1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 216 of 2005 Reserved on: 22.4.2008 Date of Decision: 29.4.2008. ____________________________________________________________ Devinder Kumar Appellant. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Sh. M. S. Guleria, Advocate. For the respondent : Sh. P.K.Sharma, Add. Advocate General. _________________________________________________________ Surinder Singh, J. Appellant has challenged the judgment of his conviction passed in S.T. No. 3 of 2004 by the learned trial Court on 16-2-2005, whereby the appellant has been sentenced to under-go the imprisonment for a period of ten years and to pay a fine of rupees 5000/- under Section 376 (2) (f) of the Indian Penal Code, allegedly for committing rape on the minor prosecutrix aged about 9½ years. The appellant was put on trial, on the allegations that in the evening on 25-6-2003, Maya Devi had gone to the house of her Bua with the prosecutrix and returned back around 7.30 p.m. The prosecutrix followed her little thereafter, but on the way the appellant intercepted her and asked about the roll number of one Shivani. The prosecutrix expressed her ignorance. Then the appellant took the prosecutrix to a T.V. room of his house where he laid her on the cot and committed rape. She started crying. Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 When she was left, she went to her house. While weeping she disclosed about the incident to her mother Maya Devi. Maya Devi noticed blood stains on the salwar and shirt of the prosecutrix. She also started weeping. In the meanwhile, Kamal Kumar (PW5) and other villagers came there and took prosecutrix and Maya Devi to the Police Station on the same day and lodged the F.I.R. Exhibit-PA at 8.40 P.M. The Police got the prosecutrix medically examined from Dr. Rafia Bano (PW6) Medical Officer of Sub Divisional Hospital, Sundernagar. On her medical examination, the Doctor noticed that the salwar of the prosecutrix was soiled with dirty discharge, menarche had not yet started, her breast was also not developed. Pubic hair were not present. Her external genetelia was pre-pubertal size. The axillary hair were not present. There was no blood stain or discharge around the rectum. No foreign material was found any where on her body. For local examination, the prosecutrix was put into lithomytic position and under lognocaimgelly (local anesthesia). The Doctor noticed that the hymen was torn and was red in colour. There was small injury on the right side of hymen from 6 to 9 positions of the size of about 5 mm. The Doctor also noticed the raw area which bleeded on touch. Uterus was found very small, pre-pubpretrtal size was found firm, mobile and fornix was clear. Dr. Rafia Bano (PW6) also took the vaginal smear and on examination, she did not find any dead or alive spermatozoa on the slide. The Shirt (Ext. P1) and Salwar (Ext. P2) of the prosecutrix were sealed. In the opinion of the Doctor, there was evidence of recent penetration. However, the final decision was reserved till the receipt of the opinion of Chemical Examiner. Probable duration was given to be within six to twelve hours. The MLC of the prosecutrix is Exhibit-PD. The report (Ex.PE) of Chemical Examiner revealed that the wearing apparels of the prosecutrix were blood stained and there were also 3 spermatic stains on the salwar. The vaginal slide and vaginal smear also contained the blood. The final opinion (Exhibit-PF) was given by the Doctor that the prosecutrix was subjected to sexual intercourse. The appellant-accused was arrested the same evening and he was got medically examined on 26-6-2003 from Dr. Chaman Singh Thakur (PW7). He did not find any abnormality; in opinion of the Doctor the appellant was capable of performing the sexual intercourse. Blue coloured trouser and underwear of the appellant, which was staining from the front side, were taken into possession. During his medical examination, the Doctor also found an abrasion on the right fore-arm 3 cm. in size and a lacerated wound below elbow joint (6 cm x 2 ½ cm). It was reddish brown having a crest formation. Smegma was found absent. The Doctor also performed saline wash of the penis of the appellant which was sealed. Pubic hair were combed and preserved and sent for chemical examination. M.L.C. of the appellant is Exhibit-PJ. . The Chemical Examiner on analyzing the items pertaining to the appellant found the human blood stains on the underwear and combed pubic hair. The Police took the photographs Ex.PK-1 to 6 of blood stained bed sheets and took into possession two bed sheets and one towel stained with blood from the room of the appellant, the place of alleged occurrence. These items were sealed and sent for chemical analysis. On analysis, the bed sheets were also found containing the blood stains. Birth certificate of the prosecutrix was also obtained. The police recorded the statements of the witnesses and after completing the investigation, presented the challan in the trial Court against the appellant. Finding a prima facie case under Section 376 (2) (f) of the Indian Penal Code, learned trial Court framed the charge, to which the appellant pleaded not guilty and claimed trial. 