IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.Appeal No.373 of 2008. Judgment Reserved on:7.4.2009. Date of Decision:17.4.2009 Sanju …Appellant. Versus: State of H.P. …Respondent. Coram: Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting?Yes For the appellant: Mr.Ajay Chandel, Advocate. 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 Sessions Judge, for the offences punishable under Sections 363, 376 and 342 of the Indian Penal Code whereby the appellant has been sentenced allegedly committing rape on a minor (12 ½ years), to undergo rigorous imprisonment as under: Sr.No. Offence Sentence 1. U/S.376 IPC. Rigorous imprisonment for a period of Seven years with a fine of Rs.5,000/-. In default of payment of fine he will undergo rigorous imprisonment for a period of six months. 2. U/S. 363 IPC. Rigorous imprisonment for a period of Two years and a fine of Rs.2000/-.In default of payment of fine he will undergo rigorous imprisonment for a period of one month. 3. U/S.342 IPC. Rigorous imprisonment for a period of Six months. All the sentences will run concurrently. Whether reporters of the Local papers are allowed to see the judgment?Yes 2 (A) PROSECUTION STORY: Precisely, the case of the prosecution as emerges from the prosecution evidence can be stated thus. For the last about two or three months prior to the incident the prosecutrix a minor child of 12 ½ years had been residing with her grand mother (Nani) in village Bandrol. On 16.1.2005 her grand mother had gone to visit her relations in village Seubag. The prosecutrix along with her elder sister Veena and her younger brother Chand Kishore remained alone in the house. During noon at about 12 O’clock, said Km. Veena and Chand Kishore were watching T.V. The prosecutrix was sitting out side her house. The appellant who was residing in the vicinity signaled her to come to his house. She went there. He provided her with a cup of tea. When she wanted to return to her house the appellant bolted the door of the room from inside and did not allow her to go. The appellant made her lie on the bed. When she tried to raise hue and cry, he gagged her mouth and threatened her to kill and committed rape on her. She was compelled to stay for the night in his house and after the meals she was again raped. Next morning when someone knocked at the door she was asked to leave the room through the window. In her house when asked about her absence in the night, she revealed about the entire episode to her sister Veena. Veena disclosed to her aunt Pinki. On coming to know about the aforesaid incident Smt. Pinki, informed telephonically her parents about the said incident and it was thereafter the 3 prosecutrix accompanied by her parents approached the police and lodged the report (Ext.PW-3/A). The prosecutrix was got medically examined. The police accompanied by the prosecutrix visited the room where she was alleged to have been raped. She identified her clothes i.e. salwar and shirt in the court which were taken into possession at the time of the medical examination and thereafter it was sent to the forensic examination. The salwar of the prosecutrix was found to have stained with the human semen as per the report Ext.PW-2/C. Her medico legal certificate (Ext.PW-2/A) revealed the rupture of her hymen at 5 O’clock which had healed tears. In the opinion of the doctor the prosecutrix was exposed to coitus. The appellant was arrested and produced for his medical examination before PW4 Dr. Deepak Kapoor on 18.1.2005 and the doctor issued his medico legal certificate (Ext.PW-1/B) and found fit to perform the sexual intercourse. During the investigation of this case, the birth certificate (Ext.PW6/B) of the prosecutrix was taken into possession from Nagar Parishad, Kullu, which disclosed her date of birth 16.5.1992 i.e. about 12 years and 4 months on the day of incident. On the completion of the investigation, the challan was presented in the court for trial of the accused-appellant. Finding a prima facie case, against the appellant for the aforesaid offences, appellant was chargesheeted. He pleaded not guilty and claimed trial. (B) DEFENCE OF THE ACCUSED- APPELLANT: 4 The case of the appellant is total denial. According to him he did not know as to why this case was made against him by the police. Further from the trend of the cross-examination of the witnesses, it transpires that the appellant had tried to establish that he knew that the prosecutrix was having love affairs with a Bihari boy. He reprimanded the prosecutrix and told to reveal it to her parents and that might be the cause for falsely implicating him in the case. He further alleged that there was a land dispute with the family of the prosecutrix which could also be the cause for foisting a false case upon him. (C) CONTENTION RAISED BEFORE THIS COURT: According to the appellant, the learned trial Court mis-read and mis-appreciated the evidence on record. The statement of the prosecutrix is not at all corroborated by the medical evidence. The learned trial Court ignored the statement of the doctor who stated that there were no signs of recent intercourse. The statement of the prosecutrix and her sister caused a material contradiction with respect to the wearing apparels of the prosecutrix and also that the defence raised by the accused-appellant was not appreciated in the light of the above contradictions. Shri Ajay Chandel, Advocate has vehemently argued that the appellant could not have been convicted for the alleged offences because the statement of the prosecutrix does not inspire confidence. There are material contradictions in the evidence on record and pin pointed that the salwar of the prosecutrix was stated to have been washed, therefore, it could not have contained the human semen and even otherwise the 5 prosecutrix appears to have been indulged in the sexual act much prior to the alleged incident as made out from the statement of the doctor and the medico legal certificate. The appellant was falsely implicated in this case on account of the enmity and with the fear that the appellant might disclose the fact about the love affairs of the prosecutrix with a Bihari boy. Contra, Shri J.S.Guleria, learned Assistant Advocate General has forcefully argued that in the instant case the prosecutrix is admittedly a minor. Neither the prosecutrix nor her parents could have dragged her to the court for inviting such a serious allegation at the cost of her future. According to him the statement of the prosecutrix inspires confidence and it is fully supported by the material particulars on record. He also pointed out that the semen found on the salwar of the prosecutrix lend strength to her testimony and there is nothing on record to show that after washing the salwar there will not be any trace of the semen thereon. Thus, while supporting the impugned judgment of conviction and sentence, the learned Assistant Advocate General has prayed for the dismissal of the appeal. (D) FINDINGS AND REASONS FOR ITS CONCLUSION 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 6 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 also 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?. 