1 IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 78 of 2002 Mahesh Singh S/o Satya Singh Bisht R/o Village Vijpur Patwari Circle – Burhkot Tehsil – Pratap Nagar District – Tehri Garhwal ……… Appellant Versus State ……… Respondent Mr.Pankaj Purohit, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for the respondent/State. Mr. U.P.S. Negi, Advocate for the complainant. Judgment Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 16.03.2002, passed by learned Sessions Judge, Tehri Garhwal in S.T.No. 17 of 2000, whereby the accused/appellant has been convicted & sentenced to undergo rigorous imprisonment for 10 years under section 376 Indian Panel Code, 1860 (for brevity as I.P.C.) and a fine of Rs.10,000/-. In default of payment of fine, the accused/appellant shall further undergo one year R.I. The accused/appellant was also convicted and sentenced to undergo six months R.I. u/s 323 I.P.C. and a fine of Rs. 1,000/-. In default of payment of fine, the appellant shall further undergo one month S.I. It was further directed that both the sentences would run concurrently. 2. Brief facts as emerges from the record are that the victim went to her cattle shed at about 10:00 a.m. on 26/03/2000 to feed her buffaloes. The accused/appellant suddenly emerged there and caught hold of the victim, took 2 her inside the room and compelled her to lie down on the ground. The victim raised alarm and also resisted the accused/appellant to commit the forcible sexual assault on her. The accused/appellant also gave her beating and compelled her to submit her to his barbarous desires. Thereafter, the accused/appellant committed rape upon the victim and threatened her that if she would disclose this fact to anybody she would be killed. During the course of the commission of the offence, the victim had suffered several injuries on her person and her clothes were also torn to some extent. During the course of the offence, the victim became unconscious and after regaining consciousness, she left for home and narrated the entire incident to her mother-in-law and jethani Smt. Lakheri Devi. There was no male members in the house of the victim, therefore, the victim went to her parental house on the next day morning and narrated the entire incident to her brother Kishore Kumar. Kishore Kumar scribed the report and brought the victim in the office of S.D.M. Pratapnagar where a report was submitted on 27/03/2000. Thereafter, the Naib Tehsildar who was holding the charge of S.D.M. directed the Patti Patwari Budkot to register the case and do the needful in accordance with the law. The report was lodged with the Patti Patwari and the victim was medically examined by the doctor on 28/03/2000. The Patti Patwari also brought the victim before the S.D.M. on 03/03/2000 where her statement u/s 164 Cr.P.C. was recorded. The Patti Patwari also recorded the statement of the victim u/s 161 Cr.P.C. and prepared the site plan of the place of the occurrence. After completing the investigation, the Investigating Officer submitted the chargesheet before the court concerned. 3 3. The accused/appellant was committed to the Court of Sessions and the trial court framed charge u/s 376 and 323 I.P.C. against the accused/appellant. The accused/appellant denied the charges and claimed to be tried. 4. The prosecution in support of its case examined as many as seven witnesses. PW1 is the victim of the offence. She has narrated the entire story of the alleged commission of the offence. Smt. Lakheri Devi PW2 is the Jethani of the victim PW1. Kishor Kumar PW3 is the brother of the victim who has scribe the report. Kapoor Singh PW4 is the Jeth of the victim. Dr. Meenu Rawat PW5 is Medical Officer who has examined the victim. Anjani Kumar Singh, the then S.D.M. Pratapnagar PW6 has recorded the statement of the victim u/s 164 Cr.P.C. Sangai Singh PW7 is the Patwari (Investigating Officer) who registered the F.I.R., prepared site plan, recorded the statement of the witnesses and submitted the chargesheet against the accused/appellant. 5. After recording the entire evidence, the accused/appellant was examined u/s 313 Cr.P.C. and he denied the entire evidence and pleaded that he has been falsely implicated in this case due to enmity. He has further stated in his statement that on the date of occurrence Puja ceremony was going on nearby the temple where 150 people were assembled. He has further stated that there is a High School, Basic School and Panchayat Hall where teachers and people used to reside. 6. The accused/appellant has adduced the evidence of Dinesh Bisht DW1 in support of his plea with regard to the 4 Puja on the date of the occurrence in the temple. He has stated there was no such incident as alleged by the victim. 7. The learned Sessions Judge on appreciation of the evidence held accused/appellant guilty of the charges of offence framed against him and convicted & sentenced him as mentioned above. 8. I have heard Mr. Pankaj Purohit, Advocate for the appellant; Mr. Amit Bhatt, Addl. G.A. for respondent/State; Mr. U.P.S. Negi, Advocate for the complainant; and perused the record. 