Himachal Pradesh High Court
Kuldeep Chand vs State Of H.P. on 24 February, 2022
Bench: Sabina, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 24th DAY OF FEBRUARY, 2022
.
BEFORE
HON'BLE MRS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.403 of 2018
Between:-
KULDEEP CHAND,
r to
S/O SH. GANPAT RAM,
R/O VILLAGE BALH-TANTHA,
P.O. TANTHA, TEHSIL AND
POLICE STATION GHUMARWIN,
DISTRICT BILASPUR, H.P.,
AGED ABOUT 43 YEARS.
......APPELLANT
(BY SH. ASHWANI KAUNDAL,
ADVOCATE)
AND
STATE OF H.P., THROUGH
SECRETARY (HOME),
SHIMLA, H.P.
......RESPONDENT
(BY SH. VIKRANT CHANDEL,
DEPUTY ADVOCATE GENERAL)
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This appeal coming on for hearing this day, Hon'ble
Mrs. Justice Sabina, delivered the following:
.
JUDGMENT
Appellant has filed appeal challenging the judgment/
order dated 02.06.2016 passed by the trial Court, whereby he was
convicted and sentenced as under:-
Under Section 376 (2) Imprisonment for life and fine of
(f) of IPC Rs.10,000/-. In default of payment
of fine, to undergo further
imprisonment for six months.
Under Section 506 (ii) Simple imprisonment for six months
of IPC and fine of Rs.1,000/-. In default of
r payment of fine, to undergo further
imprisonment for one month.
Under Section 6 of Imprisonment for life and fine of
Protection of Children Rs.10,000/-. In default of payment
from Sexual Offences of fine, to undergo further
Act, 2012 imprisonment for six months.
2. Prosecution case was set in motion on the basis of
statement of complainant Kamlesh Kumari (wife of the appellant). It
was the case of the complainant that on 01.06.2015 at about 4:00
p.m., complainant was working in the fields. Complainant had been
called by her mother-in-law, who was residing in the nearby vicinity.
Appellant had also returned home. When the complainant reached
home, she saw that the appellant was committing sexual intercourse
with her minor daughter. Daughter of the complainant was crying.
Complainant hit the appellant with a stick and the appellant ran away
from the spot. Prosecutrix also told the complainant that the
appellant (her father) had been committing sexual intercourse with
.
her for the last so many days and had given threat that he would kill
her in case she narrated the incident to anybody.
3. On the basis of the statement of complainant, formal
FIR No.135/2015, dated 05.06.2015, was registered at Police Station
Ghumarwin, under Sections 376 (2)(f), 506 (ii) of the Indian Penal
4.
r to
Code (IPC) and Section 6 of the Protection of Children from Sexual
Offences Act, 2012 (for short, 'the POCSO Act').
After completion of the investigation and necessary
formalities, challan was presented against the appellant.
5. Charges were framed by the trial Court against the
appellant under Sections 376(2) (f), 506(ii), IPC and Section 6 of the
POCSO Act, vide order dated 09.11.2015. Appellant did not plead
guilty to the charges framed against him and claimed trial.
6. During trial, prosecution examined fifteen witnesses to
prove its case. Appellant, when examined under Section 313 of
Code of Criminal Procedure (Cr.P.C.) after close of the prosecution
case, prayed that the witnesses were interested ones. He was not
having good terms with his wife, in-laws and brothers. They had
hatched a conspiracy to falsely involve him in this case. Appellant
examined his mother Sunki Devi as DW-1.
7. The trial Court, vide impugned judgment/order, ordered
.
the conviction and sentence of the appellant as mentioned in para-1
of this judgment. Hence, this appeal by the appellant.
8. Mr. Ashwani Kaundal, learned counsel for the appellant,
has submitted that the appellant has been falsely involved in this
case by his wife and her family members as the appellant was not
having good relations with his wife. Wife of the appellant had used
the prosecutrix to falsely involve him in this case. Medical evidence
fails to corroborate the prosecution story.
9. Mr. Vikrant Chandel, learned Deputy Advocate General,
on the other hand, has opposed the appeal and has submitted that
the prosecutrix as well as the other material witnesses have duly
established the prosecution case. The learned trial Court, thus, has
rightly ordered conviction and sentence of the appellant with regard
to the charges framed against him.
10. Prosecutrix, while appearing in the witness box as
PW-1, has deposed that her date of birth was 13.10.1999 and she
had passed 9th class. Appellant was her father and was working as
a driver. She had a brother and a sister and they were twins and
were younger to her. On 01.06.2015 at about 4:00 p.m., she was
present in her house. Her parents were working in the fields. Her
brother and sister had been sent by the appellant to bring kerosene
.
oil from a shop. When she was preparing meals, her grandmother
Sunki Devi called her mother Kamlesh Kumari. Her mother went to
the house of her grandmother. Appellant came home, switched on
the fan and television and had sexual intercourse with her against
her wishes. In the meantime, her mother returned home and on
seeing the offence being committed by the appellant, she gave
beatings to the appellant with a stick (danda). Her mother took the
mobile phone of the appellant and called her maternal uncle Lal
Chand. Appellant threatened her and her mother that he would kill
them in case they narrated the incident to anybody. Her mother rang
up her paternal uncle Pawan Kumar and narrated the incident to
him. Appellant fled away from the spot. Her paternal uncle assured
them that he would report the matter to police. He did not do so.
