HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 245 of 2007 Reserved on: 29.4.2008. Decided on: 13.5.2008. Jagat Ram ………Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Rakesh Jaswal, Advocate. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J: This is an appeal filed by the appellant against the judgment of the court of learned Additional Sessions Judge, Mandi, dated 9.3.2007, vide which the appellant was held guilty under Section 376 I.P.C. and was sentenced to undergo rigorous imprisonment for 8 years and to pay a fine of Rs.10,000/-. In default of payment of fine, the appellant was to further undergo rigorous imprisonment for six months. Briefly stated the facts of the case are that on 19.11.2005, one Paras Ram accompanied by his brother Bhawani Dutt and Bhanji Kumari P. (name not _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - mentioned) came to the police station and lodged a report with the police. He alleged that the prosecutrix was aged about 13 years and she came to her mother on 18.11.2005 and told her that three days prior to Diwali when her younger brother and sister were sleeping, her father gave her a tablet and she slept in a sound sleep and on the next morning, she got up with pain in her private part and blood was also oozing out. She narrated these facts to her chachi who did not react. On the next day, when she slept in the room and her younger brother and sister also slept there, her father picked her up and committed bura kaam with her. She raised an alarm and her chaha came from the other room and took her to the other portion of the house and made her sleep. On the third day, her father again called her who was standing naked and she ran away and stayed in the house of her taya for about 16-17 days and thereafter she went to her mother who was living apart and the report was lodged with the police. On this report, a case under Section 376 IPC was registered against the father of the prosecutrix, the present appellant and after investigation, the challan was filed before the learned trial Court, who committed the case and the case was decided by the learned trial Court leading to the conviction of the appellant, as detailed above. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the learned trial Court, in coming to its findings holding the appellant guilty, has been swayed by the fact that the allegations made are against the father and the learned trial Court has imposed a moral conviction rather than appreciating the evidence in legal manner. It was also submitted that on the - 3 - first day, the prosecutrix was having fever and the medicine was given by her father but there is nothing that she had seen him committing the rape upon her. However, in regard to the assertions that on the second day she was raped, she did not narrate the incident to her chacha or the grand father living in the same house and rather than going to her mother, who was staying in her parents’ house, she went to her taya, stayed there for about 16-17 days and there has been considerable delay. No specific arguments were advanced in regard to the delay in question, but it was submitted that her conduct appears to be unnatural that she did not go to her mother but went to her taya and lodged the report subsequently. It was further submitted that the term used by the prosecutrix was bura kaam which does not prove that the rape was committed upon her and at the most, the appellant can be said to be liable for the offence of attempt to rape or sexual assault only. On the other hand, the learned Law Officer for the respondent had submitted that the Medical Officer has not given any definite opinion but the statement of the prosecutrix has to be considered whether it proves the act of rape or not and the finding of the expert has not to be preferred to that of the statement of the prosecutrix. During the course of arguments, he placed reliance upon the following decisions: Reliance was placed upon Pratap Misra and others v. State of Orissa, AIR 1977 Supreme Court 1307. In regard to the evidence of the medical expert, the following observations were made by their Lordships, which are relevant and are being reproduced below: “It is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury - 4 - was caused and in the instant case as to the exact time when the appellants may have had sexual intercourse with the prosecutrix. The Doctor who has examined the victims is in a best position to depose about the medico-legal aspects of the offence committed on the victim. Thus, where there was a discrepancy of some hours between the opinion of the doctor and the version of the prosecution about the time of commission of rape, it was futile for the Courts to make a detailed research on the point and the opinion of the doctor should not have been disbelieved on that ground alone.” The decision in State of Rajasthan v. Om Prakash, AIR 2002 Supreme Court 2235, was relied upon wherein also it was a case of rape of child aged about 8 years. It was observed that the family had waited for the arrival of the elders for taking decision to lodge the FIR which was not unnatural and the delay in question was not fatal. It was also observed that the evidence of victim was not unreliable. No valid