IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 166 of 2002 Reserved on 21. 4. 2009 Date of decision: 7. 5. 2009 Amrik Singh …..Petitioner. Versus State of H.P. ……Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 . For the petitioners: Mr. B. B. Vaid, Advocate. For the respondent : Mr. J.S. Guleria, Assistant Advocate General. Surinder Singh, J. The challenge has been made by the appellant to his conviction and sentence passed by the learned trial court for the offence under Section 376 of the Indian Penal Code to undergo rigorous imprisonment of 7 years and to pay a fine of Rs. 2000/- and further to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 506-II of the Indian Penal Code. Both the aforesaid sentences were ordered to run concurrently. The benefit of Section 428 of the Code of Criminal Procedure was also given to the appellant. In this appeal, the appellant precisely contended that the medical evidence on record did 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - not support the prosecution case and the story put forth by the prosecutrix is most unnatural, mis- statement of facts thus unbelievable. Further the important and independent witnesses were withheld, which makes the prosecution case all the more a suspect. The appellant (21) belongs to an upper caste whereas prosecutrix (22) is a married woman from a lower caste. Precisely, the prosecution case is that on 5.9.1998 at about 8 a.m. the prosecutrix had gone to her fields in village Jalgran to fetch the grass. Her husband was out of station for the last about three days. The accused-appellant was present in his field nearby. He was watching the prosecutrix cutting the grass. When she had cut the grass and was about to put the load on her head, the appellant caught hold the prosecutrix from her back and embraced her. She threw away the grass load and offered resistance but the appellant some how managed to over power her and gagged her mouth with a piece of cloth, laid her down and broke the string of her ‘salwar’ and committed rape. Thereafter, he threatened to kill her, if she would raise any noise or talked about the said incident to anyone. On the way, she met PW-6 Kiran Devi and Krishna and disclosed to them that a boy had teased her. When she reached home, prosecutrix narrated about the entire incident to her mother-in-law and - 3 - number of other persons. Later, the appellant was apprehended by the villagers. The prosecutrix lodged the FIR with the police. Thereafter, she was medically examined in District Hospital, Una on the same day at 9.30 p.m. Her husband had returned from the work same evening and met her in the police Station. The Doctor sealed her ‘salwar Ext. P-1 and handed it over to the police for its chemical analysis. As per report Ext. PW-8/A, the said ‘salwar’ contained human blood and stains of human semen. Further the vaginal smears taken from her private part also contained the human semens. The Doctor confirmed about the recent intercourse with the prosecutrix. Her Medico Legal Certificate is Ext. PW-12/A. The police arrested the appellant. He was also examined by the Doctor on the next day and was found him fit to perform sexual intercourse. His Medico Legal Certificate is Ext. PW-1/A. The police prepared the site plan Ext. PW-11/B of the place of alleged incident and also took the photographs. After recording the statement of the witnesses and on completion of the investigation, the challan was presented in the court for trial of the appellant. - 4 - Finding a prima facie case under the aforesaid Sections, the appellant was charge- sheeted, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was that of denial and according to him this was a planted case against him because of the enmity. When called upon to enter into his defence, he produced DW-1 Ashok Kumar, a Pump Operator. According to him the prosecutrix, about a year back, came weeping to him with a head load of grass about 10.30 a.m. complaining against the a boy who had teased her. The learned trial court disbelieved the defence raised by the appellant as such he was convicted and sentenced as aforesaid which has been assailed by him in the present appeal. Shri Bharat Bhushan Vaid, learned counsel for the appellant has taken me through the evidence on record and vehemently argued that the testimony of the prosecutrix is unworthy of credence as there have been material contradictions, abrasions and variance in her statement. He also argued with vehemence that the appellant and the prosecutrix were almost of the - 5 - same age, if the prosecutrix had resisted the assault of the appellant, she should have sustained many injuries, to which she also stated. But the Medico Legal evidence brought on record does not state about any injury on her person, which falsifies her case. He further argued that Shri Hari Om and Ashok Kumar residents of other village, to whom she is alleged to have complained, were also not examined. They could have thrown light to unfold the truth, thus adverse inference should have been drawn. It is urged that if the testimony of the