IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s Order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Appeal No. 140 of 2001 (Old No. 3114/1986) Date of decision :-19/6/2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :-19/6/2006 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. 1 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal appeal No. 140 of 2001. (Old No. 3114/1986) Prem Singh son of Sri Awatar Singh, resident of village Jonk, P.S. Laxmanjhula, district Pauri Garhwal. ….. Appellant. Versus State of Uttar Pradesh (now Uttaranchal. ……. Respondent. Shri Likendra Dobhal, learned counsel for the appellant. Shri Sudhir Kumar Chaudhary A.G.A. for the State. Dated: 19.06.2006 Hon’ble J.C.S. Rawat, J. 1. The present appeal has been preferred against the judgment and order dated 05.11.1986 passed by Sri D.L.Soni, the then Sessions Judge, Pauri Garhwal in Sessions Trial o. 14 of 1986 State Vs Prem Singh convicting the appellant under section 376 IPC and sentencing him to 5 years’ rigorous imprisonment. Aggrieved by the said judgment and order the present appeal has been preferred. 2. Brief facts, in nut shell, are that victim and her husband Raghubir Singh went to the jungle on 28.4.1986 to collect the fuel wood from the Gadhera Panj jungle. When they were busy in collecting the fuel wood at some distance from each other in the jungle near Gadhera Pani jungle at about 10.00 a.m., the appellant who was also the resident of the village of the victim, came all of a sudden to the victim under influence of liquor and suddenly grabbed the victim by mouth from her back side and dragged her to a nearby KHALA where she was forced to submit her to the sexual intercourse hiding 2 themselves nearby a big stone. The victim cried and the informant run away towards her and found the appellant committing rape upon the victim. On seeing the informant approaching towards them, he ran away from the place of incident. The husband of the victim Raghubir Singh chased him in the jungle but he could not be apprehended by him. The matter was reported to the police on the same day at about 11.30 a.m. on 28.04.1986. The Investigating Officer immediately recorded the statement of the victim and Raghubir Singh at the police station who were present there. He also into custody the petticoat of the victim. He proceeded to the spot on the same day and prepared the site plan and he recovered the pieces of broken bangles of the victim from the spot. The victim was sent for medical examination to the hospital where she was examined by lady Dr. Talat Jahan on the same day at 2.45 p.m. The doctor opined that the vagina admits two fingers easily. There was no pain and no tenderness. She found old healed hymen tear present. She also opined that there was no mark of injury over the private parts. She also found the following injuries:- (i) Two contusion marks 1” below the right eye ¾” in diameter. (ii) One contusion mark on lateral aspect of left cheek, 14” from the lobe of right ear. 4” in diameter. (iii) Scratch marks on the front of neck 1” below the chin. (iv) Scratch marks on ventral aspect of left ear 1” from the cubital fosse. 3 The doctor further opined that the duration of the injuries were fresh. The Investigating Officer completed the investigation and submitted a charge sheet in the Court. 3. The appellant was charged under section 376 IPC and denied the charge and claimed the trial. 4. The prosecution, in support of its case, examined the victim as PW 1 and Raghubir Singh (PW 2) as an eye witness. The prosecution also examined lady Dr. Talat Jahan (PW 3) who had medically examined the victim and found the injuries on the body of the victim. She also referred the victim for the X.ray examination. After the report of the X.ray she opined that the victim was aged about 18- 19 years. It is also in the evidence of the doctor that she could not give any definite opinion on the question of rape. The prosecution also examined Bijendra Singh as P.W.4 who investigated the case and submitted the charge sheet in the court. 5. The statement of the appellant was recorded under section 313 Cr.P.C. and he denied all the averments made in the evidence. He had been implicated due to the enmity. He further stated that he was giving the training of driving the vehicle to Raghubir Singh (PW 2) but he struck his vehicle so he stopped the said training, hence he was inimical to the appellant. The appellant had not adduced any evidence in support of his defence. 6. I have heard Sri Lokendra Dobhal and Sri Kuldeep Rawal, learned counsel for the appellant and learned A.G.A. for the State. 4 7. The only question involved in this matter is that whether the appellant committed rape upon the victim on 28.4.1986 at about 10.00 a.m. in the jungle of Gadhera Pani. The prosecution, in support of its case, adduced the evidence of the victim (PW 1) and Raghubir Singh (PW 2), the husband of the victim. They have stated in their evidence that none was there in the jungle at the time of the incident except these persons. They had stated that they went to the jungle at about 800 a.m. to collect the fuel wood. When they were collecting the fuel wood they separated with each other and they were in the jungle at some distance from each other. The appellant all of a sudden at about 10.00 a.m. on 28.4.1986 reached to the victim and grabbed her by mouth from her back side and dragged the victim to a nearby KHALA where she was forcibly subjected to sexual intercourse. She made a hue and cry and the husband of the victim immediately approached towards them, the appellant fled away from the place of occurrence and he tired to chase him but he failed and he could not apprehend the appellant in the jungle. Thereafter the matter was reported and the victim was examined. 