IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.170 of 2007 Decided on : November 10, 2009 Trilok Chand …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Neeraj Sharma, Advocate. For the Respondent : Mr. P.M. Negi, Deputy Advocate General. Surjit Singh, J(Oral) Appellant has appealed against the judgment, dated 9th May, 2007, of the learned Sessions Court, whereby he has been convicted of offences, under Sections 376 and 506 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.25,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of two years, in respect of offence, under Section 376 of the Indian Penal Code; and to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default of payment of fine to undergo rigorous imprisonment for a further period of two months, in respect of offence, under Section 506 of the Indian Penal Code. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Case of the prosecution, as per evidence on record, is like this. In February, 2006, on the 15th day of the month of Magh, celebration of birth of a child was arranged by Madho Ram in his house in village Dehal, Mauza Kundan Jiya. Several persons, including appellant Trilok Chand, attended that function. Function was celebrated in the night and, therefore, the guests, who came from other places, were accommodated, for the night, in the houses of neighbours of Madho Ram. Appellant was accommodated in the house of Hujti Ram (PW-4), who has two daughters, both of whom are suffering from mental retardation, to the extent of 40 per cent, per testimony of PW-3 Dr. Dinesh Sharma. The date of birth of elder daughter of PW-4 Hujti Ram is 12th July, 1988 and that of the younger 7th May, 1991. Appellant slept in the same room, in which two daughters of PW-4 Hujti Ram, alongwith their mother PW-5 Simro Devi, had slept. Appellant allegedly committed rape on both the daughters of PW-4 Hujti Ram. The two daughters of PW-4 Hujti Ram were examined as PW-14 and PW-15, during the course of trial. The mother of the victims noticed the appellant committing the crime but kept quiet, as the appellant threatened her and the two girls by taking out a dagger. 3. Next day, when PW-4 Hujti Ram noticed tooth bite marks on the cheeks of the victims and questioned them about the same, they told that the appellant, who had …3… slept in their house, as a guest, on the previous night, not only caused tooth bite injuries but also sexually assaulted them. PW-4 Hujti Ram did not lodge any report with the police, fearing social stigma. 4. Tooth bite marks on the cheeks of the two girls were also noticed by PW-7 Maya Devi, on the next following day, when she and the victims alongwith their mother PW-5 Simro Devi had gone to collect fuel wood from the nearby forest. PW-7 Maya Devi enquired from the victims as to how did they receive tooth bite marks on their cheeks. They told her that on the previous night they had been subjected to sexual intercourse by the appellant and it was he who had bit them on their cheeks with his teeth. 5. PW-7 Maya Devi informed PW-11 Veena Devi about the incident. PW-11 Veena Devi also has a mentally retarded daughter, who, at times, is kept at the headquarters of a Non-governmental Organization, known as CORD, at Tapovan near Sidhwari, because there is some arrangement for training mentally retarded girls to take care of and manage their bodies and personal hygiene. The two victims also used to be sent to that place. 6. PW-11 Veena Devi informed some of the office bearers of the said Non-governmental Organization about the incident. One of those office bearers is PW-6 Jyoti. Enquiry was conducted by PW-6 Jyoti and another office bearer of the Organization and then the father of the …4… prosecutrices was made to understand the seriousness of the matter and persuaded to lodge report with the police. He took his two victim daughters to Police Station Palampur and lodged report Ex. PW-4/A. 7. During the course of investigation, both the prosecutrices were subjected to medical examination. It was found that their hymens were torn and vagina admitted two fingers easily. They were examined by PW-1 Dr. Veena Sharma and PW-2 Dr. Kalpana Negi. The prosecutrices were also medically examined for assessment of their mental level by PW-3 Dr. Dinesh Sharma and according to this doctor, both of them were mentally retarded. 8. Prosecution examined the two prosecutrices, their mother Simro Devi (PW-5), their father Hujti Ram (PW-4), Veena Devi (PW-11), Maya Devi (PW-7), Jyoti (PW-6), the two doctors, who conducted the medical examination of the prosecutrices, namely PW-1 Dr. Veena Sharma and PW-2 Dr. Kalpana Negi, to find out if they had been subjected to sexual intercourse, and PW-3 Dr. Dinesh Sharma, who examined the prosecutrices for assessing their mental capacity. 