IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.303/2002. Judgment reserved on:12.5.2009 Decided on: Mayl 15, 2009. _________________________________________________________ Vidhi Chand …..Appellant. Versus State of H.P. …Respondent. Coram: Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes For the appellant : Mr.Virender Thakur,Advocate. For the respondent : Mr.J.S.Guleria, Assistant Advocate General. _________________________________________________ SURINDER SINGH,J: In this appeal the appellant has assailed his conviction and sentence passed by the learned trial court for the offences punishable under Sections 376, 323 and 341 of the Indian Penal Code. The sentences imposed under each of the sections are as under: Sr.No. Under Section: 1. 376 I.P.C. Seven years simple imprisonment and fine of Rs.20,000/-. In default of payment of fine the convict further to undergo simple imprisonment of six months. 2. 341 I.P.C. One month simple imprisonment. 3. 323 I.P.C. One year simple imprisonment. Whether reporters of the Local papers are allowed to see the judgment? yes . 2 All the sentences were ordered to run concurrently. The period of custody was ordered to be set off. In brief the prosecution case can be stated thus: On 28.1.2001 at about 5/6 p.m. the prosecutrix had gone to ‘Jakhroda jungle’ to fetch the char-wood. On her return, when she reached near a water source, the appellant resident of village Jakhroda met. Finding her alone he stopped her and threw away the load of wood on the ground. Thereafter he caught hold of her to have the sex with her. The prosecutrix resisted and pushed him aside but the appellant chased her and was able to catch hold of her at some distance. He dragged her and took her beneath the bushes. There was scuffle but the appellant over powered her and laid her on the ground and put one hand on her mouth and opened her salwar up to her knees and slided down his white pajama and committed rape. The accused was also wearing his blue jacket. After committing the rape, she was alleged to have threatened by him not to disclose this matter to anyone. Her injuries had bled. The prosecutrix came to her village. On seeing her condition, her father asked the reason. She disclosed about the said incident to him. Her father took her to the Lumbardar Sh.Vijay Ram and narrated the entire incident to his wife Smt.Tara Devi. Next day she along with Lumbardar and her parents lodged the F.I.R. against the appellant and got the prosecutrix examined in E.S.I. Hospital, Parwanoo. She was found to have sustained bruise and lacerated wounds on the different parts of her body. The shirt and salwar of the prosecutrix were taken into 3 possession and sealed and sent for the Forensic Science examination. The police proceeded to the spot where she was allegedly raped and noticed blood stained on the stones. The said stones were sealed and taken into possession in the presence of Vijay Ram . The police also collected the medico legal certificate (M.L.C) of the prosecutrix. The prosecutrix was referred for the determination of her Skelton age. As per the report she was around 19 years of age. The appellant was arrested on 8.2.2001. He was also referred to the medical examination and was found capable to perform the sexual intercourse. On the forensic examination the semen stains were found on the salwar Ext.P3 whereas on the shirt Ext.P4 the human blood as well as semen both were found present. The vaginal swab contained the semen stains and the stones also contained the human blood. The police took the photographs of the spot of alleged incident pointed out by the prosecutrix. The site plan was also prepared and after recording the statements of the witnesses, the challan was presented after its completion in the Court under the aforesaid offences for the trial of the accused- appellant.. Finding a prima facie case against the appellant he was chrargesheeted to which the appellant pleaded not guilty and claimed trial. 4 To prove its case, the prosecution examined its witnesses and the appellant was also examined under Section 313 Cr. P. C. When he was called upon to enter into his defence, the appellant did not lead any evidence in defence. At the end of trial he was convicted and sentenced as aforesaid. Mr.Virender Thakur, learned counsel for the appellant forcefully argued that the prosecution has failed to prove the offence charged against the appellant. The statement of the prosecutrix did not inspire any confidence, further the Lumbardar has categorically stated that the prosecutrix had illicit relation with the appellant prior to the alleged incident as stated by her father and also submitted that at the worst it is a case of consent and the learned trial Court failed to notice the above facts. To buttress the argument, he cited Bibsishan Vs. State of Maharashtra, (2007) 12 S.C.C. 390 and prayed for the acquittal of the appellant. Shri J.S.Guleria, learned Assistant Advocate General has supported the impugned judgment of conviction and sentence passed by the learned trial Court and contended that the statement of the prosecutrix finds corroboration from the independent