8. The learned counsel for the appellant contended that the vaginal smear was found negative for the presence of spermatozoa. The learned counsel further contended that the absence of the presence of spermatozoa reveals that there was no rape upon the victim. It was further contended that the medical report does not support the prosecution. The learned counsel further contended that 5 the act of the rape was not committed. The learned counsel for the State refuted the contentions. The prosecution had categorically stated in their evidence that the accused grabbed the victim and dragged her to a nearby KHALA where she was forced to submit to the sexual intercourse. The victim cried for help and immediately her husband who was at a distance of 10 meters from the spot reached at the spot and the appellant fled away from the spot and, as such, the entire act could not be completed. Mere absence of spermatozoa can not cast a doubt on the correctness of the prosecution story. The Hon’ble Apex Court in Prithi Chand Vs State of Himanchal Pradesh, 1989 Supreme Court 702 has held that mere absence of spermatozoa can not cast a doubt on the correctness of the prosecution case. Explanation of Section 375 clearly provides that the penetration is sufficient to constitute the offence under section 376 IPC. It is not essential that the complete penetration and emersion of the semen to complete the offence. The evidence of PW 1 (victim) clearly reveals that the penetration was complete. It is also in the evidence that the victim was a married lady and she had given birth to two children. The doctor has opined in this case that she was habitual to sexual intercourse and the hymen was old torn and no opinion could be given about the rape. In such a situation it can not be said that the victim being a married lady the opinion given by the doctor can not be said to be contradictory to the prosecution version. It is well settled that the victim complaining of having been a victim of the offence of rape 6 is not an accomplice after the crime. There is no rule of law that her testimony can not be acted without corroboration in material particulars. The victim, in such a cases, stands on a higher pedestal than an injured witness. In the case of the injured witness the injuries in caused on the physical form, while in the former it is physical as well psychological and emotional. However, if the Court on facts finds it difficult to accept the version of the victim on her face value, it may search for evidence direct or circumstantial which would lend assurance to her testimony. If the court comes to the conclusion that the evidence of the victim is cogent and credible it does not need any further corroboration by any independent evidence. In the instant case there is an eye witness of the incident who happened to be the husband of the victim. 9. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour. It not only offends her self- esteem and dignity but also degrades and humiliates the victim in the society. It leaves behind a traumatic experience. The person who commits the offence against the victim not only causes the physical injury to the victim but more indelibly reputation and not the least her chastity. The sexual offences are not only offences against the victim but it is also against the entire human-hood. It destroys the entire psychology of a woman and pushes her into deep emotional crises. 7 10. It was further pointed out that the medical evidence does not corroborate the evidence of the prosecution. He pointed out that there was no injury on the back of the victim. He further pointed out that there is evidence that the victim was dragged and she was forced to submit on a surface where small stones were existed. It is also pointed out that if she was dragged and laid down on a stony surface the injury would not visible on her person. The learned counsel for the State refuted the contention. The prosecution story reveals that the lady was not asked to put off her clothes and it is not in the evidence that her clothes of the lower part were put off by the appellant. This shows that the clothes of the lower part were also on the body of the victim. It is natural when she had gone to forest to bring the fuel wood she would have wear clothes on her upper parts. If the clothes would be on the body or on the back, the injuries would not be visible on the person of the victim. It is also evident from the evidence of victim that the appellant caused the injuries on her neck. The doctor found the injuries on the different part of her body which have been indicated above. This shows that the lady resisted at the time of the commission of the offence and sustained the injuries. These injuries also reveals that the evidence of the doctor corroborates the prosecution story. The arguments advanced by the learned counsel for the appellant has not force. 11. The learned counsel for the appellant further contended that it is in the prosecution evidence that the victim was having the axe and sickle at the time of the incident. He also contended that if 8 she had the sickle and the axe she could have used these weapons to resist the commission of the offence. Learned A.G.A refuted the contention and contended that the lady victim was taken all of a sudden by grabbing her from her back side and she was forcibly taken for the sexual intercourse. It a person grabs a lady from the back side it would not be possible to use the weapon even if it was in her hand. It was also contended by learned A.G.A. that the learned defence counsel at the trial court had not made any cross- examination to the victim with regard to the position of the weapons. When she was fetching the fuel wood in the forest it is not necessary that she was having both the weapons at the time of the incident in both the hands. I am completely in agreement with the arguments advanced by the learned A.G.A. The appellant had cleverly grabbed the lady from her back side it would be the appellant who noticed that the lady had no weapon at the time of such grabbing then he would have courage to grab the lady. In view of the above discussion I am of the opinion that the arguments advanced by the learned counsel for the defence is not tenable. 