4 To prove its case, the prosecution besides examining the prosecutrix had also examined her mother Maya Devi (PW1), Nitin Kumar (PW3), Meera Devi (PW4) to prove the birth entry of the prosecutrix, Kamal Kumar, a co-villager (PW5), Dr. Rafia Bano (PW6), Dr. Chain Singh Thakur (PW7), Head Constable Swaran Singh (PW8), Constable Baldev Lal (PW9), and Brijesh Sood, S.I./S.H.O. (PW10). The appellant was also examined under Section 313 of the Code of Criminal Procedure. He had denied the circumstances which were found attendant upon him. He raised the defense that Maya Devi, the mother of the prosecutrix and her family members were nourishing enmity on account of the land dispute with his family. They were also not in visiting terms in their house. According to him, a false case was cooked up against him. Learned trial Court called upon the appellant to enter his defense. He examined Brij Lal, Junior Assistant (DW1), Smt. Pushpa Devi (DW2), Smt. Jai Kanta Copying Agent (DW3) and Meera Devi, Clerk, Municipal Council (DW4) in his defence to prove that there was a dispute with the complainant party over a water tap. He placed on record the copy of plaint Ex. DC in suit titled as Janku Ram vs. Ashwani Kumar and another. Surinder Paul, father of the appellant, was one of the defendant in the aforesaid suit. The suit was dismissed on 24.6.2003 in default. These documents have been filed to prove that Janku Ram was the person, who played a vital role to foist the false case against the appellant. The learned trial Court appreciated the evidence produced before it. At the end of the trial, the appellant was convicted and sentenced as aforesaid which has been assailed in this appeal, on the grounds that the learned trial Court did not appreciate the evidence on record in its right perspective. The prosecutrix did not depose that in fact the intercourse was committed on her against her will. Further that Dr. Rafia Bano was not clear as to whether it was a penile penetration or digital penetration. The defense 5 raised by the appellant was probablised. The articles sent to the Chemical Examiner were tampered with and therefore, the conviction of the appellant is un-tenable. Heard. Shri M.S. Guleria, learned counsel for the appellant has vehemently argued that the testimony of the prosecutrix does not inspire confidence. She has contradicted herself on many occasions. Her mother Maya Devi is an interested witness. The complainant party was in litigation with the appellant, the civil suit filed by Janku Ram was dismissed a day before the alleged incident and on the very next day, he foisted a false case upon the appellant in connivance with Maya Devi to square his own grudge. The colour of the wearing apparels of the prosecutrix and the bed sheets alleged to have been recovered were different than those sent to the Chemical Examiner. The semen stains on the clothes could have been planted and these were not connected with semen of the appellant. The possibility of tampering with the said articles sent to the Chemical Examiner cannot be ruled out in the circumstances as the seal impressions initially fixed on these articles were not shown to have been the same by the Chemical Examiner in the report. The entire story of the prosecution is shrouded by suspicious circumstances, therefore, the appeal filed by the convict-appellant deserves to be accepted. Contra, Shri P.K. Sharma, learned Additional Advocate General, while supporting the impugned judgment, has forcefully argued that the prosecutrix is a minor child of tender age but she fully supported her version. She immediately after the occurrence had complained to her mother who also noticed the blood stains on the clothes of the prosecutrix. The prosecutrix was medically examined and the Doctor found the injuries on her private parts. The respondent had also abrasions on his elbow corresponding to the time of occurrence. Her salwar was containing semen 6 stains which she had identified it during the trial of the case. The pant of the appellant was found blood stained and also contained the semen stains. Thus the testimony of the prosecutrix finds corroboration in its material particulars. Therefore the impugned judgment is legally and factually sustainable. We have given our thoughtful consideration to the rival contentions and have very carefully re-appraised and legally scanned the evidence on record. In the instant case, the age of the prosecutrix is not disputed. When she was examined in the court, the learned trial court after recording its satisfaction that she being a child can give rational answer to the questions put to her recorded her statement as PW2. She had categorically stated