sources. Therefore, there is no valid ground to interfere and upset it. At the very out set I would like to say that the facts of Bibsihan’s case (supra ) are quite different from the case in hand, because in that the apex court had noticed that the medical evidence revealed the absence of any injury on the person of the prosecutrix or any sign of semen on her private 5 parts. Neither her clothes were torn nor was there presence of hair of the accused found on her private parts. The doctor after examining the prosecutrix had stated in the Court that she was habituated to sexual intercourse and it was against this background the benefit of doubt was given to the accused who was chargesheeted for the offences punishable under Sections 376 read with Section 511 of the Indian Penal Code. But in the case in hand, the appellant is chargesheeted for the offence punishable under Sections 376, 341 and 323 of the Indian Penal Code and not for attempt. Further the prosecutrix has testified on oath that on 28.1.2001 she was raped by the appellant and when she offered resistance and in the process when she was dragged by the appellant she sustained injuries on her person. She corroborated the prosecution story in toto. She knew the appellant and she also stated that at the relevant time he was wearing white pajama and a blue jacket. She further deposed that the appellant had forcibly penetrated his male organ into her private parts and committed sexual intercourse without her consent. Thereafter she went to her home and narrated about the incident to her father who took her to the Lumbardar PW3. There also she narrated the incident to his wife Smt.Tara Devi. On the next day, she went to the Panchayat but the Panchayat was not conducted in its office on that day. Thereafter she along with Lumbardar accompanied by her parents reported the matter to the police. She was medically examined. The spot was inspected by the police in her presence. She stated that there were blood stained on the stones found on 6 the spot which were taken into possession by the police along with her broken bangles in the presence of Lumbardar. During the trial she identified the broken pieces of bangles Ext.P1 which were worn by her before the alleged incident. She also identified blood stained pieces of stone Ext.P2 which were taken into possession by the police vide seizure memo Ext. PW1/A. She further identified her salwar Ext.P3 and shirt Ext.P4 alleged to have worn by her at the time of the alleged incident. In her cross-examination, she denied that she had been meeting the accused continuously for the last about three years and had developed his sexual relations. She also denied that her father had seen her when the appellant was committing sexual intercourse with her and that she was given beatings by him. She further stated that she tried to save herself from the appellant but he did not leave her hands and arms and caught hold by him at the time of the incident. She had narrated the whole incident to the father immediately after the incident and then to the Lumbardar. She also stated that her bangles were broken when the accused committed sexual intercourse with her and further that the blood came out at the time of the incident when he committed sexual intercourse with her. She denied that she had consented to the sexual intercourse with the appellant. Significantly the defence suggested was not stated or probablised by him in his statement recorded under Section 313 Cr.P.C. His case throughout remained denial simplicitor. PW2, Smt.Sundra Devi, mother of the prosecutrix corroborated her version that when she returned back from the 7 jungle, her clothes were stained with the blood. She had sustained injuries on her body and told that she was beaten up by the appellant and dragged her to the bushes where he committed the sexual intercourse with her forcibly. She denied in her cross-examination that the appellant was caught in her residential house when he used to meet the prosecutrix even at the earlier occasion. PW3 Sh.Vijay Ram further afforded the corroboration to the prosecution case. He stated that the prosecutrix had narrated about the incident to his wife. He along with her father went to the police station and lodged the F.I.R. He was present on the spot when the police visited. In his presence the broken bangles and the blood stained stones were taken into possession by the police vide seizure memo Ext.PW1/A on which he proved his signatures. In his cross-examination he stated that on the earlier occasion the appellant and the prosecutrix were brought to his residential house and her father informed him that he had illicit relation with her. However, he stated that the pieces of bangles were collected from the spot which was pointed out by the prosecutrix. PW5 Dr. Jyoti Kapil had examined the prosecutrix on 30.1.2001 at about 6.30 a.m. and the prosecutrix narrated the story to her that on 28.1.2001 at about 5 p.m. One Vidhi Chand had jumped on her when she was coming back and dragged her into the bushes, closed her mouth with hand and opened her salwar and committed sexual intercourse with her. This fact is 8 noted in M.L.C. On her physical examination the doctor noted the following injuries on her person: 1. Bruise and swelling was present over left eye patient complained of dimension of vision eye surgeon opinion was advised. 