IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 194 of 2008. Reserved on: 24.03.2009. Decided on: April 27,2009 _____________________________________________________________ Vijay Sood …. Appellant. Versus State of Himachal Pradesh. ….. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Ramakant Sharma, Advocate. For the respondent : Mr.J.S.Guleria, Assistant Advocate General. _______________________________________________________ SURINDER SINGH,J: The appellant has challenged his conviction and sentence, passed as hereunder by the learned trial court under Sections 376, 506 and 292 of the Indian Penal Code: Sl. No. Offence Under Section Sentence 1. U/S 376 IPC Rigorous Imprisonment for a period of seven years and to pay a fine of Rs. 50,000/- and in default of payment of fine, to further undergo simple imprisonment for one year. 2. U/S 506 IPC Rigorous Imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default of payment of fine, further undergo simple imprisonment for three months. Whether reporters of the Local papers are allowed to see the judgment? Yes. 3. U/S 292 IPC Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default of payment of fine, further undergo simple imprisonment for one month. A-PROSECUTION CASE. The factual matrix of the case, which has given rise to the present appeal is that the accused-appellant though resident of Hoshiarpur (Punjab) but was supervising the house of his Uncle Deen Dayal Sood in village Ambota, in District Kangra, H.P. in the month of May, 2003 near the house of the prosecutrix, at that time she was stated to be 16 years of age, studying in 10+2 standard. In this connection, he was visiting the construction site frequently. Thus, he became familiar to the prosecutrix and her family. It is alleged that after sometime, the appellant started making advances towards the prosecutrix and doing obscene activities. He assured and allured the prosecutrix that after doing her 10+2, he would adjust her in some good job at Delhi. (i) Allegations regarding First incident: (Years and Date not mentioned) One day, when her parents were not at home, it is alleged that the appellant entered her house. He bolted the door from inside. When she started crying, the appellant gagged her mouth and committed rape on her. At that time, she was less than 18 years of age. When the prosecutrix told that she will disclose this fact to her parents, then the appellant threatened her that her entire family would be eliminated by hiring Gundas from Punjab. Thus she did not disclose this fact to anybody. Thereafter the appellant started taking liberties with her and many times committed rape on her against her will. (ii) Allegations regarding second incident: It is further alleged that on 2.11.2005, during the night at 10 p.m., the appellant along with his daughter (co-accused) Kumari Deepti Sood came to her house in his private car while going to Kullu. She insisted upon her to accompany them. The prosecutrix refused, but however, she forcibly took her in the vehicle. On the way, they stayed in ‘New Fair Hotel’ at Mandi. According to the prosecutrix, she was provided with a glass of milk by co-accused Deepti Sood, she took it and became unconscious. When she woke up in the morning, she found her salwar untied and her banyan (under shirt) was also not on her body. On inquiry from the co-accused Kumari Deepti Sood, she took out the same from her bag and gave it to the prosecutrix. She felt and suspected that during the night, the appellant the father of Deepti Sood had committed rape on her. On her return from the trip, the prosecutrix is alleged to have informed her mother, but she remained silent and did not complain against the appellant being poor persons. The appellant is alleged to have taken the prosecutrix to his house at Hoshiarpur, where he committed rape at her on various occasions and threatened her with dire consequences, if she discloses this fact to anyone. (iii) Allegations regarding Last incident: On 24.4.2006, the appellant is alleged to have visited the house of her maternal uncle at Ambota. When she returned from the school, he took the prosecutrix inside the room and had shown her a pornographic movie containing her nude pictures. When she demanded movie from him, the appellant threatened and told that she was under his grip and he would defame her in the society. Under this threat, the appellant again committed rape on her. She suspected that the said movie was prepared by the appellant when she became unconscious after consuming the milk while staying in ‘Mayfair Hotel’ at Mandi. On the same day i.e. on 24.4.2006, this incident was reported by her to her parents and they enquired about this fact from the appellant, he started picking up the quarrel with them and lodged false FIR against them under Section 307 of the Indian Penal code. The prosecutrix alleged that due to the continued threat to her by the appellant, she did not disclose the facts to anyone but later got registered the FIR Ex.PW3/A on 27.4.2006 at 3.50 p.m. against the appellant and his daughter Deepti Sood under Sections 376, 120-B and 506 of the Indian Penal Code, when they were called in a criminal case lodged against them by the appellant. B- MEDICAL EXAMINATION AND OPINION. The police got her medically examined from PW1 Dr. Renu Narula on 27.4.2006. She did not find any sign of recent coitus; however, on examining her private parts, she found her vagina entriotus could easily admit two fingers without any pain. She issued her Medico Legal Certificate Ex.PW1/B to this effect. On 29.4.2006, the appellant was arrested. He was also subjected to the medical examination by PW2 Dr. Sandeep Narula He was found fit to perform the sexual intercourse. His Medico Legal