IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 430 of 2009. Judgment reserved on 14th May, 2010. Date of Decision: 21 May, 2010. _______________________________________________________ Kaka Ram ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Anuj Nag, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General and J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. Appellant was convicted under Sections 376 and 323 of the Indian Penal Code, in Sessions Case No.25- D/VII-2005, decided on 27th/30th November, 2009, by the learned Sessions Judge, Kangra at Dharamshala and sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.25,000/-. In default of payment of fine to further undergo simple imprisonment for a period of one year under Section 376 of the Indian Penal Code and also to undergo simple imprisonment for Whether reporters of the Local papers are allowed to see the judgment? - 2 - a period of one year and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo simple imprisonment for a period of one month under Section 323 of the Indian Penal Code, as such filed the instant appeal. 2. Appellant was put on trial on the allegations that on 25th May, 2004, the prosecutrix wife of Nasir Din while on her way accompanied by PW-4 Alphana Bibi after visiting local market, while passing through the jungle in the evening around 8.00 p.m., met appellant. He caught hold of her and committed rape on her and gave beatings. PW-4 Alphana Bibi was an eye witness. She went running to her home and informed her husband. He came to the spot alongwith few others. She narrated entire story to them. Next day, the prosecutrix accompanied by her husband went to the Pradhan of the Gram Panchayat and presented a complaint Ext.PW- 2/A to him. He made his endorsement Ext.PW-2/B on it and advised them to go to the police. Police registered FIR Ext.PW-6/A. 3. The prosecutrix was got medically examined from PW-15 Dr. Rekha Gupta, Medical Officer, Primary Health Centre, Lapiana. Doctor noticed bruises on both shoulders, on left breast, on upper lateral side and right thigh and on medial side of left glutial region, having - 3 - been caused within 22 hours. She issued Medico Legal certificate Ext.PW-6/B, which was taken into possession by the police. Wearing apparels of the prosecutrix were also taken into possession and sent for forensic examination. Two vaginal swabs containing woman blood and semen were also taken and sent for forensic examination. The report is Ext.PX. 4. Police visited the spot, prepared the site plan Ext.PW-8/B, recovered the broken pieces of bangles from the spot and also recorded the statements of the witnesses. The appellant was a co-villager residing in the house of his grandparents. After the incident, appellant is alleged to have absconded and the evidence was examined in terms of Section 299 of the Code of Criminal Procedure and vide order dated 27th December, 2005, appellant was declared as Proclaimed Offender and it was ordered that the file be put up again as and when appellant is traced/ apprehended. He was arrested on 1st April, 2008. Pursuant to his statement Ext.PW-10/A recorded under Section 27 of the Indian Evidence Act he pointed out the place of the alleged incident. Police prepared the site plan Ext.PW-14/A and also filed a supplementary Challan. 5. Concerned record was requisitioned by the Court of Sessions. Appellant was committed to Jail. After - 4 - hearing appellant a prima facie case under the aforesaid Sections was found to have existed. Accordingly, he was charge-sheeted to which he pleaded not guilty and claimed trial. 6. To prove its case prosecution examined its witnesses and the appellant was also examined under Section 313 of the code of Criminal Procedure. He denied the circumstances put to him. He pleaded innocence and raised the defence that he used to reside in the house of his maternal-grand-parents. When they died he went to Amritsar in the year 2000 where he worked in the factory. When he returned to the village he came to know that a case was registered against him, then he surrendered before the Court. 7. Appellant was ordered to enter into his defence, but no evidence in defence was examined. Defence story did not find favour with the learned trial Court, but relying upon the prosecution story appellant was convicted and sentenced as aforesaid, which has been assailed in this appeal. 8. It is pertinent to note that after one year of the alleged incident the prosecutrix had died, as such her statement could not be recorded. Prosecution has examined PW-4 Alphana Bibi, who was accompanying the prosecutrix, PW-1 Sharifa Bibi, mother of the - 5 - prosecutrix, PW-2, Nirmal Singh, Up-Pradhan of the Gram Panchayat, PW-5 Nasir Din, husband of the prosecutrix, PW-15 Dr. Rekha Gupta, besides examining the photographer and the Investigating officer. 