prosecutrix is meticulously scrutinized, the judicial conscience would remain unsatisfied about her veracity. To counter the above arguments Shri J.S. Guleria, learned Assistant Advocate General has submitted that the version of the prosecutrix is quite natural and the medical and evidence of expert witnesses afford corroboration to her statement. It is also submitted that non appearance of the injury on the person of the prosecutrix would not cause suspicion in view of the other overwhelming evidence on record. The non-examination of Hari Om is also not fatal to the prosecution as thee is enough corroboration to the statement of prosecutrix. Therefore, no fault or error can be found in the impugned judgment of conviction and sentence passed by the learned trial court. - 6 - I have given my thoughtful consideration to the respective contentions of the parties and have meticulously and carefully reappraised the evidence of the parties. It is by now well settled 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 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, 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 was 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 - 7 - 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 precedent 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 worth inspiring confidence, it must be relied upon without seeking further 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 even that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a - 8 - ground for throwing out an otherwise reliable prosecution case. In the aforesaid back ground and the settled law I proceed to examine the testimony of the prosecutrix and other important witnesses. The husband of the prosecutrix is a mason, who was out of Station for three days. The prosecutrix had been usually going to cut the grass from her fields, which is about one mile away from her house. According to the prosecutrix, on the day of alleged incident at about 8 a.m. she had gone to cut the grass and took along her goat with her. She tied the goat on one side in the field and started cutting the grass. The appellant appeared there and asked about her whereabouts. She told him that she was the daughter-in-law of Chowkidar. The appellant started conversing with her and told her that some person had cut the grass from his field to which she replied that she did not know anything about it. Thereafter the appellant left the place. She made the bundle of the cut grass and lifted it on her head. She untied the goat and started the return journey to her house. No sooner did she could cover a small distance in the field, the appellant re-appeared from behind and caught hold of her from the back and embraced her. She abused him and asked why he was doing all that with her. She also pleaded to leave her but the appellant did not stop. During the scuffle, the - 9 - bundle of grass fell down. She started grappling with the appellant. Her clothes were torn. She was threatened by the appellant that he would kill her and nobody would come to know about her murder. The appellant was having sickle in his hand. She started crying for help but the appellant put one piece of clothe in her mouth, broke the string of her ‘salwar’ and committed rape. She further stated that she did not suffer any external injury but sustained one contusion. After committing rape on the grassy land, the appellant went away. She prepared her string with the help of a part of the piece of cloth, which was put into her mouth and tied her ‘salwar’. She left the grass on the spot and returned to her house crying. On the way, near the Tube Well, she met Hari Om and Ashok Kumar. They asked the reason for weeping, she told them that one boy had assaulted her. She also stated that PW-6 Kiran and Krishna who were also going to cut the grass met her near the Tube Well. She divulged the same story to them. She further stated that she did not tell them about the rape as she was shocked and felt ashamed. On reaching home, she disclosed about the incident of rape to her mother-in-law PW-3 Rachna Devi. Her mother-in-law corroborated her version and went to lady Ward Punch Leela Devi (PW-4) narrated whole story to her. The prosecutrix further stated that one of her elder - 10 - bother-in-law along with Chaman Lal went in search of the appellant. She disclosed them the location of his house but was found absconding. Lateron, he was found in one of the hut near Smadh of Mangtu. The appellant on having been noticed by them, assaulted her brother-in-law and Chaman Lal but he was brought to their house and was identified by the prosecutrix to be the same person. Elders of the village were also called and matter was discussed. Her husband reached in the evening directly at the police Station when she was reporting the matter to the police. Next day, the police visited the spot and took the photographs of the place of occurrence. Broken pieces of string were found from the place of occurrence and the pieces of clothes were not there. However, part of it was used by her for making string. The pieces of