HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 56 of 2011 Decided on: 27.7.2011 Vijay Kumar ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.Ravinder Thakur, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant against the judgment of conviction and sentence, dated 3.7.2010, imposed upon him by the court of learned Sessions Judge, Bilaspur, vide which the appellant was held guilty and sentenced as under: Section 376 IPC RI for 7 years and fine of Rs.20,000/-; in default, to undergo further RI for a period of one year. Section 323 IPC SI for six months and to pay fine of Rs.1,000/-; in default to undergo further imprisonment for a period of two months. Section 341 IPC SI for one month. ________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - 2. The appeal was received from the appellant through jail and this Court had appointed Shri Ravinder Thakur, Advocate, for the convict as a legal aid counsel. 3. Briefly stated, the facts of the case are that on 16.1.2009, at about 5.15 p.m., a telephonic message was received at Police Station, Swarghat from one Ram Lal, Advocate, that his niece, who is a student of 9th Class, had been raped and the police should go to the spot. On receipt of this telephonic message, daily diary report No.18 was registered as per Ext.PW-8/A. A rapat was also entered by the SHO that he was proceeding to the spot on receipt of this message, who reached the spot and recorded the statement of the prosecutrix at 7.15 p.m. In the said statement, the prosecutrix had alleged that she was a student of 9th class and was studying in the school ‘K’ and in the morning she had gone to the school alone, but when she was returning at 3.00 p.m. alongwith her two friends, Raksha Devi and Lalita Devi, the appellant, hereinafter also referred to as the accused, started following her. Both the girls accompanying the prosecutrix left for their houses and when the prosecutrix was going through a Khad to her house, the accused suddenly came in front of her at about 3.30 p.m. When she was at a distance of 150 meters from her house, the accused came there from behind the bushes, gagged her mouth with a cloth and dragged her to - 3 - the bushes. She was made to lie on the ground and the accused removed the string of her Salwar and underwear with one hand and forcibly committed rape with her. She further alleged that she tried to rescue herself but could not escape. She further alleged that her school bag, books, notebooks, salwar, underwear and the cloth with which her mouth was gagged were lying at the spot. After committing the rape, the accused ran away towards the nallah and she came back to her house weeping and in a naked position. She also alleged that in the grappling with the accused, she had suffered abrasions from the thorny bushes and she wanted to get her medical examination done. She also alleged that the place was a solitary one and there were bushes nearby but there was no house near the place of occurrence. 4. On this statement of the prosecutrix under Section 154 Cr.P.C. recorded at the spot at 7.15 p.m., the same was sent to the Police Station on which a case was registered and during investigation, the recovery of the clothes and the articles lying at the spot was effected by PW-15 Prem Singh SI/SHO. He sent the prosecutrix for medical examination and the accused was also got medically examined during investigation. On conclusion of the investigation, the challan was filed before the learned Chief Judicial Magistrate, Bilaspur and he committed the case to the court of the learned - 4 - Sessions Judge, who tried the appellant under the Sections mentioned above leading to his conviction. 5. I have heard Mr.Ravinder Thakur, learned counsel for the appellant and Mr.J.S. Guleria, learned Assistant Advocate General for the respondent and have gone through the record of the case. 6. The first submission made by the learned counsel for the appellant was that the evidence led by the prosecution establishes that the prosecutrix was above the age of 16 years and as such those findings are not being challenged by the appellant. However, Mr.J.S. Guleria, learned Assistant Advocate General appearing for the State had submitted that the prosecution evidence establishes that the prosecutrix was of the age of less than 16 years on the date of occurrence. 7. Coming to the evidence in regard to the age, there is statement of PW-4 Smt.Bimla Thakur, Principal of Government Senior Secondary School, Kathla, who had stated that the certificate Ext.PW-4/A, which was proved by her in her statement, was issued by her on the basis of the record maintained by the school. However, the relevant entry can be said to be the copy of the birth certificate. 