9. Appellant denied that he went to the house of PW-4 Hujti Ram, on the relevant night and committed sexual intercourse with the prosecutrices. He pleaded that he had been falsely implicated. However, he did not …5… attribute any motive to the prosecutrices or their parents or other witnesses for his false implication. 10. Trial Court believed the prosecution version, rejected the plea of innocence raised by the appellant and convicted and sentenced him, as aforesaid. 11. Prosecutrices, who appeared in the witnesses- box as PW-14 and PW-15, very categorically stated that when they were asleep in their room alongwith their mother, appellant came to their room late in the night to stay there as a guest of Madho Ram and that while sleeping there he committed sexual intercourse with them and caused injuries on their cheeks, by tooth bites. Their statements were corroborated by their mother PW-4 Simro Devi, who stated that she noticed the appellant committing the offence of rape on her daughters but kept quiet, because he had threatened her and the prosecutrices, by means of a knife, which he was holding. 12. Both the prosecutrices as well as their mother PW-5 Simro Devi stated that PW-10 Desh Raj son of Madho Ram and his sister Deepa came in the night and they also saw the appellant committing the crime and they slapped him and took him away. PW-10 Desh Raj, however, turned hostile. Deepa was not examined by the prosecution, as having been won over. 13. Testimony of the prosecutrices and their mother PW-5 Simro Devi is corroborated, to some extent, by PW-7 …6… Maya Devi, who has stated that on the day next following the day on which there was a function at the house of Madho Ram, she, the two prosecutrices and their mother, went to the forest to collect fuel wood and she noticed tooth bite marks on the cheeks of the two prosecutrices and on enquiry she was told by them that appellant Trilok Chand, who had been sent to their house as a guest by Madho Ram bit them on their cheeks and committed sexual intercourse with them. 14. Father of the prosecutrices, namely PW-4 Hujti Ram also stated that he noticed tooth bite marks on the cheeks of his daughters, on the next morning and on enquiry was told that the appellant had committed rape on them, besides biting them on their cheeks. He stated that he did not lodge any report with the police, because that would have caused humiliation and resulted in social stigma. 15. There does not seem to be any reason to disbelieve the testimony of the two prosecutrices, their mother PW-5 Simro Devi, their father PW-4 Hujti Ram and PW-7 Maya Devi. Appellant has not stated that any of these witnesses has any motive to falsely implicate him in the case, involving serious charge of rape. He denies his presence at the house of the prosecutrices, though he admits having attended function at the house of Madho Ram. No doubt, PW-10 Desh Raj son of Madho Ram stated …7… that the appellant stayed at his place, but he is contradicted by his previous statement to the police, under Section 161 of the Code of Criminal Procedure, Mark ‘Y’, with which he was duly confronted. 16. The two prosecutrices were mentally retarded, to the extent of 40 per cent, per testimony of PW-3 Dr. Dinesh Sharma. Therefore, they were incapable of consenting for the sexual act. Moreover, one of the two prosecutrices, i.e. PW-15, was below 16 years of age, as her date of birth is 7th May, 1991, according to birth certificate Ex. PW-12/C, which has been issued on the basis of entries in the Panchayat record, per testimony of PW-13 Praveen Kumar, Secretary of the Gram Panchayat. So, PW- 15 was incapable of consenting, on account of her being below 16 years of age also. 17. Learned counsel for the appellant submits that the appellant has been falsely implicated by the prosecutrices and their parents, on being instigated by PW-6 Jyoti and other office bearers of Non-governmental Organization, known as CORD, and that they played active role in getting the case registered against the appellant. Evidence on record shows that but for the aforesaid Non- governmental Organization and its office bearers having encouraged the parents of the prosecutrices to report the matter to the police, the appellant would not have been brought to book. The Organization and its office bearers …8… only encouraged and prepared the parents of the prosecutrices and the prosecutrices to come forward and lodge the report and not to keep quiet only because the reporting of the matter to the authorities was going to bring to public notice that the girls had been the victims of offence of rape. The Organization or its workers, particularly PW-6 Jyoti, have no axe to grind by falsely implicating the appellant. In view of the abovestated position, we see no merit in the present appeal. The same is, therefore, dismissed. ( Surjit Singh ), J November 10, 2009(sd) ( Surinder Singh ), J