1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal Nos. 532 & 561 of 1996 Date of Decision: 23.5.2008 ____________________________________________________________ 1. Cr.Appeal No.532 of 1996. Kirpal Singh and another. Appellants. Versus State of H.P. Respondent. For the appellants : Pt. Om Parkash Sharma, Advocate. . For the respondent : Sh. P.K. Sharma, Addl. Advocate General. 2. Cr. Appeal No.561 of 1996. Jagdeep Singh. Appellant. Versus State of H.P. Respondent. For the appellants : Mr. Naresh Thakur, Advocate. . For the respondent : Sh. P.K. Sharma, Addl. Advocate General Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. _________________________________________________________ Surjit Singh, J. (oral). Appellants in both the appeals are aggrieved by the same judgment of the Sessions Court, whereby they have been convicted for offence of gang rape, punishable under Section 376 (2) (g), I.P.C. and sentenced to under-go rigorous imprisonment for ten years and Whether reporters of the Local papers are allowed to see the judgment? 2 to pay a fine of rupees 5000/- each. So both the appeals are being disposed of by a common judgment, i.e, one in hand. Prosecution story as it emerges from the evidence and other material on record may be stated thus. Prosecutrix (name with-held), who was examined as PW2 before the Sessions Judge, was a student of 10th standard in the year 1992. She used to attend some extra classes, after the closing hour of the School. On 1-6-1992, around 4.00 P.M, when she was returning home from the School and walking along a Gohri (village path) and reached a point, a little less than half a km from her house in village Kuneran and a boy named Manjit Uldin (PW9) studying with her in the same class had been going ahead of her, sound of whistling was heard. Manjit Uldin went towards his house. Three boys were seen hiding in the bushes, about fifteen yards away from the Gohri (common village path) by the prosecutrix. Two of those boys, whose names were not known to the prosecutrix, came to her and physically carried her to the bushes. She was gagged, when she tried to raise alarm. On being taken to the bushes she was undressed in the lower part of her body and subjected to rape by the aforesaid two boys, as also the third boy, who had remained in the bushes. The name of the third boy was appellant Jagdeep Singh. Prosecutrix went home and informed her mother about the incident. Her father was not at home, as he had gone on tour to some other place. He was contacted telephonically and asked to reach home immediately. He reached in the night. Incident was narrated to him by the mother of the prosecutrix. Next day, the prosecutrix accompanied by her father Joginder Singh (PW3) went to the Police Station, where she made a statement, which was recorded under Section 154 of the Code of Criminal Procedure. Prosecutrix was got 3 medically examined. Doctor noticed that her hymen was torn and she had a few scratches and abrasions. Doctor gave the opinion that she had been raped within twelve to eighteen hours. Appellant Jagdeep Singh was arrested immediately after the registration of the case. He was got medically examined. His medical examination showed that he was capable of performing sexual intercourse. Slides of vaginal secretion of the prosecutrix were prepared and on testing dead spermatozoa were found therein. The other two appellants, whose names were not known to the prosecutrix and as such they were not named in the F.I.R., were arrested on 8-6-1992. They too were got medically examined and the Doctor did not notice anything suggesting that they were incapable of performing sexual intercourse. Test identification parade was conducted by a Judicial Magistrate on 11-6-1992 and the prosecutrix identified those two other appellants (Kirpal Singh and Banti) as the other boys, who committed rape on her. Appellant Jagdeep Singh took the plea that the prosecutrix had been having an affair with a boy by the name of Nika Ram alias Mohinder and that he had seen her in a compromising position with that boy on the day of occurrence and that the prosecutrix fearing that he would be apprising her mother about the incident, cooked up a false story. The other two appellants stated that on 4-6-1992, they had an altercation with Sub Inspector Balwant Singh (PW14) when he was going towards their village and because of that, he falsely implicated them in the case. Prosecution examined the prosecutrix (PW2) her father Joginder Singh (PW3), Manjit Uldin her class fellow as PW9 and the Lady Doctor, who conducted the medico legal examination of the 4 prosecutrix Mohini Kamal as PW1 to bring the charge home to the appellants. Trial Court believed the version of the prosecutrix as corroborated by the testimony of PW1 Dr. Mohini Kamal and PW3 Joginder Singh (father of the prosecutrix) and convicted and sentenced the appellants as aforesaid. It has been submitted on behalf of the appellants that the version given by the prosecutrix is highly improbable and it is not corroborated by the medical evidence. It has also been submitted that there was delay in lodging the report with the Police, which has remained un-explained. It was also submitted that the prosecutrix had made improvements over the earliest version given by her to the Police which renders her testimony doubtful. We have gone through the evidence and examined the submissions made by the learned counsel for the appellants in the light of the evidence on record and the statements of the appellants under Section 313 of the Code of Criminal Procedure. Learned counsel submitted that the prosecutrix’ version was improbable because according to her own statement, one of her class fellow was accompanying her and was walking only a few paces ahead of her and the place of occurrence was also close to her house. He also submitted that there were no bruises or any other injury on the buttocks and the backside of the prosecutrix even though, according to her, the incident had taken place in the bushes. We do not find any substance in any of the aforesaid submissions. According to the prosecutrix, the incident had taken place at a distance of about half a km from her residence and not close to her house as is canvassed by the learned counsel for the appellants. The class fellow of the prosecutrix PW9 Manjit Uldin was walking ahead of 5 her. Nobody has stated that he was only a few steps ahead of her. Therefore, the submission that a class fellow of the prosecutrix was accompanying or walking only a few