9. Now, it is to be adjudicated upon as to whether the accused/appellant had committed forcible sexual intercourse upon the victim or not on the date of the incident. The prosecution in support of its case examined the victim as PW1. She has narrated the entire incident with vivid details. She has stated in her evidence that on 26/03/2000 at about 10:00 a.m., she went to her cattle shed to feed her buffaloes. The accused/appellant suddenly emerged there and forcibly took her inside the room where the buffaloes were kept. The accused/appellant also hurled abuses and pushed her forcefully to lie down on the ground of the room. The accused/appellant also caused injuries on her person. The victim resisted the accused/appellant to commit forcible sexual intercourse upon her. During the course of the scuffle, the accused/appellant torn the clothes of the victim and thereafter laid her down on the floor of the room and committed forcible sexual intercourse. During the course of the offence, she became unconscious and when she regained consciousness, she found the accused/appellant there. The 5 accused/appellant left her only on a forcible assurance from her that she would be available to him whenever he desires to have the sexual intercourse with her. She gave this assurance due to the threats so that the accused/appellant may leave the place of occurrence. She remained there for sometime. It is also in the evidence of the victim that the cattle shed is situated to some distant from the place where she and her family members reside. When she reached in her house, she narrated the entire story with vivid details to her mother-in-law and Jethani Smt. Lakheri Devi PW2. Her husband and Jeth Kapoor Singh were not available in the house at that time. So on the next day, she went to her parental house and narrated the entire story to her brother Kishore Singh whom she got the F.I.R. scribe. Thereafter, she was taken to the S.D.M. Pratapnagar where she submitted her application to the Incharge SDM. The Incharge S.D.M. directed Patti Patwari to register the case and thereafter she was medically examined by the doctor. She has also stated in her evidence that her statement u/s 164 Cr.P.C. was recorded by the S.D.M. Pratapnagar. The victim has also stated that after the medical examination, her clothes were taken into possession by the Patti Patwari. 10. The prosecution also examined Smt. Lakheri Devi PW2 who is the Jethani of the victim. She has stated in her evidence that the victim has narrated the entire incident to her when she reached in her house. She has also found injuries on the person of the victim. She has supported the entire prosecution case during her evidence. 11. The prosecution also examined Kishore Singh PW3 who is the brother of the victim and who scribe the report. He has 6 stated that on 27/03/2000, the victim came to her parental house and narrated the entire story with vivid details to him. He has also stated that the victim dictated the report to him. He took her to S.D.M. where the said report was given to the Incharge S.D.M. Pratapnagar. Thereafter, the Incharge, S.D.M. Pratapnagar directed them to go to Patti Patwari with the report. They went to the Patti Patwari where the case was registered. Thereafter, the Patti Patwari took the victim to Tehri Civil Hospital where she was medically examined by Dr. Meenu Rawat PW5. 12. The prosecution in order to support its case adduced the evidence of Kapoor Singh PW4 who happened to be the elder brother of the husband of the victim. He has stated in his evidence that he came to know about the occurrence at about 9:00 p.m. on 26/03/2000 through his wife Pushpa Devi. He went to the house of the victim in the morning on 27/03/2000 but found that the victim had already left to her parental house. He has also stated in his evidence that he met the victim and her brother Kishore Kumar PW3 at Lambgaon in the afternoon. He has stated that he did not go to the house of the victim in the night on 26/03/2000 because it was already late in the night. So, he went to the house of the victim in the morning. Till that time, the victim had gone to her parental house. This is the evidence with regard to the victim and her family members who have stated about the incident how the victim came to her house, what was her condition, what she narrated to the witnesses and what course of action was taken by the family members of the victim. 7 13 It is settled position of law that the victim in a rape case is not an accomplice after the crime. Her statement stands on a higher pedestal than any other witnesses. If the evidence of the victim inspires confidence, there is no need to seek any corroboration from any other witnesses on record. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. If the court comes to the conclusion that the evidence of victim is reliable and cogent, it does not need any further corroboration of any other independent and corroborative piece of evidence. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly reputation and not the least her chastity. Rape is not only a crime against the person of a victim, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Basically, it is a crime against basic human rights. Keeping in view of the aforesaid circumstances it must be expected from the court to deal with cases of sexual crime against women with utmost sensitivity. 