IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 852 of 2001 Date of decision: 22nd February, 2008 A.F.R. (Approved for Reporting) _________________________________ Not approved for reporting Date: 22.02.2008 Initials of Judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 852 of 2001 (Old No. 2941 of 1987) 1. Khima Nand S/o Shri Beni Ram R/o Kalzaka Patti Palshan Tehsil Champawat District Pithoragarh 2. Mohan Chand S/o Shri Bhani Chand R/o Village Naini Patal P.S. Pithoragarh District Pithoragarh ….Appellants Versus State …. Respondent Mr. Lokendra Dobhal, Advocate with Mr. D.C.S. Rawat, Advocate for the appellants. Mr. Nandan Arya, learned A.G.A. for the respondent JUDGEMENT Per Hon’ble J.C.S. Rawat,J. 1. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973 ( for brevity hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 10.12.1987, passed by learned Sessions Judge, Pithoragarh, in Sessions Trial No. 1 of 1987, whereby the appellant- Khimanand has been convicted u/s 368 & 376 Indian Penal Code, 1860 ( hereinafter as I.P.C.) and sentenced to undergo R.I. for a period of ten years & five years respectively. He was further directed to pay a fine of Rs. 2,000/- in each count and in default thereof, he shall further undergo R.I. for a period of one year. Appellant –Mohan Chand has been convicted u/s 376 I.P.C. and sentenced to undergo R.I. for a period of 7 years. He was further directed to pay a fine or Rs. 2,000/- and in default thereof, he shall further undergo R.I. for a period of one year. Appellant –Basant Ballabh has been convicted u/s 363,366-A & 376 I.P.C. and sentenced to undergo R.I. for a period of two years, five years & ten years respectively. He was further directed to pay a fine of Rs. 2,000/- and in default thereof, he shall further undergo R.I. for a period of one year. 2. Brief facts of the case are that on 06.02.1985, the prosecutrix, Km. Pushpa was sent by her mother to purchase rice from Cheap Grain Shop. When the prosecutrix reached at the shop, she found it closed. She waited there for sometimes infront of the shop. Ultimately, the prosecutrix returned to her home without purchasing rice. When her mother saw her without effecting purchase and coming late at home, she scolded and admonished her. The prosecutrix was again sent to the Cheap Grain Shop and she again found it closed. When the prosecutrix was in a sad and remorseful mood, the accused Basant Ballabh (died during the pendency of appeal) who was known to the prosecutrix came over there and inquired her for being sad. The accused Basant Ballabh started to console her by saying that her mother was admonishing her everyday and suggested that they should run away and marry at Purnagiri temple. The accused Basant Ballabh also told her that his material uncle has a factory where he would get an employment and earn money and live comfortably. The accused Basant Ballabh took the prosecutrix to his room where they stayed throughout the night. The accused Basant Ballabh promised her to marry on the next day in Purnagiri temple. During the intervening night of 6th /7th February, 1985, accused Basant Ballabh committed rape with the prosecutrix thrice in the night. In the next day, the prosecutrix alongwith accused Basant Ballabh proceeded to the bus station Champawat. The accused Basant Ballabh asked the prosecutrix to go on foot 1 Km. ahead from Champawat towards Tanakpur side and wait for him near the deodar tree from where he would pick up her in the bus. Pursuing the said instructions, the prosecutrix proceeded towards the deodar tree on foot which is ahead of Champawat, from where she was taken in the bus by the accused Basant Ballabh and Trilok Singh (approver) who had also joined hands with accused Basant Ballabh. They all proceeded towards Tanakpur and got down little before Tanakpur from where they proceeded on foot and reached on Tanakpur –Bareilly road. They again boarded a bus going towards the side of Bareilly. The prosecutrix became anxious and inquired as to where they were going. In reply, the accused told her that they would first purchase the articles required to perform marriage from Pilibhit and then would go to the temple. When they reached at Pilibhit, the prosecutrix was taken to a liquor shop where the accused Khimanand used to work as a Salesman. The accused Khimanand was also having an accommodation there. The accused Basant Ballabh, Trilok Singh and Khimanand took the prosecutrix inside the room of accused Khimanand where the accused persons consumed liquor. After finishing the drinks, Trilok Singh and Basant Ballabh slept on one cot, while Khimanand and Km. Pushpa took separate cots. After sometimes, accused Khimanad went upto the cot of the prosecutrix and tried to molest her. The prosecutrix resisted his attempts and complained against accused Khimanand to Basant Ballabh. Accused Basant Ballabh instead of helping her, asked her to fulfill the desire of the accused Khimanand. Accused Khimanand subjected the prosecutrix to sexual intercourse forcibly. On 09.02.1985, the prosecutrix was taken to village Tikari where distantly related sister of Trilok Singh was residing so that they may not be apprehended by the police. Accused Trilok Singh and Basant Ballabh went outside the village to ascertain whether any report against them has been made or not. They came to know that a report has been lodged in the police station. The accused brought Km Pushpa from village Tikari to Tanakpur. At Pilibhit, accused Basant Ballabh got down and asked Trilok Singh to send the prosecutrix to Champawat. Trilok Singh brought the