8. PW-5 Arvind Kumar, Panchayat Secretary, has also issued the certificate Ext.PW-5/A on the basis of the record maintained by the Gram Panchayat. He had also issued the copy of the Pariwar Register Ext.PW-5/B. - 5 - The certificate of school Ext.PW-4/A shows that the date of birth, according to the school record, is 23.5.1992, but there is nothing to show that this entry was made on the basis of the copy of the birth register produced at the time of admission. Ext.PW-5/A is a copy of the pariwar register, which also shows that the entries in regard to birth of two sons of the father of the prosecutrix but there is nothing in regard to the birth of the prosecutrix. Ext.PW-5/A is the copy of the birth certificate issued by the Panchayat Secretary on the basis of the register of Gram Panchayat and according to the same, the date of birth of the prosecutrix was 23.5.1992. This copy of birth certificate has to be relied upon in preference to other documents and this is the conclusive proof of the date of birth since these entries are on the basis of the record of birth maintained by the Panchayat. 9. According to the above evidence, the date of birth of the prosecutrix proved was 23.5.1992 and the occurrence had taken place on 16.1.2009, which shows that on the date of occurrence, the prosecutrix was of the age of 16 years and about 8 months, but that is not very material since no plea of consent has been taken by the accused. The evidence led by the prosecution in this regard has not been challenged by the learned counsel for the appellant either during the course of arguments or before the learned trial Court. - 6 - 10. Another point taken by the learned counsel for the appellant during the course of arguments was that the prosecutrix PW-1 has made improvements in her statement and according to him, these improvements were not minor in nature and amounted to major contradictions. 11. Coming to the improvements pointed out in the statement of the prosecutrix, who appeared as PW-1, the improvements made with which she was confronted during the course of examination were as under: 1. She had a talk with the accused at that time. She had told about the same to the police. Confronted with Ext.PW-1/A wherein it is not so recorded. 2. Accused also inflicted injuries on her body i.e. head and back with nails. She has stated this fact to the police. Confronted with Ext.PW- 1/A wherein it is not so recorded. 3. Accused had gagged her mouth with his one hand and with the second hand, he untied her Salwar. She had told this fact also to the police. Confronted with statement Ext.PW-1/A wherein it is not so recorded. 4. She had tried to resist the act of the accused, but could not. She had told this fact to the police. Confronted with statement Ext.PW-1/A wherein it is not so recorded. - 7 - 5. She also raised cries. This fact was also told by her to the police. Confronted with statement Ext.PW-1/A wherein it is not so recorded. 12. All these contradictions referred to above are certainly minor in nature and while lodging the report with the police, the prosecutrix did mention that the accused opened the string of her Salwar and underwear with one hand and this was so stated by her in the Court also. She did allege that she tried hard to get herself rescued from the accused but could not and, therefore, there was no contradiction as mentioned above. In regard to the other contradictions mentioned above that the prosecutrix did not allege in the report that she was inflicted injuries on her body, on head and back with nails, this was not a necessary information to be given at the time when the report was lodged with the police, though she had alleged that she had suffered injuries on her body at the time of grappling, with thorny bushes. It is, therefore, clear from the above discussion that there were no major improvements made by the prosecutrix in making a statement to the court and the details were asked from the prosecutrix which she stated in the court and it was not necessary to give minute details in her report to the police. These cannot be termed as improvements amounting to contradictions. Therefore, the contention put forth by the learned - 8 - counsel for the appellant in this regard is repelled being devoid of any force. 13. A perusal of the statement of the prosecutrix as PW-1 clearly shows that she reiterated as to what she had stated to the police, as mentioned above, that she was raped by the accused and she tried to rescue her but could not succeed and she also received injuries on her legs. She has clearly stated that she went to her house in a half naked position and told the occurrence to her mother. Nothing was brought in her cross examination to show that her statement cannot be relied upon for any reason. 14. The mother of the prosecutrix who appeared in the witness box as PW-2 has reiterated that on 16.1.2009, the prosecutrix reached the house at 3.45 p.m. and she was crying and was half naked. On enquiry, she told that the accused had committed rape upon her at Theh after gagging her mouth with a muffler. The mere fact that the prosecutrix has used the word cloth and the mother of the prosecutrix has stated that the said cloth was a muffler is not sufficient to hold that there is any contradiction. She has also stated that she gave a telephonic call to her bother-in-law Ram Lal and told him about the occurrence. The police came to the spot. She had stated that the clothes were taken in possession by the police. She further stated in cross examination that she has seen the injuries on the legs of the - 9 - prosecutrix when she came to the house. However, no injuries were observed by her on the back of the prosecutrix, on her forehead as well as on the private parts of the prosecutrix. 