reasons were there to discard evidence of doctor. The failure of the prosecution to examine independent witnesses i.e. persons other than family members of victim was held to be no ground to set aside the conviction of the accused. I may refer to another decision of the apex court in Gian Chand v. State of H.P., AIR 2001 Supreme Court 2075, wherein the report was lodged on third day and the rape had been committed on a girl of about 5 years and 6 months by the Jethani’s brother of the prosecutrix’s mother. It was held that the delay in question was not fatal and had been satisfactorily explained, in view of the close relationship of the prosecutrix’s family and that of the appellant and the prosecutrix’s mother had lost her husband and was dependant upon the other family members, the conviction imposed in that case was accordingly upheld and delay was held to be of no consequence. - 5 - The evidence of the prosecution has to be appreciated in the light of the submissions made above and the points raised by the learned counsel for the appellant in regard to the false implication since the relationship in between the parties was also strained and the mother of the prosecutrix was living separately in her parents house. A perusal of the statement of the prosecutrix as PW-6 clearly shows that she has referred to the first incident when her father i.e. appellant gave her a tablet by saying that it was a medicine of cold and she took the medicine and went to sound sleep. When she got up in the next morning, she was feeling pain in her private part and blood was also oozing out. I am not considering the rape on that day because the prosecutrix had not seen the person who committed the rape on her since she was in a sound sleep but she only drew the inference and told her chachi about this fact. Her apprehension that this was committed by her father was confirmed when on the next night also, when she was sleeping, the appellant took off her salwar and also his pent, put her in his lap and then did Galat kaam with her. She stated that her brother, sister and father used to sleep in the same room but since she herself was aged 13 years and her brother and sister were younger to her, it cannot be said that the statements of those brother and sister were relevant or that they could have saved her from the sexual assault made by her father. Her statement is very clear that this act was committed by her father and when she raised a hue and cry, her chacha came there. She told him that the accused raped her and he took her to the another room in the same building and she slept there. On the next day also the appellant called her inside the room, who was standing there naked, but she ran away from the house and went to the house of her taya Tula Ram at village - 6 - Rouni. She stated that her taya was not present in the house who came back in the evening and she told him about the facts and stayed there for about 16-17 days. Thereafter, she went to the house of her maternal uncle where her mother was staying and then she narrated the entire occurrence to her mother and maternal uncle. This statement of the prosecutrix that she told the facts to her mother and had gone to the house of her maternal uncle stands corroborated by the statement of her mother Kamli Devi who appeared as PW-2 and her maternal uncle Paras Ram. Coming to the plea that the prosecutrix should have gone to her mother rather than going to her taya, it is too much to expect from a child of 13 years of age who might have thought of telling all the facts to her taya, who would protect her, but the said taya also failed to take any action or lodge report with the police when the prosecutrix stayed in his house for 16-17 days. It cannot be expected that a girl of 13 years age, who was in a shocking state having been raped by her own father, should have firstly gone to her mother and not taya, since human behaviour varies from person to person. There was nothing abnormal in going to her taya and seeking his help, and it cannot be said that as she had not gone to her mother, her statement cannot not be relied upon. Therefore, no benefit can be taken by the accused on this ground. Coming to the next plea raised in regard to the false implication because of the fact that the relations in between the prosecutrix’s mother PW-2 and her husband appellant are strained and they are living apart, only the fact that the parties are having some disputes and are living separately is not sufficient to hold that the relations are so strained that PW-2 Kamli Devi, mother of the prosecutrix, will go to this extent to falsely implicate her husband to settle score - 7 - with him. These are minor disputes in the family and these cannot be taken to be a ground of false implication unless and until there is strong evidence to show that the mother of the prosecutrix had used her daughter to settle scores with her husband. This is not so in the facts of the case since there was no specific allegation even to the prosecutrix as PW-6 that she had falsely implicated her father at the instance of her mother. There is nothing in the statement of the prosecutrix that prior to the occurrence, she had met her mother and she had instigated her to make such allegations against