Cr. Appeal No. 104 of 2013. Case: Sanjeev Kumar Vs State of H.P.. Himachal Pradesh High Court
| Case Number | Cr. Appeal No. 104 of 2013 |
| Counsel | For Appellant: N.S. Chandel, Advocate and For Respondents: Kush Sharma, Deputy Advocate General and J.S. Guleria, Assistant Advocate General |
| Judges | Sanjay Karol and Piar Singh Rana, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 232, 233, 313; Constitution of India - Article 21; Indian Evidence Act, 1872 - Sections 35, 59; Indian Penal Code 1860, (IPC) - Sections 363, 366, 375, 376; Registration of Births and Deaths Act, 1969 - Sections 12, 17 |
| Judgement Date | December 28, 2015 |
| Court | Himachal Pradesh High Court |
Judgment:
Piar Singh Rana, J.
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Present appeal is filed against the judgment and sentence passed by learned Additional Sessions Judge Shimla in Sessions Trial No. 19-S/7 of 2010 titled State of H.P. v. Sanjeev Kumar decided on 27.02.2013.
Brief facts of the case
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It is alleged by prosecution that on 5.4.2010 at about 10.11 PM at Palli Tehsil and P.S. Chirgaon District Shimla appellant kidnapped minor prosecutrix from lawful guardianship of her parents without their consent. It is alleged by prosecution that on the aforesaid date time and place appellant kidnapped minor prosecutrix with intention to commit illicit intercourse with her. It is alleged by prosecution that on intervening night of 5.4.2010 and 6.4.2010 appellant committed rape with minor prosecutrix in tin posh room in orchard and on the intervening night of 6.4.2010 and 7.4.2010 appellant again raped the prosecutrix in a room of hotel Anand near Bus Stand Shimla and further alleged that on the intervening night of 7.4.2010 and 8.4.2010 appellant again committed rape on minor prosecutrix in his house at Palli Khashdar. It is alleged by prosecution that prosecutrix was student of HPSEB Middle School Sandhasu Tehsil Chirgaon in the year 2010. It is further alleged by prosecution that minor prosecutrix was born on 15.9.1998. It is also alleged by prosecution that appellant asked the minor prosecutrix to marry him and when minor prosecutrix denied then appellant declared that he would commit suicide by consuming poison. It is alleged by prosecution that missing report Ext. PW7/A was recorded in P.S. Chirgaon and same was recorded by PW7 Tilak Singh. It is alleged by prosecution that FIR Ext. PW3/A was registered in police station Chirgaon District Shimla and on 8.4.2010 when ASI Om Parkash PW15 was in Chirgaon market with PW3 Ghan Shyam and Parkash the minor prosecutrix was found roaming near bus stand. It is alleged by prosecution that recovery memo Ext. PW3/B was prepared and prosecutrix was brought to CHC Sandhasu for medical examination. It is alleged by prosecution that Dr. Anjana Sharma examined minor prosecutrix, prepared slides, took pubic hairs of minor prosecutrix and also preserved salwar Ext. P8, shirt Ext. P9 and vest of minor prosecutrix for examination and sealed them in a parcel. It is alleged by prosecution that report of medical officer obtained relating to minor prosecutrix and medical officer opined that possibility of recent sexual intercourse could not be ruled out. It is alleged by prosecution that MLC of accused was also obtained and medical officer has opined that accused was capable of performing sexual intercourse. It is alleged by prosecution that medical officer prepared slides and sealed them and handed over to investigating officer. It is alleged by prosecution that site plan prepared and minor prosecutrix identified bed sheet on which rape was committed by accused. It is further alleged by prosecution that extract of guest register of Anand hotel also obtained and bed sheet from room No. 5 of hotel where rape was committed was also obtained. It is alleged by prosecution that case property was deposited in malkhana and entries were recorded in register and thereafter case property was sent to FSL Junga. It is alleged by prosecution that I.O. also obtained school leaving certificate of minor prosecutrix and also obtained record from Panchayat Secretary relating to age of minor prosecutrix. It is alleged by prosecution that sample of seal also obtained.
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Charge was framed by learned Additional Sessions Judge Shimla (H.P.) against appellant Sanjeev Kumar under Sections 363, 366 and 376 IPC on dated 25.10.2010. Accused did not plead guilty and claimed trial.
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Prosecution examined fifteen oral witnesses in support of its case and also tendered documentary evidence.
