IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal No.438 of 2007 Reserved on: 26.8.2008 Date of decision: 5th September, 2008 Sonu Yadav Appellant Versus State of Himachal Pradesh Respondent ___________________________________________________________ Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Appellant: Mr. Rakesh Manta, Advocate. For the Respondent: Mr J.S.Guleria, Law Officer. Surinder Singh,J. The appellant was convicted under section 376 of the Indian Penal Code and sentenced to undergo simple imprisonment for a period of seven years and to pay fine of rupees Five thousand. In case of default in the payment of fine, to further undergo simple imprisonment for a period of one year, for allegedly committing rape on the prosecutrix aged about 13 years. The factual matrix of the case, giving rise to the present appeal, is that the family of the prosecutrix is Nepali. In the year 2005, the prosecutrix was a student of 5th standard. She was residing in a “Jhugi” (temporary house) in Sector 2, Parwanoo, District Solan (H.P.) with her parents. During the intervening night of 18/19th May,2005 she was found missing. Her parents searched for her in 1 Whether the reporters of Local Papers may be allowed to see the judgment ?yes. 2 the surrounding area, but they did not find her anywhere. During the same night around 3 a.m. the prosecutrix returned back and looked quite scared. Thus, she was not questioned for her absence but in the morning, she revealed that during the night, she had gone out to answer the call of nature, the appellant, who was working in a factory, met her. He took her to a lonely place and allured by promising her to marry. She remained in his company for some time and around 12.30 a.m. taking the benefit of the lonely place appellant committed rape upon her. When the prosecutrix raised alarm no body came to rescue. She along with her father went to the police station and lodged the FIR. Police got the prosecutrix medically examined from PW1 Doctor Ritu Jaswal. The prosecutrix gave the history of being raped by the appellant. On examination, the Doctor found vaginal secretion and took vaginal swab for its chemical examination. Clothes of the prosecutrix, which she was wearing at the time of alleged incident, were also sealed for the purpose of forensic examination. P/V:Hymen was not felt and vagina admitted one finger tightly. In the opinion of the Doctor, sexual activity could not be ruled out. The Doctor issued the medico-legal-certificate Ex.PW1/B. The prosecutrix was thereafter referred for radiological examination. PW3 Dr. Sandeep Jain, Radiologist, determined the skeletal age of the prosecutrix between 12½ to 15½ years, and issued the report and gave opinion Ex.PW3/B. X-rays Ex.P-1 to Ex.P4 with respect to shoulder, elbow, wrist, hip, knee and ankle joints of the prosecutrix were considered by him while determining the age of the prosecutrix. 3 The police obtained the certificate Ex. PW2/A from the Centre Head Teacher (PW2) posted in Government Primary School, Parwanoo. The date of birth of the prosecutrix in the Admission form was recorded as 9.12.1992 . which comes to about 13 years on the date of alleged incident. The police visited the spot and prepared the site plan Ex.PW8/C. The appellant was arrested. He was also medically examined. He was found fit to perform the sexual intercourse. As per report Ex.PW8/D of the Forensic Science Laboratory, salwar of the prosecutrix was found blood stained. Vaginal swab also contained blood as well as human seman. After completing the investigation, the challan was presented in the court for trial of the appellant. Appellant was charge- sheeted, under section 376 and 506 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined PW1 Dr.Ritu Jaswal, PW2 Santosh Dheer, PW3Dr.SAndeep Jain, PW4. Paramjeet Singh H.C. PW5 Banwari Lal HHC, PW6 the prosecutrix, PW7 Smt. Kaushalya Devi (mother of the prosecutrix) and PW8 Gurdial Singh Inspector. The appellant was also examined under section 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him. He raised the defence that he was in love with the prosecutrix and she frequently visited his place of work and she used to complain that her parents forced her to work in the houses, which she did not like. One day he had gone to Baddi to meet his father in his absence, the prosecutrix came to his residence 4 and inquired about his whereabouts from his friend. When she did not come to meet him next day, he visited her parents and inquired about her from her brother. He told him that she was not there then he spoke to her parents and t expressed his desire to marry the prosecutrix but they denied as they were Nepalese. When he insisted upon it, a scuffle took place. Appellant threatened to lodge a report against them but next day he was arrested by the police. In this case. The prosecutrix visited police station and told them and told them that he was innocent. The appellant was called upon to enter upon his defence. He only examined his father Ram Shankar Yadav (DW1). According to him, the prosecutrix had also visited him and told that she was in love with the appellant and wanted to marry him. Both were on visiting terms at each others place. He further stated that the appellant had gone to the house of the prosecutrix with a marriage proposal but he was given beatings by the parents of the prosecutrix. After hearing the learned counsel for the parties and upon going through the evidence on record, the learned trial court acquitted the appellant under section 506 of the Indian Penal Code but convicted him under section 376 of the