Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.601 of 2003. Judgment reserved on: 23.6.2011. Date of Decision: June 28th, 2011. ------------------------------------------------------------------------------------------------------------- Kishore Kumar. …… Appellant. Versus State of Himachal Pradesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ? Yes. For the Appellant : Mr. Anoop Chitkara, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. Advocate General. Surinder Singh, J : The appellant has challenged the judgment of conviction and sentence passed in Sessions trial No.30 of 2001, by the learned Sessions Judge, Kinnaur at Rampur Bushehar, on 9.12.2003 for the offences punishable under Sections 342, 376 and 506 of the Indian Penal Code, whereby he has been sentenced as under:- Sr. No. Offence under Section Sentence 1. Sec. 342 IPC Simple Imprisonment for a period of one year and to pay a fine of - 2 - `1,000/- and in default of payment of fine to further undergo simple imprisonment for two months. 2. Sec. 376 IPC Simple Imprisonment for a period of seven years and to pay a fine of `10,000/- and in default of payment of fine to further undergo simple imprisonment for six months. 3. Sec. 506 IPC Imprisonment for a period of two years and to pay a fine of `2,000/- and in default of payment of fine to further undergo simple imprisonment for two months. All the sentences aforesaid were ordered to run concurrently and period of custody, if any was ordered to be set off. The benefit of Section 428 of the Code of Criminal Procedure was also given. 2. The prosecution story as emerges from the evidence on record can be stated thus. Prosecutrix belongs to a tribal area and is resident of a remote village Rarang, Tehsil Moorang of District Kinnaur, H.P. She is eldest daughter of PW2 Gialchhan Dorje. On the day of incident, she is stated to be minor, borne in the year 1984. - 3 - (ii) On 29th January, 2001, at about 2.30 p.m., she went to purchase soap, but thereafter she did not return. She was also not traceable to her parents at the places of their relatives. Next morning, around 9.15 a.m., prosecutrix came to the house. She was totally terrified. On inquiry by her father about her absence during night, she did not say anything and kept mum. Thereafter, her mother’s sister PW5 Uma Bhagati enquired from her about her whereabouts during the previous night. She disclosed that when she had gone to purchase soap, the accused dragged her inside and took her to the upper storey of the house and bolted the door. She cried, but the accused laid her, on the double bed, removed her Salwar and committed rape and also threatened not to disclose this fact to anyone, lest he would kill her. He also brandished a knife - 4 - at the time of said incident and got her confined till morning. During this period, he committed rape upon her four times. In the morning she told the accused that as he has spoiled her life, he should marry her, but he refused. The accused was allegedly married. His wife was not in the house. Prosecutrix did not tell about the alleged incident to her parents due to fear and shame as her relatives were also present there at that time. PW5 Uma Bhagti told about whatever prosecutrix had revealed to her parents thereafter they decided to report the matter to police. (iii) On the way, while going to the Police Station, police met on Moorang bridge. Police recorded her statement Ext.PW1/A under Section 154 of the Code of Criminal Procedure, which culminated into present FIR. She was medically examined at Pooh hospital by PW3 Dr. Asha Negi. She noticed that the hymn of - 5 - the prosecutrix was completely ruptured, loose, elastic and had wide opening. Finger tips reached the cervical tips of the uterus, but no tear, bruise of laceration was noticed. Her trouser was showing a thick white staining at the inner side. These findings were suggestive of sexual activities, but there was no history of bleeding. She also took the vaginal swabs and the blood sample of the prosecutrix. The clothes and the vaginal swabs were sent for the forensic examination. On the report of the forensic report Ext.PW15/A, doctor confirmed the findings with respect to sexual activity with her. The Medico Legal Certificate of the prosecutrix is Ext.PW3/A. (iv) Police prepared the site plan Ext.PW14/B with respect to the place of alleged incident, took into possession double-bed sheet of room of the house of the accused vide recovery memo Ext.PW1/C and five hair found on the - 6 - double-bed sheet, which were taken into possession and sent to the forensic examination. (v) On 5.2.2001, accused was arrested. He was got medically examined and found fit to perform sexual intercourse. His MLC is Ext.PW11/A. PW11 Dr. Muninder Kumar at the time of examination of the accused also took into possession his pant and underwear, which were sealed and sent for the forensic examination. The report shows the semen stains on the underwear of the accused. 3. After completing the investigation, challan was presented in the court for the trial of the accused for the aforesaid offences. During the trial, the accused took up the defence of his false implication and pleaded innocence in his statement recorded under Section 313 of the Code of Criminal Procedure. When called upon to enter into his defence, no evidence in defence was led. 4. At the end of trial, learned trial Court disbelieved the defence plea and while relying the - 7 - statement of the prosecutrix, convicted and sentenced him, as aforesaid, hence the present appeal. 