Certificate is Ex.PW2/B. C- RECOVERIES. During the interrogation, the appellant is alleged to have made the disclosure statement Ex.PW10/A on 30.4.2006 under Section 27 of the Indian Evidence Act and recovered a handicam (Ex.P2) and cassette (Ex.P3) from his house at Hoshiarpur vide memo Ex.PW10/B. The site plan of the recovery is Ex.PW14/A. D- FORENSIC EXAMINATION. The police also took into possession the photographs of the appellant Exts.PE1 to PE4 and that of the prosecutrix Exts.PE5 to PE8 for its comparison with the Handicam cassette (Ex.P3) containing porno-pictures which were alleged to have been that of the appellant and the prosecutrix alleged to have been prepared by the appellant at May Fair Hotel, Mandi and sent for forensic examination. Vide report Ex.PW15/A, the pornographic portion involving one old man and a young girl were taken with fixed position of the camera mounted at the foot side of the cot covering only a part of the room/ bed and was in uncontrolled light conditions. The fixed angle of the camera and the shades that were produced insufficient and in improper light conditions which caused detrimental effect on evaluation of facial biometrics in the video- clips at no moment, the full and clear facial frame could was not captured of either of the persons in the video. As such it was not been possible to extract the faces and to evaluate/ compare the facial biometrics of the individuals in the above part of the clip. Bed-sheet Ex.P3 was sent for forensic examination. As per report Ex.PW13/C, it did not contain blood or semen stains. E- AGE PROOF OF THE PROSECUTRIX. The police obtained the birth certificate of the prosecutrix from the concerned Panchayat showing her date of birth as 17.1.1988. F- OTHER RECOVERIES. The entries of the ‘Myfair hotel’, pertaining to the 2nd/ 3rd of October, 2005 [Ex.PW11/B] were also taken. After recording the statements of the witnesses and completing the challan, it was presented in the court for the trial of the appellant and his daughter Deepti Sood under Sections 376, 506 and 292 read with Section 109 of the Indian Penal Code. G- DEFENCE OF THE ACCUSED-APPELLANT. Precisely, the defence of the appellant was that the prosecutrix and her family members had implicated him in a false case. He never committed any rape on the prosecutrix as alleged. According to him, there was a money dispute between him and the family of the prosecutrix. On 24.3.2006, when he demanded his money back, the entire family including the prosecutrix attacked him in village Ambota. He sustained injuries and had lodged FIR on the same day under Section 307 of the Indian Penal Code in Police Station Gagret. Thus the present case against him was a counter-blast. He did not claim Handicam Ex. P2 and cassette Ex.P3 as his own. He alleged that these items were planted against him. He denied having prepared the pornographic film of the prosecutrix and he also denied having shown to her as alleged. He examined Shri Aman Sharma (DW1), a Clerk of the Senior Secondary School Ambota to prove that the prosecutrix was declared fail by the H.P. Board of School Education being unfair mean case (UMC) and as per the record, the prosecutrix was not a student in the said school after March, 2005. The defence raised by the accused was disbelieved by the learned trial court. The learned Sessions Judge also did not believe the story of the prosecutrix that she was raped by the appellant in Mandi hotel when his daughter Deepti was with him and that the appellant is alleged to have prepared her blue film; thus at the end of trial Kumari Deepti was acquitted as the allegations made by the prosecutrix against her about the abetment of rape by her father and preparing her video in ‘May Fair Hotel’ Mandi was found to be highly improbable but the learned trial court found the consistency in the statement of the prosecutrix worth inspiring confidence regarding the rape committed by the appellant at various places and showing her pornographic stills as such he was convicted and sentenced as aforesaid. The appellant assailed the judgment of his conviction and sentence in the present appeal. H- CONTENTION IN APPEAL. Shri Ramakant Sharma, learned counsel for the appellant took me through the evidence on record and ventilated that the prosecution could not prove the case against the appellant beyond a reasonable doubt and the present case is a counter-blast of FIR filed under Section 307 IPC by the appellant earlier against the complainant and her parents. The present FIR against the appellant was filed after about a week after due deliberations at a very belated stage. The learned counsel also pointed out that the pornographic cassette in question which is alleged to have been prepared did not contain either the face of appellant or the prosecutrix. He also pointed out the omissions and contradictions in the statement of the prosecutrix and submitted that her testimony is not worth inspiring confidence. He alleged false implication of the appellant in the present case. Contra, Shri J.S. Guleria, learned Assistant Advocate General while supporting the impugned judgment of conviction and sentence, passed by the learned trial court, submitted that the appellant had been exploiting the prosecutrix sexually since May, 2003 when she was a minor girl and further that the appellant taking the undue advantage of the poverty of the complainant threatened her with dire consequences and the prosecutrix was shown a pornographic pre- recorded cassette and black-mailed her to satisfy his lust. When finally she disclosed this fact to her parents, there was a quarrel the appellant sustained injuries and lodged the FIR against the appellant and her parents under Section 307 of the Indian Penal Code. It was