Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.199 of 2011. Judgment reserved on : 29.11.2011. Date of Decision: December 6th, 2011. ------------------------------------------------------------------------------------------------------------- Prakash Chand. …… Appellant. Versus State of Himachal Pradesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ? Yes. For the Appellant : Ms. Archana Dutt, Advocate. For the Respondent : Mr. P.M. Negi, Dy. Advocate General. Surinder Singh, J : The appellant was convicted and sentenced by the learned trial Court in Sessions trial No.27/7 of 2006/03, decided on 4.6.2010, whereby he was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `5,000/- under Section 376 of the Indian Penal Code and also rigorous imprisonment for a period of one year and to pay a fine of `1,000/- under Section 452 of the Indian Penal Code, with default clauses. Both the substantive - 2 - sentences are ordered to run concurrently. The period spent by the appellant, hereinafter referred “the accused”, in custody during the investigation and trial was also ordered to be set off as per the provision of Section 428 of the Code of Criminal Procedure. Hence, the challenge to it has been made in this appeal. 2. Prosecution story in short is that the prosecutrix was a married woman aged about 37 years. She had three school going daughters. PW2 her husband was working as a Beldar in Public Works Department. On 24.10.2002, at 9 A.M., he had gone to Salnukhangad to attend his duties and her daughters had gone to school. Prosecutrix was having some pain and intended to visit Barmana to purchase some medicines, as such around 12 noon, she was getting ready. Suddenly the accused, who was not known to her barged into her room and bolted it from inside. As deposed by her as PW1, he caught hold of her arms and pressed her neck. He forced her to lie down on the bed. With one hand, he held her and with another broke open the string of her - 3 - Salwar and removed it completely with the aid of his leg. He pressed her stomach soliciting sexual intercourse and raped her. Another accused Rakesh Kumar (her brother-in-law) was outside and asked the accused whether he had the sexual intercourse or not. She identified the accused during the trial of the case and stated that after sexual intercourse, the accused left the place after taking his pant in his hand with co- accused Rakesh Kumar to his house. (ii) Thereafter the prosecutrix went to the house of Sihnu her relative and narrated about the incident. Thereafter went to the hospital to have some medicines and then to Police Station, Barmana, where she waited for her husband, around 6.30 P.M. she met him and revealed about the incident and lodged FIR Ext.PW1/A. She was got medically examined in hospital at Bilaspur. The doctor noticed two simple injuries on her person. - 4 - (iii) On 25.10.2010, police visited the spot and prepared site plan Ext.PW12/A of the place of alleged incident. They also took into possession Shirt Ext.P1 and Salwar Ex.P2 of the prosecutrix worn by her at the time of alleged incident vide memo Ext.PW1/B. (iv) Accused was arrested and was got medically examined. As per Medico Legal Certificate Ext.PW5/D, he was found fit to perform the sexual intercourse. Police also took into possession the MLC of the prosecutrix Ext.PW6/B. As per the report of the Forensic Science Laboratory Ext.PW12/D, the Salwar Ext.P2 was found having contained the human blood and semen and the Underwear Ext.P3 of the accused, which was taken into possession vide memo Ext.PW4/A contained the human semen. 3. After recording the statements of the witnesses, challan was presented in the Court for the trial of the accused as well as Rakesh Kumar. - 5 - The co-accused was acquitted for want of cogent evidence, whereas accused was convicted and sentenced as aforesaid. 4. Ms. Archana Dutt, learned counsel for the accused vehemently argued that the statements of the prosecutrix and other witnesses are contradictory and further that the recovery of the clothes of the prosecutrix are also doubtful, rendering the entire prosecution story as a suspect. Further Sihnu Ram was not examined to whom the prosecutrix is alleged to have disclosed the incident and the recovery of the clothes was an eye-wash. 5. Contra, Shri P.M. Negi, learned Deputy Advocate General, supported the impugned judgment of conviction and sentence and submitted that too much importance cannot be attached to the minor discrepancies, which do not go to the root of the case and further that the prosecutrix belongs to the remote tribal area of Himachal Pradesh, thus a girl or woman in the tradition bound non-permissive society would be extremely reluctant even to admit that any - 6 - incident which would likely to reflect on her chastity had ever occurred, being conscious of the danger of being ostracized by the society or being looked down in the society including her own family, relatives and friends. She will also not implicate a person falsely at the cost of above risk. He further ventilated that the prosecutrix has testified about the rape by the accused on her, which is worth inspiring confidence. Corroboration to her statement is not a sine quo non. He also argued that any or every irregularity or illegality committed by the Investigating Officer would not be fatal if otherwise the evidence on record proves the incident. 6. I have given my thoughtful consideration to the rival contentions of the parties and have closely, cautiously and meticulously scanned and reappraised the evidence of the prosecution. 