1 IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 285 of 2006 Sandeep Kumar Sharma S/o Brahmanad Sharma R/o Parvez Vihar, Near D.P.S. Inter College, P.S. Medical, District Meerut ……Appellant Versus State of Uttarakhand …… Respondent Mrs. Pushpa Joshi, Advocate for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. JUDGMENT Hon’ble J.C.S. Rawat, J. This is an appeal against the judgment and order dated 28/11/2006 passed by the learned Sessions Judge, Dehradun in S.T. No. 8 of 2006, State Vs. Sandeep Kumar Sharma and other convicting the appellant Sandeep Kumar Sharma and sentencing him for a period of 7 years R.I. u/s 366 I.P.C. & fine of Rs. 2,000/- and in default of payment of fine he would have to undergo further two months R.I. He was also convicted & sentenced under section 376 I.P.C. for a period of 10 years R.I. & a fine of Rs. 8,000/- and in default of the payment of fine he would have to undergo further R.I. for one year. It was directed that both the sentences would run concurrently. 2. At the outset, it needs to be mentioned that the co- accused Rinky @ Nikky was acquitted by the trial court u/s 366 I.P.C. 3. Brief facts leading to the prosecution case are that the co-accused Rinky @ Nikky was a frequent visitor in the house 2 of the prosecutix and she was sister in law of the prosecutrix. Co-accused Rinky @ Nikky asked the prosecutrix that she had been working in a salt factory and earning a good amount therefrom. She also asked the prosecutrix to work in the said factory so that she may also fetch good amount of salary. On the persuasion of the co-accused Rinky @ Nikky, the prosecutrix accompanied her to get a job in the said factory. However, the parents of the prosecutrix refused to do so. Even though on earlier occasions, the parents of the prosecutrix has refused to send her with the co-accused Rinky @ Nikky for a job as stated by her. The co-accused Rinky @ Nikky again came to the house of prosecutrix on 07/09/2005 and took the prosecutrix with her. They went to Meerut bus stand where the appellant Sandeep Kumar Sharma met them and co-accused Rinky @ Nikky introduced the appellant as her boss. The co-accused Rinky @ Nikky has further stated that he was the person who would employ you in the factory. Thereafter, the appellant, prosecutrix alongwith co-accused Rinky @ Nikky went to Rishikesh where they stayed in the Aggarwal Dharamshala in the night on 09/09/2005. The appellant Sandeep Kumar Sharma committed forcible sexual assault upon the prosecutrix there. Thereafter, the prosecutrix was taken by the appellant and co-accused Rinky @ Nikky Dehradun where they stayed in Moti Mahal Hotel. The prosecutrix was again subjected to the forcible sexual intercourse there. On the next day, the appellant, co-accused Rinky @ Nikky and the prosecutrix shifted to Aggarwal Dharmshala, Dehradun. The prosecutrix was subjected to forcible sexual assault in the Aggarwal Dharamshala also. It was also alleged in the prosecution case that the appellant was having a knife and pistol in his hand and he has threatened the prosecutrix not to make 3 noise or to tell this fact to anyone otherwise she would have to face the dire consequences. The appellant also threatened her to kill her parents and brother if she would disclose this fact to others. On 14/09/2005, the prosecutrix got an opportunity to run away from the clutches of the appellant and co-accused Rinky @ Nikky while she was sent by the appellant to purchase cigarette. Immediately, thereafter she went to the residence of her Mausa named Elam Singh Chauhan at Shakti Bihar Majra, Dehradun. The prosecutrix narrated the entire incident to them. In the meantime, the appellant and co-accused Rinky @ Nikky also reached to the house of Elam Singh. There the prosecutrix identified the appellant Sandeep Kumar Sharma who has committed the sexual assault upon her. The prosecutrix also stated that the co-accused Rinky @ Nikky persuaded her by deceitful means to accompany her. Thereafter, a report Ex.Ka.1 was lodged at the Police Station Dehradun in the intervening night of 14- 15/09/2005. The appellant and co-accused Rinky @ Nikky was also handed over to the police. The investigation was conducted by the police. The medical examination of the prosecutrix was conducted on 15/09/2005 at about 2:30 p.m. in the District Women Hospital, Dehradun by Dr. Meenakshi Uniyal. The doctor referred the prosecutrix to the radiologist. After receiving the report from the radiologist and pathologist, a supplementary report was submitted by Dr. Meenakshi Uniyal wherein it was stated that the prosecutrix was about 18 years of age; vaginal smear report was found negative for spermatozoa; and no definite opinion about the rape could be taken. After completing the investigation, chargesheet was submitted against the appellant and the co- accused Rinky @ Nikky. 4 4. The Chief Judicial Magistrate, Dehradun committed the case to the court of Sessions. The learned Sessions Judge framed charges against the accused/appellant. The accused/appellant denied the charges and claim trial. 