Thereafter, her maternal uncle met the police on 04.06.2015 and the
report was lodged by them. She was taken by the police for medical
examination. She had handed over her clothes, which she was
wearing on 01.06.2015, to the police. Appellant was arrested on
07.05.2015 and he was wearing the same clothes as were worn by
him on 01.06.2015. Clothes of the appellant were taken in
possession.
11. PW-2 Kamlesh Kumari, mother of the prosecutrix, has
.
deposed as per the contents of the FIR.
12. PW-3 Lal Chand has also corroborated the statements
of PW-1 and PW-2 to the extent that he had been informed about the
incident by PW-2. He had inquired from Pawan Kumar on the next
day of the incident as to what steps he had taken.
13.
PW-4 Dr. Reena Sharma has deposed that on
05.06.2015, she had medically examined the prosecutrix and had
found the following injuries on her person:-
Injuries noted over body
1. Abrasion of size about 1x1cm reddish brown in colour
with crust over lateral aspect of right knee.
2. Mild abrasion with similar dimensions and colour over
left shoulder above scapular line.
3. Contusion over anterolateral aspect of left thigh sub-
siding with mild bluish brown tinge.
4. Similar contusion over left upper arm.
5. The patient complained of pain bilateral upper limbs.
Joint movements were normal.
Local Examination.
1. Secondary sexual characters are well developed
including labia majora, labia minora, forchette and
perinium.
2. Pubic hair were about 4 to 5 cms in length.
3. No other external injury marks other than mentioned
above.
4. No discharge or stain over thighs, legs or perinium
except few pubic hair seemed matted.
5. Hymen was ruptured with healed margins. Vaginal
rugosities were present. No tear or haemorrhage in vagina
.
6. Victim screamed while collecting vaginal swabs. On
inspection vaginal opening was more than 1 cm without
stretching.
PV Examination.
It was not possible as the victim screamed while collecting
the swabs."
14. PW-4 has further deposed that she had given opinion
that possibility of sexual intercourse could not be ruled out.
15. PW-15 Pawan Kumar has deposed that Kamlesh
Kumari had never contacted him regarding the incident and he knew
nothing about the incident.
16. PW-14 SI Ramesh Chand has deposed that on
05.06.2015,PW-2 had visited the police station alongwith prosecutrix
and had lodged the FIR. He had inspected the spot on 06.06.2015.
Prosecutrix was got medically examined. Clothes, worn by the
prosecutrix, were taken in possession. On 07.06.2015, appellant was
arrested and his clothes, worn by him on the day of incident, were
taken in possession. After completion of investigation and necessary
formalities, he presented the challan.
17. DW-1 Sunki Devi deposed that the appellant (her son)
was residing with her. She deposed that her daughter-in-law used to
quarrel with the appellant as she was under the influence of her
parents. False case had been planted against her son.
18. Present case relates to the offence of commission of
.
rape of a minor girl. Admittedly, in the present case, the prosecutrix
was a minor girl, aged less than 18 years. The said fact was
admitted by the appellant when he was examined under Section
313, Cr.P.C. As per prosecution story, the victim/prosecutrix has
been raped by none other than her own father. Prosecutrix, while
appearing in the witness-box, has duly deposed to the effect that she
had been raped by her father/appellant. Prosecutrix has withstood
the test of cross-examination. Her statement being natural, inspires
confidence. The statement of the prosecutrix is duly corroborated by
her mother, who had appeared in the witness-box as PW-2. Medical
evidence duly corroborates the version of the prosecutrix. As per
medical evidence, injuries were found on the person of the
prosecutrix and her hymen was ruptured with healed margins. Victim
had screamed while vaginal swabs were being collected.
19. It is the case of the appellant that his wife had connived
with other witnesses to falsely involve him in this case. Appellant
has examined his mother in his defence evidence. However, the
testimony of DW-1 fails to rebut the testimony of the prosecutrix.
Prosecutrix is none other than the daughter of the appellant and is
aged about 16 years. Prosecutrix had studied upto 9th class. There
was no reason for the prosecutrix to have falsely involved her father
.
in this case. A perusal of the statement of the prosecutrix fails to
lead to the inference that she has falsely involved her father in this
case at the instance of her mother.
20. After carefully going through the testimony of the
prosecutrix, we are of the opinion that the same inspires confidence
as it appears to be truthful. The offence committed by the appellant
is heinous. In normal circumstances, a daughter feels safe and well
protected in her house. However, in the present case, protector of
the prosecutrix has himself betrayed the trust and had become a
violator. The sanctity of father and daughter relationship has been
polluted. It is a very sad reflection on the present day society where
a most platonic relationship has been exploited by the appellant.
Apparently, due to the relationship between the parties, the incident,
which had occurred on 01.06.2015, got ultimately reported on
04.06.2015. It is the case of the prosecutrix as well as her mother
that they had approached the elder brother of the appellant for
registration of the FIR and he had failed to take any action in the
matter. Thereafter, PW-2 Kamlesh Kumari alongwith her brother
went to the police station to lodge the FIR.
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21. Since in the present case, prosecution had been
successful in proving its case against the appellant, the learned trial
.
Court has rightly ordered the conviction and sentence of the
appellant with regard to the charges framed against him. No ground
for interference is made out. Accordingly, the appeal is dismissed.
( Sabina )
Judge
r ( Satyen Vaidya )
Judge
February 24, 2022
( Himalvi )