that while returning from the house of her grand-mother, on the way near the house of the appellant, who is her cousin, met her and asked her the roll number of one Shivani. When she expressed her ignorance about it, the appellant took her to the T.V. room of his house and then caught hold of her put her on the cot. The appellant opened her salwar and then laid himself upon her. She cried but after some time she was released. Thereafter, she went to her mother, crying and narrated the entire incident to her. The report was made to the police and she was medically examined. She identified her salwar Exhibit P1 and shirt Exhibit-P2 in the court, the identity of which was not disputed in her cross-examination. Further in her cross-examination, it has been elicited that the house of the appellant was surrounded by other houses of the co-villagers but she categorically denied that the appellant was involved in a false case by her mother in connivance with her family members and Kamal (PW5). She has also denied that the injuries suffered on her private part were on account of insertion of some foreign substance by her mother. Nitin Kumar (PW3) who had also met her on the way but she had no talks with him. She was confronted with her 7 statement Exhibit-DA to this effect wherein this fact was not mentioned. Nitin Kumar aforesaid has corroborated her version. According to him, the appellant took her to his room and around 9 p.m. the police had visited the house of the appellant on the same day. PW1 Smt. Maya Devi, the mother of the prosecutrix, stated that when she was returning from the house of her Bua, the prosecutrix remained behind and she came crying to her house around 7.30 P.M. On inquiry, she revealed everything about the occurrence to her. She noticed the blood stains on her salwar and shirt and started weeping. Then some co- villagers along with Kamal Kumar gathered there. They took her to the Police Station and lodged the report Exhibit-PA. In her cross-examination, she has stated that when she went to the Police Station, many villagers including Kamal were with her. She did not know whether Kubza, grand-mother of the appellant, had made a complaint against her father-in-law and his brothers to the Irrigation Department with respect to the water tap. She denied that on account of the washing of the clothes at the water-tap, there was a quarrel between her and Kubza Devi and their relations got strained. She further denied that in the year 1997, her family had encroached upon the land of Kubza Devi by putting the bricks and since then the land is in their possession. She did not know whether the suit filed by Janku was dismissed on 24-6-2003. It is denied by her that a false case was foisted upon the appellant on the very next day. She denied that she had hurt the genital organ of the prosecutrix by introducing some foreign substance to take the revenge from the appellant and their family did not care for the reputation of the girls. Kamal Kumar (PW5) has stated that on 25-6-2003 at about 7.30 P.M, he came to know about the alleged incident having been committed by the appellant. He went to the house of the prosecutrix. There were about ten-fifteen persons present. He along with Maya Devi and the prosecutrix 8 went to the Police Station to lodge the report. In his presence, the Police inspected the spot, took the photographs of the bed etc on the spot and also took into possession, two bed sheets from a double bed and a towel, then sealed the same with seal impression ‘K’, vide memo Exhibit-PC. He has identified the bed-sheets Exhibit P3 and P4 and towel Exhibit P5 during the trial. Though in his cross-examination, he has stated that one bed sheet was creamish in colour, having two-three other colours but clarified that he neither remember the exact colour of the bed sheets nor the fact of handing over the seal to him. He also stated that Janku also met him in the Police Station. He denied that he had any prejudice against the family of the appellant but according to him his relations were good with Maya Devi like other villagers. Dr. Rafia Bano (PW6) found the injuries on the private part of the prosecutrix as stated above. She was cross-examined regarding various reasons for rupture of the hymen, but she was specific in her statement that she had clinically examined her and also considered the Chemical Examiner report. In this case the rupture was only due to sexual intercourse and the injury on the private part of the prosecutrix was not caused due to the foreign object. The Investigating Officer Brijesh Sood, S.I/S.H.O. (PW10) has stated that after recording the FIR, he proceeded to the spot along with the complainant and the victim. Kamal Kumar (PW5) was also with them. The appellant was found present in the upper storey of his house. He inspected the spot and took the photographs Exhibit PK/1 to PK/7 with his camera. Two bed-sheets and one towel blood stained were recovered