IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 31 of 2002. Judgment reserved on: 26.3.2009. Decided on: March 30th,2009. __________________________________________________________ Deep Ram. ……..Appellant. Versus State of Himachal Pradesh. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. G.S. Sisodhia, Advocate, vice counsel. For the respondent : Mr. J.S. Guleria, Assistant Advocate General. _______________________________________________________ SURINDER SINGH,J: The challenge has been made to the judgment of conviction, passed by the learned Additional Sessions Judge, for the offence punishable under Section 376 of the Indian Penal Code in Sessions trial No.10/2000 whereby the appellant has been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.5,000/-. A- Prosecution Story. In brief the facts giving rise to the present case are that the prosecutrix is a Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - widow aged about 35 years. She was residing in village Malhani with her two sons and a daughter. She was provided financial help by the Government under Gandhi Kutir Yojna to construct the house. On 20.1.2000, she was called by the Block Development Officer (B.D.O.) in his office at Karsog. After attending his office, in the afternoon at about 1.00 p.m., she started on foot to her village, as she had no money. The appellant her co-villager, who happened to meet her on the way told her to accompany him to the village, but she kept on walking ahead. When they reached in a “Charkufri” forest, which was a lonely place away from Karsog, the appellant caught hold of her from her back, threw her on the ground, gagged her mouth with her Dupatta and told that he would be followed by two other persons as well. She tried to raise alarm, but the appellant put his hand on her mouth. Thereafter, forcibly removed her Salwar and committed sexual intercourse with her without her consent. She became unconscious. Finding herself in the hospital at Karsog, she came to know that it was the appellant who had brought her there and had informed her in-laws - 3 - telephonically. On receiving the information, her father-in-law rushed to the hospital. Her private part kept on bleeding, thus she was referred to Kamla Nehru Hospital, Shimla. She disclosed about the history of rape to the Doctor attending her and he informed police post Lakkar Bazar in the evening on 21.1.2000 at about 5.30 p.m., she made the statement under Section 154 of the Code of criminal Procedure Ex.PW1/A to the police, which was sent to Police Station Karsog for recording FIR and further investigation. On the basis of the statement, FIR was lodged under Section 376 of the Indian Penal Code. The prosecutrix was initially medically examined by PW3 Dr. Ramesh Chand in civil hospital Karsog on 20.1.2000 at 4.06 p.m. The history of the report of her treatment in the hospital at Karsog is Ex.PW3/A. In his opinion, injury in the vagina of the prosecutrix was possible with the forceful introduction of the male organ. PW4 Dr. Anjali Soni Gynecologist further examined the prosecutrix in the Kamla Nehru Hospital. According to her the - 4 - prosecutrix told about sexual assault on her on 20.1.2000 at 2 P.M. while on her way to the village. She had changed her underwear and salwar after the incident, but did not take bath. According to the lady Doctor, there was laceration over the posterior walls of her vagina measuring 2.5 to 3 cm in size in the upper 1/3rd of the vagina, which was actively bleeding. She took the vaginal swabs for examination of spermatozoa. Stains of blood marked over the shirt and were sent for chemical examination. During the investigation, she handed over her blood stained Salwar Ex.P1 and Dupatta Ex.P2 to the police which she was wearing at the time of alleged occurrence. It was taken by the police vide seizure memo Ex.PW1/B, in the presence of Mohan Lal and Shyam Lal. The prosecutrix took the police party to the place of incident in Charkufri forest and identified the place where she was ravished. From the spot, the police took into possession blood stained two small stones Ex.P3 and pine needles Ex.P4, vide memo Ex.PW1/C. - 5 - On the receipt of the report of the Chemical Examiner, Ex.PX from the Forensic Science Laboratory, Dr. Anjali Soni opined that the cause of bleeding was forceful coitus with the prosecutrix. She proved the Medico Legal Certificate Ex.PW4/C in respect of the prosecutrix. After completing the challan, it was presented in the court for the trial of the appellant. Finding a prima facie case against him, the appellant was charge-sheeted. He pleaded not guilty and claimed trial for the offence aforesaid. To prove its case, the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. B-DEFENCE OF THE ACCUSED-APPELLANT. In his statement, he admitted that although he was accompanying the prosecutrix on the said day and time, but he did not commit any rape upon her. He raised the defence that the prosecutrix fell down on the way and the injury on her person started bleeding profusely. Seeing her injured condition, he took her to the hospital at - 6 - Karsog, where she was got admitted by him and he had helped in bringing the medicine for