HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 183 of 2006 1. Shankar Singh S/o Padam Singh 2. Kalyan Singh S/o Prem Singh 3. Prem Singh S/o Lataya Singh 4. Chandra Singh S/o Kashi Ram R/o Village Sirdang P.S. Dharchula District Pithoragarh ……Appellants Versus State of Uttarakhand …… Respondent Mr. Dinesh Chauhan, Advocate with Mr. Lalit Samant, Advocate for the appellants. Mr. Nandan Arya, learned A.G.A. for the State/respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 21.07.2006 passed by the learned Sessions Judge, Pithoragarh in Sessions Trial No. 22 of 2005, State Vs. Shankar Singh and others convicting the appellants u/s 376 (2) (g) I.P.C. & sentencing them to undergo ten years R.I. and a fine of Rs. 10,000/-. The appellants were further convicted u/s 506 (2) I.P.C. to undergo two years R.I. and a fine of Rs. 2000/-. In default of payment of fine, the appellants shall further undergo two months simple imprisonment. Both the sentences shall run concurrently. 2. Brief facts of the prosecution case is that on 09/03/2005 at about 12:45 p.m. a report was lodged by the victim alleging therein that she got married with Dev Singh Patiyal 15 years ago. Dev Singh Patiyal had died in an accident occurred in Malpa. Thereafter, she got married with Shankar 2 Singh (one of the appellants) and she remained with him for some times. A son was born from this wedlock. Due to certain disputes, divorce took place between them. Now, she was residing in a rented house in Ghatdhar. On 04.03.2005, when she was in her house at her village Bamba, the appellants at about 10:00 p.m. in the night entered her house and committed sexual intercourse with her forcibly. She became unconscious and gained consciousness on the next day. She was having pain on her body. The appellants threatened her that if she would disclose this fact to others, she would be killed. After gaining consciousness, she went to Pangla and thereafter on 7th March, 2005, she went to Dharchula and informed her mother-in-law about the incident. Her mother-in-law asked her to go to Simalkhola to narrate the incident there. On 8th March, 2005 she went to Simalkhola. Thereafter, on the next day i.e. on 9th March, 2005 she went to the police Station Dharchula and got scribed the report by Bhupender Singh and she lodged the report in the police station. The matter was investigated and the police arrested some of the accused on the next day i.e. on 10th March, 2005. The Medical Officer also examined the victim in the hospital and her ultrasound was also conducted. The Investigating Officer submitted the chargesheet Ex.Ka.8 before the court concerned. 3. After submission of chargesheet, the learned Chief Judicial Magistrate committed the case to the court of Sessions for trial and the trial court framed charges u/s 376 and 506 I.P.C. against the accused/appellants. The accused/appellants denied the charges levelled against them and claimed trial. 3 4. The prosecution in support of its case examined Dr. Nirmala Punetha PW1. She has medically examined the victim and prepared the report Ex.Ka.1. The doctor has opined that though there was no sign of rape found on her body and she further stated that there were no injuries on her body. The victim was then referred to Radiologist for conducting the ultrasound. Dr. Bipin Chandra Tripathi PW2 conducted the utrasound and found some swelling on the uterus of the victim and it was found enlarged. He also prepared a report to this effect which is Ex.Ka.2 and Ex.Ka.3 on record. The victim is PW3 of this case. Pratap Singh Chauhan PW4 is the Investigating Officer of this case. 5. The accused-appellants were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have denied the averments made in the defence by the prosecution. They have stated that they have been falsely implicated in this case. The accused Sankar Singh has stated that the victim had left his house after 15 days from the birth of their newly born infant. Thereafter, when the victim met the appellant Shankar Singh in Dharchula, he asked her why she had left his house leaving the infant in his house. The other appellant Kalyan Singh has stated that he is the brother of Shankar Singh, as such, he has been falsely implicated in this case. The accused/appellants did not adduce either oral or documentary evidence in support of their defence. 6. The learned Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellants and sentenced them as indicated above. 4 7. I have heard Mr. Dinesh Chauhan, Advocate with Mr. Lalit Samant, Advocate for the appellants; Mr. Nandan Arya, learned A.G.A. for the State; and perused the record. 8. Now, it is to be seen as to whether the appellants committed the sexual intercourse forcibly with the victim and the victim was subjected to gang rape as alleged by the prosecution. The case rests upon the direct evidence of the victim alone. The prosecution has adduced the evidence of Dr. Nirmala Punetha PW1 who has medically examined the victim. Dr. Nirmala Punetha PW1 has stated that there were no injuries on the person of the victim at the time of the medical examination. The victim was found habitual to sexual intercourse. According to Dr. Nirmala Punetha PW1, the victim was referred to Radiologist for her ultrasound. It is also not disputed that the victim was 30 years of age at the time of the incident. It is also not disputed that the victim had four children prior to the date of the incident, three from the first husband and one from the second. Thus, it is evident from the record that the victim was a grown up married woman. It is also not disputed that the incident took