12. The evidence of the victim had been corroborated on the material points by her husband Raghubir Singh and both the witnesses had been cross-examined at length but nothing had been elicited from their evidence. The evidence of both the witnesses is consistent and credible. The evidence of the victim also finds full corroboration from the evidence of Raghubir Singh (PW 2) that on hearing of the cries of his wife he went towards the place of incident 9 and found the appellant was committing rape on her. The evidence of the victim is corroborated by the evidence of Raghubir Singh (PW 2). The evidence of prosecution further stands corroborated by the evidence of PW 4 Bijendra Singh, the Investigating Officer. He had stated in his evidence that he went at the spot on the same day and he recovered the pieces of the broken bangles of the victim from the spot and a recovery memo was drawn up. The evidence of Investigating Officer on this point is credible and nothing could be elicited in the cross-examination which could lead me to take inference that the evidence is not credible. This fact also corroborates the prosecution story. 13. In the defence version the appellant has stated that the appellant had been instructing him how to drive a vehicle. When he was instructing to drive the vehicle he damaged the vehicle of Prem Singh. The appellant Prem Singh stopped to instruct him to drive his vehicle so he was annoyed with him and he falsely implicated the appellant in this case. This enmity itself is not sufficient to implicate him (appellant) in this case. Nobody would like to say that the appellant committed the rape upon his wife. If he wanted to implicate the appellant he would have implicated in any other manner except by saying that his wife had been raped. As I have already pointed out in the preceding paragraphs that the offence of rape not only causes a physical injury to the victim but it also degrades and humiliates the victim as well as his family in the society. Secondly, the defence has suggested the prosecution 10 witnesses that the sister of Raghubir Singh (PW 2) Smt. Sunderi intended to live as mistress with the appellant Prem Singh. By that reason Raghubir Singh (PW 2) was not happy with this affair and he has falsely implicated the appellant. This suggestion has been denied by the prosecution witnesses. The appellant had not stated this fact in the statement recorded under section 313 Cr.P.C. The appellant had taken a different case during the evidence by putting different suggestions and had taken a different case during the statement recorded under section 313 Cr.P.C. I am aware that the defence had not to prove its version beyond reasonable doubt but at the same time the defence had to give a probable explanation which reasons to the Court that the appellant had been falsely implicated in this case. The appellant had taken a third plea during the course of the suggestions that he was employed with the appellant and he was removed from the service so he had been implicated in this case. The suggestions that he was employed with the appellant and he was removed from the service so he had been implicated in this case. The suggestion had also been denied by the prosecution witnesses. This statement does not find place in the statement recorded under section 313 Cr.P.C. The defence theory which has been put forward by the defence does not find probable by the evidence of the prosecution and no such stand/circumstance is revealed from the evidence that this might be a probable case of the defence. Thus, I am not inclined to accept the explanations submitted by the defence. It is also pertinent to mention here that the prosecution had proved its case against he appellant beyond reasonable doubt. 11 14. It was further contended that the appellant was under the influence of the liquor. He further pointed out that the smell was coming out from his mouth at the time of the offence. He contended that he had no knowledge that he was committing an offence at the time of commission of offence. It is true that there is an evidence that there was some smell from his mouth at the time of the commission of the offence. The learned A.G.A. refuted the contention and contended that it was the duty of the defence to prove that the accused was under intoxication and it was incapable of knowing the nature of the act and he was not able to understand that he was doing what was either wrong or contrary to law. The learned A.G.A. further contended that the said act had not been proved by the defence and he can not take the benefit of this fact. It is also settled position of law that the court must attributed to the intoxicated man the same knowledge as if he was quite sober unless proved otherwise and it should also be proved that he was incapable of knowing the nature of the act and he was not in a position to understand what was wrong or contrary to the law. The defence has not made any cross-examination to any of the witnesses so that it could be revealed that the appellant was unable to understand the implications of the act merely by saying that there is smell of liquor from his mouth does not give any benefit to the defence and the appellant is not entitled to get the benefit of Section 85 of the Indian Penal Code. 12 15. In view of the foregoing discussion I am of the view that the prosecution has established the guilt beyond reasonable doubt against the appellant. I find that the learned trial court has rightly convicted and sentenced the appellant and there is no infirmity in the judgment passed by the trial court. I m completely in agreement with the finding recorded by the learned Session Judge. Hence the appeal is dismissed and the conviction and sentence awarded by the Trial Court against the appellant is confirmed. 16. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within three months. (J.C.S. Rawat, J.) 19.06.2006 Negi