her as advised by the Doctor. He had also telephonically informed the family members of the prosecutrix about her illness. According to him, she was instigated to make aforesaid allegations against him by her in-laws as they were not pulling well with him. Thus, he was implicated in a false case. The appellant was also called upon to enter into his defence. He examined DW1 Amar Singh and DW2 Dayal Singh. The defence taken was not relied by the learned trial Court. At the end of the trial, the appellant was convicted and sentenced as aforesaid. Thus, he made the challenge in this appeal against the judgment of conviction and sentence. C- Contentions before this Court. Shri G.S.Sisodhia, learned counsel appearing for the appellant vehemently argued that the learned trial court did not appreciate the evidence on record in the right perspective and it ignored the fact that it was the appellant, who provided the medical aid to the prosecutrix in a most humane and compassionate manner. Further - 7 - that the defence of the appellant was ignored without any rhyme and reason. He also argued that the prosecutrix did not disclose even to the Doctor who had treated her at Karsog about the alleged offence and involvement of the appellant. The story of rape was engineered against him because of inimical relations of the in-laws of the prosecutrix. He further urged that the testimony of the prosecutrix alone is not sufficient to convict the accused and he placed reliance to the judgment of this court in Prem Chand v. State of Himachal Pradesh [2000 CRI.L.J.951]. Contra, Shri J.S. Guleria, learned Assistant Advocate General while supporting the impugned judgment of conviction and sentence vehemently argued that in the instant case not only the prosecutrix has corroborated her version in toto, but her statement is corroborated in material particulars by the material circumstances on record and he draw my attention to the relevant part of the statements of the witnesses and linked it with the report of the Forensic Science Laboratory, which mentioned about the semen stains and blood - 8 - on the items collected from the spot and the clothes of the prosecutrix. D- Findings and reasons therefore by this Court. I have given my thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. It is a settled law that the testimony of a victim in case of sexual offence is of a vital importance, unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict the accused where her testimony inspires confidence and is found to be reliable, but seeking corroboration of her statement before relying upon the same as a rule, in sexual assault cases, it amounts to adding insult to the injury. In State of Punjab vs. Gurmeet Singh and others [AIR 1996 SC 1393] it was further observed by the Supreme Court that why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? - 9 - Thus, a principle of law laid down that the Court while appreciating the evidence of the prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the out come of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of the accused. The evidence of a victim of sexually assault stands almost at par with the evidence of an injured person and to an extent is even more reliable. Just as a witness, who has sustained some injury in the occurrence, which is not found to be self-inflicted is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Thus, corroborative evidence is not an imperative component of the judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. - 10 - Thus, if the Court finds the evidence of the prosecution is worth inspiring confidence, it must be relied upon without seeking corroboration of her statement without material particulars. Therefore, the statement of the prosecutrix is required to be analyzed in the aforesaid background of a settled law which has been followed in bed-roll of judicial pronouncements. As PW1, the prosecutrix has corroborated the prosecution case vividly and quite extensively, in clear terms. She testified on oath that she could not complete the construction of her house out of the assistance given by the Government, thus she visited the office of the B.D.O. on 20.1.2000. Thereafter, in the afternoon, she started her journey back to the village on foot through a short cut. When she was passing through the forest area “Charkufar”, the appellant came from behind. He was known to her being her co-villager. He followed her and asked her to accompany him as he was also going to the village. On hearing him, she started walking fast. The appellant caught hold her from behind, gagged her - 11 - mouth with her Chunni and picked her up and took her some place, which she could not see as her dupatta was wrapped around her face. Then the appellant laid her down on the ground, removed her clothes and loaded himself upon her and committed sexual intercourse with her. The appellant also declared that two more persons were accompanying him. According to her, he had sexually assaulted because of the previous litigation. She further stated that after the sexual assault, she became unconscious but gained her conscious in hospital at Karsog. She did not know who had brought her there. She