IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 162 of 2009. Date of Decision: 3rd May, 2011. _______________________________________________________ Atma Ram ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Ashok Sharma, Advocate. For the respondent: Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral) The challenge, in this appeal is to the judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No.29 of 2007, decided on 29.9.2008, whereby the appellant is sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `5,000/- for the commission of offence punishable under Section 376 of the Indian Penal Code, with the default clause. 2. Precisely, the case of the prosecution can be stated thus. The prosecutrix is a young-lady of 26 years suffering from mental retardation since her childhood. She was living with her parents in village Kinja, District Kullu. Her Whether reporters of the Local papers are allowed to see the judgment? - 2 - brother is also mentally retarded but two other sisters are already married. (ii) On 13.2.2007 PW5 Tegu Ram, father of the prosecutrix, alongwith his wife went to ‘Puid temple’ to pay obeisance leaving behind the prosecutrix and her brother in the house. Around 4.00 pm, her brother was not present in the house. The prosecutrix went to a nearby water-source to fetch water. The appellant met her near the shop. He offered his services to carry the water-can to her house, but she declined the request. Some how the appellant snatched water-can from her and accompanied her to her house. (iii) On reaching the house of the prosecutrix, appellant kept the water-can outside in the Verandah and asked prosecutrix to come inside in one of the rooms, but she refused. On this, the appellant caught hold her hair and brought her inside, thereafter bolted the room and committed rape. With great difficulty she managed to come out of the room and raised an alarm by which PW9 Besru Devi and one Ahlaya Devi (not examined) got attracted. The appellant managed to escape in their presence. The prosecutrix narrated the entire incident to them. (iv) Father of the prosecutrix (PW5) lodged FIR Ext.PC. The prosecutrix was brought to Regional Hospital, - 3 - Kullu for her medical examination, but she did not give consent for it nor cooperated. To this effect PW12 Dr. Prabha Lal made an endorsement on the Medico Legal Certificate and referred her to I.G.M.C. Shimla for assessment of her mental status. (v) PW1 Dr. Ravi Sharma, Head of the Department of Psychiatry, I.G.M.C., Shimla after her examination diagnosed as a case of “Moderate to severe degree of mental retardation” and suggested that the prosecutrix could be examined by Gynecologist by giving her sedation in the form of diazepam/lorazepam. (vi) After giving the injection of pethidine and phenargan, PW12 Dr. Prabha Lal conducted her medical examination. She opined that there was physical interference with external genitalia and the possibility of sexual intercourse could not be ruled out. To this effect, she issued the Medico Legal Certificate. (vii) During the investigation the wearing apparels of the prosecutrix and the mattress over which she was raped, were taken into possession by the police, which were sent for forensic examination alongwith the vaginal swabs, taken by the Medical Officer. (vii) Appellant was arrested and sent for the medical examination. He was found fit to perform the sexual intercourse. - 4 - 3. After the receipt of the report of the Laboratory and completing the investigation, the case was presented in the Court for the trial of the appellant for the offence aforesaid. 4. Finding a prima facie case against the appellant, he was accordingly charge-sheeted for rape on the prosecutrix to which he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined 15 witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him and pleaded his innocence and also took up the stand that he was falsely implicated in this case. When called upon to enter into his defence, he did not lead any evidence in defence. 6. From the evidence on record, the learned trial Court finds existence of following salient features: (i) Prosecutrix has shown the involvement of the accused for the commission of offence regarding committing of rape on her person; (ii) the version unfolded on oath by the prosecutrix finds necessary corroboration from medical evidence; - 5 - (iii) the testimony of prosecutrix also finds necessary corroboration from the evidence of her father Tegu Ram to whom this incident was narrated by her, soon after the occurrence; and (iv) the version of prosecutrix also finds support from the statement of PW6 Smt. Ishri Devi partly about the presence of accused in the house of prosecutrix; Thus came to the conclusion that the prosecutrix was subjected to rape by the appellant. Accordingly, he was convicted and sentenced as aforesaid, hence the present appeal. 