IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.50 of 2008 Date of decision : June 2, 2009 Vipin Kumar …Appellant. Versus State of Himachal Pradesh …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1. Yes For the appellant : Mr. Tarlok Chauhan, Advocate. For the Respondent : Mr. Ramesh Thakur, Assistant A.G. Surjit Singh, Judge (Oral) Appellant has filed this appeal from District Jail, Dharamsala, where he is presently lodged to serve out the sentence awarded on his conviction for offences, under sections 452, 376 and 506 IPC, by the Sessions Court, vide judgment dated 16.1.2008. The appeal is directed against the said judgment. 2. Case of the prosecution, as per evidence on record, may be stated thus. Appellant is a resident of village Andrala Damtal. Prosecutrix also lives in that village. She is a widow and was aged 42 years at the time of occurrence. She has two daughters, both of whom are married and two sons, who live at different places. On 1.2.2007, around 4 AM, when she was asleep in her house all alone, appellant entered her house and committed rape on her. In the course of committing of rape, he gave tooth bites on her shoulders and neck etc. Prosecutrix raised alarm, but nobody came to her rescue, as no house is situated nearby. After committing the offence of rape, appellant Whether reporters of the local papers may be allowed to see the judgment? …2… threatened the deceased that in case she reported the matter to the police she would be done to death. Appellant then left the house of the prosecutrix. Soon thereafter the prosecutrix went to the house of PW-8 Sonu, which is at a distance of 40-50 metres from the house of the prosecutrix, and informed her about the incident. Parents of said Sonu were also there. PW-8 Sonu took the prosecutrix to Police Post, Damtal, where she lodged the report. Her report was entered in the Rojnamcha, vide entry No.25, copy Ext. DA. On the basis of this entry in the Rojnamcha, case was formally registered at Police Station Indora, vide FIR Ext. PW5/A. Prosecutrix was got medically examined. Following injures were found on her person, by PW-3 Dr. Suman Sexena: “1. There was oval red bruise of size 4.5 x 3 cm with two abrasions 1 cm x 1 mm on inferior border at left shoulder. 2. There was a circular bruise 6 x 6 cm with 2 to 3 abrasions one cm long on superior border. Wound No.2 was just below the wound No.1. There was surrounding erythema around the wound. Clotted blood was present around abrasions which is depicted within red circle A. 3. There were 4 superficial linear abrasions of length 0.4 to 0.5 cm in front of the neck as shown in picture encircled with red ink B. 4. There were two bruises on right breast and one on left breast medial aspect size 0.5 cm x 1 cm.” …3… 3. Salwar of the prosecutrix and the bed sheet, spread on the bed of the prosecutrix, were also taken into possession. The same were sent to Chemical Examiner, who vide report Ext. PX, opined that stains of human blood were present on them. Appellant was arrested on the next following day and was got medically examined. PW-4 Dr. Swati Saharoy conducted his medical examination and noticed multiple nail marks on his cheeks, forehead, inside and back of the right ear, which in her opinion, were caused within 24 hours to 48 hours. 4. During the course of trial, suggestions were thrown to the prosecution witnesses, including the prosecutrix and PW-8 Sonu, that when the appellant passed in front of the house of the prosecutrix, early in the morning, around 4 A.M, he saw PW-8 Sonu coming out of the house of the prosecutrix and when he raised alarm, he was caught hold of by the prosecutrix and PW-8 Sonu and beaten up. However, while examined, under Section 313 Cr. P.C, the appellant not only did not take such a plea, but even denied that he knew the prosecutrix or had even seen her, prior to her entering the witness box as a witness against him, in the present case. 5. Trial Court held the appellant guilty and convicted him of the offences of house trespass, rape and criminal intimidation, punishable under Sections 452, 376 and 506 IPC, and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,000/- for offence, under section 376 IPC, to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/- for offence, under Section 452 IPC and to undergo simple imprisonment for one year and to pay a fine of Rs.5000/- for offence, under Section 506 IPC. …4… 6. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General and also gone through the record. 7. Prosecutrix has no axe to grind by falsely implicating the appellant. She very categorically testified that on the night intervening 31.1.2007 and 1.2.2007 she went to sleep around 8.30 PM, by shutting the gauge door, which did not have any tower bolt. She says that around 4 AM appellant entered her house by jumping over the boundary wall and then entered her room and committed rape on her. She stated that she put up resistance and also raised alarm, but could not save her honour. Also she testified that while leaving, the appellant threatened that in case she reported the matter to the police, he would do her to death. It was also testified by her that the accused gave tooth bites on her shoulder and neck as a result of which blood started oozing from the sites of the tooth bites. 8. Testimony of the prosecutrix is corroborated by PW-3 Dr. Suman Sexena so far as it pertains to the injuries caused by tooth bites. Her statement that she had put up resistance is corroborated by the testimony of PW-4 Dr. Swati Saharoy, who examined the appellant on the next following day at 2 PM and found multiple nail marks on his cheeks, forehead and inside and at the back of his right ear. Her testimony is further corroborated by the statement of PW-8 Sonu, who has testified that on 1.2.2007 around 4.45 AM, prosecutrix came to his house, where his parents were also present and told that at 4 AM the appellant entered her house and committed rape on her. 9. Defence plea suggested to prosecutrix and PW-8 Sonu that he (the appellant) had seen Sonu exiting the house of the prosecutrix at 4 AM, upon which he raised alarm and because of that …5… he was beaten up by them is falsified by the appellant himself by stating in his examination, under Section 313 Cr. P.C., that prosecutrix was not known to him and that he had seen her for the first time in the Court, when she appeared as a witness in this case. He did not say in such statement that he saw PW-8 Sonu coming out of the house of the prosecutrix or that he was beaten up by said Sonu and the prosecutrix. 10. In view of the above stated position, I see no reason for disbelieving the prosecution version. Hence, the findings of the trial Court holding the appellant guilty of offences, under Sections 452, 376 and 506 IPC are upheld. Consequently, his conviction for the said offences is also upheld. However, I feel that the sentence of fine, awarded by the trial Court, in respect of offence, under Section 376 IPC and the sentences of imprisonment and fine imposed for other two offences are too harsh. Consequently, the sentences awarded by the trial Court are modified as follows: Under Section 376 IPC Rigorous imprisonment for seven years (as imposed by the trial Court) and a fine of Rs.2000/- (instead of Rs.50,000/- as imposed by the trial Court); in default of payment of fine simple imprisonment for a further period of six months. Under Section 452 IPC Rigorous imprisonment for a period of two years and a fine of Rs.1000/-, in default of payment of fine, simple imprisonment for a further period of three months. Under Section 506 IPC Simple imprisonment for a period of six months and a fine of Rs.500/-; in default of payment of fine, simple imprisonment for a further period of fifteen days. …6… 11. With the aforesaid modification in the sentence, appeal is dismissed. June 2, 2009 (ss) ( Surjit Singh ), J