IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.374/2007 Reserved on:5.8.2008 Decided on:14.8.2008 Yoginder Singh alias Fakia. …Appellant. Versus State of Himachal Pradesh. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the Appellant : Mr. N.S. Chandel with Mr. Rakesh Jaswal, Advocates For the Respondent : Mr. Rajinder dogra, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, J. The accused was prosecuted in Sessions Trial No. 3-S/7 of 2007 in the Court of Sessions Judge, Shimla under sections 452 and 376 of the Indian Penal Code. He was convicted by the learned Sessions Judge and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 25,000/- for committing an offence under section 376 of the Indian Penal Code. In default of payment of fine, the accused was directed to undergo further rigorous imprisonment for 1 year. He was further sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 5,000/- for committing an offence punishable under section 452 of 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 the Indian Penal Code and in default of payment of fine, the accused was directed to undergo rigorous imprisonment for 3 months. The case of the prosecution in nutshell is that prosecutrix (PW-2) had gone to the house of PW-6 Sh. Relu Ram, her maternal grand father, in village Jhina in the month of October, 2006. PW-4 Rajinder Singh, Member Gram Panchayat, Jhina on October 10, 2006 at about 1.30 P.M. made a telephone call to the Police Station, Chopal to the effect that one girl had been raped in village Tuhil. The Police was requested to come to the spot and investigate the matter. ASI, Dandu Ram went to the spot and recorded the statement of Urmila Devi under section 154 of the Code of Criminal Procedure. Sequence of events reported is that on October 9, 2006, she had gone in village Tuhil to collect the grass. She returned to the house in the evening at about 7.30 P.M. Her son Nikhil aged 11 years, Balwant aged 9 years and son of her brother-in-law Gulshan, aged 11 years informed her that during day time they were grazing cattle adjoining the house of PW-6 Relu Ram. They heard cries from inside the house of Relu Ram. When they went there, they found that the room from where the cries were coming was bolted. They managed to peep inside the room from another room through the roof and noticed that the accused had made the prosecutrix to lie down on a bedding and was having sexual intercourse with her. She was raising cries. The accused went towards Tuhil side. When Urmila asked the prosecutrix about the incident, she told that the accused had subjected her to sexual intercourse at 2.30 P.M. in the house of Relu Ram. He had come there when she was alone. He demanded a glass tumbler to take liquor. The prosecutrix provided him a glass tumbler. The accused took liquor which he had brought. Thereafter the accused told the prosecutrix that he would like to sleep and asked her to spread bedding. The prosecutrix spread bedding on the ground and 3 when she wanted to go out, the accused caught her from her hair and arm and threw her on the bedding and bolted the door from inside. He forcibly removed the salwar of the prosecutrix by breaking the string and threw it away. He removed his trousers and committed forcibly sexual intercourse with the prosecutrix. The complainant took the prosecutrix to the house of Chet Ram, brother of the informant, he was not there. She went to her another brother Davinder and informed him about the incident. The accused was also there. The case was registered on the basis of the statement of Urmila Devi vide FIR Ex.PW-15/C. The case was investigated by Govind Ram, Sub Inspector. He moved an application on 11.10.2006 Ex.PW-1/A to the Medical Officer, Civil Hospital, Chopal for the medical examination of the prosecutrix. The medical examination was carried on by PW-1 Dr. Renu Sharma. She issued medico legal certificate Ex.PW-1/C. The Medical Officer also took into possession vaginal slide and vaginal swab of the prosecutrix. She also took into possession the clothes of the prosecutrix i.e. sweater Ex.P-1, salwar Ex.P-2 and brassiere Ex.P-3. The Investigating Officer also got ossification test of the prosecutrix conducted through Dr. Neelam PW-11 as per X-ray skiagram Ex.PW-11/A-1 to Ex.PW-11/A-6. PW-11 Dr. Neelam gave the report Ex.PW-1/D certifying the age of the prosecutrix between12 ½ years to 15 years. The accused was arrested by the police and an application for medical examination on October 11, 2006 was also moved. The medical examination of the accused was conducted