place on 4th March, 2005 and the medical examination was conducted on 10th March, 2005. It is apparent that even if any outer injuries would have been on the body of the victim that would have been washed off with a gap of six days in between the incident and medical report. It is also evident that the victim had four children and she was habitual to sexual intercourse. It is also evident that after six days of the commission of offence, no evidence of rape can be ascertained by the doctor. The victim has further stated in her evidence that the clothes which the victim was wearing at 5 the time of the rape, was alleged to have been washed off by the victim due to ignorance. It is also not in dispute that the victim belongs to a village rather a backward village and she is an illiterate lady, therefore, she could not understand that by washing the clothes she had destroyed a piece of corroborative evidence of rape. It is a settled principle of law that if the evidence of the victim is found reliable, it does not require any corroboration on the material points. It is also settled proposition of law that the victim complaining of having committed the offence of rape upon her is not accomplished after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on higher pedestal than an injured witness. If the court comes to the conclusion that the evidence of the victim is credible and cogent it does not need any further corroboration by any other independent witness. It is also pertinent to mention here that in the cases of sexual offences there cannot be any eyewitness of the fact. 9. Now, I would like to analyze the evidence of the victim PW3 in light of the aforesaid background. According to the prosecution, the victim was subjected to gang rape on 04.03.2005 at about 10 pm. She has stated in her evidence that she was married with late Dev Singh about 14-15 years back. He died in an accident occurred at Malpa few years back. Thereafter, she got married with the appellant Shankar Singh and a son was born from this wedlock. Due to some dispute, the divorce took place between them. She belongs to village Sidarg where she used to live for eight months and for the remaining four months, she lived at village Bamba. She used to live at Bamba during the winter whereas for the rest of the year she lives at Sidarg. On the date of the incident, 6 she was living in her house at village Bamba. On 04th March, 2005 at about 10 pm she was sitting inside her house. The accused-appellants entered her house and committed gang rape upon her. The accused-appellants also threatened her if she would tell this fact to anybody, she would be killed. She has further stated that on the next day, when she gained consciousness, she went to village Pangla and on 07.3.2005, she came to Dharchula where she informed her mother-in- law about the incident. He mother-in-law asked her to go to Simalkhola. The very next day, she went to Simalkhola from where she reached at the police station and lodged the report. (In the F.I.R, it is reported that the place of incident is 47 Kms. away from the police station). Thereafter, the matter was investigated. 10. The learned counsel for the appellant contended that the site plan prepared by the Investigating Officer reveals that the accused-appellants entered her room from the stairs and thereafter they committed rape; whereas in the evidence of the victim PW3, she has stated in her cross-examination that the accused-appellants entered her house from the windows affixed from the third story of the building. The learned counsel for the appellants contended that there is a clear contradiction with regard to the entry of the accused- appellants inside the house of the victim. It was further contended by the learned counsel for the appellants that the version given in the first information report contradicts the version given in the court. Hence, there is a contradiction in both the versions. The learned A.G.A refuted the contention and contended that the learned defence counsel during the trial had not put any contradiction either to the witness or cross-examined the Investigating Officer on this point. Upon 7 perusal of the record, it is evident that the defence has not made any cross-examination upon this point. If there was a contradiction about the entry, the defence should have put a specific question to the Investigation Officer that who informed him the fact that the accused-appellants entered the house by the stairs. If the Investigating Officer would have corroborated this fact that this statement had been given by the victim, it was also obligatory on the part of the defence to cross-examine the victim as to whether she has stated the fact that the accused-appellants entered the house through the stairs. The victim would have stated that she had not stated this fact to the Investigating Officer, then the witness would have been asked whether the site plan was prepared at her instance or not. Thus there is no effective cross-examination on this point and the defence cannot take the benefit of this contradiction. The settled position of law is that if a witness is sought to be contradicted with reference to his previous statement, his attention must be drawn to such statement when there is nothing to show that the previous statement of the witness was placed before him and the witness was given chance to explain and when his previous statement was not marked as an exhibit that portion of the statement cannot be need in evidence. 