saw her brother-in-law along with some family members present in the hospital. She did not know who had informed them, however, later on she came to know that it was the appellant who informed them telephonically. She further deposed that she was in a bad condition in the hospital as her private part was bleeding. Thereafter she was referred to the Shimla for her further treatment. Her brother-in-law accompanied her to Shimla. She was admitted in the hospital. She proved her statement Ex.PW1/A made to the police alleging rape. - 12 - She also stated that the police had taken into possession her Salwar Ex.P1 and Dupatta Ex.P2 vide memo Ex.PW1/B. She further stated that she accompanied the police party to the place of incident, where she was raped, got identified the place and the police took into possession the blood stained pine- needles, pieces of the stones Ex.P3 and soil Ex.P4, which were sealed on the spot, with some of the blood-stained stones vide memo Ex.PW1/C. In her cross-examination, she stated that though she was known to the appellant personally being her co-villager, but she had not been in talking terms with him. She admitted that the distance between Karsog and Charkufar forest is about 5 K.M. and said forest starts a distance of 3 K.M. from Karsog. She denied that she left the path to defecate and suddenly slip down and received injuries that thereafter she became unconscious. She had expressed her ignorance about the appellants having taken her to the hospital. She denied that the Doctor treating her in civil hospital had enquired from her as to what had happened. She stated that he did not ask the cause of bleeding - 13 - from her private part. She also stated that she did not disclose about the sexual assault, to anybody except by making statement Ex.PW1/A. She admitted the presence of the appellant in the hospital when her father-in-law, brother-in-law and other family members were there, however, she categorically denied that she was not sexually assaulted by the accused-appellant. PW5 Ishwar Singh stated that he received telephonic message from the appellant about the admission of the prosecutrix in the hospital and he passed over the message to PW4 Sahnu Ram, her father-in-law. PW2 Sahnu Ram, her father-in-law admitted that their family was in visiting terms with the accused. According to him, when he had reached the hospital, he found that her condition critical and the Doctor advised to take her to Shimla for immediate medical aid. He stated in cross-examination that the prosecutrix might not have disclosed the cause of bleeding to him due to shyness because of her close elderly relation with her. He specifically denied that the prosecutrix was forced by him and - 14 - other family members to lodge a false complaint against the appellant. As already stated above, PW3 Dr. Ramesh Chand Guleria had medically examined the prosecutrix in the civil hospital at Karsog. According to him, the prosecutrix was brought by Deep Ram appellant with the history of bleeding from her private part and on her examination, he found the lacerated wound on the right lateral walls of the vagina, which was profusely bleeding. When it did not stop, he referred the patient on 21.1.2000 for further treatment to Shimla. In his opinion, the injury was possible with the forceful introduction of the male organ in to her vagina, but despite the repeated enquiries, the prosecutrix did not disclose about the incident to him. PW4 Dr. Anjali Soni Gynecologist had attended her in Kamla Nehru Hospital at Shimla and treated the aforesaid injury. She had issued her Medico Legal Certificate and confirmed the reason for bleeding due to forceful coitus with her. PW7 HC Chandermani posted in Police Post Lakkar Bazar, Shimla, received the information from the Medical Officer of - 15 - IGMC, Shimla that the Prosecutrix was raped, thus he proceeded to the hospital and recorded the statement Ex.PW1/A of the prosecutrix and her statement was sent through C. Naresh Kumar to register a case in Police Station Karsog. He admitted in his cross-examination that a male person, who was attending her also informed him about sexual intercourse performed with her. PW9 ASI Vijay Sen, had investigated the case. He took into possession the underwear Ex.P5 of the accused, which he was wearing, vide memo Ex.PW9/A. It was sealed on the spot. On 22.1.2000 on the arrival of the prosecutrix after the discharge from the hospital, he associated the prosecutrix in the investigation of the case and visited the spot along with her accompanied by witnesses Shyam Lal and Mohan Lal. She identified the spot and he prepared site plan Ex.PW9/C. He also found blood stained pine-needles (chalaru), earth and one stone, which were blood stained and he also took into possession all the items vide memo Ex.PW1/C. The salwar Ex.P1 and Dupatta Ex.P2 were also produced by her, to which she was wearing on the day of the incident and were - 16 - taken into possession vide memo Ex.PW1/B on the same day. These clothes were sealed and he proved the samples of seal Ex.PW9/D and E which were taken on two separate pieces of clothes after the sealing process. The underwear of the accused and the