IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.377 of 2008 Decided on : 23rd June, 2009 Devinder Singh …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Anup Chitkara, Advocate. For the respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, Judge( Oral ) Appellant Devinder Singh has preferred this appeal against the judgment of the Sessions Court, whereby he has been convicted of offence, under Sections 376 IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.20,000/-; in default of payment of fine to undergo simple imprisonment for a further period of one year. 2. Prosecution case, which led to the trial and conviction of the appellant, is as follows. Prosecutrix, whose date of birth is 2.8.1987, had gone to graze cattle in a forest near her village Gyari, Tehsil Chirgaon, on 1.4.2004. Around 3.00 PM, the appellant, whose father’s orchard is near that forest, went to her and asked her to sit beside him and to talk to him. The prosecutrix did not oblige him. Around 5 PM, when she started gathering her cattle to return home and reached near a Baimi tree, appellant, who was hiding in the bushes Whether reporters of the local papers may be allowed to see the judgment? …2… nearby, caught hold of her and shut her mouth with one of his hands. He then laid her on the ground, under the Baimi tree, and pulled the string of her Salwar. Prosecutrix cried for help, but no habitation being close to the place of occurrence, nobody heard her cries and came to her rescue. Appellant then committed rape on her. Prosecutrix returned home. Her mother was not at home as she had gone to the fields. PW-3 Kailasho Devi met her near her house. She was crying at that time. On inquiry by PW-3 Kailasho Devi, she narrated the incident to her. PW-3 Kailasho Devi then went to the fields where the mother of the prosecutrix PW-2 Sunita Devi was working and informed her that her daughter was crying and she should return home, immediately. PW-2 Sunita Devi then returned to home. Prosecutrix told her about the incident. 3. Father of the prosecutrix runs a Dhaba in a different village. Prosecutrix and her mother waited for him, but he did not return that evening. Next day a message was sent to him to reach home, but he did not come. On the third day, i.e. 3rd April, 2004, prosecutrix, who appeared as PW-1 in the Court, accompanied by her mother PW-2 Sunita Devi and two persons, named Surender and Vinod, residents of village Andhra, went to Police Post Chirgaon and lodged report Ext.PW7/A. Prosecutrix was got medically examined at CHC Sandhasu. PW-8 Dr. Madhu Mittal conducted her medical examination and gave the opinion that she had been subjected to sexual intercourse recently as there was a tear of hymen, which bled on touch and was also painful. 4. On completion of investigation, appellant was challaned in the Court of concerned Judicial Magistrate. Case was committed to the Sessions Court by the Judicial Magistrate. Sessions Court charged the …3… appellant with offence, under Section 376 IPC and on his pleading not guilty put him on trial. 5. Prosecution examined 10 witnesses to prove the charge. They included, the prosecutrix (PW-1), her mother Sunita Devi (PW-2), her neighbour Kailasho Devi (PW-3) and Dr. Madhu Mittal, who conducted her medico legal examination, (PW-8). 6. Appellant took the plea that he comes from a rich family and his father is a government servant and that the parents of the prosecutrix wanted that the prosecutrix was married to him and, so, they sent a proposal to his father thorough DW-2 Dhani Ram, one Sher Singh and one Negi Ram. That proposal could not be accepted as he had already been engaged to some other girl and because of that he had been falsely implicated. Appellant himself appeared as a witness and made statement as DW-1, to prove this plea. He also examined DW-2 Dhani Ram. 7. Trial Court believed the prosecution version and rejected the defence plea and convicted and sentenced the appellant, as aforesaid. 8. I have heard the learned counsel for the appellant as also the learned Assistant Advocate General and scanned the entire evidence. 9. Prosecutrix, in her testimony as PW-1, narrated the incident in the manner it has been summed up, hereinabove. She very categorically stated that when she was in the forest, around 3.00 PM, appellant approached her and asked her to sit beside him and to gossip with him, but she spurned his overture and that when in the evening around 5 PM, she was gathering her cattle to take them home and reached near a Baimi tree, appellant, who was hiding in the …4… bushes nearby, overpowered her, threw her on the ground, removed her salwar and committed rape on her. Her testimony is corroborated by PW-8 Dr. Madhu Mittal, who examined her medically on the third day of occurrence and found that her hymen was ruptured and it bled and caused pain on touch. The doctor, while in the witness box, stated that the intercourse had taken place recently, that is to say, within 72 hours. 