IN THE HIGH COURT OF HIMACHAL RADESH SHIMLA Cr. Appeal No. 460/2003 Judgment reserved on 16.9.2011 Date of decision: 28 .10.2011 Rai Singh and another …..Appellants Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Mr. Anup Rattan, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. Surinder Singh, Judge. The appellants were tried along with their accomplice Major P.C. Nag for offences punishable under Sections 366 and 376(g) Indian Penal Code for allegedly committing the offence of rape on the prosecutrix (19 years). At the end of the trial, Major P.C. Nag was acquitted whereas the appellant herein to be referred as “accused persons” were convicted and sentenced under Section 376 (g) to undergo rigorous imprisonment for a period of 7 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - years each and to pay a fine of ` 1,000/- each and also under Section 366 Indian Penal Code rigorous imprisonment of three years each and to pay a fine of `500/- each with the default clause. Fine if realized was ordered to be paid as compensation to the prosecutrix. 2. Accused persons felt aggrieved as such filed the present appeal which was admitted for hearing and their sentence was suspended in Cr.M.P. No. 549 of 2003 by this Court on 22.10.2003. 3. In brief, prosecution case, as emerges from the evidence on record can be stated thus. Prosecutrix a graduate, was employed as a teacher w.e.f. 10.5.2001 in private Public School Ichhi District Kangra. After about 3-4 days of her appointment, one Shri Avtar Mongra, a family friend visited her house and informed her father that a Major in the Army has arranged a job of telephone operator for her in the Yol Cantt., thus he would get them introduced with Major P.C. Nag [acquitted accused]. (ii) On 9.6.2001, said Shri Avtar Mongra introduced her to Major P.C. Nag at his residence. Major Nag informed her about the said vacancy - 3 - and assured her to further take her to the place on 13.6.2001 to introduce her to the concerned officer. (iii) On 13.6.2001 Major P.C. Nag visited her School around 2.15 p.m. and told her to accompany her in his car to visit said officer but she was reluctant as her chappal required mending and told him that she would reach the place by bus. Major Nag told her to take her own time to get her chappal repaired and would take her to the said place in his car. After doing needful, prosecutrix accompanied Major Nag to Yol Cantt. through a short-cut. Around 3 p.m. they reached on the gate of Yol Cantt. Major Nag inquired from the gate-Keeper regarding the officer concerned but he was informed that he would be available around 4 p.m. Prosecutrix asked him to wait there only, for sometime but Major Nag took her to Canteen but it was closed. (iv) Thereafter Major Nag offered her a trip to Chamunda temple, she declined as she had already visited the said place many times. Then Major Nag took his car on Serathana-Ronkher road. On reaching village Serathana they returned around 3.20 p.m. back to the Yol Cantt. Major Nag told her that since they still have time therefore, they should go towards Golf Club. Thus, instead of stopping the - 4 - car in Yol Cantt., he straightway took the vehicle ahead towards village Banoraru from where he diverted the car to the link-road and headed towards village Barwala. Prosecutrix asked him that it was village Barwala as per sign-board, then he reversed the car to Yol Cantt. side. (v) On their return, the car was blocked by a parked Scooter on the middle of the road and accused-appellants Rai Singh and Parveen Kumar standing beside it. (vi) The appellants inquired from Major Nag what relation he had with the prosecutrix. In turn he introduced himself as Major in the Indian Army and the prosecutrix as his niece. She also told the accused persons that she was going with her uncle for a job and what problem they had in it. On this, accused persons told Major Nag that now the prosecutrix would not go with him and they would take her along with them. When the prosecutrix refused, some heated arguments exchanged between them and accused Rai Singh told her that he was a well known figure of Kangra District and gave a slap to the prosecutrix and threw her on the road. She stood up and occupied seat in the Car. Then accused-appellants along with Major P.C. Nag - 5 - went few steps on the back side of the car. She did not know as to what transpired between them. Thereafter Major Nag sat on the driving wheel of the car and accused Rai Singh occupied front seat. She kept