9. Shri Anuj Nag, learned Counsel for the appellant vehemently argued that prosecutrix had died, statement of PW-4 Alphana Bibi, the alleged eye witness, is full of contradictions, FIR in this case alleged to have been lodged at the instance of the prosecutrix cannot take place of proof and further that the injuries on the person of prosecutrix could be caused during the agricultural work. Further according to the Doctor, on the examination of her genital regions she could not make out whether the victim had been subjected to sexual intercourse, especially when she was a married woman and habituated to intercourse and that the name of appellant in the Medico Legal Certificate was inserted at a later stage to create evidence against him. Therefore, the judgment of conviction and sentence deserves to be reversed. 10. Shri J.S. Rana, learned Assistant Advocate General forcefully countered the arguments on the ground that although the prosecutrix could not be examined because of she had died before recording her statement in the Court, but PW-4 Alphana Bibi an eye - 6 - witness who was found named in the FIR corroborated the case of the prosecution in its minute details, viz. the medical evidence and the statement of her husband PW- 5 Nasir Din. The fact that after the alleged incident appellant absconded, his conduct supplies an additional link in the case of the prosecution. Learned Assistant Advocate General supported the impugned judgment of conviction and sentence passed by the learned trial Court and prayed for the dismissal of the appeal. 11. I have given my thoughtful consideration to the rival contentions of the parties and reexamined the evidence on record very carefully. 12. PW-4 Alphana Bibi is a star witness in the case. She was accompanying the prosecutrix her maternal aunt from her house to market Manai. After purchasing some articles while returning to their home around 7.00/8.00 p.m., one person met them on the way, who intercepted them. He stated that prosecutrix told that he was Kaka. He threw her on the ground and committed rape on her. She (PW-4) ran to the house of her maternal aunt and informed PW-1 Sharifa Bibi, mother-in-law of the prosecutrix, Roshani Bibi and Sarf Din. Thereafter Sharifa Bibi came to the spot where the prosecutrix was sitting. She was in tears. Prosecutrix narrated the incident to her mother-in-law that appellant named Kaka had raped her. - 7 - After sometimes PW-5 Nasir Din her husband reached there. The prosecutrix also revealed the entire incident to him. The matter was reported to the police and she pointed out the place where she was sitting after committing the rape committed by appellant and the prosecutrix also pointed out the place of incident, where the broken pieces of glass bangles were lying. The same were taken into possession and the site was photographed by the police. She identified the broken pieces of bangles Ext.P.1, but she was not in a position to particularly say from the photograph shown to her that it was the appellant who had committed rape on her maternal aunt. In cross-examination she was confronted with her statement Ext.DX wherein it was not recorded that she had pointed out the place of alleged incident where the prosecutrix was molested and also stated that she did not recognize the accused present in the Court. Her version is fully corroborated by PW-1 Sharifa Bibi aforesaid to the extent the rape committed by Kaka accused as revealed to her by the prosecutrix. 13. It is pertinent to note when the alleged incident had taken place she (PW-4) was around 10 years of age in the year 2004. Therefore, the aforesaid contradiction is not material and it is still required to be tested from the other evidence on record. - 8 - 14. The statement of PW-5 Nasir Din, husband of the prosecutrix is also very important. He stated that while returning from his work in the evening around 7.00/7.30 p.m., he met PW-4 Alphana Bibi and his wife. Prosecutrix- his wife was in tears. She informed him that she alongwith PW-4 Alphana Bibi had gone to the market at village Manai. On return, appellant intercepted her on the way and fell her on the ground and raped. Thereafter he managed to escape. He took his wife alongwith his mother PW-1 Sharifa Bibi and PW-4 Alphana Bibi to his house. It had grown dark. Thus, they were not able to visit Police Station, Shahpur. Next day, they met Up-Pradhan PW-2 Nirmal Singh. He made a written complaint Ext.PW- 2/A to him wherein the name of appellant was clearly mentioned, which was forwarded to the Police Station vide endorsement Ext.PW-2/B and lodged the FIR. Physical verification of the spot was done by the police and taken into possession pieces of glass bangles Ext.P.1 vide recovery memo Ext.PW-5/A, which were sealed in his presence. Photograph Ext.PW-5/B was also taken. His wife was also medically examined. 