10. Testimony of the prosecutrix is further corroborated by the testimony of her mother PW-2 Sunita and PW-3 Kailasho Devi. PW-2 Sunita Devi testified that when he was working in the fields, Kailasho Devi came to her and told her that she should go to her home immediately as her daughter, i.e. the prosecutrix, had been crying and that when she reached home, the prosecutrix told her that she had been raped by the appellant. 11. Statement of PW-2 Sunita Devi, the mother of the prosecutrix, that Kailasho Devi came to her and told her about her daughter crying and she should return home immediately, remained unchallenged. 12. PW-3 Kailasho Devi stated that on the relevant date she saw the prosecutrix crying, while returning home with cattle, and on inquiry she told that the appellant had raped her. She also stated that she went to the fields of the prosecutrix, where her mother was working, and asked her to return home immediately, because her daughter was crying. Statement of this witness corroborates not only the testimony of the prosecutrix, but also that of the mother of the prosecutrix (PW-2 Sunita Devi) that Kailasho Devi told her that prosecutrix had been crying. …5… 13. Defence plea is falsified by appellant’s own evidence. In his testimony as DW-1, the appellant stated that Sher Singh and Dhani Ram came to their orchard in village Gyari, in the last days of December, 2003, as emissaries of the father of the prosecutrix, with the proposal of the marriage of the prosecutrix with him and that he was present with his father at that time and the proposal was made to his father in his presence and within his hearing. However, DW-2 Dhani Ram, one of the three persons, who was allegedly sent with the proposal, stated that the appellant was not there when he and Sher Singh went with the proposal. He stated that he and Sher Singh remained on the spot for about 2½ hours, but the appellant was not seen by them in the orchard, during that period. Further, DW-2 Dhani Ram as also the appellant stated that only two persons, namely Sher Singh and Dhani Ram came with the proposal, but to the witnesses of the prosecution it was suggested that three persons had visited the father of the appellant. Name of the third person suggested to the witnesses of the prosecution was Negi Ram. 14. Learned counsel for the appellant argued that the facts and the circumstances of the case suggest that the prosecutrix had consented to the sexual intercourse. He argued that the prosecutrix was more than 16 years of age and was supposed to be physically strong as she had been grazing cattle in the forest all alone and that the medical evidence suggests that she did not put up any resistance. He also argued that the prosecutrix story that her mouth had been shut by the appellant, with his hands, is unbelievable, because if the appellant had been using his hands to shut the mouth of the prosecutrix how could have he been able to commit rape. …6… 15. Submissions have been noted only to be rejected. It was never suggested to the prosecutrix that she was a consenting party to the act of sex. In his statement as DW-1 also, the appellant did not take any such plea. Also, the prosecutrix did not testify that when rape was committed on her, appellant had shut her mouth. She very categorically stated that her mouth was shut initially when the appellant overpowered her and that thereafter when the appellant was committing rape on her, she raised cries to attract help, meaning thereby that at that time her mouth was not shut. 16. Absence of injuries on the person of the prosecutrix does not mean that the prosecutrix was a consenting party. A young girl of just 16, when overpowered by a man of 25 with intent to rape her, is supposed to get too scared to put up resistance. This may not be true in every case. Sometimes women put up resistance, when sought to be raped but not always, because of fear of being killed. There are several instances, where women putting up resistance have paid with life. Theory of consent is further falsified by the fact that the prosecutrix was seen crying while returning from the forest with cattle, as testified by PW3 Kailasho Devi. If she were a consenting party, why should have she cried. 17. In view of the above stated position, I do no find any merit in the present appeal. The same is, therefore, dismissed. June 23, 2009(ss) ( Surjit Singh ), J