on sitting on the rear seat and Major drove off the car towards Yol Cantt. After covering some distance, accused Rai Singh asked Major Nag to return but he objected and took his car towards Barwala side. Another accused Parveen followed the car on his Scooter. At a distance of about 1 k.m. accused Rai Singh asked Major Nag to stop the car and took charge of the vehicle and told accused Parveen that he would stop the vehicle at some point and asked him to follow on Scooter and also told to inform S.P./DC etc. and call them to the spot. He also pretended to make telephonic calls. On this Major P.C. Nag told him not to do so. Thereafter Major Nag and Rai Singh came out of the vehicle and they along with Parveen accused went ahead at some distance from the vehicle and had some talk with each other. Thereafter, accused Rai Singh and Parveen Kumar came back and occupied the seat in the car while Major Nag remained standing by the side of the Scooter. - 6 - (vii) Rai Singh drove-off the car to some distance and then stopped . From the steering wheel, he came to the rear seat where prosecutrix was sitting. Parveen Kumar went out side the car and Rai Singh started teasing her. She cried and requested him not to touch her but he rapped her. Thereafter he went out side and Parveen Kumar entered the car. He also raped her. During this time Rai Singh stood guard out side the car. Then Rai Singh took the car where Major Nag was standing. The accused persons threatened her not to tell about the incident to any one. (viii) Thereafter Parveen Kumar and Rai Singh accused persons left the place on their Scooter and Major Nag brought the prosecutrix to her village and dropped her outside her house. During this time, she is alleged to have disclosed him about the incident but he kept mum. (ix) On reaching home, she did not disclose about the incident to any one because of the threats of the accused persons and was also under tremendous fear. (x) On 18.6.2001 she went to Dharamshala to inquire about the result from a stationery shop who was having gazette. At Kachehri Adda - 7 - Dharamshala when she was standing, a boy approached her and told that she was being called by the person sitting in the vehicle. On seeing towards that direction she noticed that accused Rai Singh was there who had ravished her on the day aforesaid. She did not talk to that boy. In the meantime, bus came and boarded the bus towards Kangra. That boy also entered the same bus. Accused Rai Singh followed the bus in his car and at the place known as “Mastpur, she de-boarded the bus and the boy also alighted from there. Prosecutrix followed a kacha-road and started running but accused Rai Singh followed her in his car but the prosecutrix through a short-cut entered a house. She found a girl sleeping inside the house. When she entered inside the gate she got up. The prosecutrix pointed out Rai Singh accused and told that he was following her in a car and she should not open the door. The girl peeped through the window of the house and told that the person in the jeep was her brother and besides him was accused Rai Singh. The girl opened the door for her brother. Accused Rai Singh along with brother of the girl came inside the room. - 8 - (xi) Accused Rai Singh started threatening her and told her that she should accompany him to the desired place lest he would lift her from out side the School and pelt stones on her house. On this, she left the place for her house whereas accused Rai Singh remained sitting. (xii) On reaching her house, nobody was present. Her mother came around 5 p.m. and the prosecutrix narrated about entire incident of that day as well as about the rape. Her father was not there. Her mother told him whatever had happened with the prosecutrix. (xiii) On 22.6.2001, prosecutrix accompanied by her mother and cousin Uma Dhiman, Advocate reported the matter to the police in terms of FIR Ext. PW3/A. (xiv) Prosecutrix was got medically examined. She also handed over her wearing apparels Salwar Ext. P1 and Kameej Ext. P2 to the police which were worn by her at the time of the alleged incident. These clothes were sealed in a packet and were taken into possession vide memo Ext. PW3/C. She also pointed out the place of the alleged incident where she was allegedly raped by the accused persons. Police prepared the site plan Ext. PW12/B. - 9 - (xv) On 28.6.2001, prosecutrix had gone to Gaggal to purchase some articles to her mother. She noticed another accused Parveen Kumar standing at Gaggal