5. Shri Anoop Chitkara, learned counsel for the accused forcefully argued that the evidence on record shows that on the day of alleged incident, prosecutrix was more than 16 years. The medical evidence does not corroborate the version of rape. It is also argued that the statement of the prosecutrix is not reliable and confidence inspiring. The story of knife was introduced by her for the first time during the trial. It is further argued that even PW14 HC Balbir Singh stated that the prosecutrix did not disclose that she was threatened with knife by the accused. It is further argued that the version of the prosecutrix that she was dragged, but doctor did not find any injury on her person, which falsified her version. Learned counsel also took me through the evidence of the prosecutrix and ventilated that she did not raise any hue and cry and the area where she is alleged to have been raped, was thickly populated having houses in the surrounding. He also referred to the statement of prosecutrix, whereby she stated that - 8 - during the night, she had gone outside the house on the road to urinate and was escorted by the accused, but even at that time, she did not raise any hue and cry. This fact shows that she was a consenting party. 6. To buttress his arguments, learned counsel cited the judgments passed in Dalip and another v. State of M.P. [2002 SCC (Cri.) 592], Sudhansu Sekhar Sahoo v. State of Orissa [2003 SCC (Cri) 1484], Tameezuddin Alias Tammu v. State (NCT Delhi) [(2010) 2 SCC (Cri) 695], Sanjiv Kumar v. State of H.P. [2010 (3) Crimes 426 (HP)] and Kewal Krishan @ Bhundu v. State of H.P. [1998 (2) SLJ 1247]. 7. On the other hand, Shri A.K.Bansal, learned Additional Advocate General while supporting the impugned judgment of conviction and sentence argued that the prosecutrix has been proved to be less than 16 years of age and a minor at the time of alleged incident and not a consenting party. She clearly stated about the incident. Accused was already married and his wife was not in the house on that day and was living alone, nobody was residing in the surrounding houses immediate to the accused - 9 - and the house of the prosecutrix was at quite a distance. During night time, she did not take up the courage to raise hue and cry fearing death as the accused already brandished a knife. He also pointed out that she clarified that she did not say anything about the knife in her statement to the police, because they did not ask about it, but she categorically stated that she was threatened by the accused. According to him, there was no ground to interfere with the judgment of conviction and sentence. 8. 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 in the light of the law laid down by the Supreme Court. 9. The case law cited by the learned counsel for the accused is only with respect to the fact as to how the testimony of the prosecutrix has to be evaluated. It is reasonable to assume that no woman would falsely implicate a person in a sexual offence as the honour and prestige of that woman also would be at stake. However, the evidence of - 10 - the prosecutrix should be cogent and convincing and if there is any supporting material likely to be available, then the rule of prudence requires that evidence of the victim may be supported by such corroborative material. Thus, in a rape case, the conviction can be based solely on the basis of the evidence of the victim, provided such evidence inspires confidence in the mind of the Court. The sexual violence is dehumanizing act and it is unlawful encroachment in the right of privacy and sanctity of woman. The evidence of the prosecutrix must be given pre-dominant consideration, like an injured witness but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. 10. In order to prove its case the prosecution, besides examining the prosecutrix, prosecution relied upon the medical evidence, statement of father PW2 Gialchhan Dorje and her aunt PW5 Uma Bhagti in this case. The learned trial Court believed their versions and acted upon it. - 11 - 11. Prosecutrix (PW1) corroborated her version with respect to her dragging by the accused to his residence and also rape throughout the night and stated that as her life stood spoiled by him, he should marry her, but the accused refused. 12. Initially, the prosecutrix did not disclose the fact about the rape in the morning to her parents because of shame and fear, but disclosed to her aunt PW5 aforesaid. Her statement need to be considered and examined closely. There is a suggestion in affirmative to which she admitted that the accused dragged the prosecutrix from the common path and at that time, none saw the accused dragging her. She also admitted the suggestion that there was a distance of 50 feet between gallery and the room and the wooden stairs of 9 feet in length having step at a distance of one foot. She also categorically stated that the accused closed her mouth with left hand and dragged her to his room with the right hand and during this process she did not sustain any injury. She further admitted the suggestion that neither she inflicted any nail injury nor gave any teeth bite on - 12 - the body of the accused, because of threatening by him. She was kept confined by the accused. When she went to urinate outside, the accused was escorting her and at that time, she did not try to run because of his presence and threats. She admitted that she did not make any mention of brandishing the knife by him at the time of commission of alleged offence in her statement to the police as they did not ask about the knife. She further stated that there was a window available in the room, but did not open it. For about 2-3 seconds, the accused had gone out and came inside and bolted the room. She also stated that there were residential houses of Inder, Shobha, Partap Singh, Chhewang Namgial and Ram Dass adjoining the house of the accused. Her voice could not be heard because of the high velocity of wind. She stated that she was virgin and it was for the first time the accused committed sexual intercourse with her, but there was no bleeding. There were no stains of blood or semen stains on her trouser and she did not clean her clothes. She also did not take bath after the commission of the rape with her. She denied that the - 13 - accused did not commit rape upon her, whereas, PW3 Dr. Asha Negi stated having noticed rupture of hymn due to sexual assault. She did not say that this rupture of hymn was old and had formed carunculae (tags). She categorically