steps ahead of her is also not factually correct. As regards the submission that there were no injuries on the person of the prosecutrix, the medico legal evidence suggests that there were abrasions and scratch marks on the legs, right arm, near elbow joint and one abrasion near the nose below the right eye. Therefore this contention of the appellants can also not be accepted. Prosecutrix very categorically stated that she was physically carried from the Gohri to the bushes by the two boys whose names she did not know but she identified those two boys during the test identification parade, per testimony of PW6 C.L. Kochhar, Judicial Magistrate. Those boys were appellants Kirpal Singh and Banti. She stated that all the three appellants committed rape on her forcibly and that when she tried to raise alarm, knife was brandished by appellant Kirpal Singh. The Doctor who conducted her medico legal examination, namely, PW1 Mohini Kamal, besides noticing the aforesaid abrasions and scratch marks, found laceration of perennial region near the introits. She also noticed reddishness over the entire introits. She also found that the hymen was torn. She denied the suggestion that tearing of hymen was old meaning thereby that it was recent. The medico legal evidence thus corroborates the testimony of the prosecutrix. The testimony of the prosecutrix is further corroborated by the presence of human semen marks on her own clothes as also those of the three appellants. Her testimony is further corroborated by the recovery of a hair pin from the spot which was 6 effected on 2-6-1992 at the time of spot inspection by PW14 Balwant Singh Sub Inspector. The recovery was effected vide memo Exhibit PJ. Another submission made on behalf of the appellants is that there was unexplained delay in lodging the F.I.R. Incident took place on 1-6-1992 at 4.00 P.M. Father of the prosecutrix was not at home that evening. He was called telephonically in the night. Next day at 9.00 a.m, the prosecutrix accompanied by her father reached the Police Station and lodged the report. Therefore, it cannot be said that there is un-explained delay in lodging the F.I.R. It was also submitted that the prosecutrix had made improvements over the earliest version given by her to the Police, vide statement Exhibit-PG, inasmuch as in the said statement, there was no reference to any knife having been brandished, but during the investigation, story of knife was introduced and one knife was recovered and also produced in the Court, during the trial. It is now well settled that F.I.R. is not an encyclopedia of the incident. The prosecutrix was a young girl of about fifteen years at the time when the incident took place. The medico legal evidence suggests that she was having laceration of her private part. She can legitimately be presumed to be under shock because of the aforesaid incident. Therefore, omission of some material facts including that of the brandishing of knife cannot be taken to be an improvement in the prosecution story. It was also argued that the age of the prosecutrix was more than sixteen years at the time of the incident. The argument looses its significance in view of the specific stand taken by the appellants that they had not committed any act of sexual violence and that they had been falsely implicated. Otherwise also, the 7 evidence on record proves that the prosecutrix was born on 21-11- 1977 which means that she was less than fifteen years at the time of the incident. The age of the prosecutrix is proved by an entry in the school register Exhibit PW11/A. PW11 Shri Nika Ram Headmaster of the School produced the register and proved this entry during trial. The testimony of the father of the prosecutrix also proves that the age of the prosecutrix was not more than fifteen years. His statement was recorded on 18-1-1995. He got his age recorded as 46 year and testified that his marriage had taken place in the year 1974 and on 26-12-19975, his first child was born which was male and that the prosecutrix was born thereafter. He denied the suggestions that his marriage had taken place in the year 1970 and the prosecutrix was his first child and she was born in the year 1972. He stated that he was twenty-four years of age at the time of his marriage. That means his marriage had taken place twenty two years prior to the date when he was in the witness box, i.e, 18-1-1995. This statement fits into his earlier statement that his marriage had taken place in the year 1974 and disproves the suggestion put to him in the cross-examination that he was married in 1970. Coming to the defense of the appellants, there is absolutely no evidence suggesting that the prosecutrix had been seen by appellant Jagdeep Singh in a compromising position with one Nikka alias Mohinder. Prosecutrix denied the suggestions put to her on the lines of this defense plea. Otherwise also, the plea appears to be improbable. If Jagdeep Singh appellant had seen the prosecutrix in a compromising position with Nikka alias Mohinder, as claimed by him and he was planning to go to the mother of the prosecutrix to apprise her of the situation, how could have the 8 prosecutrix come to know of it. Jagdip does not say that he told the prosecutrix that he would inform her mother about what he claimed to have seen . Therefore his plea that on coming to know that he was likely to inform her mother, the prosecutrix cooked up a false story of having been raped by him and two other boys cannot be believed. Further more, if this were a false case because of the aforesaid reason, why should have the prosecutrix made the allegation of rape by three boys, instead of Jagdip Singh only. Plea raised by the other two appellants that they happened to have an altercation with Sub Inspector Balwant Singh on 4-6-1992, when he was going towards the village by a Government jeep, also does not appear to be natural. Appellants were young boys. Normally people fear the police and do not pick quarrels with them. Moreover, in the FIR which was lodged on 2-6- 1992, it is specifically mentioned that besides appellant Jagdeep, there were two more boys. Their names were not known, when the FIR was lodged. In view of the above discussion, we see no merit in either of the two appeals. The same are therefore dismissed. Appellants are ordered to surrender to the trial Court immediately. Trial Court shall draw the warrant of commitment and send the appellants to jail as soon as they are produced before it. (Surjit Singh), J (Surinder Singh) ,J May 23, 2008. (bm) 9