Chowk. On seeing him, she retracted. Per chance she noticed that PW13 Dy. S.P. Umapati coming in a jeep. She stopped it. She informed him that she had come for purchasing some articles and pointed out that another rapist was accused Parveen Kumar standing nearby and due to his fear she could not proceed further. Dy. S.P. apprehended the said accused after ascertaining his identity. (xvi) Since prosecutrix was Lohar by caste, i.e. scheduled caste thus the matter was investigated by PW13 Dy. S.P. Uma Pati as according to the prosecution, it was also an offence under the Scheduled Caste and Scheduled Tribe (Prevention of Crime) Atrocities Act, 1989. (xvii) Accused persons were arrested and were medically. Both were found fit to perform sexual intercourse. Police also took into possession the clothes of accused Parveen Kumar from his house and sealed vide memo Ext. PW13/A. They also took into possession Scooter of Parveen Kumar vide memo Ext. PW13/B. Maruti car of Avinash Mongra - 10 - brother-in-law of Major P.C. Nag was taken into possession vide memo Ext. PW13/C. Police also obtained the scheduled caste certificate Ext. PW7/A of the prosecutrix from the S.D. M concerned. Wearing apparels of the accused persons as well as that of the prosecutrix were sent for forensic examination. As per report Ext. PW13/D, salwar Ext. P1 and shirt Ext. P2 of the prosecutrix, was found to have semen stains. 4. After completing the investigation, challan was presented in the court for the trial of the accused persons. They were accordingly charge- sheeted for the offences aforesaid to which they denied and pleaded not guilty. As such prosecution examined its witnesses to prove the charges against them and the accused persons were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon them were denied by each of them. They pleaded innocence. According to Major P.C. Nag, the allegations against him are incorrect though she took the prosecutrix to Yol Cantt. to introduce her to the officer concerned and also stated that nothing was revealed to him by the prosecutrix when she was being driven on the way - 11 - to her residence. However, he admitted having met the other accused persons. He expressed his resentment when they threatened to take her along with them. Other accused persons denied all the circumstances put to them. 5. When called upon to enter into their defence, they examined DW1 Devinder Mongra @ Nishu and DW2 Ranjeet Sharma. 6. DW 1 stated that his house is located opposite to the house of Avinash Dogra, Advocate at Ichhi. Since the police was enquiring about him and had visited his residence thus on 22.6.2001 he went to police Station Dharamshala around 10/10.20 a.m. He saw the prosecutrix and her mother there. Advocate Uma was also present. Accused Rai Singh was in the police Station. Prosecutrix saw him for about 4/5 minutes and then told that he was not that person. DW 2 Ranjeet Sharma a contractor stated that accused Parveen Kumar visited him on 28th but he did not remember the month and told him that police was searching him since he knew Dy. S.P. thus he took him to the Dy. S.P. and was arrested. 7. Learned trial Court on the strength of the aforesaid evidence disbelieved the defence version, - 12 - but while relying upon the prosecution evidence acquitted Major Nag, whereas convicted and sentenced other accused persons who are now in appeal. 8. Shri Anup Rattan, learned counsel for the convict-appellant forcefully argued that they are not the real culprits involved in the crime. In fact, they have been made scape-goat. He also referred to the evidence on record and submitted that to save Major Nag this case was falsely concocted upon them. He further tried to pin-point out the discrepancy in the statements occurring here and there and further ventilated that the semen stains found on the wearing apparels of the prosecutrix could not be connected with any of the accused persons. According to him, statement of the prosecutrix could not be taken as gospel truth. He also placed reliance on the judgment of apex Court in Tameezuddin @ Tammu versus State (NCT of Delhi) (2009) 15 SCC 566 and Raju and others versus State of Madhya Pradesh (2008) 15 SCC 133 . 