14. Learned counsel for the accused/appellant contended that there is inordinate delay in reporting the matter to the police. The learned counsel for the appellant further contended that the incident took place on 26/03/2000 at about 10:00 a.m. and the F.I.R. was lodged on the next date, i.e. at about 2:30 p.m. on 27/03/2000. The learned Addl. 8 G.A. refuted the contention and contended that the delay has been properly explained by the prosecution and there is no delay in lodging the F.I.R. He further contended that the prosecution case could not be thrown out only on the ground of delay in lodging the F.I.R. It is true that some delay has occurred in lodging the F.I.R. But keeping in view the trauma suffered by the victim, she remained in cow-shed for some time and thereafter reached her house and narrated the entire story to her mother-in-law and Jethani Lakheri Devi PW2. It is also in the evidence of the prosecution that there was no male member in the house of the victim to help her in lodging the report. It is also in the evidence that Kapoor Singh PW3 came home in the night and went to the house of the victim in the morning. But till that time, the victim left to her parental house for seeking advice and taking further recourse in the matter. The victim narrated the entire story to her brother who scribed the report and thereafter they went to the S.D.M. Pratapnagar to lodge the report. The said report was produced before the Incharge S.D.M. for being registered. Incharge S.D.M. directed Patti Patwari Budkot to register the report and the said report was lodged at 2:30 p.m. It is evident from the record that there was no male member at the time when she reached her home. Therefore, she immediately on the next morning left for her parental house where she narrated the entire incident to her brother and thereafter presented the report before the S.D.M. The place of occurrence is 5 kms. from the headquarter of the Patti Patwari Lambgaon. The explanation put forward by the prosecution is plausible and the delay has been properly explained by the prosecution. But keeping in view of the fact that the victim became unconscious and regained her consciousness after sometimes. The victim was again 9 threatened by the accused/appellant and she gave him assurance to be available as and when he would desire. Thereafter, the accused/appellant released her and she came to her house where no male members were present. On the next day, she went to her parental house, scribed the report; and submitted to the Incharge S.D.M. Thus, the delay has been properly explained in this matter. In view of the above, I do not find any force in the contention of the learned counsel for the appellant. 15. Learned counsel for the accused/appellant further contended that there were no marks of injuries on the private parts of the prosecutrix, as such, the prosecution has failed to establish that rape had been committed upon the victim. The learned Addl. G.A. refuted the contention and contended that the victim was a married woman having two children at the time of the commission of the offence. Even if there were no injuries on her private part, it is not fatal to the prosecution case. It is a settled position of law that the medical evidence is a corroborative piece of evidence and if the evidence of the prosecutrix inspires confidence then there is no need to search for a corroborative piece of the evidence. The prosecution adduced the evidence of Dr. Meenu Rawat PW5 who had medically examined the victim and prepared the medical report Ex.Ka.1, 2 and 3. After examination of the victim, the following injuries were found on her person:- “1. Teeth mark present on Rt. side of cheek (oval shape) (14 marks) size (5 x 3 cm.) 2. Teeth mark pt on left side also, they are intermingled with each other and clotted blood is present over there teeth mark (size 3 x 2cm.). 3. Bruise with size (2 x 1 cm.) is present below Rt. eye (bluish in colour). 10 4. Abrasion over left eye is present size (2 cm. x 1 cm) colour brown. ” 5. Abrasion size (2 cm. x 1 cm.) is present over fore head region. Examination of forearms – (1) Contused abrasion size (5 cm. x 3 cm.) with clotted blood is present over Rt. elbow joint. (2) Abrasion size (2 x 1 cm) is present over Rt. writ joint. Examination of back – No external injuries are seen. Examination of hip – Abrasion mark size (4 x 1 cm.) is present over Rt. hip. Examination of Internal Organs – She is having 2 child – elder is 9 months. Labia majora & minora damaged during delivery. Mild prolepses of Ut. is present. There are no external injuries over private part. Vagina – No bleeding of any kind.” The doctor has opined that the victim was subjected to forcible sexual intercourse within 2-3 days from the date of the examination. She has further found that there were no marks of injuries on the private part of the victim. The doctor has also examined the accused/ appellant on the same day and found the following injuries on his person:- “1. Abrasion multiple in circular diameter. Size (4 x 3 cm) are present over face (below Rt. eye). Colour brown. 2. Teeth mark size (3 x 1 cm.) is present over index finger. Colour reddish brown” The doctor has opined that these injuries were simple in nature and caused by sharp edged object. It was further opined that the duration of the injuries were 2-3 days from the date of examination. 