IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 79 of 2001 Judgment reserved on : 18.3.2008 Date of Decision : April 28, 2008 Vinesh Kumar …Appellant. Versus: State of H. P. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Vinay Thakur, Advocate. For the respondent : Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. Sanjay Karol, J. The present appeal arises out of the judgment dated 26.2.2001 passed by the Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, H.P., in Sessions Trial No. 11 of 1999, titled as State v. Vinesh Kumar, convicting the accused for the offences punishable under Sections 376 and 342 I.P.C. and sentencing him to undergo rigorous imprisonment for 5 years and fine of Rs.1000/- under Section 376 IPC and rigorous imprisonment for 6 months under Section 342 IPC. In default of 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 payment of fine of Rs.1000/- to further undergo sentence of simple imprisonment of six months. In view of the ratio of law laid down by the Apex Court in Om Parkash v. State of H.P, reported in (2006) 9 SCC 787, the name of prosecutrix is described as victim and the appellant-accused is hereinafter referred to as the accused in the judgment. Shri Tarsem Lal, as tenant of Smt. Sheela Devi used to reside in one room apartment along with the victim (his wife) and two minor children at a place known as Chuhabagh (Khaneri), Police Station, Rampur, District Shimla. As tenant, accused also used to reside in the adjacent room and they shared a common bathroom. Sh. Tarsem Lal a street hawker earned his livelihood by sale of tea. He and the victim, married in 1994 were having two small children aged 3½ years and 1½ years respectively. On 12.5.1998 at about 1.00 p.m., after giving bath to one of her child in the verandah of the building, when the victim was entering her room to heat up the water to give bath to another child, the accused caught hold of her from her arm and forcibly took her to the bathroom. There he laid the victim on the ground and after forcibly opening the string of her salwar and removing his pant committed sexual intercourse with her without her consent and against her will. She cried for help but none turned to rescue her as none of the neighbours was 3 present and her house was situated at a level below the National Highway-22 from where no one could see or hear her cries. Thereafter, the accused bolted the bathroom door from outside and opened the same and released the victim from wrongful confinement only after about 30 to 35 minutes of the incident. Thereafter, the accused immediately fled away from the spot. The victim came out of the bathroom and since her clothes were smeared with dirt, she changed them and dipped her shirt Ex.P-5 and Salwar Ext.P-6 in a bucket of water for washing and immediately after searching her husband informed him of the occurrence of the incident. Thereafter, Shri Tarsem Lal searched for the accused everywhere and finally went to the Himachal Road Transport Corporation Workshop at Rampur, where the accused was employed as a Mechanic. Having found the accused there, Tarsem Lal was prevented by the accused and other workmen from entering the Workshop. Thereafter, both the victim and he rushed to the police station to report the matter. On their way they also met Shri Padam Dass (PW-5) who was also informed of the incident and the matter was finally reported to the police at Police Station, Rampur. F.I.R.No. 103/98 dated 15.5.1998 (Ext.PW-3/A) was registered with the Police Station, Rampur under Section 376 IPC against the accused. The police machinery was set in motion and Inspector Jagdish Chand (PW-8) took up the case for investigation and the victim was got medically examined through Doctor P. R. 4 Chauhan, (PW-1) M.O. R.H. Rampur. On 12.5.1998 at about 6.15 P.M., the vaginal swab Ext.P-2 and underwear Ext.P-1 of the victim were taken into possession and sealed in separate parcels. The accused was arrested and got medically examined on 13.5.1998 at about 10.30 a.m. from Dr. Anupam Gupta (PW- 2) and as per M.L.R. Ext.PW-2/B, he was found capable of committing sexual intercourse. Even his underwear Ex.P-3 was sealed and taken into possession. During investigation, broken pieces of bangles of the victim Ex.P-4 were taken into possession vide recovery memo Ext.PW-3/B. Since the clothes of the victim were wet, therefore, she was asked to hang the same for drying and consequently, next day shirt Ex.P-5 and Salwar Ex.P-6 were taken into possession vide memo Ext.PW-3/B dated 13.5.1998. Ex.P-1, Ex.P-2, Ex.P-3, Ex.P-5 and Ex.P-6 were sent for chemical analysis and vide report Ex.PX blood and semen were found on the underwear Ex.P-1, Ex.P-3 and also the vaginal swab Ext.P-2. With the completion of the investigation, the challan was presented in the Court for trial and the accused was charged for the offences under Sections 376 and 342 IPC to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution in all examined eight witnesses; Dr. P. R. Chauhan (PW-1), Dr. Anupam Gupta ( PW-2), Victim (PW-3), Sh. Tarsem Lal (PW-4) husband of PW-3, Sh. Padam Dass (PW-5), HC Devi Singh (PW- 6), LHC Dev Raj (PW-7) and Inspector Jagdish Chand (PW-8). 