IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.632 of 2002. Judgment reserved on 20th September, 2011. Date of Decision: 29th September, 2011. _______________________________________________________ Tara Chand and another .. Appellants. Versus State of Himachal Pradesh .. Respondent. Coram Hon’ble Mr. Justice R.B. Misra, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellants: Mr. Ashok Sharma, Advocate. For the respondent: Mr. R.K. Sharma, Sr. Additional Advocate General and Mr. Rajinder Dogra, Addl. Advocate General. ____________________________________________________ Per SURINDER SINGH, J. Learned trial Court charge-sheeted and tried the appellants, hereinafter referred to as ‘the accused persons’, for the offences punishable under Sections 328 and 376 read with section 34 of the Indian Penal Code, but they were only convicted for the offence punishable under Section 328 read with Section 34 of the Indian Penal Code and each were sentenced to undergo ten years simple imprisonment and to pay a fine of `10,000/-. In default of payment of fine to further undergo simple imprisonment for a period of one year each. Whether reporters of the Local papers are allowed to see the judgment? - 2 - However, they were acquitted for the offence punishable under Section 376 read with Section 34 of the Indian Penal Code. 2. The facts which emerge from the evidence on record can be stated thus. The prosecutrix a minor is a Nepali. When she was at the age of five years, she was kept by her elder brother with PW7 Passang Sherpa, who was petty Government Contractor in the P.W.D., engaged in the cutting of road in Kugti area in District Chamba. Her elder brother had gone to some other place to earn his livelihood, but thereafter he did not return. (ii) Pasang Sherpa aforesaid adopted the prosecutrix as his daughter and brought her up. They were residing in a tent set up at the place known as ‘Bhundru’. (iii) On 26.8.1999, Pasang Sherpa had gone to Bharmour leaving behind the prosecutrix in the company of his son Dawa Sheetal. On the day aforesaid, Dawa Sheetal went to see the persons working at the site as usual, leaving behind the prosecutrix alone in the tent. Around 1.30 p.m. she was knitting handkerchief in her residential tent. It is alleged both the accused persons were known to her, they came there and asked for water. After providing water to them, they demanded liquor. They were already drunk, and told her to prepare rice and meat for them, but she declined. On this, accused Tara Chand slapped on her face. She retaliated and gave a “Chimta” blow to him, however - 3 - she prepared rice and meat which was brought by them. (iv) It is alleged that when she was sitting inside the tent, accused Tara Chand brought something in a glass of steel, glass (tumbler) and asked her to take. She refused. On this another accused Arjun Ram caught hold her from her arms, forcibly opened her mouth and Tara Chand poured the contents of the glass forcibly in her mouth. Some of the contents went in her stomach and some fell on the clothes. After few minutes she became unconscious. (v) PW7 Pasang Sherpa returned around 3.00 p.m. to his residential tent at Bhundru and saw the prosecutrix lying unconscious. He also noticed the green coloured vomittance. The household articles were lying scattered. He called one Man Bahadur Thapa, a labourer and lifted her upto village Harsar and then engaged a vehicle to go to Bharmour hospital. Some treatment was given to her by the doctor. He advised them to take the prosecutrix immediately to District Hospital, Chamba. (vi) Pasang Sheerpa (PW7) brought the prosecutrix to District Hospital Chamba alongwith his wife, where they reached during night. Around 11 p.m. she regained conscious. She was attended upon by PW2 Dr. Subhash Chauhan. Police was informed and the statement of the prosecutrix was recorded under - 4 - Section 154 of the Code of Criminal Procedure, which culminated into FIR under the aforesaid Sections. (vii) On the examination of the prosecutrix, the doctor did not find any injury on her person. She was admitted in the female ward. Gastric lavage was done and the sample was preserved and handed over to the police for forensic examination. (viii) On 27.8.1999, the prosecutrix was feeling bodily pains viz legs, stomach, arms etc. She was again examined by PW10 Dr. Vandana Soni. God-father of the prosecutrix gave the history that two persons having given something to drink and then she became unconscious. Said Doctor examined her private parts and found the hymen torn and healed and vagina admitted two fingers easily. Vaginal swabs were also taken. In the opinion of the doctor, she was exposed to coitus. She issued the Medico Legal Certificate Ext.PK. Her wearing apparels Ext.P6 and P7 were sealed for chemical examination. Radiological age was also assessed which was between 14-16 years. (ix) As per forensic science report, Ext.PL there were semen stains on the trouser of the prosecutrix. (x) Police visited the spot and took into possession sweater of the prosecutrix and bed-sheet where she was lying. These articles were sealed and sent for the forensic examination. As per report Ext.PM of the forensic science, there were no blood or semen stains - 5 - on the aforesaid articles. Police also prepared the site plan Ext.PP of the alleged place of occurrence. 3. Challan was presented in the Court for the trial of the accused persons. They were accordingly charge-sheeted but, they pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined its witnesses and the accused persons were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon them. According to them, it was a false case and took up the stand that both of them alongwith Headmaster DW1 Yogesh Kumar were going from Bharmour to their village. When they reached near the tent of Pasang Sherpa, they noticed three persons taking liquor in his tent. They objected not to do so, as it had been creating nuisance in their area, thereafter they alongwith the Headmaster left the place. 