stated in cross- examination that when she examined the prosecutrix clinically, she noticed the sexual activity with her, but could not opine about its duration. According to her, since there was no external injury on her person, therefore, possibility of dragging is ruled out. 13. As a matter of fact, the doctor is not an eye witness to the incident, whereas it stood proved that the accused dragged the prosecutrix by applying the force and with one hand and gagged her mouth with another hand as stated by the prosecutrix. The suggestion put in positive to the fact also affords corroboration to the prosecution case. The prosecutrix also stated that she did not get any injury when the accused dragged her. It also depends if a person is dragged, in that process if he does not strike against any object, there will be no injury on his person. Further the testimony of the - 14 - prosecutrix so far as the sexual activity by the accused is concerned, that stands corroborated by the medical evidence. To this effect, her testimony finds corroboration from the material on record. The duty of the Court is to find out the truth and the truth which is decipherable from the evidence in this case is that the prosecutrix was in fact dragged by the accused from the common path to his room and committed rape with her. She did not raise any hue and cry as stated by her as she was threatened by the accused. Therefore, there is no question of hearing the cries by other neighbourers. 14. The site plan which is prepared during the investigation by the police shows a newly constructed house of the accused, whereas he was residing in the old house where the alleged incident took place. The story of the knife appears to have been introduced at the time of trial by the prosecutrix for the first time and it does not find mentioned in the FIR, but her testimony stands corroborated in material particulars that the accused had administered threats to the prosecutrix not to raise any alarm. The condition of her genitalia - 15 - shows that she was raped during the night more than once. The consent, if any, obtained by the accused is under the fear of threats administered by him is no consent. Further, the very fact of disclosing about the incident to PW5 Uma Bhagti and also lodging the report against the accused in the Police Station by her and then deposed against the accused during the trial negates any consent. 15. On having been confronted with the above facts, the learned counsel for the accused argued that when she came to the house in the morning, lot of relatives were present there and she did not reveal anything about rape, thus she was compelled to make such a statement, but this inference cannot be drawn. As no lady would put her character at stake in the presence of general public, or to her relatives, but circumstances shows that she confided in PW5 only and narrated about the entire incident to her. The story of the prosecution as spelt out by the prosecutrix is natural and not improbable and also does not belies logic. There is supporting evidence as discussed above and there appears no - 16 - fallacy in her version, therefore, her statement can be acted upon and the incident stands proved. 16. Further, PW4 Luxmi Ram, Headmaster in Govt. High School Rarang has proved the certificate Ext.PW4/A with respect to the date of birth of the prosecutrix which is 15.11.1984 and its entry in the admission and withdrawal register and PW8 Vinay Singh, Secretary of the Gram Panchayat, proved certificate Ext.PW8/A which was based upon the entry made in the register maintained prior to the year 1992, but it is no where suggested that the entry in the register prior to the present one was wrong. Thus, from the above evidence, the age of the prosecutrix comes around 17 years, but the age in the instant case is not of a much importance, because the consent as alleged by the accused stands completely ruled out. 17. Therefore, on the scrutiny of the aforesaid evidence, in my considered opinion, statement of the prosecutrix is natural worth inspiring confidence and is corroborated in material particulars on record, thus can be acted upon, as such, the conviction of - 17 - the accused passed by the learned trial Court cannot be interfered with. 18. Learned counsel for the accused submitted that a lenient view is desirable in sentence keeping in view that the accused is a married person, aged about 45 years and has his family to maintain. He was initially arrested on 5.2.2001 and was released on bail on 26.3.2001 and after the conviction and sentence passed by the learned trial Court, he was committed to prison on 9.12.2003, but his sentence was suspended by this Court in Cr.M.P. No.673 of 2003 vide order dated 27.2.2004 and was released on bail. 19. I have considered the above arguments. Keeping in view the extenuating and mitigating circumstances, the sentence passed by the learned trial Court against the accused under Section 376 of the Indian Penal Code for which he has been held guilty and stands convicted is substituted for a period of three years without disturbing the fine amount instead of seven years and fine of `10,000/- without interfering in the sentence passed for other offences, i.e. under Sections 342 and 506 of the - 18 - Indian Penal Code. All the sentences shall run concurrently. It is further ordered that out of the total fine amount 75% if deposited shall be paid to the prosecutrix as compensation. The accused shall also be entitled for the benefit of Section 428 of the Code of Criminal Procedure. 20. The accused is hereby ordered to surrender before the learned trial Court on 29.7.2011, to serve out the sentence as modified by this Court, failing which the learned trial Court shall take coercive method to procure his presence and commit him to prison to serve out the sentence, in line with this judgment. 21. An authenticated copy of this judgment alongwith record be sent to learned trial Court forthwith. Matter stands disposed of. June 28, 2011. (Surinder Singh) (Pds) Judge.