7. Shri Ashok Sharma, learned Counsel for the appellant vehemently argued that from the perusal of the statement of the prosecutrix, it cannot be said that the prosecutrix was mentally retarded. In her cross- examination she admitted that she was deposing at the instance of her father who threatened her to administer beatings if she would not speak as instructed by him. It is also argued that the father of the prosecutrix wanted to marry her with the appellant, on his refusal, a false case was fabricated on him. He further ventilated that PW9 Besru Devi did not support the case of the prosecution and PW6 Smt. Ishri Devi did not identify the appellant. He - 6 - further ventilated that the prosecutrix had refused for her medical examination, which means nothing happened with her and the medical examination was conducted by giving her sedation after about more than three weeks, which is of no consequence. Therefore, in these circumstances, the conviction and sentence imposed upon by the appellant is bad in law. 8. Shri A.K. Bansal, learned Additional Advocate General, forcefully argued that if the statement of prosecutrix is seen as a whole it clearly establishes that she was raped by the appellant and immediately after the alleged incident she made a complained to her father PW5 Tegu Ram. Shri Bansal, also made the reference of the statement of Ishri Devi and Besru Devi and concluded that even their statements do offer necessary corroboration to the statement of the prosecutrix which bears a ring of truth. Therefore, the impugned judgment of conviction and sentence cannot be faulted. 9. I have carefully considered the rival contentions of the parties and have meticulously re- appraised the evidence on record. 10. As per the case of the prosecution, the prosecutrix suffers from the mental retardation since her childhood. On 14.2.2007 she was brought for the medical examination to Regional Hospital, Kullu, but she did not - 7 - give any consent nor cooperated for medical examination. The doctor issued the necessary certificate. Thereafter doctor referred her to the Department of Psychiatry, I.G.M.C., Shimla for her mental assessment, as per endorsement, Ext.PB. Thereafter, she was examined by PW1 Dr. Ravi Chand Sharma, Professor and Head of the Department of Psychiatry. Dr. Ravi Chand Sharma aforesaid assessed her mental condition and she was diagnosed as a case of “Moderate to severe mental retardation”. His detailed examination report is Ext.PA. Significantly, his statement has not been challenged in his cross-examination on behalf of the appellant. Thereafter PW12 Dr. Prabha Lal medically examined the prosecutrix on 8.3.2007 as advised. Doctor noticed old tag of hymen tear at 4 o’clock and 10 o’clock and introits admitted index finger. On the perusal of the report of the chemical examiner, the doctor opined that the possibility of sexual intercourse more than two weeks cannot be ruled out and issued the Medico Legal Certificate Ext.PH. 11. Now coming to the statement of the prosecutrix, after the learned trial Court satisfied itself that the prosecutrix was capable of giving rational replies to the questions being put to her and she understood the sanctity of oath at that time, her statement was recorded in the questions and answers form. She identified the - 8 - appellant as rapist. She fully corroborated the prosecution story and categorically stated that she was subjected to rape by the appellant on the floor on a mattress in the room of her house. She also identified her wearing apparels Ext.P1 and P2 and the mattress Ext.P3 to be the same. 12. In her cross-examination she stated that at the time of the alleged rape she raised cries and her aunt came there. She specifically denied that the appellant did not catch her from her hair and gagged her mouth and also denied that he did not commit rape on her. However, to a question put in defence she admitted that she was deposing at the instance of her father PW5 Tegu Ram, but there is absolutely nothing on record nor suggested to show that she was tutored to implicate the appellant falsely. Her narration is duly corroborated by her father PW5 Tegu Ram. He stated that the prosecutrix was alone in the house. When he reached the house around 7.00 pm, he noticed that the prosecutrix was weeping. On having been asked in the presence of her mother, she narrated the entire story to them about the rape having been committed by the appellant. He further stated that the prosecutrix also informed that when she raised alarm, PW9 Besru Devi and PW6 Ishri Devi came to the spot and appellant made escape. Next day, the