11. It is also settled position of law that mark on the site plan put by the I.O could not obviously be the eyewitness of the incident. The Investigating Officer mark the spot on the site plan on the basis of the statement made by the witnesses. The marking of the spot on the site plan is really bringing on record the conclusion of the I.O on the basis of the statements made by the witnesses to him. Thus, it would not be admissible in view of the provisions of Section 162 of 8 the Criminal Procedure Code. It is infact nothing more than the statement of the I.O that the witnesses told him that the victim was there and how the accused-appellant entered into the house. The site plan would be admissible so far as it indicates that the I.O himself has seen the things at the spot. But the mark put on the site plan based on the statement made by the witness to the I.O would be inadmissible in view of the clear provisions of 162 of the Criminal Procedure Code because it will be not more than a statement made to a police during the investigation. The Hon’ble Apex Court in the case of Tori Singh Vs. State of UP AIR 1962 SC 399, State of UP Vs. Babu 2004 SCC (Cri) Page 144, Shakti Pratap & Another Vs. State of West Bengal 1981 SCC (Cri) 644, & State of Rajasthan Vs. Bhawani & another 2003 (Vol 7) SCC (Cri) p/291 has laid down the above proposition of law. Thus, the fact that the accused-appellants entered into the house of the victim would be merely a statement made by the witness during the investigation. There is no further cross examination to the witnesses with regard to this contradiction. The Hon’ble Apex Court in the case of Nanku Singh Vs. State of Bihar (1972) 3 SCC p/590 has held as under: “7. Some contradictions were sought to be pointed out in the statement as given in the First Information Report and in the evidence of the witness PW11, but we do not think it is open to the learned Advocate to comment upon it because none of those contradictions have been put to the witness at the time of his giving evidence. According to the FIR., it would appear that Indradeo Singh accompanied by Chait Ahir, Vikrama Singh, Mushen Pandey, Billar Ahir and Mangru Ahir resident of the village went there and forbade the accused persons from cutting paddy crops from his field, but the accused persons did not listen to them. Indradeo Singh made many entreaties (sic) requested them not to commit such high-handedness, but the accused persons 9 did not listen in spite of making such entreaties. Later on exchange of hot words took a serious turn from both the sides. In the meantime Nanhku Singh fired one shot with his gun at Indradeo Singh. Again immediately Mohan Singh also fired one shot at Indradeo Singh. Indradeo Singh fell down on the ground as soon as he received the gun shot fired by Mohan Singh. Seeing Indradeo Singh fallen down Chait Ahir went to lift him. At this Lalita Singh fired one shot at Chait Ahir which hit him in his arm and abdomen. On this statement in the FIR., the learned Advocate contends that PW11 did not speak in such detail when giving the evidence in the Court, nor did he say that all of them went and made entreaties and asked them not to commit such high- handedness nor did he say Indradeo Singh fell in the field of Sumer Singh. In the first place it may be noticed that FIR., is not a substantial piece of evidence. It is an information of a cognizable offence given under Section 154 of the Criminal Procedure Code and if there is any statement made therein it can only be used for the purposes of contradicting and discrediting a witness under Section 145 of the Evidence Act. In the second place the statement given by the informant need not necessarily be an eyewitness account of what he has actually seen. There were others who had gone along with him who could have furnished him with information as to what transpired insofar as it was in their knowledge. If these aspects had been put to PW11, he would have had an opportunity of explaining the statement made in the FIR but since that opportunity was not given, any comment based on the statement given by PW11 in the FIR would be without effect. It is also submitted by the learned Advocate that Indradeo Singh could have given a statement to the Police but did not do so till after about 12 days which only shows that the case against his clients was fabricated. We do not think there is any validity in this submission because the Investigating Officer Rang Nath Prasad, PW13, who was posted as an Officer Incharge, Durgawati Police Station on the day of the occurrence at 2 p.m. and had recorded the FIR, says that he could not record the statement of Indradeo Singh because be was in pain and could not speak. Nothing was suggested in cross-examination that this was not so, nor was the Doctor, Aggarwal, asked whether Indradeo Singh was in a position to speak when he first saw him on his admission to the hospital. The evidence of PW 13, is corroborated by the fact that there 10 was a punctured wound on the left prominence of the cheek 8/10 x ½ x ½ with averted and irregular edges and another wound of ½ x 1/10 x ½ situated 1/5 below the right lobule of the ear. These injuries can well have made it difficult for him to speak. On a review of the evidence, we do not think that the concurrent findings of the trial court and the High Court call for any interference” 12. It is also pertinent to mention here that the victim has not been effectively cross-examined about the entry of the accused persons during the course of the cross-examination. The contention raised by the learned counsel for the appellants has no substance. 