5. When called upon to enter into defence evidence, they examined DW1 Yogesh Kumar. 6. The defence witness aforesaid stated that when he returned to Kugti after attending rehearsal for Parliamentary elections at Bharmour, around 1.30 p.m. on 26.8.1999, he reached at a place known as ‘Bhundru’ and saw both the accused persons present there. He did not say that they were with him right from Bharmour. He further stated that there were another three persons inside the tent of Pasang Sherpa. One person was lying outside the tent under the influence of liquor. Both the accused persons had some - 6 - quarrel with one girl residing in the tent. He could not understand the language in which they were talking as they were using their own dialect. Then the accused persons took the illicit liquor containers kept inside the tent and throw it in the “Nullah” and threatened the girl that they would lodge the complaint in Police Station, thereafter both the accused accompanied him for village Kugti. 7. Learned trial Court disbelieved the defence raised and finding the prosecution evidence cogent and trust worthy, convicted and sentenced the accused persons for the offence as aforesaid, but did not find any evidence with respect to the alleged rape by them, hence they were acquitted. 8. The accused persons felt aggrieved by the impugned judgment of conviction and sentence, as such made the challenge in the present appeal. 9. Shri Ashok Sharma, learned Counsel for the accused persons, vehemently argued that the prosecution has failed to prove the administration of the alleged poisonous substance by the accused persons to the prosecutrix. He referred to the statements of the witnesses. Their testimonies are disputed on the ground that it does not conclude that the vomittance alleged to have been collected from the spot was ever sent for its examination to the forensic science laboratory. He also submitted that the gastric lavage which was handed over to the police by PW2 Dr. Subhash Chauhan was not got examined in order to find out about its poisonous - 7 - contents. He further pointed out that the Sweater which was worn by the prosecutrix was also taken into possession by the police, was examined in the forensic science laboratory, but did not contain any poison. He also argued that the recovery of the bed-sheet and the Sweater was made on 6.9.1999 much after the alleged incident. He next contended that the names of the accused persons were not given by the prosecutrix to the doctors while mentioning the history before medical examination. Learned Counsel pointed out that the accused persons destroyed the illicit liquor found in the tent, thus they were implicated in a false case. 10. Contra, Shri R.K. Sharma, learned Senior Additional Advocate General duly assisted by Shri Rajinder Dogra, learned Additional Advocate General, supported the impugned judgment of conviction and sentence. 11. We have given our thoughtful consideration to the rival contentions of the learned Counsel for the parties and have carefully and meticulously examined the evidence on record. 12. The prosecutrix did not implicate the accused persons in the offence of rape. She stated when some poisonous substance was forced by the accused persons after sometime she fell unconscious and she gained consciousness in the hospital. She also stated having recorded her statement Ext.PJ and further revealed that after making the statement she felt pain in her body and the blood was oozing out from her private parts. But however, she - 8 - categorically stated that she did not know as to who had committed the rape since she was unconscious. Though, she raised the suspicion upon the accused persons, but there is nothing on record to connect them with the alleged offence. Had there been any malice to implicate the accused persons in a false case, she would have definitely named them even for the offence of rape. In her statement Ext.PJ aforesaid which was given to the police she had made the similar statement with respect to the forcible ingestion of some liquid to her by accused Tara Chand and she categorically stated that another accused Arjun Ram caught hold of her from her mouth. She specifically stated that accused Tara Chand put liquid in her mouth some of which went to stomach and some spilled over on her clothes, thereafter she felt giddiness and became unconscious. 13. As PW6, she corroborated the above version. She was confronted with her aforesaid statement about having been asked by the accused persons to prepare meat and rice, which fact did not find mention, but she clarified that she had made a concise statement to the police at that time. She also stated that there were 5-6 other tenants of the labourers, but no one was present at the time of alleged incident. She specifically denied that she was deposing at the instance of her parents but no cause has been assigned as to why her parents would have implicated them falsely. 