Attar Chand vs State Of H.P

Sureshwar Thakur, J

The accused becoming aggrieved, for his being convicted, for, charge(s) drawn under Section 376(2(f)(i) IPC, and, under Section 506 of the Indian Penal Code, besides under Section 6, of, the Protection of Children from Sexual Offences Act, 2012, hence by the learned Special Judge, Mandi, Distrcit Mandi, (H.P.), through a verdict rendered, upon, session trial No. 45 of 2015, decided on 7.9.2017, has instituted thereagainst, the, instant appeal, before this Court.

In pursuance to his becoming convicted, for, the afore charges, the accused became sentenced, to, undergo imprisonment for life, vis -à-vis, charges, framed under Section 6 of the POCSO Act, and, was also sentenced, to, a fine of Rs.25,000/-,for, the offence punishable under Section 6 of the POCSO Act. In default of payment of fine, he is further sentenced to undergo simple imprisonment, for six months. He was further sentenced to undergo rigorous imprisonment, for one year, and, a fine of Rs.5000/- for the offence punishable under Section 506 of the IPC, and in, default of payment of fine, he was further sentenced to undergo simple imprisonment for two months. Both the sentences were ordered to run concurrently.

The FIR qua the occurrence, as, embodied in Ext. PW20/A, was recorded in pursuance, to, a statement made by the victim, statement whereof, is, embodied in Ext. PW1/B. Subsequent thereto, the victim/prosecutrix recorded her statement, under Section 164 of Cr. P.C., hence before the Magistrate concerned. The afore statement, is, embodied in Ext. PW1/B. The afore offence occurred, at, the site of occurrence. The site of occurrence, is, embodied in Ext. PW25/C. Through Ext. PW1/C, the prosecutrix, enabled the recovery, of, one mattress (khind). The MLC prepared, vis-à-vis, the prosecutrix, is, embodied in Ext. PW14/B. The MLC, prepared, vis-à-vis, the accused, by the Doctor concerned, is, comprised in Ext. PW15/B. Through Ext. PW11/M, hence Ext. PW14/D, Ext. PW15/E and Ext. PW16/A, the respective blood samples, on FTC Card(s), of, the minor prosecutrix, and, of the accused, besides of baby, of, prosecutrix, were collected, and, all the afore collections, as, made through, the afore respective exhibits, were sent, through road certificate, embodied in Ext. PW11/M, to the FSL concerned. The DNA expert, in his report, embodied in Ext. PW20/C, after making the apposite DNA profiling(s), of, the afore collected blood samples, respectively, of, the minor prosecutrix, of the accused, besides, of the baby, made a conclusion, vis-à-vis, the accused/convict, fathering the baby, and, also the prosecutrix being her biological mother.

Accused/convict is, the father of the minor prosecutrix. As, divulged by her birth certificate, as becomes embodied in Ext. PW8/B, she was a minor, in contemporaneity, vis-à-vis, the occurrence, happening at the site of occurrence, embodied in Ext. PW25/C. Consequently, consent, if, any, meted by the prosecutrix, to the accused/convict, is, totally irrelevant, besides, is, in-consequential. The prosecution would succeed in establishing the afore charges, against the accused, hence upon(s), a, deepest, and, circumspect reading(s), of, the prosecutrixs' testimony, making clear upsurging(s), vis-à-vis, her statement, inspiring the confidence of this Court. This Court would be constrained, to, infer vis-à-vis, the prosecutrixs' statement being inspiring and creditworthy, (a) given upon hers entering into the witness box, hers' not contradicting her previous statement recorded in writing, (b) or and upon their existing no rife contradictions, interse her testimony, enclosed in her examination-in-chief, vis-à-vis, the one, encapsulated in her cross-examination. A thorough reading, of, the testification, of PW-1, the prosecutrix, underscores vis-à-vis, therein(s) hence the prosecutrix unflinchingly, and, without hers' reneging, from her previous statement recorded in writing, and, as, embodied in Ext. PW20/B, making narration(s), bearing, the, completest compatibility therewith. Even during the course of hers being subjected to, the, ordeal, of, an exacting cross-examination, by the learned defence counsel, she omitted to make therein any articulation(s), hence contradicting her deposition, as, embodied in her examination-in-chief. The apt corollary thereof, is, vis-à-vis, the testification, rendered on oath, by the prosecutrix, inspiring the confidence of this Court. Conspicuously also, with the prosecutrix in her deposition, comprised in her examination-in-chief, proving the factum, of, the Magistrate concerned, recording her statement, under, Section 164 Cr.P.C., ( c) and, also, with hers' not making any echoing(s), in, her cross-examination, vis-à-vis, the afore statement rendered by her, before the Magistrate concerned, being made not voluntarily, or, with exertion of duress, becoming practiced, upon her, thereupon, this Court is constrained to conclude, ( d) vis-à-vis, the prosecution firmly establishing the afore charges against the accused.