by PW-13 Dr. Shayam Lal, who issued medico legal certificate Ex.PW-13/B and he was found capable of committing sexual intercourse. The prosecutrix produced a cover of quilt to the police, which was taken into possession vide memo Ex.PW-2/A. It was sealed in a parcel with seal ‘H’. The Investigating Officer also took into possession the date of birth certificate of the 4 prosecutrix Ex.PW-10/A showing her date of birth as 7.2.1996 and also another certificate Ex.PW-10/E vide memo Ex.PW-10/F. The police also collected the abstract from the school attendance register Ex.PW-10/B to Ex.PW-10/D to establish that the prosecutrix, Nikhil and Balwant were absent from their school on 9.10.2006. The Assistant Secretary Lata, Gram Panchayat, Jhina produced the abstract of Pariwar register of the prosecutrix Ex.PW-12/A to the police vide memo Ex.PW-12/B. The case property was deposited with the MHC as per the abstract of the register Ex.PW-15/A and it was sent to the Forensic Science Laboratory, Junga vide entry Ex.PW-15/B. The forensic report Ex.PW-1/E was received to the effect that human semen was found on the underwear of the accused and shirt of the prosecutrix. The human blood and human semen were found on the salwar of the prosecutrix. The matter was investigated and the challan was put under sections 452 and 376 of the Indian Penal Code. The prosecution examined as many as 19 witnesses to prove its case. The accused was examined under section 313 of the Code of Criminal Procedure. The trial court on the basis of the evidence led by the prosecution has convicted the accused, as noticed above. This appeal has been preferred by the accused against the judgment dated 30.5.2007. Mr. N.S. Chandel, Advocate had strenuously argued that the prosecution has miserably failed to prove the case against the appellant. The trial court has not properly appreciated the material on record. The prosecution story is highly improbable and the accused person has been falsely implicated. Mr. Rajinder Dogra, Additional Advocate General had supported the judgment dated 30.5.2007. I have heard the learned counsel for the parties and have also perused the record carefully. 5 The prosecutrix has appeared as PW-2. Being a child of the age of 11 years, her statement was recorded in the form of interrogatories. She has deposed that during the day time, the accused came to the house of Relu Ram and he was drunk. The accused asked her to put up bedding for him. The accused shut the door and caught hold of her from neck and arm and forced her to lie on the bed with him and thereafter he put off her salwar and she started crying. He forcibly committed rape on her and she was bleeding from the private parts due to the act of the accused. The matter was reported to the police. She was medically examined. She had identified clothes Ex.P-1 to P-3 and quilt cover Ex.P-4 in the Court. She has denied that she was not wearing the clothes Ex.P-1 to Ex.P-3 at the time of incident. PW-1 Dr. Renu Sharma, Medical Officer has medically examined the prosecutrix on police request. The Medical Officer has found as under as per Ex.PW-1A: “No recent injury noted on body. Breast partially developed. Axullary and pubic hairs yet not developed. Minarchy occurred September 20, 2006. Local Examination:- No signs of struggle injury noted over external genitalia or thigh. Labia majora not completely covering labia minora, pubic not present. Whitish discharge coming out of the gagina. Hymen present with central opening. Margins are crenated. No oedema or inflammation present except for small abrasion at 6 o’ clock position. Scab was found reddish brown in colour. Digital examination:- Admitting one finger easily., No tenderness present. Vitals were normal. Chest CVS abdomen nothing abnormally detected. Advised x-ray shoulder, AP bilateral knee, AP bilateral angle by lateral. For the X- ray she fill up the form Ex.PW-1/B. After going thorough the examination, it was opined that possibility of rape 6 cannot be ruled out and final opinion will subject to expert opinion from Forensic Experts and chemical analysis. The patient was referred to D.D.U Shimla for radiological and dental opinion for age determination.” In the opinion of the Medical Officer PW-1, the possibility of sexual intercourse could not be ruled out. PW-3 Smt. Urmila Devi is the sister of father of the prosecutrix. She has deposed that on 9.10.2006, the prosecutrix had gone to the house of her maternal uncle Relu Ram in village Tuhil. When she returned in the evening, she was told by Balwant, Hina, Nikhil and