Indian Penal Code and sentenced as aforesaid which has been challenged in the present appeal. Shri Manta, learned counsel for the appellant has vehemently argued that case of the prosecution is highly doubtful against the appellant and the testimony of the prosecutrix does not inspire confidence. The prosecutrix could not be proved to be less than 16 years. The medical evidence has over-ruled the forcible sex. 5 There are no marks of injury on her person and report of the Chemical Examiner is also doubtful. At the worst it could only be a case of attempt. On the other hand, Shri Guleria, learned Law officer for the respondent-State has vehemently argued that there are no major contradictions which falsify the case of the prosecution. The prosecutrix has been proved to be a minor and her testimony inspires confidence and is also corroborated in material particulars by other circumstantial evidence on record. The absence of injuries on the private part of the prosecutrix or on any other part of body would not disprove the prosecution case, in the light of the cogent and convincing evidence; therefore, the appellant was rightly convicted and sentenced. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and reappraised the evidence on record. By now it is well established that conviction for rape can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It has been held by the Supreme Court in State of H.P.versus Asha Ram: AIR 2006 S.C. 381, that the evidence of the prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the court should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable Corroboration as a condition for judicial reliance 6 on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given the circumstances. The prosecution case cannot be thrown out on the minor discrepancies if otherwise found to be reliable. In the above legal backdrop of the settled principles of law, I now proceed to examine the testimony of PW6 prosecutrix, corroborated by her mother Kaushalya Devi (PW7), PW1 Dr. Rita Jaswal and the report of the forensic Science (PW8/D), which was made the basis of conviction by the learned trial court. (PW6), the prosecutrix stated that on 18.5.2005 she was in the house of her Bua, which was at a walkable distance of 15 minutes from her “Jhuggi”. According to her, at about 9 p.m. she came out from the house and while going to toilet, when she had covered some distance she was called by the appellant and he followed her and he told that he liked her and expressed his desire to marry her. When she told that she was still studying, he started teasing and kept his hand on her breast. She shouted for help but none heard it. The appellant then opened her pyjama and raped her. Thereafter, she ran away to her house. She reached at her residence around 3 a.m. Appellant followed her. On reaching the residence she disclosed about the incident to her parents. Next day the report was lodged and she identified her signatures on the FIR Ex.PW6/A. She admitted having been medically examined by the Doctor. She further stated that her clothes, which she was wearing at the relevant time, were taken into possession by the Doctor and identified her shirt Ex.P6 and Salwar Ex.P7. 7 In the cross-examination she has stated that her Bua’s house was at a distance of 15 minutes from her house. She denied the suggestion that she was in love with the appellant and he had visited her house with a proposal of marriage. She also denied that her parents told him that they were Nepalies and the appellant was from U.P. and their culture was different, therefore, they would not marry the prosecutrix with him. She also denied that the appellant was given beatings by her parents, as he threatened to lodge a report in the police station against all of them. She admitted the suggestion that the place of occurrence was surrounded by the factories and houses and had concrete. She denied that she had changed her clothes after the occurrence. It is significant to note that the accused did not give any suggestion to her in the cross-examination that when he was arrested by the police, she had visited the police station and told that the appellant was innocent, as stated by him in his defence in his statement recorded under section 313 Cr.P.C. PW7 Smt. Kaushalya Devi, mother of the prosecutrix has stated that at the relevant time, her daughter was studying in the school, and used to work in the houses. On 18.5.2005, after doing the work, she came back at 3 a.m. and told her that she was raped by the appellant when she had gone to toilet. When her husband returned from Kasuali, she narrated the entire story to him and in the morning her husband and the prosecutrix went to the police station to lodge the report. She also denied the defence put by the appellant in his statement. 