from the spot as aforesaid, which were sealed with seal impression ‘K’ and were taken into possession vide memo Exhibit-PC in the presence of Kamal Kumar PW5 and Hari Singh. He prepared the site plan Exhibit PL as per the spot 9 position. The prosecutrix was thereafter got medically examined. The Doctor took into possession her clothes which were sealed in a parcel and handed over to him with the vaginal slide etc. These articles were deposited by him with MHC Swaran Singh which were further sent to the Chemical Examiner. In his cross-examination, he has stated that the prosecutrix had told him the spot where she was sexually assaulted. We have also considered the defence. In defense, complaint Ex.DA dated 11.9.1998 made by Smt. Kubza Devi addressed to the Assistant Engineer of the Department of Irrigation and Public Health Department and another complaint addressed to the IPH Minister Exhibit DB dated 30-1-1999 and Ex. DE dated 11-9-1998 on the same subject matter was sent to the Officer in-charge Municipal Committee, Sundernagar. The copy of the plaint in case Janku Ram –v- Ashwani Kumar and others [Ext. DC] and the order sheet dated 24-6-2003 [Exhibit DD] were produced to show that due to this litigation and the complaints aforesaid, a false case was foisted against the appellant, on 25.6.2003. But this defence is not at all convincing. The complaints relates back to more than 5 years from the alleged incident and the suit filed by Janku was not dismissed on merits so as to prompt the complainant party to foist a false case on the appellant by putting the future of their minor daughter at stake. Otherwise also the reason for false implication in the light of the above facts does not appear to be correct. The above resume of the evidence on critical analysis clearly establishes that the prosecutrix was sexually assaulted by the appellant. The statement of the prosecutrix itself inspires confidence with respect to the alleged offence and her version is also duly corroborated by the Medico Legal Evidence whereby the injuries on her private parts were found and her hymen was also found ruptured. In addition to it, the blood stains found on the bed-sheets, Salwar Exhibit P1, Shirt Exhibit P2 and semen stains of her 10 salwar further lend strength to her version coupled with the fact that within hours on the same day the appellant was also arrested and his combed pubic hair taken by the Doctor while conducting his medical examination also contained blood stains. It is worth noticing that when these circumstances were put to the appellant, he could not satisfactorily explain it more particularly when the appellant was not having any bleeding injury at the time of his medical examination. The wearing apparels of the prosecutrix which were on her person when she was ravished were sealed and sent to the Chemical Examiner and after its examination, it was re-sealed by the Chemical Examiner and during the proceedings in the Court, these items were opened to which the prosecutrix identified to be the same. Therefore, the contention of the learned counsel for the appellant that there was a contradiction regarding the colour of these items and the seals were not proved as contended is of no consequence. In fact the prosecutrix had immediately revealed about the alleged occurrence to her mother Maya Devi who in turn, informed the co-villagers who came to her house on hearing her cries and promptly lodged the FIR, the police recovered the blood stains bed sheets from the house of the appellant. Appellant was arrested and he was medically examined. Injuries were found on the private part of the prosecutrix, all this goes to show that it was the appellant and the appellant alone who had committed the alleged crime. Thus the non-comparison of the semen of the appellant with that of the semen stains found on the salwar Ex.P1 of the prosecutrix will not cause any dent in the case of the prosecution In the instant case, from the perusal of the medico legal evidence, it can be said that there was a penile penetration. Even the slightest penetration by the male organ is sufficient to constitute the offence of rape. The minor contradictions occurring here and there in the statement of witnesses do not make the 11 prosecution case doubtful more specifically when the offence stands proved by a reliable evidence on record. In our considered opinion by and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. Minor contradictions are bound to occur. It is not as if a view tape is replayed on the mental screen. Prosecution has thus been able to bring home the guilt of the appellant by adducing convincing evidence as discussed above. For the reasons stated above, we do not find any infirmity in the impugned judgment. Accordingly, the conviction and sentence passed by the learned trial Court is up-held, consequently the appeal is dismissed. (Surjit Singh), Judge. (Surinder Singh), Judge. April 29th, 2008. (bm/D)