IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 180 of 2004 Mahak Singh S/o Komal Singh R/o Village Himmatpur P.S. Sahbad District – Rampur (U.P.) ……… Appellant Versus State ……… Respondent Mr.K.S.Verma, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for the respondent/State. Judgment Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 05.05.2004, passed by learned Sessions Judge, Champawat in S.T. No. 9 of 2003, whereby the accused/ appellant has been convicted & sentenced to undergo rigorous imprisonment for 10 years under section 376 Indian Panel Code, 1860 (for brevity as I.P.C.) and a fine of Rs.20,000/-. In default of payment of fine, the accused/appellant would further undergo one year R.I. 2. Brief facts of the prosecution case are that there was a police barrier adjacent to the house of the informant Jagdish Kumar, the father of the victim. The accused/appellant Mahak Singh was posted in the said barrier. The victim is a minor girl of the informant Jagdish Kumar. The accused/appellant used to tease the victim on one pretext or the others. On 30th May, 2003, in the early morning at about 5:30 a.m., the victim went to ease herself out in the jungle adjacent to her house. constable Mahak Singh, accused/appellant in this case also chased the victim. As soon as the the victim started to ease herself, the accused/appellant caught hold of her. The 2 accused/appellant threatened the victim of the dire consequences; closed her mouth; put off his clothes; put off the clothes of the victim; and thereafter committed forcible sexual intercourse upon the victim. After commission of the offence by the accused/appellant, the victim came to her house and narrated the entire incident to her mother. The father of the victim (informant) Jagdish Kumar PW1 had gone in his work. It is also on the record that the informant Jagdish Kumar PW1 usually leaves his house early in the morning at about 5:00 a.m. and return at about 7:00 to 7:30 p.m. in the evening. The informant Jagdish Kumar PW1 was a labourer and belonged to scheduled castes category. When the informant came to his house at about 7:00 to 7:30 p.m., his wife Smt. Saroj Devi narrated the entire incident to him. On the next date, the informant went to police station where he was apprehended by the police. The villagers of the informant Jagdish Kumar reached at the police station and thereafter, the informant scribed the report in the custody through one Trilok Singh. The report was lodged at the police station on 31/05/2003 at about 12:05 p.m. and thereafter, the police investigated the matter. The victim was sent for the medical examination in the hospital and her x-ray was conducted on 31/05/2003 in the Civil Hospital. The doctor has opined that the victim was subjected to sexual intercourse and her hymen was found torn. In the pathological examination, no spermatozoa was found on the private part of the victim. The doctor has stated that the said spermatozoa could not be alive after 32 hours of the commission of the offence. The doctor found the age of the victim at about 17 years at the time of the commission of the offence. Thereafter, the Investigating Officer after completing the investigation, submitted the chargesheet (Ex.Ka.9) against the accused/appellant. 3 3. The accused/appellant was committed to the Court of Sessions and the trial court framed charges against the accused/appellant. The accused/appellant denied the charges and claimed to be tried. 4. The prosecution in support of its case examined as many as seven witnesses. Jagdish Kumar PW1 is the informant of the case. He is the father of the victim. Smt. Saroj Devi PW2 is the mother of the victim whom the victim narrated the entire incident. PW3 is the victim who has narrated the entire story to her mother & father. Sangeet Devi PW4 is the neighbour of the victim. Dr. Shailaja Joshi PW5 is Medical Officer who has examined the victim. Trilok Singh PW6 is the scribe of the report. K.L. Shah PW7 is the Investigating Officer of the case who has investigated the matter and submitted the chargesheet against the accused/appellant. 5. After recording the entire evidence, the accused/appellant was examined u/s 313 Cr.P.C. and he denied the entire evidence. He has further stated that the informant Jagdish Kumar PW1 assaulted him by an axe with an intention to kill him and he had been falsely implicated in this case only to save the conviction by the informant from the said case. 6. The learned Sessions Judge on appreciation of the evidence held accused/appellant guilty of the charge of offence framed against him and convicted & sentenced him as mentioned above. 4 7. I have heard Mr. K.S. Verma, Advocate for the appellant; Mr. Amit Bhatt, Addl. G.A. for respondent/State; and perused the record. 8. It is settled position of law that the victim in a rape case is not an accomplice after the crime. Her statement stands on a higher pedestal than any other witnesses. If the evidence of the victim inspires confidence, there is no need to seek any corroboration from any other witnesses on record. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. If the court comes to the conclusion that the evidence of victim is reliable and cogent, it does not need any further corroboration of any other independent and corroborative piece of evidence. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self- esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly reputation and not the least her chastity. Rape is not only a crime against the person of a victim, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Basically, it is a crime against basic human rights. Keeping in view of the aforesaid circumstances it must be expected from the court to deal with cases of sexual crime against women with utmost sensitivity. 9. Now, in the above background, I have to examine as to whether the accused/appellant has participated in the commission of the offence or not and whether the evidence of 5 the prosecution is credible & cogent or not. The prosecution in support of its case examined the victim as PW3 who was 15 years of age at the time of recording of her evidence. She has stated in her evidence that on 30th May, 2003 at about 5:00 to 5:30 a.m., she went out to meet her natural call. As soon as she started to ease herself, the accused/appellant came there and caught hold of her. Thereafter, the accused/appellant took her to bushes near the dry nala; laid her down on the ground; closed her mouth; threatened her & her family members of dire consequences; and committed forcible sexual intercourse upon her. She has given the vivid details of the commission of the offence in her evidence. Thereafter, she came to her house and narrated the entire story to her mother. She has further stated that when her father came home in the evening, her mother narrated the entire story with respect to the incident to him. On the next day, her father went to the police station. She also went to the police station from where she was taken to Tanakpur Hospital where her medical examination was conducted. She has further stated that on 05/06/2003 her x- ray was conducted at Bajpur civil hospital. She has also stated in her evidence that the accused/appellant used to tease her. 10. The prosecution also examined Smt. Saroj Devi PW2, mother of the victim. She has corroborated the evidence of the victim on all the material points. She has stated that her daughter had narrated the entire story to her with regard to the factum of the incident. She has further stated that the police had taken into possession the salwar of the victim which she was wearing at the time of the commission of the offence. She has further stated that her husband (informant Jagdish Kumar PW1) is a labourer who used to go out for work in the morning and returns at about 7:00 to 7:30 p.m. in the night. 6 11. Jagdish Kumar PW1 is the father of the victim. He has stated in his evidence that when he returned home at about 7:00 or 7:30 p.m. from his work, his wife Smt. Saroj Devi PW2 narrated the entire story to him. Thereupon, he went to the police station to lodge the report on the next day. He was apprehended by the police and thereafter, the family members came at the police station and he managed to get scribe the report of the incident through one Trilok Singh PW6. Thereafter, he lodged the report at the police station. The prosecution also examined Sangeeta Devi PW4 who is the Jethani of Smt. Saroj Devi PW2. She has stated that she was also accompanied with the victim when the victim was taken to the hospital. She is the witness of the recovery memo of the clothes of the victim which was taken into possession by the police. 12. Dr. Shailaja Joshi PW5 is the Medical Officer who had conducted the medical examination. She has found the following injuries on her person of the victim:- 1. No bruise / no abrasion seen anywhere in body. 2. Except a small abrasion 2 x 2 cm. present in the back at midline in center of vertebral column. 3. Small old scar present in left thigh (old pksV dk fu’kku as told by this girl). 4. Breast well developed, nipple present auxiliary hair present. 5. External genitation – pubic hair present labia majora & minora developed. 6. Bleeding p/v seen. 7. Clothes are not torn, not stained with mud, blood or any other secretion. (girl said she has changed her clothes) She is using clothes for p/v bleeding. Internal examination – No bruise / no laceration. No abrasion seen over thigh/gluteal region. P/s Bleeding present. 7 P/V Bleeding present 2 fingers are passed in vagina. Hymen not intact. A smear is made of vaginal blood + secretion. Swab is also taken & sent for pathological exam. After conducting the medical examination of the victim, Dr. Shailaja Joshi PW5 referred the victim to pathologist for conducting the pathological tests. In the supplementary medical report neither the dead nor alive spermatozoa were seen. The doctor referred the victim for X-ray for ascertaining the age of the victim. The radiologist has reported that the victim was aged about 17 years. The doctor further opined that that the girl was subjected to sexual intercourse. Trilok Singh PW6 is the scriber of the report. 13. Learned counsel for the accused/appellant contended that the evidence of the prosecution is not credible and cogent, as such, the conviction of the accused/appellant cannot be based upon such evidence. The learned Addl. G.A. refuted the contention and supported the findings recorded by the trial court. 