5. The prosecution in support of its case examined Elam Singh PW1 who is Mausa of the prosecutrix. He has lodged the report in the police station. PW2 is the victim herself. She has narrated the entire incident before the Court. Naim Ahmed PW3 has stated that the accused/appellant was arrested in his presence and a toy pistol was recovered in his presence from the Aggarwal Dharamshala, Dehradun. Himmat Ramola PW4 is the employee of Motil Mahal Hotel. He has stated that co-accused Rinky @ Nikky booked the room in his hotel. Ram Avtar PW5 is an Account-cum- Booking Clerk of Aggarwal Dharamshala. He has alleged that they stayed in his Dharamshala on 14.09.2005. Dr. Meenakshi Uniyal PW6 is the doctor who has conducted the medical examination on the body of the prosecutrix. Constable Narendra Singh PW7 is the formal witness. Jyoti Prakash Uniyal PW8 is the employee of Aggarwal Dharamshala, Rishikesh where the appellant, co-accused and the prosecutrix resided in a room on 09/09/2005 and 11/09/2005. S.I. R.K. Chauhan PW9 is the Investigating Officer of this case. Fakir Chand PW10 is the peon who has stated that the prosecutrix was a student of Ram Public Junior High School. He has also brought the record of the school alongwith him. He has stated that according to the record the prosecutrix date of birth is 20th September, 1988. 6. The accused/appellant was examined u/s 313 Cr.P.C. and he has denied the entire prosecution case and stated that 5 since the prosecutrix has taken away a sum of Rs.20,000/- which was collected by him for the company as a sales proceeds. Therefore, he went to the house of Elam Singh in search of the prosecutrix and he was apprehended there. He has denied that he committed the forcible sexual intercourse upon the victim. He has further stated that he has been falsely implicated in this case. 7. The appellant did not adduce any oral or documentary evidence in support of his defence version. 8. The learned Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant as indicated above. The learned trial court acquitted the co- accused Pinky @ Nikky for the charges leveled against her. 9. Heard Mrs. Pushpa Joshi, learned counsel for the appellant, Mr. Nandan Arya, learned A.G.A. for the State and perused the record. 10. Now, it is to be seen as to whether the accused/appellant is the guilty of the offence charged against him u/s 366 and 376 I.P.C. The trial court after appreciation of the evidence have come to the conclusion that the appellant is guilty for the offence u/s 366 and 376 I.P.C. It is not in dispute that the prosecutrix was 7 days short of 17 years. The evidence of Fakir Chand PW10 and the certificate produced by the prosecution categorically reveals that the date of birth of the prosecutrix was 20th September, 1988. It is evident that the age of the prosecutrix was above 16 years on the date of the incident. There cannot be an offence of kidnapping against the appellant. For committing the offence 6 of kidnapping, the age of the girl must have been below 16 years on the date of the incident. The case of the prosecution falls in abduction which has been defined u/s 362 I.P.C. It is the prosecution case that the prosecutrix was taken through deceitful means by co-accused Rinky @ Nikky. 11. Now, I have to examine as to whether the prosecutrix was subjected to sexual intercourse forcibly and the appellant was responsible for committing the forcible sexual intercourse upon the prosecutrix. The prosecutrix PW2 was examined to support the case of the prosecution. She has stated in her evidence that the appellant met them in the bus stand at Meerut where he was introduced by the co-accused Rinky @ Nikky as her boss. Thereafter, they went to Rishikesh by bus. In Rishikesh they stayed in a room in Aggarwal Dharamshala in the night on 09/09/2005 and the appellant committed the forcible sexual assault upon the prosecutrix. Again in the next night the same offence was committed upon the prosecutrix. Thereafter, on 13/09/2005, the appellant, co-accused Rinky @ Nikky and the prosecutrix went to Dehradun where they stayed in Moti Mahal Hotel where she was also subjected to forcible sexual intercourse by appellant. On the next morning all the three persons shifted Aggarwal Dharamshala, Dehradun. The appellant again committed the sexual intercourse forcibly during the day time upon the prosecutrix. She has further stated that the appellant was holding a knife and revolver in his hand and he threatened the prosecutrix not to make any cry otherwise he would kill her parents and brother. She was given the threats of dire consequences. She has further stated that the co-accused Rinky @ Nikky sent her to bring cigarette from the nearby shop after giving her ten rupees 7 note. The prosecutrix getting an opportunity to run away went to the house of her Mausa Elam Singh Chauhan PW1 at Shakti Bihar Majra, Dehradun. She narrated the entire story to them and other persons present there. She has also stated that the appellant and the co-accused reached to the house of her Mausa in search of her. They were apprehended by the family members of the prosecutrix. The prosecutrix identified the appellant who had committed rape upon her. Thus the prosecutrix has given the vivid details of the entire prosecution story. She has also stated the places where she was taken and subjected to the sexual intercourse. She has vividly described how she was threatened while committing the rape upon her. 12. Learned counsel for the appellant contended that the prosecutrix was admittedly above 16 years of age. Learned counsel for the appellant contended that the victim was more than 16 years of age and she was a consenting party to the sexual assault hence the appellant cannot be convicted u/s 376 I.P.C. The learned counsel for the appellant also brought my attention that the