IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.577 of 2001 Date of decision : October 17, 2008 Parmod Kumar and another …Appellants. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Vinay Thakur, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Mr. Romesh Verma, Advocate, for the prosecutrix-complainant. Surjit Singh, Judge( Oral ) Appellants have appealed against the judgment of Sessions Court, whereby they have been convicted of offence, under Section 376, read with Section 511 of the Indian Penal Code, and sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.2,000/-, each, in default of payment of fine to undergo simple imprisonment for a further period of six months, each. 2. Prosecution case, as per evidence led before the trial Court, is like this. Prosecutrix, examined as PW-5, was aged about 16 years in July, 2000. On 4th July, 2000, she went to her orchard to collect grass. When she was in the orchard, the two appellants went there, dragged her to a lonely place, in Whether reporters of the local papers may be allowed to see the judgment? …2… the orchard itself, at a distance of about 20 feet and forcibly removed her shirt and Salwar. They then attempted to commit rape on her. Prosecutrix cried for help, upon which the two appellants ran away. Prosecutrix went home. Her mother was not at home, as she had gone to Rohru for her medical check- up. She returned next day. Prosecutrix narrated the incident to her. Her mother, PW-3 Swala Devi, in turn, informed her husband, PW-2 Bairagi Ram. The parents of the prosecutrix took her to Police Station, Jubbal, where FIR Ex. PW-2/A was lodged. Prosecutrix was got medically examined from PW-1 Dr. Ravinder Singh, who observed ten abrasions and bruises on the legs and back of the prosecutrix. He, however, did not notice any evidence of injury to the private parts of the prosecutrix. He gave the opinion that there was no evidence of penetration, but possibility of attempted penetration could not be ruled out. 3. Initially, trial Court charged the appellants with the offence of gang rape, under Section 376(2)(g) of the Indian Penal Code. During the course of trial, charge was amended and changed to Section 376, read with Section 511, of the Indian Penal Code. Prosecution examined the prosecutrix, her parents, the doctor, who conducted prosecutrix’ medico legal examination, and several other formal witnesses to bring the charge home to the appellants. Appellants took the plea that they had been falsely implicated. To the prosecutrix and her parents, it was suggested that litigation had been going on between the family members of the prosecutrix and the family members of appellant Parmod Kumar and it was because of …3… that reason that appellant Parmod Kumar and the second appellant had been falsely implicated. In their statements, under Section 313 of the Code of Criminal Procedure, appellants stated that the prosecutrix sustained the injuries, noticed on her person, because of her having been beaten up by her father, on coming to know that she had been flirting with some boys. Appellants examined three witnesses, including DW-3 Mohan Lal, father of appellant Parmod Kumar, who testified that prosecutrix was a girl of bad reputation and had been indulging in wrong activities and flirting with the boys of the village and some Gurkhas. He also stated that the father of the prosecutrix wanted the prosecutrix to be married to his son, appellant Parmod Kumar, but when he declined the offer, his son was falsely implicated. 4. I have heard the learned counsel for the appellants and perused the record. 5. It is submitted by the learned counsel representing the appellants that the evidence on record does not prove the offence of which the appellants have been convicted and that the trial Court has not appreciated the evidence on record as also the defence plea. It is also his submission that the testimony of PW-1 Dr. Ravinder Singh does not even prove the charge of attempted rape, because he has opined that the possibility of attempt to penetrate could have been there. 6. Prosecutrix, in her testimony as PW-5, categorically stated that when she was present in the orchard, the two appellants came there and forcibly dragged her to a distance of …4… 20 feet in the orchard itself and then removed her clothes and mounted on her, one after the other. No doubt, the prosecutrix stated that the two appellants committed wrong act with her, and the medico legal evidence does not show that penetration had taken place, but that does not mean that offence of attempt to commit rape was not committed. PW-1 Dr. Ravinder Singh stated that the prosecutrix had been menstruating, at the time of the medical examination. Mother of the prosecutrix, PW-3 Swala Devi, has stated that the prosecutrix had been menstruating even on the day and at the time of the incident. It is quite likely that after removing the clothes of the prosecutrix, the two appellants, on noticing that she was menstruating, did not commit the act of actual penetration but just gratified their lust as, according to the prosecutrix’ testimony, both of them mounted on her, one after the other, and fled from the spot only when she raised cries. Testimony of the prosecutrix is corroborated, to the extent of her having been dragged, by the testimony of PW-1 Dr. Ravinder Singh, who noticed ten bruises and abrasions on her body. According to the doctor, the duration of the injuries, noticed by him, was 48 hours. He conducted the medical examination on 6th July, 2000. Incident had taken place on 4th July, 2000. Duration of the injuries corresponds with the time of sustenance of those injuries, as testified by the prosecutrix. 7. Defence plea that the appellants have been falsely implicated, on account of litigation between the families of the prosecutrix and appellant Parmod Kumar, cannot be believed. …5… Appellants placed on record documents, Ex. D-1 to Ex.D-5, to prove the plea that litigation had been going on between the two families. Ex. D-1 shows that some piece of land had been granted to a cousin of appellant Parmod Kumar, by way of nautor, and a brother of the father of the prosecutrix and one more person objected to that grant, on the ground that a passage ran through the subject matter of grant. Ex. D-2 to Ex. D-5 show that another piece of land had been granted, by way of nautor, to the grandfather and two brothers of the grandfather of appellant Parmod Kumar and a brother of the father of the prosecutrix, named Amar Singh, objected to that grant. In neither of the two cases of grant of nautor, prosecutrix’ father was a party. Therefore, it is not believable that on account of objections to the grants of nautor, one in favour of a cousin of appellant Parmod Kumar and the other in favour of the grandfather of the said appellant, by the brothers of the father of the prosecutrix, the prosecutrix or her father would level false allegations of rape, thereby putting the honour of the prosecutrix and the entire family at stake, especially when the prosecutrix was quite young, just 16 years old and also virgin, per testimony of PW-1 Dr. Ravinder Singh. 8. Plea of false implication, on account of litigation between the families of the two sides, is further falsified by the testimony of DW-3 Mohan Lal, who stated that the father of the prosecutrix wanted the prosecutrix, a girl of bad reputation, to be married to his son appellant Parmod Kumar and when he did not agree, he (father of the prosecutrix) falsely implicated the …6… appellant. Now, if the parties had strained relations, on account of litigation, as sought to be projected by the defence, there could not have been any occasion for the father of the prosecutrix to have made an offer to the father of appellant Parmod Kumar to give the prosecutrix in marriage to the appellant. 9. Plea taken by the appellants, in their statements, under Section 313 of the Code of Criminal Procedure, that the prosecutrix sustained injuries, noticed by PW-1 Dr. Ravinder Singh, when she was beaten up by her father, is nothing but an afterthought. No suggestion, on the lines of this plea, was put to the prosecutrix or her father or even to the doctor that the injuries could have been sustained, on account of beating with stick. Also, the plea is proved to be false by the medico legal evidence, which suggests that the prosecutrix was virgin. The plea is that the prosecutrix was beaten up by her father, because she did not have good reputation and flirted with Gurkhas and two boys of the village. For the same very reason, the testimony of DW-3 Mohan Lal, the father of appellant Parmod Kumar, cannot be believed. As already noticed, DW-3 Mohan Lal stated that the prosecutrix was a girl of bad reputation and flirted with the boys and some Gurkhas. 10. As a result of the above discussion, I find no merit in the present appeal. The same is, therefore, dismissed. Appeal stands disposed of. October 17, 2008(sd) ( Surjit Singh ), J