5 Statement of the accused under Section 313 Cr.PC was also recorded and in his defence, the accused examined Smt. Badika Begum (DW-1). Appreciating the material on record, the court found the accused to have committed the charged offence and as such convicted and sentenced him for the same. Learned counsel for the appellant has submitted that; (i) the accused has been falsely implicated as both the parties had consented to the performance of the act; (ii) the absence of injury on either person is sufficient to prove this fact; (iii) conviction on the basis of sole testimony of the prosecutrix is maintainable only if her sole statement inspires confidence which in the present case is lacking. (iv) the statements of the prosecution witnesses including the victim are unreliable, discrepant and contradictory. In the absence of corroboration of the statements of PW-1 and PW-2, the offence is highly improbable and the medical evidence on record in fact advances the case of the accused rather than that of the prosecution. Per contra, it has been argued by the learned counsel for the respondent that the defence taken by the accused is not supported by any record and in fact the stand now taken by the accused stood belied from the line of cross examination of the prosecution witnesses. According to him, it is not a case where the consenting party was caught and, therefore, the accused was falsely implicated. The accused 6 admittedly had been living alone and the parties were sharing a common bathroom. It has come on record that there were no neighbours at the time of alleged offence and, therefore, if the parties had consented they would have not performed the act in the bathroom and there would have been no occasion for the victim to have put her clothes in the bucket for washing or report the matter to anyone. I have heard the learned counsel for the parties and perused the record. It is undisputed, as has been held by the Court below that the accused and the victim were immediate neighbours and were sharing a common bathroom. On the day of occurrence, the accused was present at the spot till about 12.30 p.m. as according to him he left his room to join duty at that time; at the time of occurrence, no neighbour was present at the spot; the victim, a married woman of 22 years of age and mother of 2 children had a below average built and height; the accused, 32 years of age had a well built physique. FSL report (Ext.PX), establishes the fact that sample of blood and semen were found on the victim’s underwear Ext.P-1, the vaginal swab Ext.P-2 and underwear of the accused Ext.P-3. Through the testimony of Dr. Anupam Gupta (PW-2) it is proved that there was nothing on record to suggest that the accused was incapable of performing sexual intercourse. 7 Dr. P. R. Chauhan (PW-1), who examined the victim has proved that she examined the victim and found her below average built and height and mother of two children of 3½ and 1½ years of age. She did not find any mark of violence on her body or private parts. She noticed the victim wearing five and twelve bangles on her right and left wrist respectively. On physical examination, three fingers could be easily introduced into her vagina. According to her, based on the F.S.L. report Ext.PX, there was strong possibility of rape having been committed on the victim. She has opined that in a case of married woman of below average height and built, there may not be marks of violence on her person in case she is subjected to sexual intercourse without her consent and against her will by a young and robust built-up man. Thus medial evidence is suggestive of the commission of the offence of sexual intercourse without consent. As per the version of PW-3, in the tenanted premises she was living with her husband and the accused was their immediate neighbour. Her husband was to sell tea as a hawker. About 4–5 days prior to the date of occurrence, her neighbours, the occupant of the building had left for their native place in District Kinnaur. On 12.5.1998 at about 1.00 p.m., she had finished giving bath to her child and had just stepped into her room for the purpose of heating the water for giving bath to the other child when the accused caught hold of her from her arm 8 and took her to the bathroom. The accused laid her on the ground and thereafter, broke the string of her salwar and removed the underwear and after opening his pant and underwear committed sexual intercourse with her without her consent and against her will. After committing the act, he left the bathroom but, however, locked her from outside. She cried for help from inside but none turned to her rescue. After some time, the accused unbolted the bathroom door from outside and ran away. She