IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 108 of 2007. Judgement reserved on: 28.2.2008. Date of decision: 7.3.2008. Lobha Ram alias Lobhu ….. Appellant. Vs. State of H.P. …. respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Sanjay Dutt Vasudeva, Advocate. For the Respondent : Mr. A.K. Bansal, Addl. Advocate General. Kuldip Singh, Judge. This appeal has been directed against judgement of conviction and sentence, dated 28.3.2006, passed by the learned Sessions Judge, Kullu in Sessions Trial No. 67-05, vide which the appellant has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/- for the commission of offence, under Section 376 IPC, in default of payment of fine, the appellant is to undergo further imprisonment for three months. The appellant has also been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/- under Section 452 IPC and in default of payment of fine, he has been Whether the reporters of the local papers may be allowed to see the Judgment? …2… directed to further undergo imprisonment for two months. The appellant has also been directed to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- for the commission of offence, under Section 506 IPC, and in default of payment of fine, the appellant shall undergo imprisonment for one month. All the sentences shall run concurrently. 2. The prosecution case in brief is that complainant PW 2 Khub Ram reported the matter at Police Station, Banjar on 11.3.2005 and stated that he married PW 1 prosecutrix, who resides in `Doghara’ also known as `Doghari’ (small farm house) at place known as Beri Khad. He alleged that prosecutrix disclosed him that on 10.3.2005 at 7.30 p.m. the appellant came to her house, she was cooking meals. The appellant started committing mischief with her due to which she went out of the house and hide herself in the Ghasni (grazing land) for about half an hour. Thereafter she returned to her house, but appellant again came there and committed forcible sexual intercourse with her. The appellant after committing sexual intercourse, threatened the prosecutrix to do away with her life in case she would disclose the said fact to anybody. On the report of PW 2, an FIR Ex. PW 2/A came to be registered. The case was entrusted for investigation by PW 8 SI Dorje Ram to PW 9 ASI Lekh Ram. On the application Ex. PW 4/A of the Investigating Officer, PW 4 Dr. Richa Malhotra examined the posecutrix and issued MLC Ex. PW 4/B. The site plan Ex. PW 9/A was prepared, photographs Ex. PW 9/B-1 to Ex. PW 9/B-3 were taken. The prosecutrix produced shirt Ex. P-5, sweater Ex. P-4 which were taken into possession vide …3… seizure memo Ex. PW 1/A. The appellant was arrested on 11.3.2005, he was medically examined by PW 5 Dr. Shekher Kapoor on the basis of application Ex. PW 5/A and MLC of the appellant is Ex. PW 5/B. The report from Forensic Science Laboratory was obtained and after completion of the investigation, police report, under Section 173 Cr.P.C. was presented to learned Chief Judicial Magistrate, Lahaul & Spiti, who committed the appellant to the court of learned Sessions Judge for trial. The appellant was charged, under Sections 452, 376 and 506 IPC to which he pleaded not guilty and claimed trial. The prosecution examined nine witnesses. The statement of appellant was recorded, under Section 313 Cr.P.C., he denied the case of the prosecution. The appellant did not lead any evidence in defence. The learned Sessions Judge on 28.3.2006 convicted and sentenced the appellant, as noticed above, hence this appeal. 3. I have heard Mr. Sanjay Dutt Vasudeva, learned counsel for the appellant and Mr. A.K. Bansal, learned Additional Advocate General, representing the State and gone through the record. It has been submitted on behalf of the appellant that the learned Sessions Judge has not appreciated the material on record properly. The prosecutrix is about 50 years of age, married having children and the appellant is about 35 years of age. The prosecution story is highly improbable and is full of infirmities. The medical evidence has not supported the prosecution. It is not a case of the nature where sole testimony of the prosecutrix is enough to convict the accused. There are material contradictions and improvements in the prosecution story. The learned Sessions Judge has not drawn proper inference …4… from the material on record and has erred in convicting and sentencing the appellant. On the facts established on record, the appellant is entitled to acquittal. On the contrary, learned Additional Advocate General has submitted that the appellant sexually assaulted the prosecutrix on finding her alone in the house. The `Doghara’ of the prosecutrix is situated at an isolated place. There is no reason to disbelieve the testimony of the prosecutrix. The statement of the prosecutrix does not require corroboration. The prosecution has proved the case against the appellant. The learned Sessions Judge has rightly appreciated the material on record and no fault can be found with the judgement of conviction and sentence recorded by the learned Sessions Judge. 