Gulshan that the accused committed sexual intercourse with the prosecutrix during day time at 2.30/3.00 P.M. She inquired from the prosecutrix to confirm and consequently the matter was reported to the police vide statement Ex.PW-3/A. She has denied that the witness had handed over some clothes to the prosecutrix to wear at the time of examination. She has also denied that the prosecutrix was not wearing the clothes Ex.P-1 to Ex.P-3 at the time of incident. PW-4 Rajinder Singh is the member of the Gram Panchayat, Jhina. He telephoned to the police to come to the village. Consequently, the police visited the spot and recorded the statement Ex.PW-3/A. The police took into possession cover of quilt Ex.P-4 in his presence from the house of Relu Ram vide memo Ex.PW-4/A. PW-5 Balwant Kumar is a minor witness, who is 10 years old. He has stated that he was grazing cattle alongwith Gulshan, Hina and Nikhil. The prosecutrix was present in the house of Relu Ram. The accused came and asked for the glass tumbler from the prosecutrix. Thereafter he asked the prosecutrix to spread bedding for him. The accused then came to the room of the prosecutrix and bolted door from inside. The accused caught hold of the prosecutrix from her arm and put her down on the bed. 7 She raised hue and cry and on hearing the same he and other children went to the spot. They peeped inside the room from an opening in the roof. He has further stated that the accused had taken off his trousers and had also removed the salwar of the prosecutrix. The accused lied on the prosecutrix and he was having sexual intercourse with her. According to him, Gulshan and Nikhil saw the incident from the door of the same room. Hina was with him on the roof. He narrated the incident to his mother Urmila. He has clarified in his cross-examination that the prosecutrix was not playing with him. He has admitted that his mother had asked him to make statement in the court. He has also admitted that the police officials asked him outside the court to make the statement. PW-6 is Sh. Relu Ram. He has stated that when he returned in the evening from his work, he found that the prosecutrix had been called by Urmila. He was told by his grand children that the accused had misbehaved with the prosecutrix. He has denied that he had been taking loan from the accused and that he owed a sum of Rs. 10,000/- on account of debt. PW-7 Chet Ram is the father of the prosecutrix. He has stated that the age of his daughter is 11- 12 years. According to him he had gone to collect the grass and prosecutrix had gone to the house of her maternal uncle Relu Ram on 9.10.2006. The children had informed him that the accused had committed rape on the prosecutrix. He has disclosed in cross- examination that the accused worked as a mason in the village and he had worked in the house of Relu Ram. He has admitted that he had gone to the court , but denied that he had given any statement though he had signed the papers. He has admitted his signatures in circle ‘A’ and the statement Ex.D-1. He has admitted that the mental state of his daughter was not good. PW-8 Nikhil is a child witness. He has stated that the prosecutrix is his real sister and he recognized the accused present in the 8 court. He has stated that 6-7 months back, he was present in the house and was grazing the cattle outside along with Gulshan, Balwant and Heena. PW Relu Ram is his maternal grand father. He heard cries of prosecutrix from the house of Relu Ram. They all went there and saw that the accused and prosecutrix were sleeping on a bed. They had taken off their clothes. He has stated that the accused committed sexual intercourse with the prosecutrix and they saw this incident through a wall which was half constructed. In his cross-examination he has denied that his mother had asked him to depose in favour of the prosecution in the court. He has also denied that the police officials had tutored him to make the statement in a particular manner. PW-9 Gulshan is also a child witness. He also recognized the accused who was present in the court. In his cross-examination he had admitted that Balwant, Nikhil and Heena were also in the school with him and after the school, they were playing with him. He has admitted that the police officials had taken him to the police office in the district courts and Nikhil and Heena were also with him. PW-10 Yoginder Singh is Head Teacher, Government Primary School, Tuhil. He has deposed that the prosecutrix was admitted in the school on April 12, 2004 and her date of birth is 7.2.1996. He has handed