IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.381 of 2006. Dated of Decision: October 21, 2009. Dhollo. ……… Appellant. Versus State of H.P. ………. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. For the Appellant : Ms. Kamlesh Kumari, Advocate. For the Respondent : Mr. Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, J (oral): Appellant is aggrieved by the judgment dated 27.9.2006 of learned trial Court, whereby he has been convicted for offence under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.25,000/-, in default of payment of fine, to undergo rigorous imprisonment for a further period of two years and has further been convicted of offence under Section 363 and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of two years. ------------------------------------------------------------------------------------------- Whether reporters of local papers may be allowed to see the judgment? 2 Case of the prosecution, which led to the trial of the appellant, may be stated thus. On 28th October, 2005, PW2 Khem Dei, while going to her fields, left her daughter, aged five years, hereinafter referred to as “PW1 the prosecutrix” at the house. She locked the door of her house and tied the key around the neck of PW1 the prosecutrix. Around 2 p.m., she returned from the fields. She did not find the prosecutrix. She was told by a child, named Manju that the prosecutrix had been taken towards his orchard by the appellant. That orchard is situated at a short distance from the house of the prosecutrix. PW2 Khem Dei went to the orchard of the appellant. She noticed that the appellant had removed his Pants and was mounted on the prosecutrix. On seeing PW2 Khem Dei, appellant picked up his Pants and ran away. Next day, Khem Dei went to the Police Station. She carried the prosecutrix with her at the Police Station and lodged FIR Ex.PA. Police got the prosecutrix medically examined from PW4 Dr. Deepesh Barall. The doctor opined that it was a case of attempted rape. He took the vaginal swabs. Police sent the vaginal swabs, the Pajama of the prosecutrix and the Pant of the appellant to the Chemical Examiner, who did not find anything incriminating and gave his report Ex.PX regarding it. Strangely enough, PW1 Dr. Deepesh Barral, after receipt of the report of the Chemical Examiner, changed his opinion that it was a case of penetration. Trial Court has held the appellant guilty of the offences, under Sections 363 and 376 of the Indian Penal Code and convicted and 3 sentenced him as aforesaid, relying upon the opinion evidence of PW4 Dr. Deepesh Barall that penetration had taken place. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General Mr. P.M. Negi and gone through the record. PW4 Dr. Deepesh Barall did not notice any injury on the private parts of the prosecutrix, except a bruise on the posterior forchette. He gave the opinion, which is recorded at the bottom of medical report Ex.PW4/B that it was a case of attempted sexual assault, meaning thereby this was not a case of rape, but attempt to commit rape. However, he changed his opinion. According to him, the reason for changing the opinion was the report of the Chemical Examiner Ex.PX. We have thoroughly gone through the report Ex.PX. As already noticed, there is nothing incriminating in the said report. No blood or semen was found in the vaginal swab nor any stains of blood were found on the clothes of the prosecutrix or the Pants of the appellant. Only stain(s) of human semen was found on the Pants of the appellant. Therefore, PW4 Dr. Deepesh Barall was not justified in changing the initial opinion that it was a case of attempted rape. Learned counsel for the appellant very fairly conceded that there is no reason for disbelieving the testimony of the mother of the prosecutrix, who saw the appellant mounted on the prosecutrix and then on seeing her, fleeing from the spot. We have also perused the statement of the mother of the prosecutrix PW2 Khem Dei as also that of the prosecutrix. Their testimony inspires confidence. 4 However, as already noted, this is not a case of rape but of attempted rape. Consequently, we partly allow the appeal, set-aside the conviction and sentence of the appellant for offence under Section 376 of the Indian Penal Code and instead convict him of offence under Section 376 read with Section 511 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000./-. As regards the conviction for offence under Section 363 I.P.C., the same is upheld. However, the sentence for this offence is reduced to two years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine, simple imprisonment for three months. Jail warrant be redrawn accordingly and sent to the Inchrage of the concerned jail. The appeal stands disposed of. (Surjit Singh) Judge October 21, 2009. (Surinder Singh) (Pds) Judge.