4. In order to appreciate the respective contentions of the parties, it is necessary to refer the evidence led by the prosecution. PW 1 is the prosecutrix. On the date of making statement on 3.1.2006 in the court, she has given her age 50 years. She has stated that after the death of her previous husband, she settled with Khub Ram as his second wife about 20 years ago. She has given birth to four children from the loins of Khub Ram. She has a `Doghara’ at some distance, her four children are residing with Khub Ram, whereas she alone resides in `Doghara’. There is no house nearby `Doghara’. On 10th Chaitra this year, at 7.30 she was alone in her `Doghara’ and preparing meal. Accused came there and started committing mischief with her, on this she ran outside her `Doghara’ and stayed outside `Doghara’ for half an hour. She thought that accused might have left her `Doghara’ and she returned …5… to her `Doghara’ and started taking her meal. On this accused again came and laid her on the floor forcibly, broken the string of her Salwar and committed forcible sexual intercourse with her without her consent. After committing sexual intercourse with her, he ran away. He had caught hold her by her arms and had forcibly broken the string of her Salwar. She cried for help. The accused threatened her with dire consequences in case she would disclose the said fact in her house She was alone in her `Doghara’. Nobody came there. During night she could not go anywhere. Next day, at 6 a.m., she went to her house and disclosed the episode to her husband, who took her to Police Station, Banjar. Police got her medically examined. The doctor took into possession her Salwar Ex. P-2. The police visited the `Doghara’ same day. She had shown the spot to the police. She handed over the shirt and salwar to police vide seizure memo Ex. PW 1/A. Her sweater is Ex. P-4 and shirt Ex. P-5. In cross-examination, she has stated that her `Doghara’ is at place Beri Khad. She is residing in the `Doghara’ for the last 20 years. Mani Devi is the sister of accused and Gobind her husband. She has admitted that her husband was apprehended in a case of charas. There are 2-3 houses in village Tila, but one cannot hear the call given loudly in village Tila from her `Doghara’. There are shops of Chet Ram and Gobind Ram in village Tila. It takes 4-5 minutes to reach village Tila from her `Doghara’, which is at a distance of 500 meters from her `Doghara’. At the first instance as soon as the accused entered her `Doghara’, she went out of her `Doghara’. No conversation took place between her and the accused. After coming …6… outside her `Doghara’, she went to a distance of one kilometer and remained sitting in open space by hiding herself due to fear. When she left `Doghara’, it was dark. She kept herself hiding for half an hour. She had shown the broken string to the police. She has reiterated that string of the Salwar was broken, her shirt was torn half foot from front side and Salwar was also torn. At the time of examination by the Doctor, she was wearing same shirt and sweater, but later on said that at that time she was not wearing said shirt and sweater which were worn by her at the time of occurrence. On the next day when she came to her house in village Ghalingcha she did not come through Tila but through another path. The `Doghara’ is at a distance of 3 kilometers from Ghalingcha. 