prosecutrix to Tanakpur. Thereafter, accused Trilok Singh found truck No. USZ 4480 with its driver, accused Mohan Chand near a pertrol pump at Tanakpur, Accused Trilok Singh told accused Mohan Chand that the prosecutrix was a student of Class IX and her school is to open the next day, therefore, she may be taken in the truck. Accused Trilok Singh also paid fare and instructed accused Mohan Chand that the prosecutrix be made to get down 1 km. before Champawat. Thereafter, accused Mohan Chand also committed rape upon her. When the truck moved a little forward, it stopped and an unknown person who was sitting by the side of the driver also went to the prosecutrix. The unknown person also committed rape upon the prosecutrix. Accused Mohan Chand Made the Prosecutrix to get down 1 km. before champawat. She covered the distance on foot and went straight to the house of accused Basant Ballabh. A written report Ex.Ka. 7 was lodged by Girish Chandra Paneru on 07.02.1985 before the Patti Patwari Talla Charao alleging therein that his niece km. Pushpa is not traceable since 06.02.1985 and that he has gathered the information that the accused Basant Ballabh has taken her away from Champawat towards Tanakpur. On the basis of F.I.R, the chick F.I.R. Ex. Ka. 8 was prepared. Patti Patwari Devi Datt PW7 investigated the case. He recorded the statement of the prosecutrix u/s 161 Cr.P.C. on 10.02.1985. During the course of investigation, the prosecutrix gave a written report Ex.Ka. 3 and disclosed that she has been raped by the accused–appellants. The investigating Officer sent the prosecutrix for medical examination in order to ascertain her age and whether she was subjected to sexual intercourse or not. The investigating Officer after completing the necessary formalities of the investigation submitted the chargesheet Ex.Ka.13 before the court. 3. After submission of chargesheet the accused – appellants were committed to the court of Sessions for trial and the trial court framed charges against the accused-appellants. The appellants–accused denied the charges leveled against them and claimed their trial. 4. The prosecution in support of its case, examined Dr. Leela Joshi PW1. She has conducted medical examination and X-ray of the prosecutrix at Govind Ballabh Pandey Hospital Pithoargarh. Prem Lata Tiwari PW2 is the Principal of the of Higher Secondary Girls School, Champawat who has certified the age of the victim. Hari Dutt PW3 was declared hostile. Km. Pushpa Paneru PW4 is the victim. She has narrated the entire story. Trilok Singh PW5 is the accused who has been subsequently made approver by the prosecution. Bhaskaranand Joshi PW6 is the S.D.M. who has conducted the identification parade of appellant Mohan Chand. Devi Dutt PW7 is Patwari who is the Investigating Officer of the case. 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case. 6. The learned Sessions Judge on appreciation of the evidence held the accused-appellants guilty as mentioned above and convicted and sentenced them. 7. I have heard Mr. Lokendra Dobhal, Advocate with Mr. D.C.S. Rawat. Advocate for the appellants; Mr. Nandan Arya, learned A.G.A. for the respondent; and perused the record. 8. The prosecution has adduced the evidence of proscutrix Pushpa Paneru PW4. She has narrated the entire incident as mentioned in para 2 of the judgment. Trilok Singh-PW5 who was also a co-accused in this case was declared as Approver in this case. His evidence was also recorded by the trial court. He has narrated the entire incident before the trial court and he had supported the prosecutrix in all the material particulars in his evidence. The prosecution further produced the medical evidence of Dr. Leela Joshi –PW1 who has medically examined the prosecutrix. She was stated in her evidence that there were recent signs of rape having been committed upon the prosecutrix. She has also found the hymen of the prosecutrix red in coulour and literal tears were present. During the course of her evidence, she stated that she had mentioned in her medical report Ex. Ka. 1 that rape has been committed recently, which means that the intercourse has taken place with the prosecutrix within two days. The rape was committed with the prosecutrix from the intervening night of 6/7-2-1985 to 9-2-1985. According to the prosecution, the accused Mohan Chand and one unknown person committed the rape upon the prosecutrix on the truck, two days before the medical examination of the prosecutrix. 9. It is well settled that the prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former, it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial which would lend assurance to her testimony. Assurance, sort of corroboration, is understood in the context of accomplice, would suffice. 10. The sexual violence committed upon the prosecutrix is an unlawful intrusion on the right of the privacy or sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. The victim becomes the prey of her helplessness being minor and becomes a victim of the circumstances produced by the accused-appellants. The accused who commits the rape causes not only physical injuries on her person but also causes a great harm to her reputation and chastity. The rape is not a crime against a female, it is a crime against the entire society. It destroys the entire psychology of a female and pushes her into deep emotional crisis. 