apparels of the prosecutrix were sent for examination to the Forensic Science Laboratory, Junga. The report Ext.PX revealed that the underwear of the appellant which was taken into possession vide memo Ex.PW9/A on 21.1.2000 was blood stained, the blood stained earth, pine-needles (chalaru) and a piece of stone along with one blood stained stone were found to have the human blood and human semens. Further the Salwar Ex.P1 of the prosecutrix, vaginal slides, were found blood stained. Scarf of the prosecutrix was also found having blood stains. The shirt of the prosecutrix was also found having human blood stains. On the critical examination of the aforesaid evidence, the case stands fully proved by the statement of the prosecutrix, corroborated by the following material on record: - 17 - (i) the prosecutrix was alone while returning from Karsog. She followed short-cut from Karsog to her village through Charkufri forest. The appellant who was known to her being her co- villager, admittedly met her on the way and told her to accompany him as he was also going to the same village; (ii) the fact of sustaining the injury on the private part of the prosecutrix has not been denied by the appellant; (iii) from the statements of the Doctors and other witnesses, this fact stand proved that the appellant had brought the appellant to the hospital and got her admitted where the father-in-law of the prosecutrix PW2 Sahnu Ram reached on the information given by the appellant himself through telephone; (iv) the prosecutrix alleged the commission of rape by the appellant when she was in hospital at Shimla, to the lady Doctor of Kamla Nehru Hospital, who informed the police and police reached the spot and recorded her statement alleging rape by the appellant; - 18 - (v) the prosecutrix identified the place of incident from where blood stained stones, pine-needles and earth were taken into possession and were sealed, later sent for forensic examination, which confirmed the blood and semen stains thereon as stated above; (vi) the Salwar Ex.P1 was found to have blood and semen stains whereas, there was blood on the vaginal swabs as per the forensic report Ex.PX; (vii) the underwear of the appellant was found to have been blood-stained and contained semen stains; (viii) the statements of the doctors and also the forensic report unequivocally corroborated the fact that the injury in question was the result of forcible coitus with the prosecutrix thus the explanation of causing injury by a fall while defecating as propounded by the appellant is found to be false because, the prosecutrix did not sustain any other associated injury except the injury on her private part that too located deep in the vagina; - 19 - (ix) further the subsequent conduct of the appellant is also noticeable that he had also washed her Salwar in the hospital, as stated by the prosecutrix. The allegations of the rape by the appellants, in the above circumstances stands fully established beyond reasonable doubt as the testimony of the prosecutrix inspires confidence and it also finds corroboration from the material particulars on record. It is an admitted case that she was a widow, whereas the semen was found on her Salwar Ex.P1 and also on the pine- needles and stones Ex.P4 taken from the place of occurrence, for which the appellant has no explanation. It beats all the imagination as to how the semen was found on the pine needle and on the stone and also on her trouser Ex.P1, if the appellant did not commit the rape on her when admittedly he was accompanying her. He failed to explain above circumstances thus there is no escape but to hold that the prosecutrix was sexually assaulted by none else than the appellant. Thus, on the analysis of the evidence in the backgrounds of the case law, discussed above, in my - 20 - opinion the appellant was rightly convicted by the learned trial court as the offence of rape punishable under Section 376 of the Indian Penal Code as it stands fully established against him. The facts of Prem Chand’s case supra cited by the learned counsel for the appellant are different, however, there is no divergence of the principle of law as laid down by the Supreme Court for appreciating the case of the prosecutrix. However, a case State of H.P. vs. Lekh Raj and another [(2000)1 SCC 247] arising from this court has somewhat similarity wherein the semen was found on the salwar of widow was held one of the strongest circumstance to sustain the conviction passed by the trial court. Thus, for the foregoing reasons, the judgment of conviction and sentence requires no interference as such it is affirmed. The appeal sans merit, it is accordingly dismissed. Vide order dated 18.1.2002 the sentence of the appellant stand suspended by this court. He is directed to surrender before the learned trial court i.e. the learned Additional Sessions Judge, Mandi, within - 21 - one month from today to serve out the remaining sentence, failing which, the learned trial court shall take necessary steps to execute the sentence passed by it. The matter stands disposed of. Send down the records with an authenticated copy of this judgment. March 30th,2009. (Surinder Singh), (Pds) Judge.