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. Therefore, if the court finds the evidence of the prosecution is worth inspiring 7 confidence, it must be relied upon without seeking corroboration of her statement without material particulars. Further in State of Himachal Pradesh Vs. Asha Ram, AIR 2006 Supreme Court 381, the apex court reiterated the same principle that the evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. In the backdrop and settled principles of law I proceed to examine the testimony of the prosecutrix and by PW-4 her elder sister Veena (16), PW5 her mother Indra Devi and PW2 Dr.Geeta Kaul. The prosecutrix was examined in the court. She totally corroborated the prosecution case. According to her on 16.1.2005 on the day of the alleged incident her grand mother was away to village Seubag to visit her relation and she was alone in the house in the company of her elder sister PW4 Veena and younger brother. During noon when her brother and sister aforesaid were watching the T.V she was sitting in outside lawn and was called by the appellant to his residence, adjoining house of Kanta Devi by making a gestures. She went there and was entertained with a cup of tea by the appellant. When she wanted to come back to the house of maternal grand parents, the appellant did not allow and bolted the door of the room from inside. Thereafter he made to her lie on a cot lying in the room and subjected her there to sexual intercourse. When she protested and even tried to raise hue and cry, the appellant 8 pressed her mouth and threatened her to do away with her life. In the evening she was served with the meals and during the night she was again subjected to the sexual intercourse. Next morning somebody knocked at the door and he asked her to get away through a window. Thereafter she went to the house of the maternal grand mother and narrated the whole incident to her sister Veena. At the same time her aunt Pinki also came there who was also informed about the said episode. Thereafter her aunt called her parents to the house of her maternal grand parents. She narrated the whole incident to them. Thereafter the matter was reported to the police. She was medically examined and had informed the doctor that on her return to the house of her maternal grand parents she took bath. Her salwar was taken into possession by the doctor. The police visited the spot where she was subjected to sexual intercourse and she identified that room to the police. She also identified salwar Ext.P-2 and shirt Ext.P-3 to be the same which was taken into possession by the doctor in the hospital. In the cross-examination she stated that in the room of the appellant she sat on the bed. There were three rooms in the said house and the kitchen was in opposite direction leaving one room from the room where she was subjected to sexual intercourse. Pune Ram, Champi and Guddu also resided in the said vicinity. She further described as to how the appellant had committed the rape. According to her, first her salwar was removed by the accused and the waist band of the salwar was broken by him and thereafter her shirt was also removed. She did not resist such an act as she was threatened to be killed by him 9 with a knife and pistol which were available there. After removing her clothes the appellant also removed his clothes. She further stated that there was a cot of made of Nawar. She stated that there were four windows in that room but the curtains were on, and were spread to block the view. She also stated that after the sexual intercourse she had worn her clothes and remained sitting there. When she tried to come out from the room her mouth was gagged by the appellant. She tried to free herself but failed in her attempt. When the accused cooked food in the kitchen, she was tied with a rope from hands and also foot. She could not raise hue and cry because of the threatening. She did not know that there was a land dispute between her father and Pune Ram the father of Kanta Devi. 2-3 times she had gone to the bath-room attached to the room for urination. Though she bolted the door of bath room but the appellant got same opened from her by repeated knocks and during the night the appellant is alleged to have committed rape with her 2-3 times. Rest of the time both of them have spent in chatting with each other. The appellant told her that he would be sold at Delhi. After taking meals and going to the bed the appellant again removed her clothes and throughout the night she remained naked. She denied that she had love affairs with one Bihari boy. She further denied that the appellant used to threaten her to tell about such affairs to her parents if she was not stopped to meet him. She also denied that earlier to the alleged incident she used to elope during the night from the house and for this reason her family members did not try to locate her during the night. She stated that on the cot where she was raped only ‘Dari’ was spread on the cot and there was 10 only one double bed in that room. She denied that the appellant was falsely implicated by them due to the land dispute of his father with them and she reiterated that her shirt and salwar were taken into possession by the doctor. PW4 her sister Veena Devi corroborated her version that she along with Chand Kishore were watching television programme, the prosecutrix was sitting outside basking in the sun and at about 1 p.m. she found her missing. She did not try to search for her as she was under the impression that she might be there in the neighbourhood. But during the night she did not return. However, she came at about 8.30 a.m. next