IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 209 of 1992 Reserved on: 26.9.2008 Date of decision: 22.10.2008 State of H.P. ... Appellant Versus Gouru Ram … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. R.M. Bisht, Deputy Advocate General. For the respondent: Mr. G.R. Palsra, Advocate. Respondent present in person. Per V.K. Ahuja , J.: This is an appeal filed by the State of H.P. against the judgment of the Court of learned Sessions Judge, Mandi, dated 1.10.1991, vide which the respondent was acquitted of the charge framed against him under Section 376 I.P.C. Briefly stated, the facts of the case are that on 7.2.1990, at about 5.00PM, a report was lodged with the police by one Kunju. He alleged therein that on the previous day i.e. on 6.2.1990 in the morning time he had gone to Tehsil Bali Chowki in connection with some work. He returned to his house on 7.2.1990 at 3.00PM and when he reached near Hanogi Bridge, his wife Dhainu and his daughter (S) (name not 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 mentioned) met him and his wife told him that on the previous day at about 5.30PM Gouru i.e. the respondent had raped her daughter and he sent his wife and daughter towards the house and came to lodge the report, on which a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate who committed the case to the learned trial Court who tried the respondent under Section 376 I.P.C. resulting in the acquittal of the respondent. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General on behalf of the appellant were that the prosecution had duly proved their case from the statements of the witnesses including that of the prosecutrix as well as the medical evidence and other evidence on record, but the learned trial Court considering the minor infirmities or contradictions in the prosecution version has wrongly concluded that the prosecution had failed to prove their case beyond any reasonable doubt, which findings can be termed as perverse calling for an interference by this Court. On the other hand, the learned counsel for the had supported the impugned judgment for the reasons recorded therein. A perusal of the record of the case shows that the prosecution had examined the prosecutrix (S) as PW-3, her father Kunju as PW-1 and her mother Smt. Dhainu as PW-2. These statements were further corroborated from the statement of Medical Officer PW-4 Dr. Maulshri Lata who examined the prosecutrix and gave her report. Coming to the findings recorded by the learned trial Court, it is clear that it concluded that the contradictions, inconsistencies and infirmities are writ large in the prosecution evidence which shows that no 3 offence has been committed. Coming to these contradictions or infirmities as observed by the learned trial Court, the learned trial Court has observed that the mother of the prosecutrix though has stated in the cross-examination that she saw the accused running away from the Verandah of her house, but she is contradicted by the statement Ext. DA which she made to the police with which she was duly confronted. The other point observed by the learned trial Court was that the prosecutrix has stated that she was subjected to sexual intercourse by the accused when the light of the sun was still there and that her mother returned after grazing cattle, it had grown dusky. The prosecutrix had specifically stated that neither she nor any of her brothers or sisters cried for help, nor did her mother appear on the scene of occurrence when the accused was still there. Her version, therefore, suggested that the accused had already left the place before her mother returned from the forest. It is, therefore, clear from the perusal of the statement of PW-2 Smt. Dhainu, mother of the prosecutrix, that she did not state earlier that the accused was seen by her, though when she was subjected to cross-examination, she came up with the plea that she had seen the respondent fleeing away from the scene of occurrence. Her earlier version has to be believed and it may be that to further substantiate her case, she may have stated that the respondent was seen running away from the scene of occurrence when she reached the spot. The mere fact that she made improvement in this regard is not sufficient to hold that her whole statement has to be discarded and such improvement does not affect the earlier part of her statement in which she stated that the prosecutrix had told her that she was subjected to rape by the respondent. 