Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.526 of 2010. Date of Decision: September 7, 2011. ------------------------------------------------------------------------------------------------------------- Pradeep 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. Dharamvir Sharma, Advocate. For the Respondent : Mr. P.M. Negi, Dy. Advocate General. Surinder Singh, J (oral) : The appellant has challenged the judgment of conviction and sentence passed in Sessions trial No.67 of 2009/26 of 08, by the learned Additional Sessions Judge (Fast Track Court), Kullu, on 29.09.2010 for the offences punishable under Sections 376 and 342 of the Indian Penal Code, whereby he has been sentenced as under:- Sr. No. Offence under Section Sentence 1. Sec. 376 IPC Simple Imprisonment for a period of seven years and to pay a fine - 2 - of `20,000/- and in default of payment of fine to further undergo simple imprisonment for six months. 2. Sec. 342 IPC Rigorous Imprisonment for a period of six months and to pay a fine of `1,000/- and in default of payment of fine to further undergo simple imprisonment for one months. Both the sentences are ordered to run concurrently. Out of fine if realized, an amount of `15,000/- has been ordered to be paid to the prosecutrix as compensation. 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 was married to PW2 Ravi Kumar one year prior to the date of alleged incident and from this wedlock, a female child was born. Appellant herein to be referred as “the accused” was known to the prosecutrix prior to her marriage and he was a regular visitor in the house of his maternal uncle Shri Amar Chand in the village of the prosecutrix where she was married. - 3 - (ii) Prosecutrix has been living with her husband (PW2) and her mother-in-law (PW4) in her matrimonial village. On 24th June, 2006, husband of the prosecutrix had gone out of the village to attend his work in a Handloom industry. PW4 Smt. Parvati Devi, mother-in-law of the prosecutrix used to wash the clothes of the people at Bhuntar. She was also not in the house on the day of alleged incident. The prosecutrix was alone in her house. (iii) In the morning, of the day of alleged incident, accused was seen in the house of Amar Chand. Amar Chand and his family members were also not present there. Between 1/2 P.M., the prosecutrix had gone to the Hand-pump nearby to fetch water, from where she was allegedly dragged by the accused and brought inside a room of the house of Amar Chand. He bolted the room from inside. Thereafter, the accused committed rape upon the prosecutrix. She - 4 - shouted and raised cry for help, but nobody came forward. (iv) Around 2 P.M. PW4 Parvati Devi heard the shout and cries, she entered the house of Amar Chand. The door was opened by the accused. Prosecutrix was taken out from the room. She had torn clothes and brought her to her house. She made inquiries from her. Prosecutrix narrated about the incident to her. In the evening, PW2 Ravi Kumar her husband reached in the house. Incident was also narrated to him. Thereafter, the matter was reported to the Police in terms of FIR Ext.PW2/A. (v) On 24.6.2006 itself, around 11.45 P.M., accused was arrested and got medically examined from PW5 Dr. Ranjit Thakur. He noticed redness and a bruise around glans of Penis with slight bleeding. He took smegma slide for forensic examination. Doctor found him capable in performing the sexual intercourse and issued Medico Legal Certificate Ext.PW5/C. His underwear was - 5 - also taken, which was sealed and handed over to the police for its forensic examination. (vi) Though the prosecutrix is alleged to have washed her clothes i.e. Shirt Ext.P1, Salwar Ext.P2 on 24.6.2006 which were taken into possession by the police in the evening of 24.6.2006 vide memo Ext.PW2/B in the presence of her husband Ravi Kumar and Ward Panch Prem Chand alongwith Mat Ext.P3 over which she was allegedly raped. The clothes were found torn. These articles were sealed on the spot alongwith Mat over which the alleged rape was committed. (vii) On 25.6.2006 around 12.15 A.M., prosecutrix was also got medically examined from PW1 Dr. Neena Lal. The last menstruation of the prosecutrix was noticed to be on 22.6.2006. Doctor did not find any bleeding or pain on touching the private part of the prosecutrix. Clinically, the doctor did not find any sign of recent intercourse - 6 - and issued Medico Legal Certificate Ext.PW1/A. (viii) Police prepared site plan Ext.PW12/A of the place of alleged incident. Clothes i.e. Shirt Ext.P1, Salwar Ext.P2 and Mat Ext.P3 and smegma slides were examined in the Forensic Science Laboratory. On its examination, as per report Ext.PW12/C, Salwar Ext.P2 and smegma slide contained blood stains, whereas, the underwear of the accused was found to have semen stains. (ix) Police also recorded the statements of the witnesses under Section 161 of the Code of Criminal procedure and finding the involvement of the accused in the alleged offence, the challan was presented in the Court for the trial of the accused. 3. Learned trial Court found the existence of a prima-facie case against the accused for the offences aforesaid. Accordingly he was charge-sheeted, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses. Accused was also examined under Section 313 of the - 7 - Code of Criminal Procedure. The circumstances which were found attendant upon him were put to him, to which he simply denied without rendering any cogent explanation. When called upon to enter into his defence, he did not lead any evidence. At the end of trial, he was convicted and sentenced as aforesaid,, hence the present appeal. 4. Shri Dharamvir Sharma, learned counsel for the accused forcefully argued that there are material contradictions appearing in the statements of the prosecutrix and also the other prosecution witnesses, which renders the testimony of the prosecutrix unworthy of credit. He further ventilated that the medical evidence also does not support the case of the prosecution coupled with the fact that when the prosecutrix was allegedly dragged, she did not sustain any injury on her person, which falsifies the story as propounded by her. Learned counsel also pointed out that it was a thickly populated village, so on raising hue and cry, surprisingly nobody came forward, which creates a doubt in the prosecution case, is also a matter to be considered. - 8 - 5. On the other hand, Shri P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction and sentence argued that the statement of the prosecutrix has been duly corroborated by PW4 Parvati Devi, her mother-in- law in material particulars, as also by her husband PW2 Ravi Kumar, to whom she narrated the entire incident without mincing any word. Accused was arrested on the same day and was got medically examined. The injury on his private part as stated by the doctor lends strength to the prosecution case. He also argued that it has come in the cross-examination of the prosecution witnesses that on the day of alleged incident, neither Amar Chand nor his family members were present in their house where the prosecutrix was confined and raped and further that in the adjacent house, no person was present. According to learned Deputy Advocate General, statement of the prosecutrix bears ring of truth, therefore, it was rightly relied upon by the learned trial Court. 6. I have given my thoughtful consideration to the rival contentions of the parties and have closely, - 9 - cautiously and meticulously scanned and reappraised the evidence on record. 7. The prosecutrix testified that on 24.6.2006, when she was going to fetch the water from the Hand- pump nearby, the accused caught hold of her and dragged inside the house of Amar Chand. He bolted the door from inside and made her to lie down on the Mat where she was raped. She shouted for help, but there was no one to come forward. She was alone in the house. Her mother-in-law and husband had gone out of the village to earn their livelihood and her mother-in-law PW4 Parvati returned around 2 P.M. and accused opened the door from where she was taken by her to her house. 8. The question which requires consideration is, how the mother-in-law of the prosecutrix came to know that the prosecutrix was in the house of Amar Chand? For that, her statement requires scrutiny. As PW4, she testified that she and her son (PW2 Ravi Kumar) had left the prosecutrix alone in their house. She had gone to work at Bhuntar and on her return, she heard the shouts coming from the house of Amar Chand. She went there, when the door was opened - 10 - by the accused, prosecutrix was inside. She brought her out from that house. Thus these facts lead me to the conclusion that the testimony of PW4 aforesaid is confidence inspiring and on inquiry, prosecutrix vividly narrated to her the entire incident, which fact was also revealed by her to her husband PW2 Ravi Kumar on his return and it was thereafter the FIR was lodged. 9. The time gap of the alleged incident, recovery of the prosecutrix from the room and immediately narrating about the said incident by the prosecutrix to her and thereafter to her husband and also lodging of FIR on the same day are important factors which weights against the innocence of the accused coupled with the fact that there was redness on the organ of the accused with freshly bleeding wound. 10. Although, there are slight contradictions with respect to arrival of PW2 Ravi Kumar in their house and as pointed out by the learned counsel for the accused also with respect to the raising of cry and shouts by the prosecutrix, but PW2 Ravi Kumar stated that he reached in the house around 6.30 P.M., whereas PW4 Parvati stated that he reached around 6/7 P.M. and the prosecutrix that he came home at 3 P.M., thus there is no much difference insofar as the - 11 - statements of PWs 2 and 4 are concerned, however, so far the prosecutrix is concerned, she had a traumatic experience and must have lost the time sense as she also stated that she was raped by the accused for about 4-5 hours, whereas, she stated in her examination-in-chief that she was raped by the accused around 1-2 P.M. and for about five minutes, she was made to sit on the Cot, thereafter she was raped on the Mat. PW4 categorically stated that she heard the noise around 2 P.M. while crossing the house of Amar Chand, therefore, contradiction in the statement of the prosecutrix with respect to the time is not very much material and looses its importance, in view of the above proved facts. 11. The next argument of the learned counsel that the medical evidence does not prove the allegation of rape. Though clinically PW1 Dr. Neena Lal did not find any sign of rape on the prosecutrix including any injury on her person, but the fact cannot be lost sight of that the prosecutrix was a married woman and she was married one year prior to the alleged incident. She was allegedly dragged from outside and brought to the room of the house of Amar - 12 - Chand. She stated that she raised hue and cry, but nobody came forward to rescue her. She did not say that while dragging, she sustained injury. Accused was also a young man. She must not inflicted any injury on her person and in the absence of any injury on her body or on her private part, it cannot be inferred that she was not raped by the accused. The injury on the private parts and body depends upon various factors including the manner and method of sexual assault and also the flexibility/ mobility of genital organs of a female. Contra, her statement finds material corroboration from the statement of PW5 Dr. Ranjit Thakur, who stated that the Penis glans of the accused was having slight redness and also having a bruise there upon and bleeding injury could be due to itching, zipping or unzipping the pant, but the duration of the injury pertinently synchronizes with the alleged incident. Therefore, the contradictions pointed out above are minor in nature, thus ignorable in view of the other overwhelming evidence as discussed above. 12. In Waman and Others vs. State of Maharashtra [ (2011)3 SCC (Cri) 83 the Apex Court reiterated that the minor discrepancies and - 13 - contradictions in the evidence of some or all of the witnesses does not mean that the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvement, the court comes to the conclusion that what can be accepted implicates the appellant, it will convict him. It is also clarified that not all contradictions have to be thrown out from consideration, but only those which go to root of the matter are to be avoided or ignored. 13. In the instant case, contradictions pointed out above are of a nature which do not go to the root of the case and the accused stood properly linked with the offences charged, as alleged by the prosecution. 14. Thus, the dispassionate assessment of the prosecution evidence on record lead me to the conclusion that the prosecution has been able to prove the case against the accused beyond reasonable doubt and the testimony of the prosecutrix inspires confidence as it stand corroborated in material particulars viz. the torn clothes which were - 14 - immediately taken into possession on the same day by the police, to which she identified during the trial as Exts.P1 and P2 and its torn condition noticed in the Forensic Science Laboratory report Ext.PW12/C and also the statements of PWs 2 and 4 discussed above. Therefore, the impugned judgment of conviction does not suffers from any illegality, as such it is upheld. 15. As far as the sentence is concerned, learned counsel for the accused has vehemently argued that the accused belongs to a poor family. He was a young man of 20 years at the time of alleged incident. He was not a previous convict and is also sole bread winner of the family. His father has died and has an aged mother. Accused remained in custody before commencement of the trial and even now he is undergoing the sentence. Thus, keeping in view the extenuating and exaggerating circumstances reduction in the sentences would be justified. 16. Having regard to all the circumstances aforesaid and also considering the age of the prosecutrix and the accused, in my opinion, the interest of justice would be met in case the substantive sentence passed under Section 376 of the Indian Penal - 15 - Code is reduced to three years instead of seven year without disturbing the sentence passed under Section 342 of the Indian Penal Code, fine and default clauses. Ordered accordingly. 17. In result, the appeal filed by the accused is dismissed, subject to the modification in the sentence to the extent aforesaid. 18. Learned trial Court is hereby directed to send the modified warrant to the Superintendent of jail concerned, in conformity with the judgment of this Court. 19. Send down the records forthwith. September 7, 2011. (Surinder Singh) (Pds) Judge.