7. The prosecutrix clearly stated when appeared in the witness box that she did not know the name of the accused prior to the alleged incident and she further testified that it was the accused and accused alone who - 7 - committed rape on her. Her testimony is sought to be assailed in cross-examination on the ground that the accused had visited her house to get an amount of `1,000/- back lent to her by him at Namhol, when she had come with a marriage party, as she stated to have lost `1,000/- somewhere, to which she denied. She also denied that she refused to return the money to him and that the accused had left the place by saying that would take money from her husband. She further denied that when the accused left the premises, she lodged a false case. In cross- examination, she stated that when the accused committed the sexual intercourse with her, she had raised hue and cry, but there was nobody to listen her in the vicinity as the people might have been busy in their work. She admitted that there is a common courtyard between her house and that of co-accused Rakesh Kumar but his parents at that time might have gone to the fields. She also stated that she had grappled the accused, to rescue herself and the accused got some minor injury on his head. - 8 - 8. Pertinently, in his statement under Section 313 of the Code of Criminal Procedure, the story of lending ` 1,000/- has not been mentioned by him. According to him, the witnesses deposed against him due to enmity between the family of the complainant and his family, but in this regard, no such suggestion has been asked either from her or from her husband and the cause of enmity is also not spelt out. 9. PW2 Lekh Ram her husband has lent corroboration to the statement of the prosecutrix. He stated that he returned from his duty on the day of the alleged incident in the evening at 6 P.M. He came to know from the children that his wife had gone to Barmana to bring medicine. He went for her search by bus at Barmana, he found his wife standing outside the Police Station. She revealed the entire incident to him. Thereafter, a formal report was lodged by them. Though the prosecutrix denied having gone to village Namhol in a marriage party, but in his statement, PW2 aforesaid stated that she had gone to Namhol, but he himself did not go there and stated that - 9 - the accused was also in the said marriage party. He also admitted that until his wife met him, he was under the impression that she had gone to bring medicine to Barmana and went to search her with a hope that she will met him in the hospital or in the medicine shop, as the Barmana is not a very big station and it is not surprising where he alighted from the bus he could notice his wife outside the Police Station nearby. He also stated that his wife was waiting for him and denied the story of borrowing ` 1,000/- from the accused, as suggested to the prosecutrix. 10. PW3 Basant Ram Sandhu stated that, Sihnu Ram had died about two years back from the date of his examination in the year 2010 and that was the reason that he could not be examined to substantiate the version of the complainant. PW3 is a witness to the seizure memo Ext.PW1/B of the shirt, whereas, PW4 Roshan Lal is the witness of taking into possession Underwear Ext.P3 of the accused vide memo Ext.PW4/A. - 10 - 11. PW5 Dr. M.L. Kaushal examined the accused and issued Medico Legal Certificate Ext.PW5/B. 12. PW6 Dr. J. Goswami had medically examined the prosecutrix. She noticed two simple injuries having caused within 24 hours i.e. contusions on her neck and haematoma over the right temple and no other mark of violence of any other part of the body was noticed. Prosecutrix was examined by her on the day of incident itself. She took the vaginal swabs and her Salwar Ext.P2 which was worn by her at the time of incident into possession. As per her final opinion Ext.PW6/B, the aforesaid injuries could be caused to her in a struggle to save herself from the clutches of the assailant. She also did not over-rule the possibility of rape. In cross-examination, she denied that injury No.1 noticed above could be caused by a fall. 13. The sample parcel of Salwar, duly sealed, was taken by PW8 C. Basant Ram for forensic examination vide RC No.110/2002, which was delivered by him in the Laboratory. On its - 11 - examination, as per report Ext.PW12/D, it contained the blood and human semen. 14. On the reappraisal of the evidence, I do not find that the story as projected by the accused could be probablised by him so as to implicate him in a false case. Prosecutrix is a rustic village belonging to the remote hilly area of Himachal Pradesh. I do not find any material contradiction in her statement, which goes to the root of the case. Otherwise also, the minor discrepancies, which do not go to the root of the case and shake the basic version of the prosecutrix cannot be annexed with undue importance, more so, when all the important probabilities-factors echoes in favour of the version narrated by the prosecutrix. 15. In Indian setting as aforesaid, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Otherwise also in the instant case, her immediate version given to Sihnu Ram (dead) could have only been stated by him had he been alive, but on the day of examination of - 12 - the witnesses in the Court, he had already expired. Therefore, the point taken by the learned counsel for the accused that for want of his support, the statement of the prosecutrix cannot be relied upon is worth rejecting. 16. Further the prosecutrix testified that she had tried to overt the sexual attack is also corroborated by the semen stains of her Salwar, which was identified and having been washed by her on the day of incident and further simple injuries found on her neck and also on the temple region, which synchronizes with the time of incident. There is absolutely no cogent reason of false implication of the accused in the instant case and the reason so supplied in the cross- examination though not explained by him in his statement under Section 313 of the Code of Criminal Procedure by the accused. It is inconceivable that a married woman would go to the extent of stacking her reputation in the society in order to falsely set up a case of rape on her for the sake of not returning an amount of ` 1,000/- - 13 - alleged to have been lending by the accused to her. 17. Further the husband of the prosecutrix was not present in the marriage at village Namhol, therefore, the presence of his wife and also the accused in that marriage though admitted by him would not be sufficient to dislodge the version of the prosecutrix nor this contradiction is enough to shake the basic fabric of the prosecution case. 18. Thus, for the afore stated reasons, I do not find any fault in the judgment of conviction and sentence passed by the learned trial Court, as such appeal is without any merits, hence dismissed. 19. Send down the records. December 6, 2010. (Surinder Singh) (Pds) Judge.