14. On the scrutiny of her statement, we do not find the story put by the accused persons as propounded in defence that - 9 - the prosecutrix was dealing in the illicit liquor and it was destroyed by the accused persons as it was causing nuisance as alleged. Though Pasang Sherpa was not present on the spot, but even this defence was not put to him. Rather he stated that when he reached at his residential tent around 3.00 p.m. he noticed the prosecutrix lying unconscious, he alongwith one labourer lifted her to the hospital. He also stated that when the police visited the spot, they took into possession on 6.9.1999 Sweater Ext.P.1, bed- sheet, Ext.P2 and hair-clip Ext.P3. There was some substance in a glass which was put in a bottle and sealed and taken into possession vide memo Ext.PF by the police. According to him, bed-sheet was stained with vomit material. In cross- examination, he stated that he had gone to the tent after about 4/5 days from the date of the alleged incident. 15. PW8 Smt. Dolma is the wife of Pasang Sherpa. She also made the similar statement. According to her, in those days she was getting treatment at Ayurvedic Hospital, Bharmour. After about six days, the prosecutrix met her at Bharmour. She disclosed about the incident to her and thereafter police recorded her statement. 16. Although, there is no evidence with respect to the forensic examination of vomit material taken by PW2 Dr. Subhash Chauhan, yet forensic science examination of the contents of the bottle which was recovered from the spot revealed that it was an Organic Phosphors insecticide (diachorovas) and the vomittance which was collected from - 10 - the spot was having the traces of the said poison, but no such thing was found on the bed-sheet and the Sweater. 17. The prosecution is obliged to establish the following factors in order to prove the aforesaid offence: (i) That the substance in question is a poison, or any stupefying, intoxicating, or unwholesome drug, etc.; (ii) That the accused administered the substance to the complainant or caused the complainant to take such substance; (iii) That he did as above with intent to cause hurt or knowing it to be likely that he would thereby cause hurt or that the accused intended to commit or facilitate the commission of an offence. 18. Every evidentiary circumstance is a probative link, strong or weak, and must be made out with certainty. Link after link forged firmly by credible testimony may form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next and on again may manacle the accused inescapably. Only then concatenations of incriminating facts suffice to convict a man. Short of that is insufficient, as held by the Apex Court in Dharm Dass Wadhwani v. State of U.P., 1974 Cri.L.J. 1249 (SC). 19. In the instant case, the recovery of the bed-sheet and the vomit material from the spot vide memo Ext.PF has been proved by PW7 Pasang Sherpa. The contents of the bottle and vomittance found on the spot were sealed. The contents of the bottle as well vomittance were found to be a - 11 - poisonous substance offer a strong corroboration to the statement of the prosecutrix that the accused persons had administered the substance forcibly to her. PW2 Dr. Subhash Chauhan had also opined that she was forcibly subjected to ingestion the poisonous substance and there is no challenge to this fact in his cross-examination. Facts proved show that the forcible attempt by the accused persons, was made with intent to cause hurt to her knowing especially when she refused to take it. Their presence on the spot is even admitted by the defence raised and also by DW1 Yogesh Kumar, though the later part of his statement is not inspiring confidence as this story was not put to any of the witnesses of the prosecution and it appears to be an after-thought. Therefore, on the critical analysis of the evidence aforesaid, we are of the opinion that the accused persons were rightly held guilty by the learned trial Court for the offence punishable under Section 328 read with Section 34 of the Indian Penal Code. 20. Confronted with the aforesaid situation, learned Counsel for the accused persons submitted that the accused persons are the sole bread-earners of their respective families. There is no criminal history to their credit. The alleged offence was committed in the year 1999, i.e., more than a decade ago and by now they have settled down in the life. The sentence imposed upon them is too excessive, therefore, a lenient view may be taken. - 12 - 21. We have examined this aspect of the case. It is true that the alleged offence was committed in the year 1999 and the accused persons were convicted and sentenced on 13.9.2002. Both of them were arrested on 24.10.1999, but were granted bail by this Court vide order dated 25.11.1999, pending investigation. 22. The punishment provided under the aforesaid offence is an imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. 23. Considering the entire facts and also the fact that the prosecutrix was minor, a simple, innocent girl in her teens was given the poisonous substance with intent to cause hurt, the sentence as imposed by the learned trial Court in our opinion appears to be excessive. Therefore, it is reduced to three years rigorous imprisonment and in default from one year to six months without disturbing the fine. With the above modification in sentence, the appeal is dismissed. 24. The record shows that vide order dated 1.11.2002 the sentence of the accused persons stands suspended during pendency of the present appeal. Now both the convicts are hereby directed to surrender before the learned trial Court on 31.10.2011, and the learned trial Court shall commit them to the prison to serve out the sentence as modified, failing which the learned trial Court shall take coercive method to take the convicts into custody and commit them for the term aforesaid. The period of detention undergone by both the accused persons be set-off against the sentence as - 13 - aforesaid as per the provisions of Section 428 of the Code of Criminal Procedure. 25. Send down the record. (R.B. Misra), Judge. September 29, 2011 (Surinder Singh), (rc) Judge.