8 In cross-examination she stated that the prosecutrix had been working in the different houses after 5 p.m. for the last about 2 years and used to return around 8 p.m. but on 18.5.2005 she did not return as usual. She stated that she along with her husband had accompanied the prosecutrix to lodge the report in the police station and further that she did not change he clothes at that time. In the instant case, the prosecutrix has given a vivid account of the incident of rape, committed by the appellant at a lonely place. The site plan Ex.PW8/C shows at mark B the retaining wall of the Danga over which there was a concrete platform where the alleged incident took place. The said place was smooth; therefore, there is no question of getting the injuries on the back of the prosecutrix at the time of alleged rape, which according to the learned counsel for the appellant should have been there, in case she was raped on the concrete surface to corroborate her version. PW1 Dr. Rita Jaswal, has deposed that the prosecutrix gave the history of rape by the appellant at 9 p.m. on 18.5.2005 and they were together till 2.30 a.m. mid night. According to her, she was sexually assaulted by him, when she resented he dropped her at her residence at 3 a.m. corroborates the version of the prosecutrix. From the circumstances on record it also appears that the appellant had the liking for the prosecutrix and the prosecutrix might have started confiding in the appellant and her confidence reposed on the appellant was defied by the appellant by committing rape. The Doctor on her examination although did not find any external injury but found the vaginal secretions. The Doctor took two 9 vaginal swabs for chemical examination, clothes, shirt and Salwar alleged to have worn during the episode were also taken into possession, sealed and sent for further examination to the Forensic laboratory. The forensic report, Ex.PW8/D shows that Salwar Ex.P7 was found having human blood as well as semen, which corroborates the version of the prosecutrix with respect to rape. The argument raised by the learned counsel for the appellant that it could be a case of attempt, is incorrect, because it was not a case of ejaculation. The definition of “rape” as contained in section 375 IPC refers to “sexual intercourse” and the explanation appended to it provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape and the “Sexual intercourse” means sexual connection. In the instant case, though on the medical examination, the Doctor did not find visible injuries but the vaginal swabs taken by the Doctor contained human semen but it could not have entered the vaginal canal of the prosecutrix unless there was a penile penetration and the prosecutrix in her statement had made it clear that the appellant had raped her and she means that only. From the above evidence it stands proved that the appellant had committed the sexual intercourse with the prosecutrix. The learned counsel for the appellant further argued that in any case it was a case of consent as made out from the evidence on record. Though will and consent often interlace and act done against the will of prosecutrix can be said to be an act done without consent. The Indian Penal Code categorizes these two expressions under separate heads in order to be as comprehensive as possible. 10 Further it is not easy to find a dividing line between submission and consent except in the situation contemplated by clause fifthly of section 375 IPC, yet the evidence has to be scanned. The ultimate conclusion depends on the facts of each case. In the case in hand the prosecutrix remained in the company of the appellant. According to her, she had raised the alarm but no one was attracted to it. When she was sexually molested she ran to her Jhuggi followed by the appellant. Immediately on her return she disclosed this fact to her parents. Next morning she lodged the FIR against the appellant. She also deposed against the appellant during the trial of the case. Thus irresistible conclusion is that the prosecutrix was not a consenting party, therefore, the appellant is proved to have committed rape with her. Otherwise also, in the instant case the consent is immaterial because the prosecutrix is proved to be minor, aged about 13 years at the relevant time. She was studying in 5th standard, her mother PW7 Kaushalya Devi has categorically stated that prosecutrix was got admitted in the school by her and according to PW2 Santosh Dheer, Centre Head Teacher, the date of birth of the prosecurtrix was recorded in the Admission Register as 9.12.1992 and he proved his certificate Ex.PW2/A which has not been disputed in the cross examination. Further the skeletal age of the prosecutrix has been proved to be between 12 1/2/ to 15 ½ years by PW5 Dr. Sandeep Jain. He denied the suggestion of the accused in his cross- examination that the prosecutrix was between 8 to 18 years at the time of alleged incident by giving benefit of 2 to 3 years on either side. According to him, the variation could only be between 12 ½ and 15 ½ 11 years. Which appears to be correct keeping in view the age of fusion of bones as shown in the skiagrams proved on record as the bones i.e. Head Humerus, Acromion, Distal Radius, Distal Ulan, Iliac crest, Gr. Trochnater, Distal Femur, Proximal Tibia and Fibula, Distal Tibia and Fibula were not fused which otherwise fuses between the ages 12 to 17 years as indicated in the report Ex.PW3/A. Thus on the scientific examination the Dr. Sandeep Jain assessed her age between 12 ½ to 15 ½ years which matches with the age in the story of the prosecution at the time of occurrence. Once it is held that the prosecutrix was less than 16 years, on the day she was ravished, the defence of consent goes off. Therefore, for the foregoing reasons and in the aforesaid circumstances, the version of the prosecutrix inspires confidence and stands corroborated in its material particulars and can be safely relied upon. The defence raised by the appellant is proved to be false and it could not cause any dent in the prosecution case. Thus I do not find that the learned trial court has committed any error in holding the appellant guilty of the offence of rape. Since there is no infirmity in the judgment of conviction and sentence passed by the learned trial court accordingly it is affirmed. Consequently, the appeal is dismissed. September 5 , 2008 (Surinder Singh),J. (D)