morning and told about the alleged incident. She further told her that the appellant had mixed some intoxicant in the tea which was offered to her. Thereafter she was taken to a room where she subjected to sexual intercourse. She also stated that her aunt Pinki also came there who informed her parents about the said incident. When they reached, they also inquired from the prosecutrix about the incident and she disclosed everything to them. In the cross-examination she stated that they did not try to trace out the prosecutrix during the night nor contacted anyone telephonically. She stated that the prosecutrix disclosed that she was beaten up by the accused during the night. She denied that on account of land dispute between Kanta Devi and her father the matter was taken to the police and the case was falsely foisted upon the accused. She expressed her ignorance about any relationship of the prosecutrix with any boy. She stated that in the morning when the prosecutrix returned to the house 11 she took bath and washed her clothes which were worn by her during the night of the alleged incident. PW5 Indra Devi mother of the prosecutrix stated that she was informed about the missing of her daughter by Pinki Devi on telephone and she was asked to come to village Badrol with her husband. Both of them reached in the evening and on inquiry from the prosecutrix she informed about the rape having been committed by the appellant with her. Thereafter they reported the matter to the police. According to her the prosecutrix was born to her in Kullu hospital on 16.5.1992. In her cross examination, she stated that she received a message on telephone at 11 a.m. She further stated that the prosecutrix revealed that when she refused to take meals during the night she was slapped by the appellant. However, she denied the other suggestion. PW6 Sh.R.S.Verma, Executive Officer of the Municipal Committee has proved the birth certificate (Ext.PW6/B) of the prosecutrix. PW1 Dr.Deepak Kapoor on examination found the appellant competent to perform the sexual intercourse and issued the medico legal certificate Ext.PW1/A. PW2 Dr.Geeta Kaul had examined the prosecutrix Meena Kumari (12 ½ years) on 17.1.2005. The weight of the victim was 46 Kg. and her breasts were fully developed. However she was having 24 teeth and her last menstrual period was seven days prior to the day of the examination. On medical examination the doctor did not find any mark of violence. The vaginal introitus admitted two fingers. The labia majora was not covering labia 12 minora. The hymen was torn at 5 O’ clock positions which appeared to be a healed tear. The clothes worn by the victim i.e. blue coloured salwar was sent for chemical examination along with two vaginal smear slides taken from the posterior fornix. The doctor opined that she was exposed to coitus and issued the medico legal certificate (Ext.PW2/A). She further stated that in case of taking bath by the prosecutrix the symptoms of recent intercourse would disappear. In the cross examination, she stated that there was no signs of recent intercourse because the tear of the hymen was already healed and there was no signs of violence. She further stated that the vaginal introitus admitted two fingers and in a girl of her age the hymen would allow the passage of terminal phalynix of little finger i.e. upper portion of the little finger. According to her it takes 4 to 5 days for disappearance of the signs of sexual intercourse. The hymen if torn will heal within 6-7 days. On the critical examination of the aforesaid evidence, in my opinion the case against the appellant stands fully proved by the statement of the prosecutrix alone even without the support of the other material on record. No cogent reason has been assigned as to why the prosecutrix had levelled the false allegations against the appellant. The defence raised by the accused was not proved even by preponderance of probabilities and it remained un-substantiated .Otherwise also the prosecutrix is admittedly a child of about 12 ½ years of age. No parent at the cost of their minor daughter would put such a stigma which will leave a permanent scar and bad impact on the victim 13 and on her family throughout her life at the cost of her future. Further no person would concoct a false story of rape just to implicate the accused to square his own vendetta, that too without an iota of evidence to show that either the prosecutrix or her mother had any valid reason whatsoever to falsely implicate the appellant. On going through the evidence of the prosecutrix, in my opinion the evidence led by the prosecution fully establish the case against the appellant, beyond any shadow of doubt. The contradiction as pointed out by the learned counsel for the appellant with respect to the statement of Veena Kumari that she gave a different version to her elder sister is worth rejecting for the reason that she was revealing about her absence to her and because of fear might have somewhat exaggerated the story to explain her absence. Significantly, the mother of the prosecutrix had also stated whatever the prosecutrix had revealed to her and there is no material contradiction therein to throw out the case of the prosecution. The next contention of the learned counsel for the appellant that the salwar of the prosecutrix was washed and she had also taken to bath. Therefore, the salwar taken by doctor could not have the semen stains. But it is pertinent that in the cross-examination of the doctor it has not been explored that if the salwar was washed the traces of semen would not be detected on the forensic examination. The doctor has clearly stated that the salwar which was on the person of the prosecutrix was sealed and sent for the forensic examination which contained the stains of semen. 14 The prosecutrix has clearly and vividly stated about the rape on her by the appellant. The semen stains on her salwar has only a corroborative value. The testimony of the prosecutrix in the instant case is enough to act upon in the absence of any malice, enmity and any material contradiction. Thus, on the analysis of the evidence in the background of law discussed above, in my opinion the learned trial Court did not commit any error in convicting and sentencing the appellant for the offences charged. The appeal sans merit, it is accordingly dismissed. (Surinder Singh), Judge. April 17 ,2009(R)