her father. The statement of PW-6, to my mind, does not suffer from any infirmity or contradiction and inspires confidence. This statement stands duly corroborated from the statement of PW-1 Paras Ram and PW-2 Kamli Devi, the mother of the prosecutrix. The said taya of the prosecutrix, namely, Tula Ram stepped into the witness box as PW-7, who admitted that the prosecutrix stayed in his house for about 15-16 days, but he stated that he did not ask her as to why she came there. He was declared as hostile and was allowed to be cross examined by the learned Public Prosecutor for the State. The said chacha of the prosecutrix, namely, Geeta Ram was also examined as PW-12, who stated that nothing had happened in his presence and nothing was disclosed to him by the prosecutrix. I am not inclined to believe these versions of both the brothers of the appellant who have every reason to depose falsely to save their own brother and they have failed to offer any explanation as to why the prosecutrix came to the house of PW-7 Tula Ram, stayed there for such a long period. PW-12 Geeta Ram has also failed to show that no complaint was made to him at any time by - 8 - the prosecutrix and I am not inclined to believe the statements of both these witnesses. The statement of the prosecutrix on the face of it inspires confidence and has to be relied upon. Coming to the next plea that the medical evidence does not corroborate the statement of the prosecutrix, the prosecution had examined the medical officer Dr.Vanita Kapoor as PW-10, who had examined the prosecutrix and had given her opinion. She stated that keeping in view the medical examination report, the prosecutrix was not exposed to coitus. She issued MLC Ext.PW-10/B in this regard. In my opinion, the medical officer should have been cross examined further to elicit if the possibility of sexual intercourse was ruled out or not, but she ventured out to give positive opinion that the prosecutrix was not exposed to coitus. She admitted that generally the hymen is ruptured on first or second coitus usually but there are reported cases that in certain circumstances, the hymen does not rupture during coitus for first time or second time and the mere fact that the hymen of the prosecutrix was not torn is not sufficient to hold that she was not subjected to sexual intercourse. It cannot be disputed that the mere fact that there was no injury on the private parts of the victim does not prove that there was no rape. It is also the requirement of law that the medical examination of the prosecutrix should have taken place at the earliest but in the present case since the occurrence was reported to the mother after a lapse of about 20 days and the prosecutrix was examined only after the report was lodged with the police, there has been considerable delay in her examination. However, keeping in view the testimony of the medical officer, which is only an opinion and not - 9 - conclusive, the statement of the prosecutrix cannot be ignored that the appellant had committed bura kaam with her. It is not necessary for the prosecutrix to have used the word ‘rape’ in narrating the facts of the case and, therefore, in my opinion, it does not affect the merits of the case since the prosecutrix had clearly stated that she was subjected to bura kaam by her father. During the cross examination of PW-6, prosecutrix, the learned defence counsel did not put up any questions in regard to the term bura kaam or whether there was no penetration or it was only an attempt to rape, which clearly shows that the term bura kaam was used by the prosecutrix to convey that she was raped. There is nothing to show that it was only an attempt to rape or that the appellant should have been held liable under Section 376 read with Section 511 IPC. The learned trial Court had referred to the other evidence also in regard to age of the prosecutrix which was not in dispute being less than 16 years at the relevant time and had appreciated this fact in its right perspective. It cannot be said that the learned trial Court had come to a moral conclusion in holding the appellant guilty and had not considered the evidence legally. The findings recorded by the learned trial Court holding the appellant guilty under Section 376 IPC are based upon correct appreciation of evidence and law and are liable to be affirmed. Coming to the sentence imposed by the learned trial Court, the learned trial Court has already taken pittance upon the appellant and sentenced the appellant to undergo rigorous imprisonment for a period of 8 years, though the facts of the case could have been considered if the appellant deserved more severe punishment than the one imposed by the learned trail Court. However, no prayer was made by the State by filing cross appeal for enhancement of - 10 - punishment and keeping in view the fact that the learned trial Court has awarded the minimum sentence prescribed by law, I am of the opinion that the sentence imposed by the learned trial Court calls for no interference by this Court and as such those findings are liable to be upheld and the same are upheld accordingly. There is no merit in the appeal filed by the appellant and the same is dismissed accordingly. May 13, 2008. (TILAK) (V.K. Ahuja), Judge.