over the original Gram Panchayat certificate Ex.PW-10/A to the police. He has stated that the prosecutrix was absent from the school on 9.10.2006. He has proved the abstract from the register Ex.PW-10/B. He has also stated that Nikhil, Gulshan and Heena were also absent from the school on 9.10.2006 and proved abstracts from the register Ex.PW-10/C and Ex.PW-10/D. He has issued birth certificate Ex.PW-10/E and the documents were taken into possession by the police vide memo Ex.PW- 10/F. 9 PW-11 Dr. Neelam Radiologist had opined that as per report Ex.PW-1/D, the age of the prosecutrix was 12 ½ years to 15 years. PW-12 is Lata, Assistant Secretary, Gram Panchayat, Jhina. She has stated that she handed over the abstract of Parwiar register Ex.PW-12/B. PW-13 is Dr. Shyam Lal Chauhan. He has stated that he examined the accused on 11.10.2006. He has opined that there was nothing to suggest that the person examined by him was unable to perform sexual intercourse. He had found no injury on the genital organs or any other part of his body. He has opined that smegma was not present on the penis of the person. He has encircled the suspected semen stains on the underwear of the accused. He has taken into possession the underwear and Pajama of the accused for the chemical examination. PW-14 Surinder Diwan is the Panchayat Secretary, Pujarli. He has brought the original date of birth register of the Gram Panchayat on the basis of which he issued the certificate Ex.PW-10/A. PW-15 Pritam Singh, MHC has stated that on 12.10.2006 SHO Gobind Ram had deposited a sealed parcel sealed with seal ‘H’. On 14.10.2006, vice RC No.58/06, he handed over the parcels to Kailash Chand constable to deposit the same at F.S.L., Junga. He has proved the entry in the Malkhana Register Ex.PW-15/A. He also proved the copy of RC Ex.PW-15/B as well as copy of FIR Ex.PW-15/C, which was recorded on the basis of statement Ex.PW-3/C. PW-16 Dinesh Kumar has deposed that on 10.10.2006, Rajinder Mehta informed through telephone that a rape had been committed with one girl at village Tuhil. He recorded the same in daily diary Ex.PW-16/A. PW-17, Kailash Chand, Constable has stated that on 14.10.2006, MHC Pritam Singh had handed over to him 7 parcels to deposit the same in FSL, Junga through RC No. 58/2006. He deposited the same in F.S.L. Junga and obtained the receipt on the RC 10 which is Ex.PW-15/B. PW-18, SI Dandu Ram has stated that he visited the spot in the presence of other police officials and recorded the statement of Urmila Ex.PW-3/A under section 154 of the Code of Criminal Procedure. The matter was investigated by PW-19 ASI Gobind Ram. He has deposed that he visited the spot and prepared the site plan Ex.PW- 19/A. He took into possession the quilt cover which was produced by the prosecutrix and the same was sealed in a parcel with seal impression ‘H’. He prepared memo Ex.PW-12/A. The quilt cover was taken into possession in the presence of Relu Ram and Rajinder Singh. The sample seal Ex.PW-19/B was also taken and seal was given to PW Rajinder Singh. The medical of the prosecutrix was got conducted at Civil Hospital, Chopal vide application Ex.PW-1/A and the medical certificate is Ex.PW- 1/C. He has obtained the opinion of the Radiologist Ex.PW-1/D. He also got the medical of the accused conducted and MLC Ex.PW-13/B was obtained. He has also received the report from the FSL, Junga Ex.PW- 1/E vide letter Ex.PW-19/C. He obtained the copy of the pariwar register from Assistant Secretary vide Ex.PW-12/A. He also procured date of birth certificate Ex.PW-10/A from Yoginder Singh, Head Teacher, Government Primary School, Tuhil. He also procured the abstract of attendance register dated 9.10.2006 Ex. PW-10/B, PW-10/C, PW-10/D and certificate Ex.PW-10/E and taken into possession vide memo Ex.PW-10/F. The seal was handed over to Rajinder Mehta vide memo Ex.PW-4/A. He has proved on record the application Ex.PW-19/H vide which the clothes were sent to FSL, Junga. He has given the height of the walls of the house of Relu Ram about 6 feet. He has further stated that there is no window in the room concerned. He has self stated that one wall was half constructed. He has denied that the clothes, which were sent to laboratory, were of daughter-in-law of Relu Ram. 11 DW-1 Naresh Kumar has stated that the prosecutrix is his niece. He has deposed that the clothes of his wife had been taken into possession. He has identified the clothes. The suit has been taken away by Urmila from his house. The suit was being worn by his wife in daily routine and even in the night