The firmest incriminatory evidence, of, immense evidentiary vigor, for nailing the charge against, the accused, stands embodied in the report, of, the FSL concerned, wheretowhich, the blood samples, on FTA cards, hence respectively collected, through, Ext. PW14/D, PW15/A, PW15/E and PW16/A, rather, of, the minor prosecutrix, of, the accused/convict, and, of the baby girl, were sent for the apposite DNA profiling(s), being made, by, the expert(s) concerned. The FSL concerned, in its report, embodied in Ext. PW20/C, has recorded a firm opinion, vis- à-vis, after makings, comparison(s)/ apt DNA profiling(s), of, the afore, thereto sent hence the afore blood samples, on FTA cards, through road certificate, borne in Ext.PW11/M, respectively, of all the afore(s), qua, the accused/convict fathering the baby. Moreover, an opinion also becomes recorded therein, vis-à-vis, the prosecutrix, being the biological mother, of, the baby girl.

The incriminating evidentiary worth, of, the afore, potent piece, of, best scientific evidence, cannot, suffer any enfeeblement, vis-à-vis, its vigor, and tenacity, (a) unless evidence became adduced, rather suggestive, vis-à-vis, the afore blood samples, on FTA cards, of each of the afore, as sent to the FSL concerned, being sent in a tampered condition, or evidence became adduced, that, in contemporaniety, vis-à-vis, the FSL concerned, receiving the afore blood samples on FTAs, of, each of the afore, through the apposite road certificate, rather theirs' suffering de-generation, or the seals embossed on the relevant sealed cloth parcel, being tampered with, inasmuch as, the seals embossed thereons, being un-intact. However, the afore evidence, remains un-adduced by the defence, (b) rather a reading, of, the apposite road certificate, borne in Ext. PW 11/M, underscores, qua the apposite cloth parcel, being embossed with seals, as become drawn thereon, rather in conformity with Ext. PW14/D, Et. PW15/E and Ext. PW16/A, and, also the apposite thereon(s) embossed seals, being intact, (c) and, further more, a reading, of, Ext. PW20/C, exhibit whereof, is, the report of the FSL concerned, also makes trite articulation(s), vis-à-vis, the apposite cloth parcel, as, became sent thereto, under, the apposite road certificate, being received at the FSL concerned, with the seals embossed thereon, remaining un-tampered, rather theirs' remaining intact.

In aftermath, the report of the FSL embodied in Ext. PW20/C, hence making the afore declaration, appertaining to the DNA expert, after making the requisite DNA profiling(s), respectively, upon the blood samples, on FTA cards, hence of, the prosecutrix, alongwith the blood samples, on FTA cards, of the minor baby girl, and, ultimately, with the blood samples, on, FTA cards, of, the convict/accused, qua the minor girl being begotten from the loins of the accused/convict, and, from the womb, of, the minor prosecutrix, naturally (a) does emphatically become(s), a, formidable incriminatory piece, of, evidence against the accused, (b) conspicuously, when, the, apt linkage, and, connection, interse the report, of, the FSL, vis-à-vis, the apposite blood samples, rather commencing, from the time, of, collections thereof, upto, deposit thereof(s), at, FSL, and, thereafter(s), on production, of, the apposite cloth parcels, in Court, hence becomes unflinchingly established.

In summa, the vigor, of, the afore best incriminatory scientific evidence, when for the afore reasons, remains, unscathed, vis-à-vis, its tenacity, thereupon this Court, is, constrained to uphold the impugned verdict, of conviction, recorded, upon, the accused, by the learned trial Court.

However, given the evident fact, that, the accused/convict, is, the father of the minor prosecutrix, and, is also the father of the minor baby girl, begotten from the womb of the minor prosecutrix, (a) thereupon when upon, upholding the order imposing the afore, sentence, of, life imprisonment, rather would bring immense economic, and, mental trauma, upon the minor prosecutrix, and, also upon the minor baby girl, (b) thereupon(s), for, mitigating, the, afore trauma, this Court, deems it fit and proper, to, reduce the sentence, of, life imprisonment, as imposed, by the learned trial Court, upon the accused/convict, vis-à-vis, the charge drawn under Section 6 of the POCSO Act, to, a sentence of rigorous imprisonment, extending, upto, a period of 10 years. However, the sentence, of, fine, imposed qua therewith, does not warrant, its being disturbed by this Court. Moreover, the sentence of imprisonment, imposed upon the convict, for , the, charge drawn, under, Section 506 of IPC, is also deemed not befitting, for, being disturbed by this Court. Both the afore sentences shall run concurrently, and, also apposite therewith default sentence(s), arising for want(s) of the convict, tendering, the, respectively imposed upon him, hence fine amount(s), would also remain undisturbed. However, the, period, of, incarceration already undergone, by the convict, during investigation, or trial, of, the charged offences, shall be set off, from the afore modified sentences, of, imprisonment,hence imposed upon him.

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence, on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned trial Court, does not, suffer from any gross perversity or absurdity of mis-appreciation, and, non appreciation of evidence on record.

Consequently, the impugned judgment, of, conviction, is, upheld, however, the impugned sentence(s) of imprisonment imposed upon the convict, are, modified to the extent above. Records be sent back forthwith.