IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 333 of 2003. Judgement reserved on: 17.5.2011. Date of decision: 1.6.2011. Keshav Ram ….. Appellant. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Rahul Mahajan, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S.Rana, Asstt. Advocate General. Kuldip Singh, Judge. The appellant has assailed his conviction and sentence in Sessions Trial No. 23 of 2001 decided on 15.7.2003 by learned Sessions Judge, Mandi, under Sections 452, 376 IPC directing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-, in default of payment of fine, rigorous imprisonment for a period of one year under Section 376 IPC, rigorous imprisonment for one year and a fine of Rs. 2,000/-, in default of payment of fine, further imprisonment for one month under Section 452 IPC. The learned Sessions Judge has also ordered that whole of the amount of fine shall be payable to prosecutrix on realization. The appellant shall get the benefit of Section 428 Cr.P.C. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The prosecution case in brief is that prosecutrix mostly used to remain alone in her house with her three children since her husband used to work as labourer and usually remained outside the house. On the night intervening 7th and 8th August, 2000, the prosecutrix was alone in her house, her children had gone in her relations. At about 3.00 a.m., some person knocked at the door, but she did not open the door. The said person broke the plank of the window and entered her room through the window. The said person committed rape with the prosecutrix. The said person left his Pajama and took the salwar of the prosecutrix. 3. The matter was reported to the police vide Ex. PA after few days when PW 2 Khem Singh father of the prosecutrix came there. The prosecutrix was medically examined by PW 8. The FIR Ex. PH was registered. The appellant was arrested and was medically examined by PW 9. On completion of investigation, the challan was presented in the court and the appellant was committed. 4. The appellant was charged for commission of offence punishable, under Sections 452, 376 IPC, he pleaded not guilty and claimed trial. The prosecution has examined 16 PWs and produced some documentary evidence. The statement of appellant was recorded under Section 313 Cr.P.C. He denied the prosecution case. The appellant was given chance to lead defence evidence, but no evidence in defence was led by the appellant. On conclusion of trial, the learned Sessions Judge convicted and sentenced the appellant, as noticed above. …3… 5. I have heard the learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that the prosecution story is highly improbable. The learned Sessions Judge has not appreciated the material on record properly. The statement of prosecutrix does not inspire confidence. It has been submitted that it is not a case of forcible sexual intercourse without the consent of the prosecutrix. The delay in lodging the FIR has not been explained. On behalf of the State, it has been submitted that the court below has rightly appreciated the material on record. It has been submitted that normally it is not possible for outraged woman to report the matter to the police immediately due to social stigma. There is no delay in lodging the FIR. The prayer was made for dismissal of the appeal. 6. PW 1 is the prosecutrix, her statement was recorded on 26.5.2003 and on that date she has given her age 28 years. She has stated that about three years back in the month of Bhadon 7th of English calendar, she was all alone in her house. At about 3.00 a.m. somebody knocked at her door. She did not open the door. The said person broke open the window plank and entered into her room through the window. He was having a torch in his hand. The said person committed rape with her. He left her house after opening the door. She identified the appellant in the court, who committed rape with her. She knew her prior to the occurrence as he belonged to her village. 7. PW 1 continued that she searched her salwar, but was unable to locate. The appellant took her salwar and left his Pajama in …4… her house. She kept the Pajama outside. She does not know when it was taken. She cried at the time of occurrence. She did not report the matter before the arrival of her father as she had fallen ill. Her father came on 13th and she disclosed the occurrence to her father. She then accompanied her father and went to the Pradhan, thereafter report Ex. PA was lodged with the police at Police Post, Darang. She was medically examined. She identified salwar Ex. P-2 which she was wearing at that time. 8. PW 1 in her cross- examination has stated that house of Devki is at a distance of 8-10 feet from her house and other houses are at a distance of about 20-25 feet from her house. There are 5-7 houses at a distance of 40 feet from her house. The window was on the wall at a height of 8-9 feet and was small. There was no light in her house nor any lamp. The appellant had taken the torch alongwith him. The appellant had committed rape with her inside the room on the bed. 9. PW 1 continued that she does not know when appellant took his Pajama. She was bed-ridden, but she used to do her household work. After about 12-15 days of the occurrence her father came. He told the occurrence to her and she said whatever he had heard was correct. Her father forced her to lodge the report. She would not have reported the matter had her father not forced her. 10. PW 2 Khem Chand father of the prosecutrix has stated that on 12.8.2000 he visited the house of his daughter, she was ill at that time. She told him that on 7.8.2000 at about 3.00 a.m. appellant came to her house and committed rape with her. He took her to his …5… house, they then visited Pradhan Nirmala Devi. On 13.8.2000, the report was lodged by the prosecutrix. Fagni Devi on 16.8.2000 handed over the salwar Ex. P-2 to the police. He came to know the incident on 8.8.2000 from his daughter-in-law Kaushalya Devi, who had gone to the house of prosecutrix on 8.8.2000. 