string were recovered from the spot by the police. Her clothes were taken into possession by the Doctor at the time of her medical examination. She identified her ‘salwar Ext. P-1 Ext. P-2 to be the same and both were torn. She also identified the string Ext. P-3 and other two broken pieces of the string Ext. P-4 and the piece of cloth Ext. P-5 which was used by the appellant for gagging her mouth. She further stated that the aforesaid articles were taken into possession vide seizure memo Ext. PW-2/B and identified her signatures - 11 - thereon. She also stated that she was knowing the accused by face and also the location of his house but at that time she was not aware of his name. She also identified him during the trial of the case. In her cross-examination, she stated that the whole incident was narrated to the police at the time of recording the FIR Ext. PW-2/A. she further deposed that she had informed the police about the apprehension of the appellant by her brother-in-law and Chaman Lal but she did not know if the police had recorded this fact or not. She admitted that at the time of lodging the report, she was remembering the facts which were correctly recorded by the police. She denied that the boy who had committed rape, was not brought to the police Station. She further stated that the boy, who had committed the offence was the accused present in the court. She denied that the accused was wearing ‘pajama’ and the shirt at that time but volunteered that he was with white pant and blue shirt. She admitted that the appellant was not knowing her previously as such he inquired her whereabouts and admitted that the boy told her that some ladies of Bhati caste had cut these grass and after about 2/3 minutes he left the place. She took about 10/15 minutes to cut the grass. She admitted that scratches and bruises were caused on her legs and arms due to scuffle - 12 - and the same were noticed by the doctor. She denied that she informed Ashok Kumar and Hari Om that boy of Bholi had assaulted her. She also stated that she had resisted the appellant with full force when he inserted the cloth in her mouth. She did not tell the police that the appellant had blackened her face but stated that he had committed the rape. She admitted that she suffered the pain in her back due to his act. The prosecutrix had denied that some other boy had hugged her from behind but according to her rather it was the appellant present in the court who had done so and had scuffled with her. During the examination her demeanor was what she started sobbing and weeping and stated that because of this act of accused she suffered humiliation in the village and the people started saying that she might be of a loose character. She also stated that she had seen the accused earlier also in the village. She denied that when the appellant was standing at a distance, she was covering her face with ‘chuni’. While she was scuffling with him she had thrown him on the ground and the appellant had also thrown her down 2/3 times. She admitted that he had given slaps to him and she gave bearings to him. When she was trying to run away, he again pulled her towards his side. She denied that on the night prior to the occurrence, her husband had slept in the same room with her - 13 - and she was wearing the clothes sent for the examination on the next date also. According to her, she had changed the clothes in the morning. She admitted that she was a supporter of Nardev Pradhan and caste the vote in his favour once only. She stated that after this incident, the community of the appellant, who are Rajputs, were trying to overawe the people of her community. She denied that son of Bholi had seen her ‘scuffling’. She stated that she abused the appellant number of times but she could not speak after he gagged her mouth with cloth. According to her Krishna and PW-6 Kiran might be at a distance of 100 yards and not a distance of 1 k.m. away, where they met her. PW-3 Rachna Devi, her mother-in-law stated that prosecutrix came back crying at about 10 a.m. empty handed. Her clothes were torn. These were mud stained. She disclosed that the appellant had hugged her and committed rape on her. Thereafter their relatives went in search of the boy. Ward Punch PW-4 Leela Devi was called to whom the prosecutrix narrated the entire story. The appellant was apprehended by her son Sikandar and Chaman Lal and was brought him to the Tube Well. He was identified by the prosecutrix. However, he did not admit his guilt. She also corroborated the version of the prosecutrix that - 14 - her husband had gone for the work and was not available at home. In cross-examination she stated that Ashok Kumar and Hari Om were also present at that time. She admitted that she did not disclose to the police that the appellant was apprehended by Sikandar and Chaman Lal. She stated that the prosecutrix was wearing different clothes to which she was wearing the previous night. She admitted the suggestion that at the time of occurrence, she was wearing red colour suit. According to her, the prosecutrix did not disclose