11. Now, we have to see as to whether the appellants are responsible for committing the rape upon the prosecutrix. I have gone through the entire evidence of the prosecutrix who had narrated the entire story in her evidence. The prosecutrix remained consistent during her lengthy cross-examination. The learned defence counsel could not elicit anything from her cross- examination to discredit her evidence. She is the victim and she had stated her pathetic story in her evidence. She stands on the higher pedestal than any other witness. Her evidence is totally credible and cogent. I do not find any fault in the approach of the learned Sessions Judge to rely upon the evidence of the prosecutrix. 12. There is no doubt that accused Trilok Singh PW5 was a co-accused in this case and participated in the gang rape. The presence of accused Trilok Singh cannot be doubted. During the course of the evidence, he has narrated the meticulous details of the incident in the evidence. His evidence is totally credible and cogent. The defence counsel has cross-examined the said witness at length but nothing could be elicited from his evidence to discredit his testimony. Thus, accused Trilok Singh has also corroborated the factum of incident. I also do not find any ground to interfere in the finding recorded by the learned trail court, believing the evidence of accused Trilok Singh. The learned trial court was justified in holding that the evidence of prosecutrix –PW4 and Trilok Singh – PW5 was credible, cogent and reliable. 13. The prosecution case is further corroborated by the evidence of Dr. Leela Joshi-PW1. She has deposed in her evidence that the colour of the hymen of the prosecutrix was red in colour and literal tears were present. She has further stated that there were indications during the examination that intercourse with the prosecutrix had taken place within two days from 10.2.1985 when the medical examination of the prosecutrix was conducted. This fact also corroborates the evidence of the prosecutrix regarding the factum of rape with the prosecutrix. 14. Mr. Lokendra Dobhal, the learned counsel for the appellants contended that there are contradictions in the statement of the prosecutrix and the discrepancies are as such which make the evidence unbelievable. The learned Addl. Government Advocate refuted the contention and contended that minor discrepancies are bound to occur in the testimony of truthful, natural and reliable evidence. I have gone through the entire evidence and contradictions pointed out by the learned counsel for the appellants. Unless the contradictions are of material dimensions, the same should not be used to jettison the evidence in its entirety. It is quite natural that a person narrates the story in his own way and in different words & different ways. The minor discrepancies are bound to creep in the testimony of the natural and reliable witnesses. The minor discrepancies in the evidence are those which are due to normal error of observations, normal error of memory, due to the lapse of time and due to the mental disposition such as, shock & horror of the incident and those are always there, however, honest and truthful a witness may be. The statement of the prosecutrix in this case was recorded before the trial court on 23.3.1987 i.e. after two years of her making statement before the Investigating Officer. During the long gap of two years, it was but natural that certain discrepancies would occur in the testimony of the witnesses. The prosecutrix had fully established the genesis of the crime in her evidence. I do not find any force in the contention of the learned counsel for the appellants. 15. The learned counsel for the appellants further contended that the prosecutrix was a consenting party to the whole incident; the prosecutrix remained with the accused Basant Ballabh with her own consent; she went with him to Tanakpur with her own consent; and she was willing and consenting party. The learned Addl. Government Advocate refuted the contention and contended that the age of the prosecutrix was below 16 years and even if the consent was there, it was immaterial. It was further contended that the appellant Basant Ballabh had also induced her to marry with her in the purnagiri Temple but he did not perform the marriage as assured by him in the Purnagiri Temple. Instead of that, she was taken to other places where rape was committed upon her by other accused. The prosecutrix being the minor, her kidnapping was made by the accused Basant Ballabh on fraudulent inducement. 16. Before dealing with the respective submissions of the learned counsel for the parties, it would be proper to determine what was the age of the prosecutrix at the time of the commission of the offence. According to the prosecution, the prosecutrix was below the age of 16 years and the prosecution has adduced the evidence of Smt. Prem Lata Tewari PW2, the principal of the Government Grils Inter College, Champawat who had issued the certificate of the age of the prosecutrix Ex.Ka.2 in which it has been indicated that the date of the birth of the prosecutrix recorde in the school register was 12.10.1971. The incident took place on 06.2.1985. the age of the prosecutrix if calculated on the basis of date of birth recorded in the school records, it would be in between 13.14 years. In absence of any other evidence, the school record is the best evidence to prove the age of the prosecutrix. It is also pertinent to mention here that the parents of the prosecutrix could not be examined by the prosecution as they were not prepared to keep the victim i.e. the prosecutrix with them and they also refused to take her custody. After her recovery, the prosecutrix was sent to ‘Nari Niketan’ as her parents had disassociated themselves from her. The age recorded in the school is further corroborated by the medical evidence produced by the prosecution. The prosecution has adduced the evidence of Dr. Leela Joshi –PW1. On the basis of X-ray, physical appearance & ossification test, it was found that the age of the prosecutrix was in between 14-16 years. In view of the above overwhelming evidence, it is clear that the prosecutrix was below the age of 16 years. 