11. PW 3 Smt. Shanta Devi is the mother of the prosecutrix. She has stated that on 12.8.2000 prosecutrix told her that appellant entered in her house after breaking the window and then committed rape with her. They were not having cordial relation with the appellant for the last 10-12 years. PW 4 Smt. Devki Devi was declared hostile. In cross-examination conducted by the Prosecutor, she did not support the prosecution. In the cross-examination conducted on behalf of the appellant, she has stated that she had been meeting the prosecutrix daily and she was not ill. PW 5 Smt. Kamla Devi has stated that Fagni Devi is the wife of the appellant. She has stated that Fagni met her 2-3 days back and told her that the salwar which her husband had brought was found to be that of prosecutrix as identified by Devki Devi. The salwar Ex. P-2 is similar to the salwar, which was seen by her in the house of Devki Devi. 12. PW 6 Smt. Nirmala Devi was the President of Gram Panchayat, , Kufri. She has stated that on 12.8.2000, prosecutrix and her father Khem Singh came to her. The prosecutrix told her that appellant Keshav entered her house and committed rape with her. In cross-examination, she has stated that occurrence was narrated to her by the father of the prosecutrix, who told that occurrence took place about 20-25 days ago. The prosecutrix did not tell her …6… anything. PW 7 Lal Singh is a formal witness regarding recovery of wooden plank of window. 13. PW 8 Dr. Renu Behl medically examined the prosecutrix age 35 years and issued MLC Ex. PD. She gave her opinion that patient was exposed to sexual intercourse but last date of intercourse could not be given. In cross-examination, she has stated that injuries on the person of the prosecutrix could be found otherwise also than rape PW 9 Dr. T.C. Mahant examined the appellant and issued MLC Ex. PG. PW 10 constable Dinesh Kumar sent three parcels to Police Station, Sadar through constable LHC Ishwar Singh. PW 11 Ishwar Singh has stated that he deposited the parcels with Prem Chand Additional MHC at Police Station, Sadar, Mandi. PW 12 took the parcels and deposited the same with FSL Junga 14. PW 13 SI Kirpa Ram registered the FIR Ex. PH on the basis of rapat Ex. PA. PW 14 constable Lekh Ram recorded rapat Ex. PA. PW 15 HC Prem Chand has stated that LHC Ishwar Singh had deposited four sealed parcels with him, which he sent to FSL Junga through LHC Pardeep Kumar. 15. PW 16 ASI Rajinder Kumar is the Investigating Officer. He has stated that on completion of investigation, Inspector Ram Sarup the then SHO prepared the challan and filed in the court. The salwar which he took into possession was of green colour. The salwar sent for chemical examination was of red colour which was taken into possession by the medical officer and which the prosecutrix was wearing at the time of examination. There are two rooms in the house of the prosecutrix, which is a single storey house and there is …7… one window in each room. The appellant in his statement, under Section 313 Cr.P.C. has denied the prosecution case. He has pleaded his innocence. 16. Ex. PA is the copy of rapat No. 4, Police Post, Darang recorded on 13.8.2000 at 10.00 a.m. lodged by the prosecutrix. It has been stated in Ex. PA that at the time of rape she raised alarm. The appellant committed rape with her once and thereafter left through door. In the morning, she searched her salwar, but found the Pajama of the appellant, which she threw outside. The appellant took his Pajama in the morning. She fell ill on the same day. She could not narrate the incident to anybody. On 12.8.2000, her father came and she narrated the incident to him. 17. Ex. PB is the recovery memo of wooden plank 30” x 10½ “ x 1¼ “. It has been stated in Ex. PB that after breaking this wooden plank the appellant entered into the room. Ex. PD dated 13.8.2000 is the MLC of the prosecutrix. In MLC Ex. PD, it has been stated that on the back reddish pink contusions on both scapulae 2 rounded pink contusions on both lumber region 4” from mid line were found. Ex. PH is the FIR and Ex. PJ is the site plan in which at point- F cowshed of the prosecutrix and at point-H residential house of Himmat Ram have been shown. 