also she wore the same suit. The menstruation of his wife took place 5-6 days back before the incident. He has deposed that he had intercourse with his wife 5-6 days back before this incident and on that day she was wearing the same clothes. According to him there was a conspiracy against the accused by Davinder and Urmila due to the reason that there was a quarrel between accused and Davinder 2-3 days back. In his cross-examination, he has stated that Relu Ram is his father. He has stated that he was not in his house and he came on October 10, 2006 in the evening. Prior to October 9, 2006, he was working as a carpenter in the house of Bhupinder Singh at village Tuhil. He has stated that the prosecutrix had come to the house of Relu Ram on October 9, 2006. He and his father lived together. He never asked the prosecutrix about the incident. He has intercourse with his wife regularly. He was not at home when the rape took place in his house. He has denied that his wife had given clothes to the prosecutrix to wear. The prosecutrix was born on 7.2.1996 as per Ex.PW-10/A issued by the Gram Panchayat, Jhina. The incident took place on 9.10.2006. She was aged about 10 years and 8 months at the time of incident. The Head Teacher of the School has also issued certificate Ex.PW-10/E. The date of birth of the prosecutrix has been shown as 7.2.1996. The ossification test was conducted by PW-11. It is evident from Ex.PW-11/A-1 to Ex. PW-11/A-6 that the age of the prosecutrix has been proved between 12 ½ years to 15 years. She was a minor. She has appeared as PW-2. The questions have been put to her by the trial court 12 in the shape of interrogatories. The statement made by her inspires confidence. She has narrated the sequence of events in a very natural manner. She has given all the details in which she was subjected to rape by the accused. The statement of PW-2 prosecutrix is duly supported by the statement of PW-1 Dr. Renu Sharma. She has deposed that the possibility of the rape could not be ruled out. It is evident from the report received from the FSL, Junga that there were blood stains and presence of semen on the clothes. The clothes were taken in possession by the doctor and handed over to the police and the same were sent to the medical examination for FSL, Junga. There is variance in the date on which the samples were sent by PW-15 Pritam Singh, MHC, Police Station, Chopal and the date on which the samples were received in FSL, Junga. He has deposed that the samples were sent on 14.10.2006. In fact, PW-17 Kailash Chand, Constable has also admitted that the samples were handed over to him on 14.10.2006 to deposit the same in the FSL, Junga. However, in the RC it has come that the samples were sent on 16.10.2006 and the same were received in the laboratory on 16.10.2006. This variance in the dates will not vitiate the trial for the simple reason what the Court has to see whether the sample has reached intact or not in FSL, Junga and what is the final opinion of the experts. The statement of PW-2 has been duly supported by other child witnesses, namely, PW-5 Balwant Kumar, PW-8 Nikhil. These two witnesses though child witnesses have narrated the incident in a natural manner. Their age varies between 8 to 11 years. Being of tender age, they were required to be reminded by the elders about the incident when they came to the court. The Court can take judicial notice of the fact that children are overawed by the atmosphere of the Court. It is only for this reason that their elders have refreshed their memory about the incident. 13 The child witnesses have seen the incident and they were absent from the school as duly certified by the Head Teacher. Urmila Devi to whom the incident was narrated by the prosecutrix has appeared as PW-3. She has supported the version of the prosecutrix alongwith PW-4 Rajinder Singh, who had informed the police about the rape. PW-6 Relu Ram and father of the prosecutrix PW-7 Chet Ram have also supported the case of the prosecution. Mr. N.S. Chandel, Advocate has relied upon the cross- examination of Sh. Chet Ram to stress that he being father of the prosecutrix has given statement Ex.D-1 before the Judicial Magistrate, Chopal. This statement has been rightly discarded by the trial court. It has come in the evidence that PW-7 is an illiterate person and was not aware of the consequences of the statement. The Head Teacher, Government Primary School, Tuhil has stated that the prosecutrix was admitted in the school on 12.4.2004 and her date of birth was 7.2.1996. PW-12 Lata, Assistant Secretary