15. PW-10 Kumari Lalita has corroborated the statement of the prosecutrix that she was returning from the school on 16.1.2009 at 3.00 p.m. alongwith another girl and the prosecutrix. The accused was following them and she proceeded towards her house while the accused went ahead following the prosecutrix. Her statement was not shattered in cross examination. 16. The above discussion leads to the inference that the statement of the prosecutrix that the accused was following them stands corroborated by this witness. The statement of the prosecutrix that she came to her house half naked and her clothes were recovered from the spot, finds corroboration from her mother PW-2, who also corroborates that the prosecutrix was having injuries on her legs. 17. The medical evidence in the present case consists of the testimony of PW-16 Dr.D.Bhangal, who medically examined the prosecutrix on the same day with the alleged history of sexual assault on 16.1.2009 at about 3.30 p.m. According to the history given by the girl, she was taken forcefully into the bushes by a boy when she was coming back to home from the school and the - 10 - boy established sexual relations with her. The doctor clearly opined in regard to the injuries as under: “There were multiple linear abrasions pinkish brown in colour on the right lower leg in the lateral and anterior aspect. Grazed abrasions 3x2 cm and 2x2 cm on left leg near the left knee.” She further stated that human blood was found on Salwar, underwear, muffler, shirt and vaginal swab of the prosecutrix, but the results were found inconclusive in respect of blood group. Semen was not detected upon the above articles, however, blood was found on the pubic hair, but it was insufficient for blood grouping. Blood was found on the vaginal slides but semen was not detected. Hymen was torn with tags present. Fresh blood oozed out was present. The doctor had also taken vaginal swab stick and preserved for forensic laboratory examination for spermatozoa and semen. The report of the forensic laboratory Ext.PA was also received to which a reference has been made by the Medical Officer in the MLC issued by her Ext.PW-16/A, after perusing the said report. 18. Thus, the oral evidence stands duly corroborated by the medical evidence and the fact that there were injuries on the parts of the body of the prosecutrix in the nature of abrasions corroborates the testimony of the prosecutrix that she was raped where there were thorny bushes at the spot. - 11 - 19. A plea was taken by the learned counsel for the appellant in regard to the false implication of the accused. To substantiate this plea, he referred to the suggestions put up to the prosecutrix while appearing as PW-1, PW-2 mother of the prosecutrix and PW-3 Krishan Dass that there were strained relations in between the prosecutrix’s family and the family of the accused and that an altercation had taken place between the accused and the family members of the prosecutrix on account of cutting of grass. All these suggestions were denied by the witnesses, except PW-3 Krishan Dass, who denied his knowledge in this regard but other witnesses clearly denied the suggestion of any altercation having taken place. Moreover, there were no suggestions to any of the witnesses that as to when the altercation had taken place, in between whom this had taken place, as to the timings of the altercation, as to whether it was prior to the registration of the case and who were the witnesses to the said altercation and the nature of the altercation and as to whether it was in between the accused and the prosecutrix’s mother, father or other relative. The general suggestion put up to all the witnesses and denied by the witnesses without there being any other corroborative evidence is sufficient to hold that this plea, though taken half heartedly, was not substantiated from the evidence and cannot be believed. - 12 - 20. Coming to the another plea raised by the learned counsel for the appellant during the course of arguments that there is statement of PW-6 Ram Lal Thakur that he had given a telephonic call on the same day and he stated that he had reached at his home at 8.30 p.m. when the police was investigating the case. The mere fact that PW-15 SHO Prem Singh, who investigated the case, has stated that Advocate Ram Lal did not meet him on that day is not sufficient to hold that the statement of PW-6 Ram Lal cannot be relied upon. He has stated that he had reached at his home at 8.30 p.m. when the police was investigating the case, but he never stated that he met PW-15 SHO Prem Singh or offered to make any statement and as such there was no contradiction. In regard to the fact that his statement was recorded late by the Investigating Officer PW-15 Prem Singh i.e. on 5.4.1999, I do not consider that it affects the merits of the case or his