4 The next infirmity pointed out by the learned trial Court was that PW-2 Smt. Dhainu has stated that she noticed stains of blood on the floor of the Verandah where her daughter was raped but the prosecutrix herself stated that she had been raped not on the floor of the Verandah but on the stairs. The learned trial Court also referred to the site plan Ext. PL and observed that it shows the place, the point on the floor of the Verandah where the girl was allegedly raped. In disbelieving the prosecutrix and her mother in regard to the specific place of occurrence, the learned trial Court had taken it as a major infirmity in the prosecution case forgetting the fact that the prosecutrix was of the age of 7/8 years only when she was examined in the Court after one year and four months of the occurrence and this contradiction cannot be said to be material. The mother of the prosecutrix had not seen the occurrence but the place was pointed out to her by her daughter PW-3 (S) and the mere fact that the prosecutrix used the words ‘as stairs’ where she was raped, but her mother stated that the rape was committed on the floor of the Verandah, which fact was also mentioned in the site plan prepared by the Investigating Officer. Therefore, it cannot be said that there was major contradiction since the site plan and the statement of the mother showed the place as floor of the Verandah. In coming to the above conclusion we are supported by the decision cited by the learned Deputy Advocate General in State of Himachal Pradesh Vs. Gian Chand, AIR 2001 Supreme Court 2075. Therein also a similar contradiction was found since the prosecutrix of the age of about 6 years has stated that the rape was committed upon her. According to the mother of the prosecutrix, the rape was committed on the prosecutrix in the open on the lintel of the house, 5 while the prosecutrix had stated that it was committed upon her in the room. A perusal of the site plan showed that the distance in between two places was insignificant. It was held that such minor discrepancy coming from the mouth of PW-1 (mother) who is not an eye witness, was of no significance and caused no infirmity in the prosecution case when the overall narration of the incident given by her was found to be natural and trustworthy. Thus, the contradiction referred to above was only minor and had to be ignored. The next contradiction taken on record by the learned trial Court was that the mother of the prosecutrix PW-2 Smt. Dhainu has stated that the girl was wearing a Pyjama at the time of incident, but the prosecutrix herself and her father had stated that she was wearing a salwar and in the Court a salwar had been produced. According to the mother, the colour of the Pyjama was green but the prosecution had produced a blue colour salwar. The salwar in question had been taken in possession by the Medical Officer and the mere fact that these villagers including the minor prosecutrix have stated that it was a salwar or Pyjama or have stated differently about the colour, which statements do not tally with one another. These contradictions cannot be said to be major. It cannot be said that a girl of 7 or 8 years should have differentiated between a salwar or Pyjama or should have stated about the colour of the salwar or Pyjama correctly. The next infirmity pointed was that PW-4 Dr. Maulshri Lata had stated that she observed yellow coloured stains on the salwar, but the Chemical Examiner and the Serologist have not found yellowish stains and only found blood stains on the salwar Ext. P.1. The statement of PW-4 Dr. Maulshri Lata was based upon observation only, which 6 observation was only to be confirmed by the expert and the mere fact that the expert did not found any such stains is not sufficient to hold that it was an infirmity in the prosecution case. In case the statement of the Medical Officer was sufficient to prove that there was stains of yellow colour on the salwar, there was no necessity of some expert opinion for confirmation. The next contradiction taken in account by the learned trial Court was that the mother of the prosecutrix had stated that she brought the girl to the hospital on 7.2.1990 and on way back, her husband met them at Hanogi and the Medical Officer had refused to give medical treatment on that date till the case was registered. The Doctor who was examined as PW-4 Dr. Maulshri Lata, has stated that if the prosecutrix had been brought to her by her mother even without any reference by the police she would have herself informed the police. Thus, the statement of the mother was disbelieved, in regard to the fact if she visited the hospital or not. A careful perusal of the statement of PW-4 Dr. Maulshri Lata shows that she did not deny the suggestion specifically but has stated that she does not recollect if girl was brought to her by her mother before the date of examination by her and she refused to examine the girl on the plea that the matter should first be reported to the police. It cannot be disputed that in case Medical Officer had not examined the prosecutrix since the case was not registered, no Medical Officer in Court will admit the suggestion even if in fact this has happened. Keeping in view the fact that the Medical Officer has not specifically denied the suggestion, no such inference could have been drawn for having deposed falsely that she took the girl to the hospital. The mother of the prosecutrix had no occasion to falsely state in this 7 regard and the mere fact that she was not able to substantiate her statement from any other evidence is not sufficient to hold that she was not a truthful witness. Another infirmity observed by the learned trial Court was that the father of the prosecutrix, namely, PW-1 Kunju had mentioned in the FIR that he had sent back his wife and daughter to their residence, though the mother as PW-2 