13. The learned counsel for the appellants further contended that when the accused-appellants committed the sexual intercourse forcibly, the victim would have naturally made a cry for the help. It was also contended that the sister-in-law of the accused-appellant was residing in the neighbour-hood of the victim and other houses are also located adjacent to the house of the victim. If she would have made any cry, the sister-in-law of the accused-appellant Shankar Singh would have intervened in the matter or any other person of the locality would have come forward at the place of the incident and she could have been rescued. The learned A.G.A refuted the contention. It is evident from the record that four persons entered into her house. They tried to molest her and committed the gang rape upon her. There is no evidence on record that there was any other person inside the room. It is also on record that the incident occurred in the night at about 10 pm in the month of March. The people in the villages generally sleep early in the night. The natural consequence may be of two-fold firstly, that due to the fear of the 11 appellants, she could not have even spoken anything inside the house and thus would have surrendered or submitted herself to the accused-appellant due to their criminal desire. The other inference can be drawn even if she would have cried a little, in these circumstances her noise would not have been heard by anyone. Due to the social limitations she could not make a cry instead keep silence at the time of the incident. In view of the above, I do not find any force in the contention of the learned counsel for the appellant. 14. The learned counsel for the appellants further contended that the victim did not narrate this incident to anyone in the village. The natural conduct of the victim would have been to communicate the incident to her neighbours immediately. It was further contended that the conduct of the victim further falsifies the entire story. The learned A.G.A refuted the contention and contended that the lady belongs to a village background and she would have thought a number of times as to whether she should disclose this fact to the villagers due to the social limitations. It is apparent that the conduct of a human can vary from one man to other. Sexual violence apart from being de-humanizing act is an unlawful intrusion on the right of the privacy and sanctity of the female. It is a serious blot to her supreme honour and offends her self- esteem and dignity. It degrades and humiliates the victim where the victim is a helpless innocent person. It leaves behind a traumatic experience. The appellants has not only caused physical injuries but destroyed her moral reputation and not the least her chastity. Thus, in these limitations, the victim had to think a number of times what she should do in these circumstances. There is no evidence that there was any other person to help her in the house. The gang rape 12 destroys the entire psychology of a woman and pushes her into deep emotional crisis because it is a crime against the basic human right. In such situation, she immediately wanted to proceed to her mother-in-law who in turn also asked her to go some other place, i.e. Simalkhola to her relations to ask what she should do. Thus, the traumatic psychology of the victim clearly answers the contention of the learned counsel for the appellants. The lady would have thought that it was good not to tell the fact to her neighbours as it may destroy her honour in the eyes of the villagers. Immediately with the consultation of his mother-in-law and other relations, she got encouragement to come out from her deep emotional crisis and psychological depression and proceed further to lodge the report. In view of the above, the contention of the learned counsel for the appellants is not sustainable. 15. The learned counsel for the appellants further contended that the appellant Shankar Singh was not present in the village on the date of the incident. He referred the evidence of the victim in support of this fact that the victim has stated that Shankar Singh used to reside in Lankari village for four months during the winter. The learned counsel for the appellants tried to take the inference from this evidence that on the date of incident, the appellant-Shankar Singh was not present at the place of occurrence. It is a settled position of law when plea of alibi is taken by the accused-appellant, it should be established by the accused by positive evidence that he was not present at the place of incident. It is also settled principle of law that plea of alibi is a weak type of defence. There is no evidence of the victim that on the date of incident, he was at Lankari village. Contra to it, the victim has stated that he was present in the village and he 13 committed the rape upon her on the date of incident. Thus, the contention raised by the learned counsel for the appellants has no force. 16. The learned counsel for the appellants further contended that there is an inordinate delay in lodging the report. The learned A.G.A refuted the contention and further contended that for causing the delay, there is an explanation given by the victim herself. In her evidence, she has stated that on the next day, when she gained the consciousness, she went to her mother-in-law. The mother-in-law told her to go to Simalkhola to her relations to ask them what she should do in the matter. When she was advised to lodge the report, thereafter on the next day i.e. on 09.03.2005, she lodged the report in the police station. As I have pointed out that the commission of rape upon a woman pushes back the victim in a deep sorrow and crisis. It is for the victim