IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.491 of 2008 Date of judgment: July 9, 2009 Guddu Ram ..Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Vikas Rajput, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J. (Oral) State has appealed against the judgment dated 13.7.2007 of learned Sessions Court, whereby he has been convicted of offence, under Section 376 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5000/-; in default of payment of fine, to undergo simple imprisonment for a further period of six months. An F.I.R. was lodged against the appellant on 5.6.2005 by the prosecutrix, examined as PW1. Prosecutrix visited Police Station, accompanied by her parents and reported that on the previous day, the appellant and one Whether reporters of the local papers may be allowed to see the judgment? - 2 - mason worked at their house and that after the work, the mason went away but the appellant remained there. She also reported that her parents were not at home as they had gone to the orchard to collect fodder. She also reported that when she was in a room in upper storey of the house, appellant came there, bolted the door of the room from inside and then committed rape on her. Police investigated the case. Prosecutrix was got medically examined. Her medical examination was conducted by PW3 Dr. Sangita Uppal, who found her hymen ruptured and the edges bled on touch. She gave her opinion that the possibility of prosecutrix having been subjected to sexual intercourse, could not be ruled out. On completion of the investigation, appellant was challaned. Learned Judicial Magistrate, in whose Court challan was presented, committed the case to the Sessions Court. Appellant was charged with offence, under Section 376 IPC by the Sessions Court. He pleaded not guilty and was, therefore, put on trial. Prosecution examined the prosecutrix as PW1. Her father Amar Chand as PW4, her mother Sumitra Devi, as PW5, and the doctor who conducted her medical examination namely Sangita Uppal as PW3, to bring the charge home to the appellant. - 3 - Appellant pleaded that he did not have sexual intercourse with the prosecutrix on 4.6.2005, as alleged by her, but on the previous day with the consent of the prosecutrix. Trial Court did not believe the defence version. It accepted the testimony of the prosecutrix as corroborated by her parents as also the doctor who conducted medical examination and convicted and sentenced the appellant as aforesaid. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General and gone through the record. Prosecutrix appeared in the witness box as PW1 and stated that on 4.6.2005, the appellant, who is her father’s sister’s husband, had been working at their place as a labourer, to assist the mason, engaged to do some masonry work. She stated that the mason left for his place around 5 pm but the appellant remained behind. She also stated that her parents were not at home as they had gone to the orchard to collect fodder. Further, she stated that when she was in the room of upper storey of the house, appellant came there, bolted the door of the room from inside and broke the string of her Salwar and committed rape on her. She stated that she - 4 - could not put up any resistance, because the appellant had held both her hands with one of his hands. She also stated that she tried to kick the appellant but could not succeed. She admitted that she did not raise any alarm but stated that there being no habitation in the surroundings, her crying or shouting would have served no purpose. She denied that the incident had not taken place on 4.6.2005 and that she had sexual intercourse with the appellant on the previous day, voluntarily. Prosecutrix’ mother Sumitra Devi, who appeared as PW5, stated that on 4.6.2005, she and her husband had gone to the orchard and when she came around 8 pm, she saw the prosecutrix crying in the sleeping room on the upper storey of the house. On inquiry, she was told by the prosecutrix that she had been raped by the appellant. Father of the prosecutrix, Amar Chand PW4, also stated that on the relevant day, he and his wife had gone to the orchard to collect the fodder and when they returned around 8 p.m, the prosecutrix was crying in the room of upper story of the house and on inquiry by her mother, she told that she had been raped by the appellant. Matter was reported to the police on the next following day, because the Police Station is at a distance of about 12 kms, from the house of the prosecutrix and no bus - 5 - service was available on the day of the incident after 8 p.m. Version given by the prosecutrix, in her deposition as PW1, is corroborated by FIR Ex.PW1/A, as also by the testimony of her mother and father and the medical evidence. PW3 Dr. Sangita Uppal, who conducted the medical examination of the prosecutrix, stated that the prosecutrix’ hymen was found ruptured and the edges bled on touch and the vagina admitted two fingers with difficulty. She did not notice any injury on the person of the prosecutrix. Learned counsel for the appellant has submitted that absence of any injury on the person of prosecutrix suggests that sexual intercourse had taken place with her consent. As per testimony of Dr. Sangita Uppal, PW3, prosecutrix has a moderate built. Her height is 4ft. 11 inches and weight only 38 kgs. With this physique, the prosecutrix could not have put up any resistance, successfully. Another submission made by learned counsel for the appellant is that the prosecutrix’ conduct suggests that she was a consenting party to the sexual intercourse, because per her statement, she had changed her clothes and hidden the blood stained clothes in a brief case. This circumstance by itself does not suggest that the prosecutrix was a consenting party. Prosecutrix stated that she had done so on the asking of - 6 - the appellant. Admittedly, the appellant is a close relative of the prosecutrix being the husband of a sister of her father. It is quite likely that she wanted to hide the incident even from her parents out of shame but since she had been ravished and that had hurt her not only physically but also psychologically, she could not control her emotions and started crying on seeing parents when they returned and on enquiry told her mother that she had been raped. Appellant’s plea that sexual intercourse had taken place on 3.6.2005 is denied by the prosecutrix. PW3 Dr. Sangita Uppal’s testimony also suggests that incident did not take place on 3.6.2005. Prosecutrix was medically examined on 6.6.2005. Tears of the hymen bled on touch. It suggests that the incident must not have taken place on 3.6.2005, because had sexual intercourse taken place on that date, the tags might have started healing and drying up by the date, the prosecutrix was examined by the doctor. Appellant himself did not say in his examination, under Section 313 Cr. P.C that the incident had taken place on 3.6.2005, with the consent of the prosecutrix. He stated that he had been falsely implicated, because the father of the prosecutrix, did not want to pay him his wages as labourer and that in fact, he had given him beatings, when he demanded his - 7 - wages. This statement of the appellant is contrary to the plea suggested to the prosecution witnesses. Appellant examined his father-in-law Tanu Ram as DW1. This witness is father of the father of the prosecutrix. The witness stated that he came to know that the appellant had raped the prosecutrix but he had requested his daughter- in-law, i.e. mother of the prosecutrix, not to lodge the report with the police. He also stated that he had made the statement to favour the appellant, who is his son-in-law. For the foregoing reasons, I see no merit in the present appeal. The same is, therefore, dismissed. July 9, 2009 (Surjit Singh), J. s.