5. PW 2 Khub Ram has stated that prosecutrix is his wife. He has stated that since his marriage with prosecutrix, she used to reside alone in his `Doghari’ in Beri Khad. On 11.3.2005 at about 6.30 a.m., prosecutrix came to his house at Ghalingcha and disclosed that on the previous evening at about 7.30 p.m. when she was preparing her meal, accused Lobhu Ram came there and started committing mischief with her, she came out from the `Doghari’ and went towards Ghasni where she hide herself for about half an hour. She returned to the `Doghari’ after half an hour on the assumption that accused might have left the place. The accused again came inside the `Doghari’ and committed forcible sexual intercourse with her and left the spot. She had cried, but there was none to hear the cries. The accused threatened her not to disclose the fact to anybody. On disclosure of this fact by the prosecutrix to him, he had …7… gone to Police Station, Banjar and lodged FIR Ex. PW 2/A. The prosecutrix was also with him at the time of registration of the FIR. He also joined the investigation. The prosecutrix handed over one sweater, shirt to the police in presence of Atma Ram and Tabe Ram. In cross examination, he has stated that in N.D.P.S. case he remained in judicial lock up during trial for 14 months, but later on acquitted and the appeal is pending in the High Court. He has stated that in village Tila there are two shops and two houses and that village is at distance of half kilometers from his `Doghari’. He has admitted that Gobind is brother-in- law of the accused, he and Gobind Ram contested the election of Panchayat. He has also stated that PW 1 had disclosed him that when for the first time the accused came to her, he tried to lay her on the ground and committed mischief upon which she went outside the `Doghari’. She has also stated that her sweater, shirt were torn by the accused and this fact was stated in the FIR, he was confronted with FIR Ex. PW 2/A wherein it was not so recorded. He has stated that there is a common path by the side of his `Doghari’. 6. PW 3 Tabe Ram is a witness of production of sweater Ex. P-4 and shirt Ex. P-5 by prosecutrix vide seizure memo Ex. PW 1/A signed by him and Atma Ram and it bears the thumb impression of PW 1 prosecutrix. PW 4 Dr. Richa Malhotra conducted the medical examination of prosecutrix on an application Ex. PW 4/A. As per PW 4, the prosecutrix was wearing grey coloured check salwar at the time of sexual act and rest of the clothes she had changed. She had not taken bath since the time of sexual act. Grey check salwar was …8… taken into possession. On medical examination of the prosecutrix, the doctor found no external injuries anywhere on the body of the prosecutrix. She was having no abrasions, no nail marks, no cut marks, no finger prints, no broken bangles, no broken necklace, no torn clothes. She was having absolutely normal gait and responding well to all verbal commands. There was no tenderness spreading over thighs. On spreading labia majora no tenderness or redness was seen. There were no signs of tears. There was no bleeding inside vaginal walls. There was no fresh bleeding or any other injury mark over vulva. The smears were taken from different parts and the slides were sealed and preserved for chemical analysis. The pubic hair sample, nail scrapings and clothing of the prosecutrix were preserved for chemical analysis. On medical examination, in the opinion of the doctor it was difficult to determine whether the prosecutrix was made subject of forcible sexual intercourse. The doctor reserved the final opinion to be given after Chemical Examiner report. The doctor handed over the Salwar of the prosecutrix, slides of smears of different parts, pubic hair, nails, scrapings etc. to the police. Later on police produced Forensic Science Laboratory report Ex. PA. On the basis of that report, the doctor gave opinion that alleged sexual assault could not be confirmed on both basis. i.e. on the basis of physical examination and report of Chemical Examiner Ex. PA. The doctor proved MLC Ex. PW 4/B of the prosecutrix and opinion at point A on MLC Ex. PW 4/B. In examination-in-chief ultimately doctor has stated that she could not opine whether forcible sexual intercourse was committed with the prosecutrix or not. In her …9… cross examination, the doctor has stated that prosecutrix was averagely built. As per physique of the prosecutrix the prosecutrix could have resisted the forcible sexual intercourse, had she resisted, she could have suffered injuries on her person as well as injury on the person of the accused. 