IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No. 277 of 2007 Date of decision: 1.7.2008 Pardeep Kumar Appellant Versus State of H.P. Respondent ___________________________________________________________ Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1yes For the Appellant: Mr Vinay Thakur, Advocate. For the Respondent: Mr. J.S.Guleria, Law Officer. Surinder Singh, J. (Oral) The appellant was put on trial, on the charge of attempt to commit rape and sodomy on a minor girl, aged about 2½ years. He was convicted by the learned trial court for an offence punishable under section 377 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.10,000/-, in default of payment of fine, further to undergo simple imprisonment for a period of one year, however, he was acquitted for the offences under section 376 & 511 Indian Penal Code. Conviction and sentence has been assailed by the appellant in the instant appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?yes 2 The factual matrix of the prosecution case is this. After the death of her mother, the prosecutrix, a minor child, was in the care and custody of her grand parents PW2 Smt. Juni Devi and PW5 Balram. It is alleged that on 15.7.2005 at about 7.30 a.m. the prosecutrix was kept in a shed, where she was taking tea in the morning. PW5 Balram had gone to defecate outside and PW2 Juni Devi went to another shed, where her son was sleeping. She returned after about five minutes and found that the prosecutrix was naked. The appellant had put his male organ into in the anus of the prosecutrix. She was crying. The appellant on seeing PW2 Juni Devi immediately put on his clothes. She noticed the blood, oozing out from the anus of the prosecutrix. The appellant was detained and PW2 waited for her husband. After some time PW5 Balram arrived on the spot. He also noted the bleeding injury on the anus of the prosecutrix. Smt.Juni Devi gave 2-3 slaps to the appellant. PW5 Balram handed over the appellant to PW6 Kumb Bahadur and want to inform the Pradhan of the Gram Panchayat. In the meantime, finding an opportunity the appellant escaped. PW2 Smt.Juni Devi reported the matter to the police and on her statement FIR Ex.PW2/A was formally registered. Police visited the spot. PW11 S.I. Surestha Thakur took Photographs Ex.PW 11/A and Ex.PW11/B of the spot. Site Plan Ex.PW11/C was also prepared. Gunny bag Ex.P2 over which the prosecutrix was alleged to have been molested had some hair. Gunny bag was sealed and taken into possession vide recovery memo Ex.P2. The prosecutrix was medically examined by PW3 Dr. 3 M.K.Rana. He found the following injury on the person of the prosecutrix. There were three tears in the anal opening. One was at 6 O clock position. Second 11 O clock position third at 10 O clock. All the wounds were superficial. No whole muscles deep. No bleeding from the tears. There was no scrition in the rectum. However, there was no injury round the vaginal opening. Probable duration of the injury was 24 to 26 hours and there were positive findings of the Doctor that there were signs of anal intercourse. He issued the M.L.C. Ex.PW3/A. Prosecutrix was hospitalized and her bed head ticket is Ex.PW3/C. On 21.7.2005 the appellant was arrested, his face was muffled and sent to judicial custody on 22.7.2005, he was medically examined by PW1 Dr. Ramesh Kumar. His pubic hair were preserved for forensic examination. The MLC of the appellant is Ex.PW1/A. On 23.7.2005 his identification parade was conducted in the presence of PW12 Hitender Kumar, J.M.I.C. Chamba, on the written request Ex. PW11/E of the police. PW2 Juni Devi and PW5 Balram had correctly identified the appellant before the Magistrate. The details of the identification reports Ex. PW 11/F to Ex.PW11/I, were recorded by the Magistrate The police sent the gunny bag Ex.P-2 and the pubic hair of the appellant for chemical examination. As per report Ex.PA pubic hair 4 found on the gunny bag Ex.P-2 tallied with that of the pubic hair of the appellant. On the information of PW2, PW5 and PW6 Constable Surinder Kumar had prepared the computer sketch of the respondent. After completing the investigation, the challan was presented in the court for trial under sections 377, 376 and 511 I.P.C. Finding a prima-facie case against the appellant, he was charge-sheeted for the aforesaid offences. Appellant pleaded not guilty and claimed trial. To prove its case, prosecution examined PW2 Juni Devi, PW5 Balram, PW6 Kumbh Bahadur and PW12 Hitender Kumar, Judicial Magistrate besides examining other link witnesses and PW11 Investigating Officer S.I. Surestha Thakur. After hearing the learned counsel for the parties and going through the evidence on record, the learned trial court relied upon the statement of alleged eye witnesses, report of the Forensic Science Laboratory /medical expert, their reports, and the identification parade conducted before the Magistrate,. Thus the appellant was held guilty of the offence under section 377 IPC thus convicted and sentenced, as aforesaid. In appeal, Shri Vinay Thakur, learned counsel for the appellant has disputed the identification of the appellant. He vehemently argued that the identification parade is not properly conducted. The name of the appellant was Pardeep Kumar and not Bablu, as stated by Smt. Juni Dev. PW6 Kumbh Bahadur has no where stated in the 5 court that he had supplied the information to constable Surinder Kumar about the physical features of the appellant to prepare his sketch. The appellant could not be connected with the crime and the prosecution story is doubtful. Contra, Shri J.S.Guleria, learned Law Officer, has supported the impugned judgment of conviction and sentence. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and carefully gone through the evidence on record. From the evidence on record, in my opinion, the appellant stands fully connected with the offence for which he has been convicted. PW2 Smt. Juni Devi and PW6 Kumbh Bahadur have stated that they had seen the appellant prior to the incident as he had been working, as labourer, for the last about 1½ month in their area. Further PW2 Smt. Juni Devi has stated that she had an occasion to see the appellant clearly on the day of alleged occurrence. She made him to sit after the commission of the crime till her husband arrived at the spot. PW5 Balram reached on the spot and he also had an occasion to see him. His custody was handed over by the alleged eye witness to PW6 Kumbh Bahadur, when PW5 went to inform Pradhan. He had also seen him. There is also no ambiguity in identifying the appellant even at the time of identification conducted before the Magistrate by PW2 and PW5 aforesaid. The incident in question had taken place during the natural day light, in the morning, the said witnesses had an opportunity to see and identify the 6 appellant properly to whom they used to call “Bablu”. His pubic hair preserved by PW1 Dr. Ramesh Kumar. On forensic examination tallied with the pubic hair found on the gunny bag as per report Ext.PA establishes the identity and connection of the appellant with the commission of the offence punishable under section 377 IPC. PW3 Dr. M.K.Rana corroborates the prosecution story. He has found injuries on the anus of the prosecutrix, as stated above, the time of which synchronizes with the alleged incident. Therefore, there is an inescapable conclusion, that it is the appellant, who had committed the alleged offence with the minor girl, who could hardly learnt to speak. The findings of the learned trial court do not suffer from any infirmity. The appeal filed by the State sans merit, hence dismissed. July 1, 2008 (Surinder Singh),J. (D)