2. One lacerated wound present over scalp 8 centimeter above the nasion clotted blood present all round. 3. Two lacerated wound of size half centimeter present over left cheek and chin. Clotted blood was found present all over face. 4. Abrasion present over left knee joint and left leg radish brown in colour. Movements around left knee joint were normal. 5. Abrasion present over right leg reddish was brown in colour. Doctor also found redness present over the introitus and clitoris which was tender to touch . Though the prosecutrix was found habitual of sexual intercourse. The clothes of the victim were packed and sealed and handed over to the police for further examination. In the opinion of the doctor the injuries found on the prosecutrix were simple in nature and the possibility of her recent sexual activities could not be ruled out. On receiving the report Ext.PW5/A, her opinion remained the same. According to her on forcible sexual intercourse the injury on the vagina is not must. She also stated that the injuries in question could be caused if the prosecutrix is dragged forcibly. PW13 Sh. Ram Singh, the Investigating Officer has stated in cross-examination that the Deputy Superintendent of Police had visited the spot of the incident. He admitted that the 9 prosecutrix was having the injury on her head when she had come to report the matter to the police and she informed that she had sustained injuries when she tried to escape from the clutches of the appellant. He further stated that during the investigation it had come to knowledge that there was no illicit relation between the accused and the prosecutrix prior to the incident. On the reappraisal to the above evidence, it is manifest that the prosecutrix was unmarried girl of more than 19 years. Immediately after the incident she complained to her parents about the alleged incident, thereafter to the Lumbardar and his wife and she reported the matter to the police against the appellant. Not only this even during the trial of this case she also made the same statement against the appellant as he having committed sexual intercourse with her without her consent. She further testified on oath about the injuries sustained on her person were caused when she was dragged by the appellant towards the bushes. She also stated that there were bleeding and this fact stands corroborated from the blood stains found on the stones Ext.P2 recovered from the spot which was identified by the prosecutrix. On the day of her medical examination injury No.3 was such that she had two lacerated wound on left cheek and chin with clotted blood all over the face, which was visible to all. All the above proved facts negate the consent rather it establishes the forcible sexual intercourse by the appellant against her wishes. Further, the statement of the prosecutrix also finds corroboration from the fact of recovery of the broken bangles 10 from the spot from the point depicted in the site plan Ext.PW13/J prepared on 30.1.2001 which is also proved by PW3 Vijay Ram Lumardar. The broken bangles Ext.P1 were identified by the prosecutrix to be her own, which fact was not assailed in her statement. The injuries on her person noticed by the doctor and also the Investigating Officer tells it tale in so many words, what has happened with her. Further the forensic examination of her salwar Ext.P3 and shirt Ext.P4 also substantiate the case of sexual assault on her by the appellant which contained blood and semen stains. Even the jacket of the appellant was found to have the blood stains. The case of the appellant in his examination under Section 313 Cr.P.C. was that of complete denial and even he did not state about the previous meeting and any sort of relation with the prosecutrix at any point of time. Thus the admission by PW5 that the father of the prosecutrix had complained to him earlier also about their meeting and sexual relation is of no use in the absence of its specific denial by the prosecutrix and not so stated by the appellant in his statement under Section 313 Cr.P.C. The fact that on the day of the alleged incident the prosecutrix was sexually assaulted by the appellant without her consent to which she testified on oath before the court stands fully proved and there is absolutely nothing on record to disbelieve her version. Accordingly on the standard of the above evidence, I find that the offences under Sections 376, 323 and 341 of the Indian Penal Code stands fully proved and the appellant was 11 rightly convicted and sentenced by the learned trial court which, for the above reasons requires no interference in this appeal. Accordingly the appeal is dismissed. The appellant who is on bail is hereby directed to surrender before the learned trial Court within one month from today, failing which, the learned trial court shall take steps to execute the remaining sentence in accordance with law. Send down for the records. (Surinder Singh), Judge. May 15,2009(R)