16. The doctor has further stated in her evidence that if a married woman is subjected to forcible sexual intercourse, it 11 is not necessary that there should be any injury on her private part. The doctor has not found any dead or alive spermatozoa, so she has also explained that after 72 hrs. dead or alive spermatozoa may remain there but such spermatozoa would not be visible. The doctor has stated that it is not always required that the injuries would be available on the private part of the victim. The Hon’ble Apex Court in the case of B.C. Deva Alias Dyava Vs. State of Karnataka reported in (2008) 2 SCC (Cri) p/253 has held that even if no marks of injuries either on the person of the victim did not lead to any inference that the accused has not committed forcible sexual intercourse on the victim. The same view has been reiterated in the case of Viswanathan and others Vs. State represented by Inspector of Police, Tamil Nadu reported in (2008) 5 SCC p/354. The Hon’ble Apex Court has held at para 14 as under:- “14. The fact that an incident of the nature disclosed in the FIR had taken place is not in question. The fact that she was found lying naked at the place of occurrence in an unconscious state, stands proved not only by PW7 but also by PW8 Chinnadurai. The evidence of PW8 remains uncontroverted. He has not been cross examined. PW9 is the investigating officer. He stated that the FIR was lodged at about 7:00 p.m. in the evening on 21-11-1994. She was sent to the hospital for medical examination. Indisputably, the prosecutrix did not suffer any injury. For the purpose of proving commission of the offence of rape, however, the same was not necessary as she was a grown- up girl aged between 20 to 23 years as opined by Dr. Gopikrishnan. She was furthermore mother of two children” In view of the above, the contention raised by the learned counsel for the accused/appellant has no force. 16A. The injuries on the person of the victim and the accused further give credence to the prosecution version that the 12 victim resisted the commission of rape upon her and she sustained the injuries. The evidence of victim that she bite the fingers & cheek of the accused/appellant further found corroboration from the injuries found on the person of the accused/appellant. 17. The learned counsel for the accused/appellant further contended that there are certain omissions, contradictions and developments in the evidence of the victim. The learned counsel for the accused/appellant pointed out that the F.I.R. did not contain that the finger of the accused/appellant was bite by the victim at the time of the commission of the offence. It was further contended that the F.I.R. did not mention that the victim sustained teeth bite on her cheeks by the accused/appellant during the course of the commission of the offence. He has further pointed out that it is not stated in the F.I.R. that the bangles and ear-ring were broken at the place of the occurrence during the commission of the offence. The learned counsel for the accused/appellant also pointed out certain other omissions, discrepancies and inconsistencies in the evidence. The learned counsel for the accused/appellant further stated in the F.I.R. the victim has stated after two hrs., she went to her house whereas during the course of the evidence she has stated that she went to her house in the evening. The learned Addl. G.A. refuted the contention and contended that the omissions, contradictions and developments are not of vital importance. The genesis of the incident has not been disturbed during the course of the evidence. It is well settled position of law that the FIR is not the encyclopedia in which all the details should be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to set the investigation 13 in motion. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to give the motion to the investigation. If the informant has narrated merely of the incident, it is sufficient to give the motion to the investigation. The omissions which were pointed out by the learned counsel for the appellant are not required to be mentioned in the F.I.R. There is no doubt that the victim is an illiterate lady and she did not know how to put her signature. Perusal of the entire evidence reveals that the victim was an illiterate lady. The discrepancies as pointed out by the learned counsel for the appellant is of no consequence. The evidence of the victim was recorded on 09/10/2000 and the incident took place on 26/03/2000. If the witness is produced before the court after few days, the contradictions are bound to creep in the statement of a truthful and reliable witness. Witness cannot depict the entire story of the commission of the offence in the same details as had happened due to lapse of memory and time. It is pertinent to mention here that when a witness appears before the court, sometimes he may not stand the test of cross examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. (See Krishna Mochi Vs. Vs. State of Bihar 2002 (6) SCC p/81). 18. The Hon’ble Apex Court has held in Munshi Prasad Vs. State of Bihar 2002 SCC(Cri) 175 as follows :- 14 “10. ………………………………………. Incidentally, be it noted that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra-note, as well, on perusal of the evidence on record. In this context reference may be made to two decisions of this Court. The first being State of U.P. v. M.K. Anthony 1985 SCC(Cri) 105 as also a later one in the case of Leela Ram v. State of Haryana 2000 SCC(Cri) 222. Needless to record that difference in some minor detail, which does not otherwise affect the core of the