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Statement of accused recorded under Section 313 Cr.P.C. One witness was examined by appellant in defence evidence. Learned trial Court convicted appellant under Sections 363, 366 and 376 IPC and sentenced the appellant to simple imprisonment for a period of three years and fine to the tune of ` 10,000/- (Rupees ten thousand only) for criminal offence under Section 363 IPC. Learned trial Court further directed that in default of payment of fine the appellant would undergo simple imprisonment for six months. Learned trial Court sentenced the appellant for a period of four years and fine to the tune of ` 10,000/- (Rupees ten thousand only) for criminal offence punishable under Section 366 IPC and learned trial Court further directed that in case of nonpayment of fine the appellant would further undergo simple imprisonment for one year. Learned trial Court further sentenced the appellant for a period of ten years and fine to the tune of ` 10,000/- (Rupees ten thousand only) for criminal offence punishable under Section 376 IPC. Learned trial Court also directed that in default of payment of fine the appellant would further undergo simple imprisonment for one year. Learned trial Court further directed that all sentences shall run concurrently and period undergone by appellant w.e.f. 9.4.2010 till announcement of sentence during investigation and trial shall be set off.
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Feeling aggrieved against the judgment and sentence passed by learned Trial Court appellant filed present appeal.
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Court heard learned Advocate appearing on behalf of the appellant and learned Deputy Advocate General appearing on behalf of the respondent and also perused the entire record carefully.
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Following points arises for determination in the present appeal:--
Point No. 1
Whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court caused miscarriage of justice to the appellant as mentioned in memorandum of grounds of appeal?
Point No. 2
Final Order.
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Reasons for findings on point No. 1:
9.1 PW1 minor prosecutrix aged 13 years has stated that she along with her parents, sister and three brothers is residing in village Kashdhar of Tehsil Chirgaon District Shimla. She has stated that Rakesh, Rajesh and Devinder are her brothers and they are elder to her. She has stated that in the year 2010 she was student of HPSEB Middle school Sandhasu and she left her house at 9 AM for school. She has stated that her parents used to sell milk in Sandhasu colony and she also used to take milk with her for selling purpose daily. She has stated that on 4.4.2010 at about 9/9.30 AM she sold the milk at Sandhasu colony and went to house of Hardayal who was resident of village Palli near Kashdhar and is related to her as her brother-in-law. She has stated that in the house of Hardayal his wife Dropti and her daughter were present. She has stated that on request of Dropti she stayed in their house during night. She has stated that son of Dropti namely appellant Sanjeev who is present in Court was also present. She has stated that on 4.4.2010 she stayed in the house of Hardayal during night and on 5.4.2010 at about 10 AM when she was going to house of Sawali her maternal aunt to village Masli then appellant came behind her and stopped her. She has stated that appellant told her that he intended to marry her. She has stated that when she declined then appellant declared that he would consume poison and would commit suicide. She has stated that thereafter she told that she would marry the appellant. She has stated that thereafter they both went to field where fruit bearing apple plants were present and in the night of 5.4.2010 she and accused stayed in the room of one person which was situated about a considerable distance of orchard. She has stated that in the room of third person (Gorkha) none else than she and appellant were present. She has stated that appellant committed rape upon her and on 6.4.2010 at about 7 AM she and appellant came upto Chirgaon and thereafter came to Shimla in bus. She has stated that thereafter on 6.4.2010 in night appellant took her to a hotel Anand at Shimla and appellant took room No. 5 in said hotel. She has stated that after making some entry in guest register on the night of 6.4.2010 appellant again committed rape upon her in hotel room. She has stated that thereafter on 7.4.2010 they came to Lakkar bazar after leaving the hotel and boarded into the bus and boarded down at Hatkoti. She has stated that from Hatkoti they came to Patsari and from Patsari they took bus for Chirgaon and thereafter they came to house of Sanjeev appellant at 8/9 PM. She has stated that again appellant committed rape upon her on 7.4.2010. She has stated that on 8.4.2010 she came to Chirgaon market from house of appellant and in market her parents and police were there and further stated that she and appellant were brought by them to police station Chirgaon. She has stated that she was brought to Sandhasu hospital for her medical examination and her medical examination was conducted. She has stated that she was also brought to the house of appellant Sanjeev and police took into possession one bed sheet from bed upon which appellant had committed rape upon her. She has stated that bed sheet was sealed with seal and she identified the bed sheet. She has stated that thereafter she was brought to dera (Residential...
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