969 and Rule 8 of the H.P Registration of Births and Deaths Rules 2003 and it is also proved on record that certified copy of family register was prepared prior to incident and was issued by pubic servant in discharge of his official duty and is relevant fact under Section 35 of Indian Evidence Act. It is also proved on record that family register was also issued by public servant in discharge of his official duty and is relevant fact under Section 35 of Indian Evidence Act. It is held that middle standard examination certificate placed on record is also issued by public servant in discharge of his official duty and is relevant fact under Section 35 of Indian Evidence Act. Appellant did not adduce any positive cogent and reliable evidence in rebuttal to rebut above stated public documents issued by public servants while discharging their official duty. It was also held in case reported in AIR 1981 SC 361 titled Harpal Singh v. State of H.P (Full Bench) that entry made by public officials in discharge of official duty in public record is relevant fact under Section 35 of Indian Evidence Act. (Also see ILR 1978 HP 174 titled Vidyadhar v. Mohan) Even entry in birth register is much prior to incident of rape. It was held in case reported in AIR 2011 SC 1691 titled Murugan @ Settu v. State of Tamil Nadu that document made ante litem motam can be relied upon safely when such document is admissible under Section 35 of Indian Evidence Act 1872. It was held in case reported in AIR 2002 HP 59 titled Chitru Devi v. Ram Dai that entries in birth register kept by competent authority under Birth and Death Registration Act 1969 is admissible in evidence.
14. Another submission of learned Advocate appearing on behalf of appellant that present case is a case of consent and on this ground appeal filed by appellant be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Definition of rape has been defined under Section 376 of Indian Penal Code 1860 and in description 6 it has been specifically mentioned that factum of consent would be immaterial when age of prosecutrix would be under 16 years of age. In present case it is proved by way of oral as well as documentary evidence that at the time of incident age of prosecutrix was 14 years and two months and it is proved on record that prosecutrix was minor at the time of incident. Hence it is held that consent of minor is immaterial in view of description 6 mentioned in Section 375 IPC.
15. Another submission of learned Advocate appearing on behalf of the appellant that there was no resistance on the part of prosecutrix and there was no teeth bite or scratches on face of assailant from nails of prosecutrix and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that in view of the fact that age of prosecutrix was 14 years and 2 months at the time of incident the pleas of resistance and teeth biting and scratches on face of assailant is immaterial.
16. Another submission of learned Advocate appearing on behalf of appellant that present case was filed due to vengeance and grudge on the part of prosecutrix and on this ground appeal be allowed is also rejected being devoid of any force for the reasons hereinafter mentioned. Accused did not adduce any positive cogent and reliable evidence on record in order to prove that there was prior enmity between prosecutrix and appellant. Plea of appellant that there was prior enmity is defeated on the concept of ipse-dixit (An assertion made without proof).
17. Another submission of learned Advocate appearing on behalf of the appellant that in present case corroboration qua testimony of prosecutrix was required is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused testimony of prosecutrix. It is held that testimony of prosecutrix is trustworthy reliable and inspires confidence of Court. There are no positive reasons to disbelieve testimonies of prosecution witnesses in present case.
18. Another submission of learned Advocate appearing on behalf of appellant that there is visible tampering in FIR and FIR is result of deliberation and concoctions and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Appellant did not adduce any positive cogent and reliable evidence on record in order to prove tampering in FIR. The plea of appellant that there was tampering in FIR is also defeated on the concept of ipse dixit (An assertion made without proof).
19. Another submission of learned Advocate appearing on behalf of the appellant that there is material contradiction and improvement in present case and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the entire oral and documentary evidence placed on record. There are no material contradictions in testimonies of prosecution witnesses which goes to the root of the case. It is well settled law that minor contradictions are bound to come in criminal case when statements of prosecution witnesses are recorded after a gape of sufficient time. In present case incident took place on dated 2.2.2011 and testimonies of prosecution witnesses were recorded on 25.11.2011, 26.11.2011,
20.12.2011, 24.1.2012, 3.5.2012 and 17.5.2012 after gape of sufficient time.
20. Another submission of learned Advocate appearing on behalf of the appellant that all recoveries and specimen signatures obtained in present case are in violation of Article 20(3) of the Constitution of India and are legally inadmissible is rejected being devoid of any force for the reasons hereinafter mentioned. In present case PW2 Sita Devi Pardhan of G.P has proved the seizure memo of school certificate Ext.PW2.A in accordance with law. PW2 Sita Devi when appeared in witness box has stated that school certificate took into possession in her presence by Investigating Agency. Even seizure memo of blanket Ext.PW11.D also proved on record as per testimony of marginal witness namely Pyar Chand PW8 and as per testimonies of other prosecution witnesses. Birth certificate has been proved by PW1 Jia Lal. The birth certificate Ext.PW1.C and copy of family register Ext.PW1.B proved by prosecution as per testimony of PW1 Jia Lal. Testimony of PW1 Jia Lal is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW1 Jia Lal.
21. Another submission of learned Advocate appearing on behalf of the appellant that FSL report tendered in evidence is also inadmissible in law is also rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the FSL report placed on record. As per FSL report DNA profile obtained from vaginal swab matches with DNA profile obtained from blood sample of prosecutrix on FTA card. Even as per FSL report DNA profile obtained from underwear of accused Kuldeep Singh matches with DNA profile obtained from blood sample of accused Kuldeep Singh on FTA card. As per report of FSL placed on record, Y-STR DNA profile obtained from salwar of prosecutrix matches completely with Y-STR DNA profile obtained from blood sample of accused on FTA card. There is positive recital in FSL report placed on record that appellant could not be excluded possible source of male DNA on salwar of minor prosecutrix.
22. Another submission of learned Advocate appearing on behalf of the appellant that conviction has been based on facts which were not explained to accused under Section 313 Cr.P.C and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that learned trial Court has put all material questions to accused under Section 313 Cr.P.C relating to present case and it is further held that no miscarriage of justice has been caused to appellant by way of not putting any material questions under Section 313 Cr.P.C
23. In view of above stated facts and case law cited supra appeal filed by appellant is dismissed. Judgment and sentence passed by learned trial Court are affirmed. It is held that learned trial Court had properly appreciated oral as well as documentary evidence placed on record and it is further held that no miscarriage of justice has been caused to appellant in present case. Appeal stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.
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