stated that she only left for the house, while her husband took his daughter to the Police Station. This contradiction is not very material and keeping in view the time that elapsed between the date of occurrence and the statements which were recorded after more than one year and the fact that these witnesses were rustic villagers, these contradictions cannot be termed as material. We have carefully examined these infirmities as observed by the learned trial Court and have gone through the statements of all the three material witnesses and we are of the opinion that these contradictions were not very material which could affect the credibility of the depositions made by these witnesses. We have carefully examined the statement of the prosecutrix as PW-3 (S) as well as the statement of her father PW-1 Kunju and mother PW-2 Smt. Dhainu and there are no contradictions in regard to the fact that the respondent had committed the rape upon the prosecutrix which fact was told by her mother to her husband on return on the next day. This fact also stands established that the report was lodged with the police within 24 hours of the occurrence and the place of occurrence was 15 KM away from the Police Station as per FIR Ext. PA. There was no time for the mother or father of the prosecutrix to enter into consultation, falsely implicate the respondent or procure witnesses. The prosecutrix’s father has nowhere introduced 8 that his wife had seen the accused committing offence to give support to his case. On careful examination of the statements of these three witnesses, we do not find any major infirmities or contradictions so as to hold that the prosecution story cannot be believed. These statements have been fully corroborated by the other evidence including Medical Officer PW-4 Dr. Maulshri Lata who examined the prosecutrix and had observed that no dead or alive spermatozoa was seen. According to her opinion, there was no evidence of complete sexual act, though, she further stated that the injury noticed on the person of the girl could have been possibly caused as a result of sexual assault. In cross- examination, she observed that she did not notice any injury of hymen, nor she come across any evidence suggesting that there was any penetration. Keeping in view the testimony of the Medical Officer, we are of the opinion that there is nothing on record to show that there was any penetration. The Medical Officer had also observed that the hymen admitted tip of small finger and the hymen was also intact and keeping in view the medical evidence we are of the opinion that the guilt of the respondent stands proved regarding attempt to rape under Section 376 read with Section 511 I.P.C. and not under Section 376 I.P.C. In view of the above detailed discussion, we are of the opinion that the findings recorded by the learned trial Court acquitting the respondent of the charge of rape or attempt of rape can be said to be perverse and accordingly, we set aside the findings of the learned trial Court acquitting the respondent who is held guilty of charge under Section 376/511 I.P.C. We have heard the respondent and his counsel and according to the submissions made, the occurrence had taken place many 9 years ago and at that time the respondent was only aged about 16 or 17 years as submitted by the learned defence counsel. A perusal of the statement made by the accused under Section 313 Cr.P.C. shows that he had given his age at that time as 18 years and no plea had been taken that he was of the age of 16 or 17 years or that he should have been tried by a Children Court. The learned counsel for the respondent had submitted that the father of the respondent was aged 85 years, is old and blind man and there are three minor children. A plea was also taken that the respondent is hard of hearing, which is no ground for leniency and it was also submitted that the occurrence had taken place 18 years back and, therefore, the respondent deserves the leniency to be released on payment of fine. Keeping in view all the facts, we are of the opinion that when the attempt to rape was made by the respondent on a minor girl of the age of 7/8 years, he does not deserve the leniency to be released on payment of fine or otherwise. We accordingly hold that the respondent is liable to be convicted and sentenced to rigorous imprisonment for a period of three years and to pay a fine of Rs. 10,000/-. In default of payment of fine, the respondent shall further undergo rigorous imprisonment for a period of three months. The fine if paid, shall be payable to the father of the prosecutrix/mother of the prosecutrix after the expiry of period of appeal or in case of appeal as per decision thereof. The period during which the respondent had remained in custody during investigation or trial shall be deducted under Section428 Cr.P.C. at the time of computation of sentence. The respondent shall surrender to learned trial Court to serve the sentence. A copy of this judgment be sent to the learned trial Court for issuing jail warrant. 10 In view of the above discussion, the appeal is allowed partly. ( Deepak Gupta ), Judge ( V.K. Ahuja ), October 22, 2008 Judge (BSS) 11