9. On the other hand, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and further argued that the testimony of the - 13 - prosecutrix is worth inspiring confidence which was rightly acted upon by the learned trial Court. He further argued that though the accused-persons are local residents who were not known to the prosecutrix, prior to the alleged incident but there are no allegations of acrimonious relations with the prosecutrix, thus no reason to implicate them falsely. He also ventilated that the statement of the prosecutrix is worth confidence inspiring and find material corroboration from the record. 10. I have thoughtfully considered the rival contentions of the parties and have carefully and cautiously re-appraised the evidence on record. 11. The prosecutrix, in the instant case, specifically stated about the involvement of the accused persons having committed rape on her. It was also not the case of a mistaken identity as it was done in the broad day light. Further, she identified Praveen Kumar present at Petrol Pump Gaggal and pointed out him to Dy. S.P. Umapati from where he was arrested. Similar is the case of co-accused Rai Singh Though the accused persons examined DW2 Ranjit Sharma who is alleged to have taken the accused Parveen along with him in order to falsify the version of the prosecutrix that he was not - 14 - arrested, as stated by the prosecution and that he was produced by DW2 Ranjit aforesaid. Significantly this version was not put to PW13 Dy. S.P. Umapati to whom Ranjit Sharma aforesaid claims to have known him personally and he had taken the accused to him as the police was searching for him. Therefore, the plea as raised by accused Parveen Kumar cannot be accepted. 12. Further the prosecutrix, as already stated above, categorically stated about the involvement of the accused persons with the offences aforesaid. She was subjected to meticulous cross-examination by the accused persons but she maintained about their involvement qua the offences charged. She specifically stated that she knew accused persons, prior to the incident only by face and not by name and in the evening of 21.6.2001 she came to know about the name of Parveen Kumar because his mother-in-law and wife visited their house requesting them not to name him since they had come to know about making of the complaint to the police and requested her to save him. Police also produced one Narinder Mongra @ Nishu (DW-1) on 22.6.2001 with respect to this case but she denied that he was not the another accused. She also stated that in - 15 - the FIR Ext. PW3/A she did not name Nishu Mongra as a rapist but it was Rai Singh accused who had revealed about his name. To this effect, she was confronted with her statement made in Ext. PW3/A to which she denied as having been recorded by the police itself. She further stated that she could not give the registration number of the Scooter because she was puzzled. She disclosed that she had family relations with Avinash Mongra and his family. Some statement was prepared by him on a stamp paper and she did not know if that document was given to the police by him. She admitted that she might have seen Rai Singh while coming to School for dropping his children. She further stated that she had married a boy who was his fiancé but despite her marriage she remained in the parental house and that marriage still continued. She further stated that she apprised Ms. Uma on 21.6.2001 about the incident at that time two other Advocates S.C. Sharma and one more person were present there. In nutshell, she denied the case of mistaken identity of the rapist. Though she stated about having mentioned the rape having been committed by the accused persons. - 16 - 13. PW4 Shreshta Devi mother of the prosecutrix stated that on 13.6.2001, her daughter had gone with co-accused Major Nag to Yol Cantt. and in the evening at 5 p.m. she was left out side her house. Though she was weeping at that time but did not tell anything. Thereafter she did not go to the School where she was employed. But in the evening on 18.6.2001 after School, she went to Dharmshala in connection with inquiry of her result. She had inquired if anybody uttered anything to her in the School, it was then she disclosed that on 13.6.2001 about 2.15 p.m. Major Nag met her out side the School, took her to Yol Cantt. to introduce her with some officer with respect to providing the job to her and narrated the entire story about the incident having been committed by the appellants on that day with the prosecutrix and also the subsequent incident which took place on 18.6.2001, as stated by the prosecutrix. She further stated that her husband was not in the house as he returned on the next day, i.e., on 19.6.2001 and informed him about the incident as stated to her by the