14. According to the medical report as well as evidence of the doctor, the age of the victim was assessed 17 years at the time of the commission of the offence. Jagdish Kumar PW1, father of the victim has stated in his cross examination that the victim was born in the year 1988. He has further stated that the date of birth of the victim recorded in the school certificate is 1986. The school certificate Ex.Ka.7 produced before the court indicates the date of birth of the victim as 18-02-1988. Thus, there is contradiction in the evidence of the prosecution. But the father of the victim Jagdish Kumar PW1 has admitted that 8 the date of birth of the victim was 1986. In these circumstances, it would be safe to conclude that the age of the victim was 17 years at the time of the commission of the offence. 15. Learned counsel for the accused/appellant contended that the victim was the consenting party to the commission of the offence. Now, it is to be seen whether the victim was a consenting party of the commission of the offence as contended by the learned counsel for the accused/appellant or not. It is true that the victim was laid on the rough ground and thereafter, forcible sexual intercourse was committed upon her near the bush. There was no injury on the back of the victim. According to the victim, she had been taken by the accused/appellant in the field near the bushes; her mouth was closed; she was given threats of dire consequences; she was forcibly laid on the ground and thereafter, she was subjected to forcible sexual intercourse. Learned counsel for the accused/appellant contended that there was only one abrasion mark of injury on the person of the victim whereas the place of occurrence was reported to be having stony surface. It was further contended that non-receiving of the injuries on the part of the victim would render the evidence of the victim doubtful. The clothes which the victim were wearing at the time of the commission of the offence would also be material to appreciate the contention of the learned counsel for the appellant. It is not the case of either party that all the clothes including of upper part of the body was removed from the person of the vicitm. There is no effective cross examination on the point that all the clothes of the upper part of the victim were removed by the accused/appellant during the commission of the offence. In absence of such evidence, it is established that the victim was 9 wearing the clothes which she was having on the upper part at the time of the commission of the offence. It is only in the evidence that rough surface was there. The victim has sustained one abrasion which was visible even on the date of the medical examination. It is also true that the offence was committed on 30th May, 2003 and the medical examination was conducted on 31/05/2003 at about 1:45 p.m. The medical examination was conducted after 24 hrs. of the incident and if the victim would have clothes on the upper part of her body, under these circumstances, the marks of abrasion and contusion would not be visible after a lapse of some time and the mark of abrasion would have been disappear when the medical was conducted. The Hon’ble Apex Court in the case of B.C. Deva alias Dyava Vs. State of Karnatak reported in (2008) 2 SCC (Cri) p/253 has held in para 18 as under :- “The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.” 16. Thus, merely non-availability of the injuries on the person of the victim would not render the entire evidence of the victim un-believable only on that point. The learned counsel for the accused/appellant further tried to emphasize at the time of the 10 commission of the offence, the victim neither made any hue and cry nor did she try to save herself which clearly infers that the victim was a consenting party to the offence. The learned counsel for the accused/appellant further contended that the accused/appellant was a frequent visitor to the house of the victim, as such, it could be presumed that the accused/appellant had some friendly relation with the victim. The evidence of the victim is self-explanatory in this regard. The evidence of the victim is reproduced hereunder:- “ftl txg ys x;k Fkk ogkW eysfj;k dh ekfM+;k FkhA eq>s fyVk fn;kA fyVkus ds ckn Hkh eSaus 'kksj ugha fd;k D;ksafd eSa Mj x;h FkhA eq>s nck j[kk Fkk blfy;s cpko ugha dj ik;h ?kVuk ds fnu Hkh eSaus lyokj iguh FkhA esjs diMs+ mrkjs eq>s ph[kus dk ekSdk ugha feyk cpus dh dksf’k’k dh ysfdu ugha dj ik;h eSaus cpko ds fy;s ikao pyk;s Fks ?kVukLFky ij uhps iRFkj esa eq>s pksV ugha yxhA” 17. Thus, it is evident that the victim was caught hold; her mouth was closed; her clothes were put off; and she was laid down on the ground. The accused/appellant also threatened the victim. The victim has also stated that the accused/appellant did not give her any occasion to make hue and cry. Perusal of the record reveals that the victim, aged about 17 years, is weak and thin in comparison to the accused/appellant who is aged about 28 years, young and stout man. She has further stated that she tried to resist the accused/appellant by her legs but of no avail. In the facts and circumstances of the case, the victim did not make any hue and cry does not give any benefit to the accused/appellant that the victim was a consenting party to the commission of the offence. Learned counsel for the accused/appellant also contended that the victim has stated that she reached at her house after 2 hrs. of the commission of the offence. It was contended that this fact also leads to take inference that the victim was a 11 consenting party in the offence. It is also on the record that the victim was subjected to rape as alleged by the prosecution by the accused/appellant and the commission of offence was committed for about ½ an hour. It is natural that the victim would have lost her mental equilibrium. The accused/appellant as stated above was a young and stout man, aged about 28-29 years at the time of the commission of the offence whereas the victim was thin and weak aged about 17 years. In the facts and circumstances of the case, 2 hrs. late arrival at house by the victim is of no consequence to the defence. After commission of the offence, the victim came to her house and narrated the entire story to her mother. If the victim had been the consenting party, she would have concealed this fact to her parents. 18. Keeping in view of the aforesaid facts and circumstances and the evidence led by the prosecution, I do not find any force in the arguments raised by the learned counsel for the accused/appellant. 19. Learned counsel for the accused/appellant further contended that Smt. Saroj Devi PW2, mother of the victim has stated in her evidence that her daughter/victim had narrated the incident to her at about 5:00 to 6:00 p.m. Learned counsel for the accused/appellant contended that the victim remained silent for the whole day and she narrated about the incident to her mother after a long gape of time. Perusal of the record reveals that the victim has stated in her evidence that when she reached at her house, she narrated the entire incident to her mother. She has not been effectively cross-examined on that point as to whether she narrated this fact to her mother immediately after reaching to her house or not. When I have 12 gone through the evidence of Saroj Devi PW2, mother of the victim, I find that she has stated in her evidence that the victim has stated about the commission of offence in the evening at about 5:00 to 6:00 p.m. But at the same time, she has stated in her evidence that the victim went to natural call at about 5:00 to 6:00 a.m. in the morning and came back after 2 hrs. from there. Immediately, thereafter the victim told her that the accused/appellant had committed sexual assaults upon her. Thus, the tone and tenor of the evidence also reveals that the victim immediately narrated the incident to her mother. If there are two versions of the evidence and are contradictory with each other, it is the duty of the defence to put both the versions before the witness so that the witness can explain the said inconsistency. There is nothing to show that the former statement of the witness was placed before her and the witness was given chance to explain. When the former statement was not put to the witness, it is a settled position of law that such statement could not be read as evidence. Moreover, this witness belonged to lower strata of society and she is an illiterate lady. She has put the thumb impression at the time of the recording of her evidence. It is pertinent to mention here that when a witness appears before the court, sometimes he may not stand the test of cross examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross- examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. (See Krishna Mochi Vs. Vs. State of Bihar 2002 (6) SCC p/81). In view of the above, I do not find any force in the contention raised by the learned counsel for the accused/appellant. 13 20. Learned trial court after going through the entire evidence found the evidence of the victim credible & cogent and convicted the accused/appellant. The learned trial court also held that the evidence of the victim finds corroboration from the evidence of informant Jagdish Kumar PW1 and Saroj Devi PW2. I have also gone through the entire evidence of the victim. The victim was cross-examined at length but nothing could be elicited from her evidence to discredit her testimony. The evidence of victim inspires confidence to base the conviction of the accused/appellant on her sole testimony. I have also gone through the entire evidence of the prosecution witnesses. The prosecution evidence further finds corroboration from the evidence of Medical officer Dr. Shailaja Joshi PW5. The doctor found the vagina of the victim torn at the time of medical examination. She has also opined that the victim was subjected to sexual intercourse. But she has stated that no definite opinion can be given about the rape. When I go through the entire scenario of the case and more particularly, the fact that the vagina was found torn, it cannot be held that the victim was not subjected to sexual intercourse. There is every possibility that the victim was subjected to sexual intercourse due to which her vagina got torn. No other possibility has been pointed out by the learned counsel for the accused/appellant to me during the course of the argument raised by him. The absence of the injuries on the person of the victim is sine-quo-non for proving the charge of the commission of the offence of rape. The absence of injuries having regard to the overwhelming ocular evidence cannot thus be sole criteria for coming into conclusion that no such incident has taken place. The medical officer has also opined that spermatozoa could not be found on the private part of the victim if the 14 medical examination would have been conduced after 32 hrs. In the instant case, the medical examination was conduced after 32 hrs. of the incident, as such, no sperms were found on the private part of the victim. Thus, the evidence of prosecution further finds credence to the medical evidence. In view of the above, I