18. The learned counsel for the appellant has relied Dildar Singh vs. State of Punjab (2006) 10 SCC 531 on the point that delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. …8… The delay has the effect of putting the court on guard to search if any explanation has been offered for the delay and if offered whether it is satisfactory. The learned counsel for the appellant has also relied Ramdas and others vs. State of Maharashtra (2007) 2 SCC 170 on the ground that no doubt the conviction in a case of rape can be based solely on the testimony of the prosecutrix but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances which cast a shadow of doubt over her veracity. If the evidence of the prosecution is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. 19. On behalf of the State, it has been submitted that in Harpal Singh and another vs. State of Himachal Pradesh 1981 Crl. L.J. 1, the Supreme Court has found that explanation for delay of ten days was reasonable. It has been submitted that in Utpal Das & anr. vs. State of West Bengal AIR 2010 SC 1894 the absence of injuries on private part of a married grown up victim woman cannot be a ground to hold that she was not subjected to sexual intercourse. State of U.P. vs. Chhoteylal AIR 2011 SC 697 has been relied on the ground that evidence of prosecutrix is similar to evidence of an injured witness. The statement of prosecutrix, if found reliable, is sufficient to convict the accused and it requires no corroboration. 20. According to the prosecution the occurrence took place on the night intervening 7th & 8th August 2000. Ex. PA is the copy of rapat No. 4 lodged by the prosecutrix on 13.8.2000 and thereafter FIR …9… Ex. PH was registered. Ex. PA rapat was lodged after about five days. In given circumstances lodging of FIR after five days cannot be said to be too late so as to doubt the prosecution case. In the present case, the prosecution has created doubt in explaining the delay in lodging the FIR. The prosecutrix has stated that her father came on 13th and she disclosed the occurrence to her father. PW 2 Khem Chand father of the prosecutrix has stated that he visited the house of the prosecutrix on 12.8.2000 and prosecutrix narrated the incident to him. PW 2 has also stated that he came to know the incident on 8.8.2000 from his daughter-in-law Kaushalya Devi, who had gone to the house of prosecutrix on 8.8.2000. 21. The prosecution has projected the case that husband of the prosecutrix was a labourer and was working outside and, therefore, the prosecutrix lodged the rapat only when her father accompanied her for lodging the rapat. PW 2 has also stated that he took the prosecutrix to his house, then they visited Pradhan Nirmala Devi. PW 6 Nirmala Devi has stated that prosecutrix and her father came to her on 12.8.2000, the father of the prosecutrix told that occurrence took place about 20-25 days ago. The prosecutrix did not tell her anything. The prosecutrix has also stated that her father came after about 12-15 days. She narrated the incident to him. The prosecutrix told that her father forced her to lodge the report. She had gone to the extent that she would not have reported the matter had her father not forced her. There is no explanation why steps were not taken for reporting the matter to the police when PW 2 father of the prosecutrix came to know the incident on 8.8.2000. …10… 22. The prosecutrix has stated that she was ill but PW 4 Smt. Devki Devi has stated that she had been meeting the prosecutrix daily and she was not ill. PW 4 has stated that her house is situated at a distance of 8 to 10 feet from the house of the prosecutrix. The prosecutrix has also admitted that the house of Smt. Devki Devi is at a distance of 8-10 feet from her house. The statements of prosecutrix, PW 2 Khem Chand, PW 4 and PW 6 Nirmala Devi create suspicion that occurrence took place on the night intervening 7th and 8th August 2000. In view of above material on record, it can be safely concluded that prosecution has not properly explained the delay in lodging FIR. 23. The delay in lodging the FIR apart, the prosecution case is to be tested as per evidence which has come on record. Ex. PJ is the site plan in which house of the prosecutrix has been shown in addition to her cowshed and house of Himmat Ram. In the site plan, no other houses have been shown which have been admitted by the prosecutrix in her statement. It emerges from the statement of prosecutrix that there are about 13-17 houses adjacent to the house of the prosecutrix located at a distance from 8 to 40 feet. The prosecutrix has stated that she raised the alarm when appellant committed forcible sexual intercourse, but surprisingly no neighbour of the prosecutrix after hearing the alarm raised by prosecutrix responded for her help. It is not believable that when prosecutrix raised alarm then nobody heard her cries and shrieks when the other houses are located very close to the house of the prosecutrix. …11… 24. According to the prosecutrix the appellant knocked at the door, she was all alone in the house, she did not open the door, thereafter appellant entered the room after breaking open the window plank. She has stated that window was on the wall at a height of 8-9 feet. It is not possible for a man of normal height to come inside from a window fixed at a height of 8-9 feet from the ground. It is not the prosecution case that appellant had taken the help of some support from outside to enter into the room through the window. Not only this in Ex. PB recovery memo of window plank, the size of window plank has been given 30” x 10 ½ “ x 1¼ “. It is not believable that a person of normal built can easily pass through an opening of 30” x 10½” and in the process he would not suffer injuries on his person. Ex. PG dated 14.8.2000 is the MLC of appellant and in the MLC Ex. PG no fresh injuries were found on the person of the appellant. This creates suspicion in the prosecution case that appellant entered into the room by breaking open the window plank. 