prosecutrix. To save the honour of the family, they decided to keep mum. But after giving second thought that the prosecutrix was the eldest daughter in the family has - 17 - to go out for various purposes like taking medicines etc, she might not be kidnapped by the accused persons so they decided to report the matter to the police. Thereafter they went to S.P. office Dharamshala but he was not there. They left the report there but there was no action thereon. Thus on 22.6.2001, she along with prosecutrix lodged report Ext. PW3/A. She also proved the memo Ext. PW3/C vide which Salwar Ext. P1 and shirt Ext. P2 pertaining to the prosecutrix were taken into possession. These clothes remained in the house unwashed. In cross examination, she stated that Uma is a lawyer and is the daughter of her brother. She occasionally visit their house. According to her, her statement was recorded on 22.6.2001 and with respect to recovery of the clothes on 23.6.2001. She also stated that the complaint which was made to S.P. was written by Uma aforesaid which was got typed at Kachahri Adda from a typist. She further stated that when they visited the police Station, she remained sit out side whereas Uma Advocate and prosecutrix went inside. She further stated that accused Parveen Kumar was seen by her at Gaggal and not in the police Station, as alleged. She also stated that on 21.6.2001, Sh. S.D. Sharma Advocate - 18 - for the accused along with Navneet particularly pointing out towards him, stated that they had visited their house to offer money for effecting compromise. She denied that accused persons were falsely implicated in the case. 14. PW5 Pardeep Kumar stated that he was driving the jeep of Om Parkash. When he came back to Mastpur after delivering the articles, a boy met there and took the lift, earlier that boy talked with his brother and went along with them to their house to settle marriage with the prosecutrix. Both of them conversed for 2/3 minutes and thereafter left the place. On this statement, he was declared hostile but he stated that when he reached there, prosecutrix was sitting inside in the company of his small daughter. By his statement, at least, one thing is clear that the prosecutrix was admittedly in his house in the company of the small girl, who was found by the prosecutrix when she was chased and entered in that house which corroborates her story with respect to chasing by accused Rai Singh. 15. The wearing apparels of the prosecutrix, as already stated above, were taken into possession by the police and deposited with PW8 MHC Surjeet Chand which were further sent through PW9 HHC - 19 - Vishamber Chand to Forensic Science Laboratory Junga for its examination. PW13 Dy. S.P. Umapati stated having sent these clothes for chemical examination and the report is Ext. PW13/B which confirms the semen stains on the unwashed salwar Ext. P1 and the shirt Ext. P2 of the prosecutrix which the prosecutrix was wearing on the day of the alleged incident. The recovery of the clothes of the prosecutrix has not been assailed nor disputed in the cross examination of the prosecution witnesses. 16. PW14 Dr. Madhu Kaistha had examined the prosecutrix on 22.6.2001 with the alleged history of sexual assault on 13.6.2001 around 4 p.m. by two persons near Barwala in a vehicle. The prosecutrix had revealed this story herself to the doctor. During the trial, doctor identified her to be the same person. She further stated that there was history of resistance by the victim but there was no history of bleeding or injuries on her person. Hymen was torn with radiating tears. There was no vaginal tear. Cervix was healthy with nullyiparous os. Vaginal swabs were taken to examination but there was no suggestion that sexual intercourse had not occurred. She issued the Medico legal certificate Ext. PW14/A. After examination, the chemical report is Ext. PW13/D which confirms semen - 20 - stains on the clothes of the prosecutrix. She gave her opinion Ext. PW14/B. This is in all the evidence of the prosecution adduced on record. 17. On the critical examination of the aforesaid evidence, it remained unchallenged that on the day of the alleged incident, prosecutrix was wearing salwar Ext. P1 and shirt Ext. P2 and further that these clothes were unwashed and were taken into possession by the Police. The semen stains were detected on the forensic examination. The evidence is suggestive of, that there has been sexual intercourse with the prosecutrix. According to the prosecutrix, she was