that she had suffered injuries on her person. She admitted that the police had arrested the appellant in the village. PW-4 Leela Devi also afforded the corroboration to the statement of the prosecutrix and her mother-in-law. According to her, the police had inspected the place of incident and a small piece of ‘parna’ cloth Ext. P-4 and Ext. P-5 were taken into possession. She further stated that PW-3 Rachna Devi had called her to her house and noticed that the clothes Ext. P-1 and Ext. P-2 of the prosecutrix, which she was wearing, were torn. She identified her signatures on the seizure memo Ext. PW-2/B. She further stated that during the inspection of the place of occurrence by the police, the grass was found lying flat. - 15 - PW-5 is Kuldip Singh, photographer had taken the photographs on 6.9.98 Ext. PW-5/A-1 to Ext. Pw-5/A-6 on the request of the police. He also proved the negatives Ext. PW-5/A-7. PW-6 Kiran Devi stated that she heard the cries of the prosecutrix at the Rig at about 10 a.m. At that time, Krishna Devi was with her and prosecutrix informed them about having been assaulted by a boy whose name she did not know. But according to her, she could recognize him by face. She further stated that the clothes of prosecutrix were torn. She admitted that Ashok Kumar and Hari Om had also met her prior to her meeting with the prosecutrix and the prosecutrix had also talked with them. PW-12 Dr. Rajan Angra had examined the prosecutrix on 5.9.98. She alleged rape by the appellant on the same day. The prosecutrix was wearing pink shirt and salwar and pink dupatta. There was no visible injury on her person. There was no fresh evidence of bleeding from her private part. The Doctor took smear from posterior vaginal pool and three slides were prepared sent for Forensic examination along with the clothes. The report Ext. PW-8/A revealed human blood and human semen on ‘salwar’ and on vaginal smears and in the opinion of the Doctor there was nothing to suggest that recent sexual intercourse had not been performed. She proved the Medico Legal - 16 - Certificate Ext. PW-12/A. According to the Doctor, in the absence of the injuries on the person of the prosecutrix it could be a case of consent. On culling the evidence and applying the settled principles of law as enunciated above, I find that the statement of the prosecutrix is cogent, reliable, convincing and trustworthy as her evidence stood corroborated by the statements of other prosecution witnesses and the precise narration of events in the FIR which is not supposed to be a detailed document of facts. Further, the mother-in-law of the prosecutrix has also testified on oath that when she met her, the prosecutrix was very much traumatized by the event and prosecutrix has stated that there was a fear, disgrace and humiliation in the society on coming to know about the alleged incident by her co-villagers. In the totality of the circumstances narrated above, the testimony of the prosecutrix is not shaken on material aspects of the case. The explanation by the appellant in his statement that a false case was lodged against him because of enmity with his family and that the narrator of prosecution witnesses is not acceptable is incorrect. - 17 - The report of the Forensic Science with respect to the ‘salwar’ of the prosecutrix and vaginal smear on which human blood and semen stains were found, corroborates her version. Further, her torn clothes by itself reveals the tell-tale story of the entire episode. Although the contusion and abrasion, as stated by the prosecutrix did not find mention in her medical certificate but in view of above proved certificate, this fact alone is not enough to throw away the case of the prosecution more specifically when the testimony of the prosecutrix is worth of inspiring confidence and finds corroboration from the independent source. In B.C. Deva Alias Dyava versus State of Karnataka (2007) 12 SCC 122 the Supreme Court, inter alia, held that the absence of marks of injuries either on the person of the accused or the person of the prosecutrix does not itself lead to any inference that the accused did not commit forcible sexual intercourse on the prosecutrix. Having carefully gone through the statement of the prosecutrix and other circumstances narrated above, I find no plausible and justifiable reason whatsoever to disbelieve and discard the testimony of the prosecutrix as a trustworthy witness, her evidence is natural and cannot be brushed aside on the above noted flimsy plea raised by the appellant and further the non- - 18 - examination of the witnesses Hari Om and Ashok Kumar is also not fatal to the prosecution. Thus, I find that the learned trial court has recorded the finding of guilt of the appellant based upon proper appreciation of evidence led by the prosecution in this case. For the foregoing reasons, I do not find any justifiable ground to interfere with the conviction and sentence recorded and awarded by the learned trial court. The appeal sans merits and is accordingly dismissed. Send down the records. May 7, 2009 (Surinder Singh),J. (cm)