25. The prosecutrix has stated that when appellant entered the room, there was no electricity, lamp with her in the room. She has stated that appellant was carrying a torch with him and with the help of that torch she identified the appellant. The torch allegedly used by the appellant at the time of occurrence has not been recovered nor any explanation for not recovering said torch has been given by the prosecution. The prosecutrix has also stated that the appellant left his Pajama in her room, which she noticed in the morning and she had thrown out the Pajama. The appellant in the morning took away that Pajama. But again, the said Pajama, which appellant was wearing at …12… the time of commission of offence has not been recovered, nor any explanation for not recovering said Pajama has been given. 26. PW 8 Dr. Renu Behl examined the prosecutrix. She found certain injuries on the back of the prosecutrix, but duration of such injuries has not been stated in MLC Ex. PD of the prosecutrix. Thus it cannot be said that injuries sustained by the prosecutrix on her back are due to sexual assault of appellant during night intervening 7th and 8th August 2000. The prosecutrix was married and was about 30 years of age, the presence of semen on the salwar of prosecutrix in itself is not enough to draw an inference that she was raped by the appellant, more particularly, when the semen found on the salwar has not been connected with the semen of the appellant. PW 16 Investigating Officer has stated that salwar recovered by him was of green colour. The salwar sent for chemical examination was of red colour, which was taken into possession by the Medical Officer. The prosecutrix was examined by Medical Officer on 13.8.2000 and on that day red colour salwar was taken into possession which was sent for chemical examination. The salwar which prosecutrix was allegedly wearing at the time of occurrence was allegedly recovered on 16.8.2000 vide Ex. PC. This salwar was not sent for chemical examination. Therefore, the prosecution cannot take any benefit of presence of semen on the salwar of prosecutrix. 27. PW 3 Smt. Shanta Devi is the mother of the prosecutrix. She has stated that they were not having cordial relation with the appellant for the last 10-12 years. The prosecutrix in her statement has state that her father forced her to lodge the report. She would not …13… have lodged the report had her father not forced her. As per this statement of the prosecutrix, her father was more interested in lodging the report than the prosecutrix. 28. PW 2 Khem Chand came to know the occurrence on 8.8.2000 as per his statement, why he did not take immediate steps for reporting the matter to the police that has not been explained. The statement of prosecutrix that she was not interested in lodging the report cannot be taken lightly. The prosecution story on material particulars is found to be suspicious. The possibility cannot be ruled out that sexual assault, if any, was consensual and it was not required from the defence to take the plea of consensual intercourse. In Pratap Misra and others vs. State of Orissa AIR 1977 SC 1307, it has been held that in a criminal case the accused was not bound by his pleadings and it was open to the accused to prove his defence even from the admissions made by the prosecution witnesses or the circumstances proved in the case. The said case was also under Section 376 IPC. 29. There is no dispute with the legal proposition that conviction can be recorded on the sole testimony of the prosecutrix provided the statement of prosecutrix inspires confidence. In that situation, no corroboration is required. The statement of the prosecutrix in sexual assault case is at par with statement of an injured witness, but when the statement of the prosecutrix does not inspire confidence, the court may look for evidence which may lend assurance to her testimony, sort of corroboration required in the case of an accomplice. …14… 30. In Dilip and another vs. State of M.P. 2002 SCC (Crl.) 592, it has been held as follows:- “…….The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory. The defence has given suggestion in cross examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed.” 31 In Vimal Suresh Kamble v. Chaluverapinake Apal S.P. and another 2003 Crl. L.J. 910 (SC), it has been held as follows:- “On an overall appreciation of the evidence of the prosecutrix and her conduct we have come to the conclusion that P.W.1 is not a reliable witness. We, therefore, concur with the view of the High Court that a conviction cannot be safely based upon the evidence of the prosecutrix alone….” In the present case, the statement of PW 1 prosecutrix does not inspire confidence. The other evidence on record is not sufficient to …15… record a finding