17. If the age of the prosecutrix is below 16 years, and even if the consent is there, it is immaterial. It is revealed from the evidence that the prosecutrix has categorically stated that she always resisted for the sexual intercourse. It is also in the evidence that when the appellant Khimanand committed the rape, she sought the help of accused Basant Ballabh who instead of rescuing her asked her to submit herself to the wishes of appellant Khimanad. Inspite of her resistance, Khimanad slapped her and committed sexual intercourse forcibly. She was mad the prey of the circumstances, created by the accused Basant Ballabh. She was taken by Basant Ballabh on the assurance to marry with her at Purnagiri temple for the marriage. Insteated of that she was taken to different places where she was subjected to forcible sexual intercourse with difference persons. After being sexually assaulted by accused khimanand, she was forced to go to Champawat in a truck with truck driver, accused Mohan Chand, who in his turn, made the poor prosecutrix the victim of the rape during the course of the journey. Not only this, the appellant Mohan Chand also allowed his associate, an unidentified person to commit rape with the helpless preosecutrix. This pathetic story of the prosecutirx itself tells how she was made the victim of the sexual assault. It cannot be held that she was a consenting party to the sexual assaults committed by different accused. Even in the case of Basant Ballabh, it is said that on the intervening night of 6/7.02.1985 a rape was committed with the consent, through it was not with the consent. The consent is immaterial if the girl was below 16 years. 18. The learned counsel for the appellant contended that identification parade of appellant Mohan chand was conducted by inordinate delay and the identification before the court made by the prosecutrix of appellant Mohan Chand was of no value. The learned Addl. Government Advocate refuted the contention and contended that the substantive evidence of a witnesses is the statement in the court. The test identification parade during investigation is for the assistance of the investigation to come to identify the accused and to come to a logical end of the investigation. It only gives a corroborative piece of evidence to substantiate the substantive evidence in the case. Whereas the identity of accused Khimanand is concerned, there was no need to seek the identification of the accused Khimanand by identification parade. The prosecutrix has specifically stated in her deposition that she knew accused Khimanand alias Pundit. She has addressed her in her report as Pundit and she has also stated in the evidence that accused Khimanand used to come to a shop where she used to go to sale milk to the shop-keeper and the accused Khimanand is known as Pundit in the village. She has also stated in her deposition that when the rape was being committed upon her by the accused Khimanand, the appellant Basant Ballabh also named him as Khimanand. It is not the case of mistaken identity of the accused. It is pertinent to mention here that Trilok Singh PW5 had also made it clear that Khimanand was also called as Pundit. In view of the above facts narrated in the evidence, the indentity of Khimanand is not doubted in any way whereas the accused appellant Mohan Chand, the driver of the truck is concerned, his name appeared during the course of the investigation and no chargesheet was submitted against him. The learned D.G.C. (Crl.) moved an application under Section 319 Cr.P.C. to summon Mohan Chand as accused in the session trial. The learned Sessions Judge allowed the said application u/s 319 Cr.P.C. and made Mohan Chand and accused in the case and directed to be produced before the Court in Baparda Custody so he may be put to the identification. The accused was to be identified after being summoned under Section 319 Cr.P.C. Pursuant to the said order, the Executive Magistrate –PW6 Bhaskaranand Joshi conducted the identification parade and the memo of the identification parade is Ex. Ka 6. Dated 23/6/1987. The prosecutrix has correctly identified the appellant Mohan Chand. Thereafter the accused appellant was identified before the court by the prosecutrix. The evidence of Trilok Singh- PW5 further corroborates that he had entrusted the prosecutrix to accused Mohan Chand to take her in the truck from Tunakpur to Champawat. Thus, there was no question of mistaken identify as regards the accused Mohan Chand is concerned. 19. It is a well settled position of law that the substantive evidence of a witness is the statement in court but as a rule of prudence, earlier identification proceedings are held in order to corronprate the testimony of a witness given in the court as regards the identify of the accused who is not known to him from before. {See Munna Vs. State (NCT of Delhi) 2004 SCC (Cri) p/944}. The effect of identification parade has been recently examined by the three judges bench in Malkhansing & others Vs. State of M.P. 2003 SCC (Cri) p/1247, in which the Hon’ble Supreme Court has held that:- ``7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a week character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly