Balwinder Paul vs State Of H.P.

The accused becoming aggrieved, by, his conviction, for, commission, of, offences, punishable, under, Sections 376 & 506, of, the Indian Penal

Code, and, under Section 6 of the Protection of the Children from Sexual Offences, hence arising, from, FIR No. 182 of 2015, of, Whether reporters

of the local papers may be allowed to see the judgment? 19.7.2015, lodged with Police Station, West Shimla, H.P., and, besides also becoming

aggrieved, by, consequential therewith sentence(s), becoming imposed, upon him, hence by the learned Sessions Judge, Shimla H.P., has, thereagainst

constituted, the instant appeal, before this Court.

The accused, was charged, for committing offences punishable under Sections 376 & 506, of, the Indian Penal Code, and, Section 6 of the

Protection, of, the Children from Sexual Offences. In proof of the prosecution case, the prosecution examined 21 witnesses. On conclusion of

recording of prosecution evidence, the statement, of, the accused under Section 313 Cr.P.C., stood recorded, by the trial Court, wherein, he made

disclosures qua his false implication. However, he did not lead any defence evidence.

On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein.

The accused/appellant, is, aggrieved by the judgment of conviction recorded, by the learned trial Court. The learned Counsel appearing, for, the

accused/appellant has concertedly, and, vigorously hence contended qua the findings of conviction, recorded by the learned trial Court, standing not,

based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross misÂappreciation, by it, of the material on

record. Hence, he contends qua the findings of conviction, being reversed, by this Court, in the exercise of its appellate jurisdiction, and, theirs being

replaced, by, findings of acquittal.

On the other hand, the learned Additional Advocate General, has, with compatible force, and, vigor, also contended, that, the findings of conviction,

as, stand recorded by the learned Court below, rather standing based, on a mature, and, balanced appreciation, “by itâ€, of evidence on record, and,

theirs not necessitating, any, interference, rather theirs meriting vindication.

This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on

record.

The learned counsel, for, the aggrieved accused/convict, has, laid centralized focus, upon, the trite factum, (i) of the minor prosecutrix resiling from

her previous statement, recorded in writing, (ii) and, has thereon erected, a, forceful submission before this Court, qua, the verdict of conviction, and,

consequential therewith sentences, as, imposed upon the accused/convict, being infirm, and, besides has also contended that obviously, hence, the

afore trite factum, rather renders the afore charges, framed against the accused/convict, to, become staggered. He also thereafter makes a vehement

submission, before this Court, qua hence even proof, of, Ext. PWÂ11/E, exhibit whereof, is, the medico legal certificate, through a testification made

by its author, and, its revealing qua the prosecutrix, being subjected to sexual intercourse, also cannot comprise, any formidable piece of evidence, of,

immense vigor, for, therethrough, the, incriminatory role, constituted against the accused becoming cogently proven, nor, also thereafter the accused,

can be, connected with the afore unfoldings, as, borne in Ext. PWÂ11/E. However, for the reasons to be assigned hereinafter, both the afore

submissions, made before this Court, by, the learned counsel appearing, for, the accused/convict, are rudderless, (a) The learned Judicial Magistrate

concerned wherebeforewhom the prosecutrix recorded her statement in proceedings, drawn under Section 164 Cr.P.C., statement whereof, is, borne,

in Ext. PWÂ19/B, upon, hers testifying, through video conferencing, rather making echoings therein, visÂaÂvis, Ext. PWÂ19/B, being voluntarily

made by the prosecutrix, (i) and, besides, upon, contents thereof being readover to her, hers’ thereafter, making her signatures thereon. Since

underneath, the afore statement, as, made before the learned Magistrate concerned, by the minor prosecutrix in proceedings, drawn under Section 164