during the interrogation of the prosecutrix and her mother, that they revealed that the appellant had sexually exploited the prosecutrix as aforesaid. Shri Guleria vehemently argued that the statement of the prosecutrix is worth inspiring confidence. The minor contradictions occurring in her statements are of no consequence and further the statement of the prosecutrix stands corroborated in material particulars on record, therefore, the conviction and sentence passed by the learned trial court calls for no interference. I- FINDINGS AND REASONS THEREFOR BY THIS COURT I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record. It is well settled that in case of rape, the conviction can be solely based on the evidence of the victim, provided such evidence inspires confidence in the mind of the court. The victim is also not treated as accomplice, but could only be characterized as injured witness. It is also reasonable to assume that no women would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of the prosecution shall be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material and reliance can be put on the judgments of the Supreme Court in Sudanshu Sekhar v. State of Orissa [2003(1) Apex Court Judgment 129] and Om Prakash v. State of U.P.[ 2006(3) Criminal Court Cases (Supreme Court) 473]. I am also aware of the fact that the courts are required to deal with rape cases with utmost sensitivity and appreciate evidence in the in the totality of the entire case. The victim of rape stands at a higher pedestal than the injured witness, because in the later case there is injury in the physical form while in the former, it is both physical as well as psychological and emotional and if the victim of rape states on oath that she was forcibly subjected to sexual intercourse, then her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing an inference that there was consent or that the entire incident was improbable or imaginary. Thus, corroborative evidence is not imperative component of the judicial credence in every case of rape. Corroboration is a condition for judicial reliance on the testimony of the prosecutrix, is not a requirement of law but a guidance of prudence under the given circumstances. Therefore, if it is found that evidence of the prosecutrix is worth inspiring confidence, it has to be relied upon without seeking corroboration of her statement without material particulars. In State of Himachal Pradesh vs. Asha Ram [ AIR 2006 SC 381], the Supreme Court reiterated the same principle and held that the minor contradictions or insignificant discrepancies in the statements of prosecutrix are not a valid ground for throwing out an otherwise reliable prosecution case. Against the aforesaid settled principles of law, the testimony of the prosecutrix in the instant case is required to be carefully and closely examined vis-à-vis the statement of her mother and the other material on record, more specifically, when there is considerable delay in lodging the FIR coupled with the fact that when the FIR in the present case was lodged, they were already facing the allegations of attempt to murder the appellant on the FIR already lodged by the appellant and the police was calling them regularly to the police station to effect the recovery of the weapon of offence. In the FIR Ex.PW3/A lodged by the prosecutrix on 27.4.06 she has not given the date and year of the alleged rape which was alleged to have been committed by the appellant for the first time when she was allegedly less than 18 years. According to her she did not disclose about it to anyone in the family because of threatenings given by the appellant before 2.11.05. She alleged rape many times with her. Further according to her, on 2nd November, 2005, she was taken forcibly by the appellant and his daughter Deepti Sood, on the pretext to take her to Kullu. They reached Mandi at 10 P.M. it had gone dark, thus they stayed in ‘Mayfair’ hotel. She was provided with a glass of milk, after consuming it she fell unconscious. In the morning she found her salwar loose and her undershirt was not on her person. On being asked, Deepti Sood aforesaid provided the Banyan from her own bag and she felt that she was raped throughout the night. Even regarding this incident, she did not make the complaint to anyone. She further alleged that thereafter the appellant took her to his house at Hoshiarpur and there he again committed rape and continued to threaten her. Then lastly, she alleged that on 24.4.2006, the appellant took her to the house of his Mama and had showed her a blue film on the Handicam with the appellant. She demanded that C.D.,but the appellant started blackmailing her, thereafter he had committed rape on her. The blue film CD was alleged to have been prepared by the appellant in connivance with his daughter Deepti Sood at hotel at Mandi. Thus on 24.4.2006, she complained about this fact to her parents and it was thereafter her parents went to the maternal uncle of the appellant where the appellant started quarreling with them. The cassette (Ex.P3) which was alleged to have been prepared at Mandi in ‘Mayfair Hotel’, on its examination by the Expert did not find the full and clear facial frame of the persons shown therein thus, as per report Ex.PW15/A it was not possible to extract the faces to evaluate and compare the facial biometrics of the individuals in that part of the clip. The learned trial court also took pain to examine with the aid of the expert in the court room but it could not ascertain that it contained the pornographic pictures of the prosecutrix and appellant. According to PW13 Dy.S.P. Kishan Singh who had also partly investigated the matter admitted that the allegations of the prosecutrix regarding the