7. PW 5 Dr. Shekher Kapoor examined the accused vide application Ex. PW 5/A and issued MLC Ex. PW 5/B. According to him, there was nothing suggestive that the accused was not physically and mentally found fit to commit sexual intercourse. PW 7 HC Chaman Lal is a formal witness with respect to entries at Sr. No. 41 in Malkhana register copy Ex. PW 6/A and handing over of the parcels and documents to constable Amar Singh for submitting the same to FSL, Junga vide RC No. 23/5 Ex. PW 6/B. PW 7 Constable Amar Singh is also a formal witness, who took the accused for medical examination and handing over of the parcels and documents to MHC Police Station, Banjar. He is also a witness of carrying of parcels, seals and documents etc. to FSL, Junga. PW 8 SI Dorje Ram has stated that during November, 2004 to August 2005 he remained posted as SHO, Police Station, Banjar. On 11.3.2005 Khub Ram lodged an FIR Ex. PW 2/A at Police Station, Banjar. After completion of the investigation, ASI Lekh Ram handed over the case file to him and he prepared the challan and presented in the court. In cross examination, he has stated that prosecutrix reached the Police Station after registration of the FIR and her statement was not recorded by him. PW 9 ASI Lekh Ram has stated that he was posted at Police Station, Banjar in the year 2005. On 11.3.2005 the case …10… was handed over to him by SHO, Police Station, Banjar Sh. Dorje Ram for investigation. He carried out the investigation of the case. On his application Ex. PW 4/A, PW 4 Dr. Richa Malhotra examined the prosecutrix and issued MLC Ex. PW 4/B. He proceeded to the spot with a direction to the prosecutrix and her husband to reach the spot. The spot map Ex. PW 9/A with marginal notes was prepared by him. The prosecutrix produced sweater Ex. P 4 and shirt Ex. P 5 on the spot which she was wearing at the time of commission of the offence. The photographs Ex. PW 9/B-1 to Ex. PW 9/B-3 with negatives Ex. PW 9/C-1 to Ex. PW 9/C-3 were taken by him on the spot. In cross examination, he has stated that village Tila is at a distance of half kilometer from the `Doghari’ of the prosecutrix. The `Doghari’ of the prosecutrix is located at higher elevation in comparison to village Tila which is on lower elevation. The `Doghari’ of the prosecutrix is located near common path at a distance of 10-15 meters. The common path is used by the villagers of villages Mashyar, Mujahli, Kamehra etc. In spot map Ex. PW 9/A, this passage is shown about ten meters from the `Doghari’ of the prosecutrix. He has not seen the string of the Salwar of the prosecutrix nor string was handed over to him because the same was handed over earlier by the prosecutrix in the hospital to the doctor. 8. The accused in his statement, under Section 313 Cr.P.C. has denied the prosecution case and has stated that a false case has been made against him out of enmity by Khub Ram in connivance with prosecutrix. The accused- appellant opted not to adduce any evidence in defence. …11… 9. It has been submitted on behalf of the State that prosecutrix has proved the case beyond reasonable doubt and the involvement of the appellant has been established. There is no reason to disbelieve the testimony of the prosecutrix. The appellant found an easy prey in the prosecutrix as she was living alone at an isolated place. He committed forcible sexual intercourse with the prosecutrix. The sole testimony of the prosecutrix is enough to convict and sentence the appellant and the learned Sessions Judge has committed no error in relying the testimony of prosecutrix in convicting and sentencing the appellant. It has been submitted on behalf of the appellant that it is not a case of the nature where the sole testimony of the prosecutrix is sufficient to convict and sentence the appellant. The story of the prosecution is highly improbable. There are improvements in the prosecution story. The medical of the prosecutrix is not supporting the prosecution case. On behalf of the appellant, submission of acquittal of the appellant has been made. 10. Ex. PW 2/A is the FIR which was got registered by PW 2 Khub Ram husband of the prosecutrix. In the FIR, it has been mentioned that at about 7.30 p.m. on the date of occurrence accused came to his `Doghari’ Beri Khad, where prosecutrix is residing, there is no house nearby. The prosecutrix was cooking food, the accused started committing mischief with her, but somehow the prosecutrix managed to escape and came out in Ghasni where she hide herself for about half an hour and then came to her house and accused was not there. The prosecutrix started cooking food. However, the accused entered the room and committed forcible sexual intercourse …12… with the prosecutrix. She cried for help but no one was there. The accused threatened her that in case this fact was disclosed to anybody, he would kill her. The prosecutrix as PW 1 in her statement has stated that accused laid her on the floor forcibly. He caught hold her arms, broke the string of her Salwar and then committed forcible sexual intercourse