Cr.P.C., the Magistrate concerned, has, appended the requisite certificate, (b) thereupon the afore made statement through video conferencing, by the

learned Magistrate concerned, acquires vigor, and, efficacious evidentiary sanctity, (c) and, also when, upon, hers being subjected to crossÂ‐

examination, by the learned defence counsel, there is neither any suggestion meted to her, visÂaÂvis, heres hence pressuring the prosecutrix to make

a statement, nor, when any suggestion is purveyed, to, her, visÂaÂvis, the signatures of the prosecutrix, as, testified by her, in her examination inÂ‐

chief, to be embossed voluntarily, by the minor prosecutrix, upon, Ext. PWÂ19/B, being either unauthentic or fake, (d) necessarily hence, the,

afores’ bring forth, the requisite legal effect, visÂaÂvis, the afore statement, of, the learned Magistrate concerned, hence proving the charges

against the accused/convict, and, the further corollary thereof, is, the reneging(s), of, the prosecutrix, upon, hers stepping into witness box, from her

previous statement, recorded in writing, rather loosing tenacity, and, evidentiary vigor, (e) moreso, when after the completion, of, cross examination

of the prosecutrix, by, the learned Public Prosecutor, upon, permission being granted to him, upon, the prosecutrix resiling from her previous statement,

recorded in writing, the, defence omitting, to, confront her, visÂaÂvis, Ext. PWÂ1/B, exhibit whereof as aforestated, acquires formidable evidenciary,

vigor, and, sanctity, (f) thereupon, dehors, the prosecutrix resiling, from, her previous statement, recorded, in, writing, hence upon hers stepping into the

witness box, as PWÂ6, rather the learned defence counsel, is hence construed, to, acquiesce, visÂa vis, the testification, as, made by the learned

Judicial Magistrate concerned, through video conferencing, (g) and, wherein she unfolds qua the statement, of, the prosecutrix, as, recorded by her, in

proceedings, drawn under Section 164 Cr.P.C., and, as embodied in Ext. PWÂ1/B, being free from any duress or compulsion becoming exercised

upon him, whereupon also Ext. PWÂ​1/B becomes a potent piece, of, incriminatory evidence against the accused.

Be that as it may, the learned counsel for the accused/convict, has attempted, to, dispel the vigor, if any, of echoing made in Ext. PWÂ11/E,

wherein articulations occur, visÂaÂvis, the prosecutrix being subjected, to, penetrative sexual assault, (i) though, his contending, that, yet, therethrough

the identity of the accused, in his committing the charged offences, not becoming established, and, hence the judgment in appeal, before this Court,

meriting interference by this Court, in the exercise, of, appellate jurisdiction. However, the afore made submission, is, straightway amenable for

becoming discountenanced, given (a) as afore stated, it being made dependent, upon, the factum, of, the prosecutrix, rather resiling, from, her previous

statement, recorded in writing, all effects whereof, hence for all the aforestated reasons, obviously does not leverage, visÂaÂvis, the learned defence

counsel, any capacity to ably contend that thereupon, the, pronouncements, made in Ext. PWÂ11/E loosing probative vigor(s). (b) The

accused/convict, is, the step father of the minor prosecutrix, and, preponderantly, when the report, of, the DNA specialist, borne in PWÂ11/F, and,

proven by PW 11, and, wheretowhom, the relevant items, both of the accused, and, of the prosecutrix were sent for examination, also makes vivid

incriminatory ascriptions, visÂaÂvis, the accused, (c) thereupon the afore best scientific evidence underwhelms, the, entire force, of, the afore made

submissions. The DNA expert working at the FSL concerned, upon, his stepping into witness box, has, proven, his authoring Ext. PWÂ11/F. The

relevant incriminatory observations embodied therein, are, extracted hereinafter:Â​

“Exhibit 4e (blood sample on FTA card of accused showed amplification at all the fifteen autosomal STR loci and amelogenin with Investigator ID

Plex Plus R PCR Amplification Kit.

The DNA isolated from ExhibitÂ1 (lower/pyjama of child victim) and ExhibitÂ8 (bedsheet) showed amplification at all the fifteen autosomal STR

lock and amelogenin with Investigator ID Plex Plux R PCR Amplification Kit.

The DNA isolated from ExhibitÂ2c (vaginal swab of child victim) and ExhibitÂ2d (vulval swab of child victim) showed partial amplification with

Investigator ID Plex Plux R PCR Amplification Kit.

DNA isolated from ExhibitÂ1 (lower/pyjama of child victim) and Exhibit 4e (blood sample on FTA card of accused) showed amplification of YÂ‐

STRs with Powerplex 23 R PCR Amplification Kit.

DNA isolated from ExhibitÂ2C (vaginal swab of child victim) and ExhibitÂ2d (vulval swab of child victim) did not show amplification of YÂSTRs

with Powerplex 23 R PCR Amplification Kit.