15. PW-2 Nirmal Singh Up-Pradhan also categorically stated that on 26th May, 2004 the prosecutrix and her husband visited him and stated that appellant had committed rape on her while passing through the - 9 - forest. They presented a complaint Ext.PW-2/A, which was forwarded by him to the police for registration of the case. He proved his endorsement Ext.PW-2/B thereon. 16. PW-8 Ranjit Singh, Sub Inspector corroborated of presenting the application Ext.PW-2/A by the prosecutrix. She was duly accompanied by her husband. The complaint contained endorsement of Up-Pradhan of Gram Panchayat, on the basis of which FIR Ext.PW-6/A was registered against appellant by him. He further stated that he applied for the medical examination of prosecutrix in P.H.C. Lapiana and collected her M.L.C. She was also sent for expert opinion to Medial College, Tanda. He visited the spot on 26th May, 2004 and prepared the sketch map Ext.PW-8/B at the instance of the prosecutrix and PW-4 Alphana Bibi. Kirpal Singh, Photographer, took the photographs of the site of occurrence. He noticed some pieces of glass bangles on the spot which were taken into possession vide memo Ext.PW-5/B. He further stated that wearing apparels of the prosecutrix were sent for the chemical examination and received the report Ext.PX. He also stated that after the commission of crime appellant managed to escape. He could not be located any where. Thereafter police applied for declaring him as Proclaimed Offender. - 10 - 17. PW-15 Dr. Rekha Gupta examined the prosecutrix on the request of the police. She categorically stated that there was an alleged history of rape on 25th May, 2004 by the appellant Kaka around 8.00 p.m. They had gone to CHC, Shahpur from where she was referred to P.H.C. Lapiana. She stated that the history of rape was furnished to her by the prosecutrix herself. On her examination, she found bruises on both shoulders, on left breast, on upper lateral side and right thigh and on medial side of left glutial region. Prosecutrix is stated to have provisionally diagnosed a case of rape subject to examination of semen of accused and opinion of gynecologist. Probable injuries were within 22 hours and she issued the M.L.C. as aforesaid. Appellant, as already stated, was not traceable. Chemical Examiner found semen and blood stains on the trouser of the prosecutrix. 18. Therefore, on the critical examination of the aforesaid evidence, following material points stand duly proved:- i) The alleged incident was witnessed by PW-4 Alphana Bibi, who was accompanying the prosecutrix and she went running to the village and informed PW-1 Sharifa Bibi, mother-in-law of the prosecutrix. - 11 - ii) When PW-1 Sharifa Bibi was taken to the prosecutrix, she was under shock and in tears and narrated the entire incident to her that she was raped by the appellant and same facts were narrated by her to her husband PW-5 Nasir Din. The name of the appellant was disclosed by the prosecutrix to the aforesaid witnesses and also in the written complaint Ext.PW-2/A made to the Up- Pradhan PW-2 Nirmal Singh and this complaint was forwarded to the police. iii) According to doctor PW-15 Rekha Gupta, the history of alleged rape was given by prosecutrix herself and she had also supplied the name of the appellant. The prosecutrix was having bruises on her person on various parts of the body which are suggestive of struggle/resistance. Trouser of the prosecutrix was sent for the chemical examination, it contained blood and semen stains. iv) The appellant was known to the prosecutrix as he was residing in her village in the house of his great- grand parents till the day of the alleged incident. v) After the incident of rape the appellant had absconded and he was arrested after about four years and then pointed out the place of the - 12 - alleged incident to PW-14 ASI Kartar Singh pursuant to the statement Ext.PW-10/A recorded in the presence of PW-11 Sham Lal, which is relevant as a conduct evidence. 19. The aforesaid circumstances categorically prove that the prosecutrix was raped by the appellant and she had immediately supplied his name to her husband and mother-in-law. He was known to her, being a co-villager. Therefore, in these circumstances there is no scope even to doubt that it was not the appellant who did not commit the rape on the prosecutrix. Direct evidence and the circumstances aforesaid link the appellant with the alleged crime. Therefore, I do not find any illegality in the judgment of conviction and sentence passed by the learned trial Court, as such the appeal is dismissed. May 21st, 2010. (Surinder Singh), J. (rc)