prosecutrix has stated in her evidence that she went to the market at Rishikesh after getting the room locked and they remained in the market for considerable period. She also went to Dehradun in a bus and she stayed in the hotel and Dharamshala. The prosecutrix had an opportunity either to seek help or narrate her story to the persons so that she could be escaped from the clutches of the appellant. Learned counsel for the appellant further contended that even if the appellant committed sexual assault upon the victim, she should have resisted the intercourse and also should have sustained the injuries on her person. According to the medical Officer who examined 8 the prosecutrix, she did not found any external injuries on her person. The learned A.G.A. refuted the contention and contended that the absence of the injuries cannot be held to be consent for the sexual intercourse. He has further contended that the sexual assault was committed on the pretext of threat given by the appellant. It was further contended that merely absence of the injuries on the body of the prosecutrix would not be sufficient to discard the credible and cogent evidence of the prosecutrix. 13. It is settled position of law that the finding of guilt in a case of rape can only be based on the evidence of the proseutrix. The very nature of offence makes it difficult to get direct corroborative evidence of this fact. The evidence of prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to the sexual intercourse her statement will normally be accepted, even though it is uncorroborated unless the material on record requires drawing of an inference that there was consent or the entire incident was improbable or imaginary. It is also settled position of law that even if there is consent, the act will still be a rape if the girl is under 16 years of age. The consent is only material when the age of the girl is above 16 years. It is undoubtedly in the case in hand the prosecutrix is above the age of 16 years. Further, it is also settled position of law that absence of injuries on private parts of the victim will not be itself falsify the case of rape. It is also settled position of law that the opinion of doctor that there was no evidence of sexual intercourse or rape may not be sufficient to disbelieve the accusation of rape of the victim. 9 14. It is pertinent to mention here that it is well settled position of law that if the evidence of victim is found reliable it does not require any corroboration on the material points. The prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. If the court comes to the conclusion that the evidence of victim is reliable and cogent, it does not need any further corroboration of any other independent and corroborative piece of evidence. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self- esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly reputation and not the least her chastity. Rape is not only a crime against the person of a victim, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Basically it is a crime against basic human rights. Keeping in view of the aforesaid circumstances it must be expected from the court to deal with cases of sexual crime against women with utmost sensitivity. 15. In the cases of rape the submission of the victim is always there. The submission to the desire of the appellant may be by her own consent or by threats. She submitted herself under the threats to the barbarous desire of the rapist that would not be the submission with her consent. The 10 offence of rape is committed in such a way there cannot be any eyewitness to tell how offence was committed upon the victim. Either the victim or the appellant can only tell whether they were consenting party or not. There is a gulf of difference between the consent and submission. Every consent involves a submission but the converse does not follow, and mere act of submission does not involve consent. An act of helpless resignation in the fact of inevitable compulsion, quiescence, non-resistance or passive giving in when the faculty is either clouded by fear or vitiated by duress or impaired due to deficiency cannot be considered to be consent as understood in law. For constituting consent, there must be exercise of intelligence based on the knowledge of the significance and the moral effect of the act. As I have pointed out that there cannot be only direct evidence about the consent the court has to examine the various circumstances projected by the prosecution evidence. The victim was medically examined by Dr. Meenakshi Uniyal PW6. According to the medical report, there were no marks of injuries on the private parts of the victim, hymen was found torn & old healed up; vagina was found admitting two fingers with difficulty; and there was no injuries on her body. Thus it was tried to emphasize that the victim was habitual to the sexual intercourse. The evidence of the victim cannot be discarded by holding that it is at the variance of the medical evidence. Mere fact according to the doctor the victim’s vagina admits two fingers and she could on earlier occasions have had sexual intercourse rules out rape by the accused once as alleged, in no way casts doubt on the evidence of the victim. Signs of previous sexual intercourse on the victim cannot by any stretch of imagination be a ground to acquit an accused rapist. Even assuming that the victim was previously 11 accustomed to sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be decided is did the accused committed the forcible sexual intercourse on the victim on the occasions complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim being promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to other times to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone or everyone. Thus, merely a fact that her hymen was torn earlier it may be due to being habitual to sexual intercourse, the opinion of the doctor become insignificant because it could not be established at the later occasion as to whether it was a clear cut of rape or not. It can only be ascertained by other attending circumstances. As I have pointed out earlier once the evidence of the prosecutrix inspires confidence and is accepted by the Court, the conviction can be based only on the testimony of the victim. The Hon’ble Apex Court in the case of State of M.P. Vs. Dayal Sahu 2005 SCC (Cri) p/1988 has held that non- examination of the doctor and non production of the doctor’s report would not be fatal to the prosecution case if the evidence of the prosecutrix inspires confidence. The Hon’ble Apex Court in the case of Dayal Sahu (Supra) has held at para 14 as under :- “……………… Non-examination of doctor and non-production of doctor’s report would not be fatal to the prosecution case, if the statements of the 12 prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities” 16. As pointed out earlier it is a settled position of law even if the injuries are not found on the outer part of the body of the victim it cannot be a ground to discard the evidence that the victim did not resist at the time of committing the rape upon her. Whether the victim had an opportunity to resist or not it will depend upon the facts and circumstances of each case. Thus merely the victim being habitual to sexual intercourse and absence of injuries on her persons did not give an indication that the victim was a consenting party to the commission of the offence. 17. The prosecution has adduced the evidence of the prosecutrix as PW2 who has stated that she came to Rishikesh and Dehradun with the appellant and co-accused Rinky @ Pinky. It is also in the evidence of the victim that she was subjected to the sexual intercourse in those places on the pretext of threatening to her to kill her parents and brother. The appellant was also having knife and pistol. The learned counsel for the defence has not made any effective cross examination on this point. Thus, the evidence of prosecutrix that the appellant was having a pistol and knife and he threatened the prosecutrix to kill her parents and brother is credible and cogent. This witness has been cross examined at length but nothing could be elicited from her 13 evidence to discredit her evidence. Though, the learned counsel for the appellant tried to emphasiz that the pistol which is said to have been recovered from the room of Aggarwal Dharamshala, where the appellant was staying in the said Dharamshala was a toy pistol and no independent witness of the locality was taken at the time of the said recovery. It is evident from the perusal of the evidence of Elam Singh PW1 and Investigating Officer R.K. Chauhan PW9 that there is a recovery of a toy pistol from the room of the Aggarwal Dharamshala where the appellant and the victim remained in the night and where also the commission of the offence was committed upon the victim. Elam Singh PW1 was a witness of the recovery. It is settled position of law as has been observed in Modan Singh Vs. State of Rajasthan (1978) 4 SCC p/435 where the evidence of Investigating Officer who recovered the material objects is convincing, the evidence as to the recovery need not be rejected because seizure witnesses did not support the prosecution witnesses. But in the case in hand the position is otherwise. Elam Singh PW1 and Naim Ahmed PW3 have supported the prosecution version and they have proved the recovery of the toy pistol from the room where the appellant was staying in the Dharmshala as alleged. In the case of Mohd. Aslam Vs. State of Maharashtra (2002) SCC (Cri) p/1024 it has been held that even the panch witnesses turn hostile which happen very often in the criminal cases, the evidence of the person who effected the recovery would not stand vitiated when the other witnesses turned hostile. But the crucial question remains that the evidence of the Investigating Officer who effected the recovery must inspire confidence. In the instant case Ram Avtar PW5 categorically stated that the room was closed and it was locked and the keys were 14 with him. The evidence of the prosecution witnesses Elam Singh PW1 and Naim Ahmed PW3 and Investigating Officer R.K. Chauhan PW9 is credible and cogent to the extent that a toy pistol was recovered from the room and there is no effective cross examination by the defence to the witnesses about this fact. Learned A.G.A. tried to emphasize an application of the appellant sent from jail on 01/09/2006 which is Ex.Kha-59 on the lower court’s record in which he has stated that he was arrested by the police Kotwali on 14/09/2005 and his belongings were taken into possession by the police on 15/09/2005 which includes the clothes, mobile phone, files and the cash money in a suitcase and he requested to send the said articles to the jail. The learned A.G.A. further pointed out that the recovery of other articles has been admitted by him in the application itself; he was