A mixed autosomal STR DNA profile was obtained from ExhibitÂ1 (lower/pyjama of child victim) and from which a major component and a minor

component could be identified. The minor component is coexistent with the DNA profile obtained from ExhibitÂ4e (blood sample on FTA card of

accused).

Partial autosomal STR DNA profiles pertaining to a female were obtained from Exhibit 2c (vaginal swab of child victim) and Exhibit 2d (vulval

swab of child victim) and these DNA profiles are consistent with the major component identified in the mixed autosomal STR DNA profile obtained

from ExhibitÂ​1 (lower/pyjama of child victim).

The autosomal STR DNA profile obtained from ExhibitÂ8 (bedsheet) matches completely with the autosomal STR DNA profile obtained from

ExhibitÂ​4e (blood sample on FTA card of accused).

The YÂSTR DNA profile obtained from ExhibitÂI (lower/pyjama of child victim) matches with the YÂSTR DNA profile obtained from ExhibitÂ‐

4e blood sample on FTA card of accused).â€​

A perusal of the afore extracted observations, as, embodied in the DNA report, borne in Ext. PWÂ11/F, hence proven by its author, are, candidly

examplificatory, visÂ​aÂ​vis, the accused hence committing penetrative sexual assault, upon, his minor step daughter.

Be that as it may, the afore extracted observations, as, borne in Ext. PWÂ11/F, become the paramount best scientific evidence, for, proving the

charges against the accused/convict, and, the efficacy of the afore extracted observations, as, embodied therein, may, loose their apt vigor, upon (a)

the learned defence counsel, upon, production, of, the items of prosecutrix, as, seized under the apt seizure memo, and, thereafter sent to the DNA

expert concerned, working in the FSL concerned, or, (b) and, of, the FTA card of the accused, also seized, under, an aptly drawn seizure memo, and,

thereafter sent alongwith the items belonging to the prosecutrix, to the DNA specialist, working at the FSL concerned, (c) and, reiteratedly, upon each,

of theirs respective production(s) hence in Court, at the time of the prosecutrix making her deposition, (d) or, at the time of making, of, deposition, by

the police official concerned, who lodged them in the malkhana concerned, (e) and, upon the recording, of, the deposition, of, the police official, who

carried them, to, the FSL concerned, (f) and, besides, upon, the examination, of, the author of EXT. PWÂ11/E, reiteratedly, besides upon each, of, the

afore relevant items, as, contained in sealed parcels, hence becoming, shown to each, rather all the afore being meted suggestion(s), visÂaÂvis, the

items/belongings, of, the prosecutrix or the FTA card, or, other relevant materials belonging to the accused, and enclosed in, the relevant seized parcels

rather not belonging, to, either of them, (g) or suggestions being purveyed to them, visÂaÂvis, at the time, of, receipt of the afore parcels at the FSL

concerned, they never travelled thereupto, and, thereafter in Court, in an unbroken or untampered condition, hence facilitating, the, introduction, of,

fictitious belongings therewithin, (h) or suggestions became meted qua each, visÂaÂvis, at the time of production, of, case properties in Court, and,

whereat, the case properties were shown, to the, prosecution witnesses concerned, the Court making observations, visÂaÂvis, the english alphabet(s),

as borne, on the seal impressions, rather mismatching with their description, as, made in the relevant seizure memos. Since thereupon alone there

would be lack, of, interÂse connectivity, interÂse, the, seizure, of, case properties, and, visÂaÂvis, transmission(s) thereof, to the FSL concerned, and,

thereafter their production in Court, and, whereupon, the accused would become entitled to, a verdict, of, acquittal. However, significantly, when, none

of the afore suggestions, became purveyed to any, of, the afore prosecution witnesses, thereupon, the effect, of, non meteings, of, the afore

suggestions, to, each of the prosecution witnesses, in, contemporaneity, visÂaÂvis, the production, of, the relevant case properties, in Court, is, qua the

afore extracted observations, as, embodied, in, the report of the DNA specialist, and, as, borne in Ext. PWÂ 11/E, necessarily nailing the charge

against the accused.

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, there is no merit in the instant appeal,

hence, it is dismissed, and, the impugned verdict, is, affirmed, and, maintained. Records be sent back forthwith.