stepped out of the bathroom and as her clothes stood smeared with dirt, she put them in a bucket containing water for washing. Thereafter, she immediately rushed to inform her husband and after the incident was narrated to him, he went to trace the accused who was not found at his house. Later on, the accused was found in the H.R.T.C. Workshop. She and her husband lodged F.I.R. Ext.PW-3/A at Police Station from where she was sent for medical examination. She came back to her house and showed the bathroom to the police on 12.5.1998 the police took the broken pieces of bangles from there and sealed them in a packet. On the asking of the police, she took out the clothes from the bucket and put them for drying which she handed over to them next day vide recovery memo Ext.PW-3/B. She had also informed Shri Padam Dass about the incident. This witness has been cross-examined at length and in cross- examination, she clarified that she did not sustain any injury for the reason that the accused had not laid her on the ground with 9 force. Her bangles had been broken at the time of incident. The accused had grappled her but however, he did not sustain any injury. Inspite of extensive cross examination, there is nothing in her statement which would make her statement to be shaky, unreliable or untrustworthy. Her deposition is clear, cogent, consistent and inspires confidence. Shri Tarsem Lal (PW-4) fully corroborated the victim’s version. According to him, when the victim narrated the incident he searched for the accused everywhere and ultimately found him at the HRTC Workshop but was prevented from entering the same. Thereafter, he reported the matter to the police along with his wife and on their way they met Shri Padam Dass. He had seen the clothes dipped in the water and also the broken pieces of bangles. From his testimony, it stands proved that the tenanted building below the National Highway-22, was located at such a position that the traffic sound could be heard in the bathroom but however, no sound from the building could be heard on the road. Their neighbours were away and their premises were locked. The version of PW-3 & PW-4, that they had met Shri Padam Dass (PW-5) and informed him of the incident also stands corroborated by PW-5. PW-8 has also corroborated the version of PW-3 & PW-4. According to him, both these witnesses had visited the 10 police station to lodge the FIR. He carried out the investigation and took into possession the broken bangles Ext.P-4 vide recovery memo Ext.PW-5/A in the presence of Shri Padam Dass on 12.5.1998 and also the shirt Ext.P-5 & salwar Ext.P-6 on 13.5.1998 vide recovery memo Ext.PW-3/B. According to him, the tenanted accommodation is on the lower side and nothing could be heard in the adjoining premises or on the National Highway-22, though the sound of the traffic could be heard on the lower side of NH-22 but not in the bathroom where the incident took place. I have carefully examined their statements in totality. It cannot be said that their testimonies are unreliable and the prosecution case is without any credence. The witnesses clearly disclose the sequence of events in entirety in a clear, consistent and cogent manner. In State of H.P. Vs. Shree Kant Shekari, reported in (2004) 8 SCC 153 and State of H.P. Vs. Lekh Raj and another, (2001) 1 Supreme Court Cases 247, the Apex Court held that the testimony of a prosecutrix can be acted without corroboration in material particulars. However, if the Court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice. 11 In State of Punjab vs Gurmit Singh, reported in AIR 1996 Supreme Court 1393, the Supreme Court on raising the query “why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? has answered it that the Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. In Hirji Bhai vs. State of Gujrat, AIR 1983 SC 753, the Hon’ble Apex Court has held that the evidence of the victim of sex offence is entitled to great weight. Absence of corroboration notwithstanding for the following reasons: “1. A girl or woman in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on his chastity had ever occurred; 2. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours; 3. She would have to brave the whole world; 4. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered; 12 5. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family; 6. It would almost inevitably and almost invariably result in mental torture and suffering to herself; 7. The fear of being taunted by others will always haunt her; 8. She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo; 9. The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy; 10. The parents of an unmarried girl as also the husband and members of the husband’s family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour; 11. The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence; and 12. The reluctance to face interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit and the risk of being disbelieved.” 