with her. The prosecution case is that when the accused first time entered the `Doghari’ at about 7.30 p.m. he started committing mischief with the prosecutrix, but in her cross examination the prosecutrix has stated that at the first instance as soon as the accused entered her `Doghari’, she went out of her `Doghari’ and no conversation took place between her and the accused. She went to a distance of one kilometer and remained sitting in an open space by hiding herself due to fear. By making this statement, the prosecutrix has contradicted the prosecution story that when earlier accused entered her `Doghari’, he started committing mischief with her and for that reason she went out of the `Doghari’ and hide herself in a Ghasni. The prosecutrix has also stated that village Tila is at a distance of 500 meters from her `Doghari’ and it takes 4-5 minutes to reach village Tila from her `Doghari’. PW 2 Khub Ram has stated in his cross examination that in village Tila there are two shops and two houses and village Tila is at a distance of half kilometer from `Doghari’. It is not understandable when prosecutrix realized that accused had entered her `Doghari’ in order to commit mischief with her and she allegedly covered a distance of one kilometer to hide herself why she had not gone to village Tila to take help which is at a distance of 500 meters and having 4-5 minutes walk from her …13… `Doghari’. According to her she hide herself for half an hour and again returned to her `Doghari’. The prosecution story starts with a suspicion. It has also come in the statement of PW 9 ASI Lekh Ram ASI, the Investigating Officer that at a distance of 10-15 meters from the `Doghari’ of prosecutrix, there is a common path for villages Mashyar, Mujahli, Kamehra etc. In the month of March, the village life does not come to standstill at about 7.30 p.m. In normal course, the common path adjacent to the `Doghari’ of prosecutrix is expected to be used by the other villagers for going and coming to their respective villages. It is surprising that prosecutrix did not bring to the notice of any person, who used the village passage during that time. It is not believable that for half an hour nobody passed through that common path which is used by so many villagers. 11. PW 4 Dr. Richa Malhotra has conducted the medical examination of prosecutrix and proved MLC Ex. PW 4/B of the prosecutrix. The report of the Forensic Science Laboratory is Ex. PA. PW-4 has stated that there was no tenderness spreading over thighs. On spreading labia majora no tenderness or redness was seen. There were no signs of tears. There was no bleeding inside vaginal walls. There was no fresh bleeding or any other injury mark over vulva. The prosecutrix had not taken bath since the alleged sexual act. PW 4 has given the opinion that sexual assault on the prosecutrix could not be confirmed on both basis i.e. on the basis of physical examination and report of Chemical Examiner Ex. PA. PW 4 in her cross examination has also stated that as per physique of the prosecutrix, the prosecutrix could have resisted the forcible sexual …14… intercourse, had she resisted, she could have suffered injuries on her person as well as injury on the person of the accused. No injuries were noticed on the person of the prosecutrix by PW 4 nor PW 5 Dr. Shekher Kapoor has noticed any injury on the person of accused. The medical examinations of prosecutrix as well as accused negative the story of the prosecution that prosecutrix was sexually assaulted by the accused without her consent. The prosecutrix has stated that accused had broken the string of her Salwar at the time of sexual assault, but such broken string of the salwar of the prosecutrix has not come on record. In case the string of the salwar of the prosecutrix would have been broken in the manner as alleged by the prosecutrix by the accused, then that should have normally left a mark on the body of the prosecutrix but no such mark was noticed by the doctor, who examined the prosecutrix. This also belies the prosecution story that prosecutrix was sexually assaulted by the accused. 12. The learned Additional Advocate General has submitted that the statement of the prosecutrix does not require any corroboration and her statement alone is enough to convict the accused and learned Sessions Judge has accepted the version given by the prosecutrix. The `Doghari’ of the prosecutrix is situated at a lonely place and therefore, no corroboration is required for convicting and sentencing the accused. As a