matter was - 9 - reported to the police and the prosecutrix was subjected to medical examination. In cross-examination he also stated that the appellant was caught by Besru Devi at the time of alleged incident. He specifically denied that on account of the refusal of the appellant to marry the prosecutrix he was falsely implicated in the case. 13. PW6 Ishri Devi stated that while returning to her house came across some children who were playing nearby. They apprised her that the prosecutrix was caught by the appellant and has been taken inside the house. On hearing this, she rushed to the house of the prosecutrix accompanied by Urmila Devi and Ahlaya Devi. They found the door bolted from inside. They peeped inside and knocked at the door and found the prosecutrix alongwith appellant lying on the “KHIND” (mattress). The door was opened by the prosecutrix. She had worn the ‘Salwar’ from reverse side. Her hair were scattered. She was told by Ahlaya Devi and Urmila Devi to remain sit outside the house till her parents came there. She identified the appellant to be the same person present in the room and also stated that the prosecutrix told her that her clothes were put-off by the appellant and she was raped. She also stated that the prosecutrix was mentally retarded. - 10 - 17. In cross-examination, she stated that she was residing in the house opposite to the house of the prosecutrix. Nobody was present in the adjoining houses at the relevant time. She also stated that the prosecutrix disclosed the name of the appellant to her and she asked him to come out, but appellant remained inside and wrapped himself in the Mattress. Though she could not recognize him as he had folded the Mattress around him, but she stated that the prosecutrix told her that the appellant was inside the house. 18. Although, PW9 Besru Devi was declared hostile, but she stated that the prosecutrix is a mentally retarded person. She stated that on the day of the alleged occurrence some guests had visited her house, which was situated nearby to the house of the prosecutrix. She noticed that the prosecutrix was sitting outside her house and the appellant was inside the house and was drunk. She asked him about his presence there, on which he disclosed that he had come to the house of his sister. Thereafter she returned back. She further stated in cross-examination conducted by the learned Public Prosecutor that the appellant had agreed to pay a sum of `20,000/- to the father of the prosecutrix. 19. On the reappraisal and critical examination of the aforesaid evidence, I do find that the prosecutrix is a - 11 - truthful witness and narrated the entire incident without mincing any word. Although, she stated that she made the statement as instructed by her father, but there is nothing unnatural but must be strict to the truth. Further, her testimony finds corroboration from the statements of PW6 Ishri Devi and her father who noticed the prosecutrix weeping and on having been asked, she narrated about the incident to him, as stated before the Court during her examination. The statements of Ishri Devi (PW6) and Besru Devi (PW9) aforesaid established the presence of the appellant in the house of the prosecutrix at the relevant time. PW6 Ishri Devi also stated about the condition of the prosecutrix, when she came out from the room her hair were unmanaged and she was wearing her ‘Salwar’ in a disorderly way and noticed her weeping. PW9 Besru Devi has also not ruled out the possibility of the presence of the appellant, rather stated that the appellant was found present in the room and was intoxicated. 20. Further the defence raised in the cross- examination of PW5 aforesaid that he wanted to solemnize the marriage of his daughter with the appellant, was denied. It is only a suggestion put and denied and could not probablise the defence that it was a false case foisted upon the appellant on account of such refusal. - 12 - 21. The conduct of the appellant also lends support to the prosecution case. When PW6 aforesaid requested him to come out, he had wrapped himself in the mattress to camouflage his identity. Therefore, the above noted proved circumstances noted by the learned trial Court stand clearly establish, the complicity of the appellant with the offence charged, as such the learned trial Court rightly recorded the conviction of the appellant for the offence punishable under Section 376 of the Indian Penal Code. Since the appellant took undue advantage of the mental condition and helplessness of the prosecutrix, no leniency in sentence can be shown to him. 22. For the above reasons, the impugned judgment of conviction and sentence requires no interference, therefore, the appeal is dismissed. May 3, 2011. (Surinder Singh), J. (rc)