preparation of movies in ‘Mayfair hotel’ at Mandi were found to be incorrect. The story of consuming milk and getting unconscious in the hotel was found to be incorrect in view of the statement of PW11 Ramesh Chand the receptionist as no milk was ordered or offered in the room. Further the appellant was accompanied by his adult daughter who was working in the Jet airlines Delhi as admitted by the prosecutrix and all of them had stayed in room No.204 the Mayfair hotel during the intervening night of 2nd and 3rd November,2005. Thus, the story of her rape by the appellant that too when his adult daughter was accompanying him and further preparing the blue film was rightly adjudged to be false by the learned trial court, on this count the testimony of the prosecutrix is found to be unbelievable. Now the question is whether prior to 2.11.2005, the prosecutrix was alleged to have been sexually assaulted by the appellant. Except her own self serving vague statement there is no other evidence on record to substantiate her version. Now the question is whether her version with respect to those incidents inspires confidence. For that her testimony is required to be further examined and evaluated. The prosecutrix has deposed that when she was about 15 years of age, since then till 2006 when she was aged about 18 years, the appellant committed the sexual intercourse with her many times against her will. She further stated that in the month of May, 2003, when her parents, brother and sisters were not at home the appellant came to her house, she objected his entry but he bolted the door, forcibly removed her trouser and committed rape without her consent. Thereafter threatened her not to disclose anything to anybody lest he would eliminate her by calling Gundas from Hoshiarpur. Therefore, she did not disclose this incident to anyone. When she was confronted with the FIR Ex.PW3/A these allegations were not found mentioned therein. PW4 Suman Devi, her mother, stated that in May, 2003, the appellant had come to supervise the construction work of the house of his material uncle in village Ambota, adjoining to their house, during that time he had been visiting their house off and on. His visits in her house were objected to by her as her daughters were adult but he assured that she need not to worry as he was just like their father. She is alleged to have been informed by the prosecutrix about the incident which had taken place at Mandi which, as stated above stands not proved. She however, did not whisper even a single word that the prosecutrix had ever disclosed her about any incident which is alleged to have taken place with her before 2.11.2005. Therefore, in these circumstances, the allegations of rape by the appellant w.e.f. the month May, 2003 to 2.11.2005 does not stands proved at all. Thus her testimony qua commission of rape by the appellant prior to 2.11.2005 also does not inspire confidence. Now the another allegation of the prosecutrix is that while staying in the company of the appellant and his daughter in Mayfair hotel on 2.11.2005 on the next day she was taken in their car to Nainadevi and thereafter to Hoshiarpur via Garhshanker instead of taking her to her house via Jawalaji. The appellant is alleged to have kept her for three days at his house at Hoshiarpur i.e. upto 5.11.2005. The appellant provided room to her on the first floor of his house whereas the members of his family were living on the ground floor. During that time w.e.f. 3.11.2005 to 5.11.2005 the appellant is alleged to have committed rape on her and then she was left at her house at village Ambota. In her cross-examination, the prosecutrix has admitted her photographs marked A to C with the appellant and his wife, which were taken in the month of July, 2005. She stated that she had accompanied them at the instance of his wife who is also alleged to compel her to accompany them. She also admitted that she had been in visiting terms with the family members of the appellant. She further admitted having taken her photographs mark D to I with the appellant and his daughter and some of the photographs were solo having been taken by the appellant while going to Mandi via Chamunda Mata temple. She also admitted that in the month of May, her brother Ajay had met with an accident and was treated at Hoshiarpur in a private nursing home. However, she denied that the whole of the expenditure was met by the appellant and she along with her mother had stayed in the house of the appellant, whereas PW4 her mother has admitted that due to the accident of her son, she had visited the house of the appellant at Hoshiarpur once and further that the appellant and his daughter used to see her ailing son who was admitted in private hospital at Hoshiarpur. But she denied that the appellant had spent huge amount on the treatment of her son. Significantly, the prosecutrix did not mention any of incident of alleged rape in her first version recorded in the FIR between 3.11.2005 to 5.11.2005. She stated that she did not disclose about it even during her stay at Hoshiarpur to anyone nor even to her parents when he came to her village on 5.11.2005 because she was threatened not to disclose to anyone but what prevented her to disclose it to the police when she lodged the FIR is not explained. She was granted bail in the FIR lodged by the appellant. She admitted that on that day when they were called in the police station in FIR of the appellant, the police did not believe her version and told that she was telling lie. From the above discussion of the evidence, it transpires that earlier the appellant and her mother were having the cordial relations with the family of the appellant they had been visiting the houses of each other and the appellant was