statement, particularly when no questions were put up to the witness who appeared in the witness box as PW-6, as to when his statement was recorded and why it was recorded late. Such questions were also not put up to PW-15 IO Prem Singh, who could offer an explanation in regard to the late recording of the statement of PW-6 Ram Lal Thakur i.e. after more than two months of the occurrence. Moreover, the said statement recorded under Section 161 Cr.P.C. was required to be confronted from PW-15 Prem Singh, but he - 13 - was not confronted with the statement or it was not shown to him or exhibited during his examination, though he was the author of the said statement. Before the said statement could be referred to, it was necessary that the said statement should have been exhibited in his examination, which was not done and in the absence of any explanation sought from the Investigating Officer or the witness himself, no benefit can be taken of the late recording of the statement of this witness. The said late recording was not material since he was not a witness to the occurrence and he had only given a telephonic call to inform the police, which fact stands established from the daily diary report proved in evidence. 21. No other point was urged during the course of arguments by the learned counsel for the appellant. A careful examination of the statement of the prosecutrix and other witnesses clearly shows that the statement of the prosecutrix was such which inspires confidence and has to be believed. There was no infirmities or contradictions in her statement or in the statements of other material witnesses including her mother. Moreover, the medical evidence fully corroborates the testimony of the prosecutrix. The occurrence in question had taken place on 16.1.2009 at 3.30 p.m. and the telephonic call was given to the police at 5.15 p.m., who reached at the spot and recorded the statement of the prosecutrix at - 14 - 7.15 p.m. within less than four hours of the occurrence. The Police Station was at a distance of 9 kms. from the place as per Ext.PW-1/A. Thus, there was no delay in lodging the report with the police. There was no time for concoction of the facts or false implication of the accused or naming the witnesses since the occurrence was immediately reported and the sequence of events is such that it appears to be quite natural that within a short time, the report was lodged and the articles were also found at the spot including the school bag etc., which were taken in possession in presence of recovery witnesses. The medical evidence as well as the evidence of the expert fully corroborates the statement of the prosecutrix. Therefore, I do not find any reason to disagree with the findings recorded by the learned trial Court. 22. Coming to the case law cited by the learned counsel for the appellant, he had placed reliance upon the decision in State of H.P. versus Mano alias Man Singh, 2011 Cri.L.J. 1218, wherein the testimony of the prosecutrix was not inspiring confidence. However, it was observed that she appears to have consented for sexual intercourse with the accused, which plea was neither taken in this case nor stands substantiated and as such this decision does not help the appellant. - 15 - 23. On the other hand, Mr.J.S. Guleria, learned Assistant Advocate General, has placed reliance upon the decision of the Hon’ble Supreme Court in State of Himachal Pradesh vs. Asha Ram, AIR 2006 Supreme Court 381, wherein it was observed in regard to the statement of the prosecutrix as under: “Conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.” 24. Another decision relied upon by the learned Assistant Advocate General for the State is in State of H.P. vs. Lekh Raj and another, (2000) 1 Supreme Court Cases 247, wherein it was observed that in the absence of any ulterior motive for falsely implicating the accused, the testimony of the victim corroborated by medical evidence was to be relied upon. - 16 - 25. The above two decisions further support my findings that the guilt of the appellant stands established and the findings of guilt recorded by the learned trial Court call for no interference by this Court. 26. Coming to the last plea raised by the learned counsel for the appellant during the course of arguments that the appellant deserves leniency of the Court since he is a young man of about 24 years. The learned trial Court has imposed minimum sentence as required by law and the findings of the Court clearly established the guilt of the appellant under Sections 376, 341 and 323 IPC and as such the sentence imposed by the learned trial Court calls for no interference since the appellant has committed rape upon a minor girl and he does not deserve any leniency from this Court. 27. In view of the above discussion, there is no merit in the appeal filed by the appellant, which stands dismissed accordingly. The appellant is already in jail. A copy of this judgment be sent to the appellant through Jail Superintendent so that he can file an appeal, if he so advised. 28. The appeal stands disposed of accordingly. July 27, 2010. (V.K. Ahuja), (tilak) Judge