13 In State of Maharashtra v. Chandra Prakash Kewalchand Jain, (1990(1) SCC 550), the Apex Court has held that if for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. Learned counsel for the appellant has pointed out the following improvements and contradictions in the statements of PW-3, PW-4, PW-5 & PW-8. (1) As per the version of PW-8, bangles were seized vide seizure memo Ext.PW-5/A on 13.5.1998 and not on 12.5.1998 as deposed by PW-3. (2) As per the version of PW-5, the accused was not present at the spot on 12.5.1998 which is contrary to the version of PW-8 who has deposed that the accused was present at the spot on 12.5.1998. (3) PW-3 deposed that she sustained injuries on her left arm and about one inch of her skin had pealed off, which fact stands belied by the version of PW-8, PW-1 and medical report Ext.PW- 1/B, as they found no injury marks on her body. (4) A new theory of broken bangles was subsequently introduced as the same does not find mention in the F.I.R. (5) PW-3 has deposed that on 12.5.1998 when the police came PW-5 was not present which is contradicted by PW-5 according to whom he was present. (6) PW-3 has deposed that the night prior to the incident, she did not have any sex with PW-4 who infact has deposed that he did have sex with PW-3. 14 In Appabhai v. State of Gujarat (AIR 1998 SC 696), the Apex Court has held as under:- “The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.” A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. If the totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. This position was highlighted in State of Maharashtra v. Chandraprakash Kewalchand Jain (1990 (1) SCC 550). 15 In Boya Ganganna v. State of A. P. (1976 (1) SCC 584), the Apex Court has held that the witnesses are illiterate and giving their rural background and thus minor contradictions are bound to appear while giving evidence. Even in case of trained and educated persons, memory sometimes plays false and this is more so in the case of ignorant and rustic women. Minor discrepancy in the FIR is not fatal to the case of the prosecution. Sujoy Sen alias Sujoy Kr. Sen v. State of W.B. (2007(6) SCC 32). In my view, the contradictions pointed out by the learned counsel for the appellant are extremely minor and not germane to the controversy in issue or renders the prosecution version to be false or doubtful. The contradictions are minor and insignificant and do not merit the rejection of the prosecution case. The examination of witnesses, after a period of time is bound to lead to variation in their statement on insignificant points. The statements of the parties were being recorded after a gap of certain period and, therefore, any minor variation with regard to the date or presence of other persons cannot be said to be fatal to the prosecution case more so keeping in view the defence taken by the accused. The victim who was subjected to assault was in trauma and the contradictions with regard to the presence of PW-5 on the date of incident during the course of investigation is not fatal to the case. The presence of the accused at the time of occurrence of offence in fact has been 16 admitted by him as in his statement recorded u/s 313 Cr.PC, wherein he has admitted that he had left for his Workshop at about 12.30 p.m. The proximity in the time would only give strength of the probability factor of the offence having been committed by the accused. The fact that the accused had sexual intercourse with the victim is not disputed. It is not a sheer co- incidence that blood and semen was found on the underwear of both the accused and the victim. The doctor has opined that there is a strong possibility of the victim having been raped. The statement of PW-3, in my view, is creditworthy and sufficient to hold the accused guilty of the charged offence. Her statement further stands corroborated by PW-4, PW-5 & PW-8 whose statements are consistent, cogent and reliable. Statements of the witnesses appear to be truthful without any infirmity or blemish. It has come on record that there were no neighbours present at the time and place of the commission of the offence and that the cries of the victim could not be heard by anyone on the National Highway-22. The accused used to reside alone and at the relevant time the victim was also alone as her husband had gone out for work and there was none present at that time. The guilt of the accused is proved not only by direct but by circumstantial evidence also. There is nothing on record to explain as to why the accused had left for work only at about 12.30 p. m. 17 The fact that no injuries were found on the body of the accused by itself would not be a ground to disbelieve the prosecution version. In State of Rajasthan Vs. N.K., reported in (2000) 5 SCC 30 and Balwant Singh and others Vs. State of Punjab AIR 1987 Supreme court 1080, the Apex Court has held that the absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity