IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 286 of 2010. Date of Decision: 14th December, 2010. _______________________________________________________ Manoj Kumar ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. T.S. Chauhan, Advocate. For the respondent: Mr. J.S. Guleria, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. (Oral) In this appeal, appellant has challenged his conviction passed by the learned trial Court for the offence punishable under Section 376 of the Indian Penal Code, in Trial No.4-S/7 of 2009, decided on 30.7.2010/ 31.7.2010. 2. Succinctly, the prosecution case, as emerges from the evidence, can be stated thus. PW2 Subhash alias Pankaj is the husband of the prosecutrix (23 years). Both of them are handicapped. The prosecutrix is having low- understanding, her mental faculty was slightly impaired Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - and her husband Subhash aforesaid used to stammer. They belonged to Bilaspur District, but he was residing in a rented-room at Totu near Shimla town, working as labourer with a Contractor. The prosecutrix used to visit him off and on. (i) Prior to the alleged incident, she had come to him and resided for about eight days. (ii) The appellant is also a resident of Bilapsur District and doing the “Panditai” work. He was a friend of the husband of the prosecutrix. (iii) On 14.11.2008, the appellant accompanied the husband of the prosecutrix (PW2) and came to his residence at Totu and resided there, for the night. (iv) Next morning, around 9.30 a.m., the husband of the prosecutrix left for his work and the appellant also went away with him. But around 11.30 a.m., appellant returned to the room of the prosecutrix with a bag and “Bora” (sack). Finding her alone in the room, she was raped. Around 2.30 p.m. appellant had left that place. (v) Because of a fear from her husband she did not reveal this fact to her husband, on her return, but somehow she mustered her - 3 - courage and in the morning narrated the entire episode and thereafter both of them went to the Police Station and lodged the FIR. (vi) The prosecutrix was medically examined. Her vaginal-swabs and slides were taken and the pubic hair were preserved by the doctor and sent for the forensic examination to the Laboratory. (vii) The bed-sheet of the double-bed from the room of the prosecutrix was taken into possession alongwith her shirt (Ext.P.1) and Salwar (Ext.P.2), which she was wearing at the time of alleged incident, these were sealed and were also sent for the forensic examination. (viii) On 17.11.2008, appellant was arrested and his medical examination was got conducted from the hospital and he was found capable of performing sexual intercourse. (ix) Since the prosecutrix was of a low- understanding she underwent the Intelligence Quotient (I.Q.) test in I.G.M.C. Shimla from where she was referred to Department of Psychiatry, PGIMER, Chandigarh. On her examination there, I.Q. was 42 having regard - 4 - to the history and her mental state, which was termed as ‘Moderate Mental Retardation’. (x) On the examination of the material sent to the Forensic Science Laboratory, the semen was found intact on the vaginal-swabs, undergarments of the prosecutrix and the bed-sheet. 3. On the conclusion of the investigation, the appellant was sent up for trial for the offence of rape. 4. On perusing the record and the documents appended thereto, the learned trial Court found prima facie grounds to frame charge under Section 376 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined the prosecutrix, her husband and the doctors, besides examining other formal witnesses. 6. The appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the allegations put to him and pleaded innocence. When called upon to enter into defence, he examined DW1 Ram Krishan to prove the plea of alibi, which was neither raised in the cross-examination of witnesses except the Investigating Officer nor in his - 5 - statement under Section 313 of the Code of Criminal Procedure. 7. Disbelieving the defence raised by the appellant, the learned trial Court found the statements of the prosecution witnesses reliable and worth confidence inspiring, as such the appellant was convicted and sentenced as aforesaid. 8. Shri T.S. Chauhan, learned Counsel for the appellant forcefully argued that there has been material contradictions in the FIR and the statements of the prosecution witnesses and further that in her statement before the Court the prosecutrix did not mention about the date of the alleged incident and the presence of the appellant was not established in the house of the prosecutrix on the day of the incident. Therefore, the impugned judgment of conviction and sentence against the appellant is bad in the eyes of law. 9. On the other hand, Shri J.S. Guleria, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and further argued that the prosecutrix could not be contradicted in any material point. She testified that the appellant had committed rape on her and also testified having disclosed it to her husband, thereafter they went to lodge the FIR. Thus there is no ambiguity in the - 6 - prosecution case, as such the impugned judgment of conviction and sentence does not call for any interference. 10. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 11. Before I discuss about the testimony of the prosecutrix, it shall be relevant here to first discuss about her mental status. 12. According to PW5 Dr. Ramesh Kumar, Associate Professor, Department of Psychiatry, IGMC, Shimla, on 17.11.2008 the prosecutrix was brought to him for psychiatric opinion. She was examined by him on the same day and the history of her illness was obtained from her mother-in-law and her parents on the next day. She was referred for the Intelligence Quotient (I.Q.) test to the Department of Psychiatry, PGIMER, Chandigarh and on receiving the I.Q. report she was found to be 42. Based on history, mental state examination and I.Q. assessment report, she was opined to be ‘Moderate Mental Retardation’. To this effect he proved the certificate Ext.PW5/A. The Court also observed that her mental faculty was slightly impaired and was taking much time to answer the questions put to her by the learned Public Prosecutor. In cross-examination the - 7 - doctor (PW5) stated that it may be true that due to minor frustration one may get provoked, but he categorically denied that such a person can level false allegation on anyone, on this earth. 13. In view of the testimony of the doctor aforesaid the version given by the prosecutrix requires to be cautiously examined. In the opening paragraph of her statement she stated that she did not know the appellant present in the Court, but to a question that whether anything happened with her, she answered that in the morning her husband and the appellant present in the Court left the quarter and after a while he again came (particularly pointing out towards the appellant). She also stated that the appellant was a friend of her husband (PW2). She stated that a day before when the appellant committed rape on her, he had come to her quarter with her husband and stated that when he came again he was having a bag and “Bora” with him. After committing the rape on her he left her residence. She further stated that she narrated about the alleged incident to her husband during night. She also stated that she alongwith her husband went to Police Station. She identified her shirt Ext.P.1 and Salwar Ext.P.2 which were put by her on the day of alleged - 8 - incident and also identified the bed-sheet Ext.P.3 having been taken into possession by the police. 14. In her cross-examination she stated that it was Saturday when the alleged offence was committed by the appellant with her. She also stated that she used to prepare the food on gas and wash the clothes. There was a double-bed in the room which was taken on record. But she categorically denied that the appellant never visited them at Totu and having not committed rape on her. Although, she stated that she gave her clothes and bed-sheet to the police which they had taken with them, but PW4 Harish Chauhan stated that a lady’s suit and bed-sheet were taken by the police from her residence vide memo Ext.PW1/C and he identified all these items during the trial of the case. Prosecutrix further stated that she had a cell-phone, but she did not know to make contact on telephone but stated that she knew how to receive a call. She further stated that she was not tutored by any one to make such a statement. 15. PW2 Subhash alias Pankaj, her husband, had corroborated her version. He testified that the appellant had come to their quarter, by writing the date on a piece of paper. He admitted that he filed a divorce petition at Bilaspur against his wife as she had been threatening her to foist him in a false case, but she was - 9 - being dropped by her parents at his residence at Totu whenever they used to visit to him. He admitted that at the time of alleged occurrence he was living with her for the last about six days. But he denied that she did not want to live with him. 16. PW13 Dr. Rama Thakur had conducted the clinical examination of the prosecutrix and on seeing the Forensic Science Laboratory she gave the final opinion on the M.L.C. Ext.PW1/B to the effect that the prosecutrix was exposed to coitus. 17. PW3 Dr. Arvind Sood medically examined the appellant and found him capable of performing the sexual intercourse. 18. PW6 HHC Gopi Chand had taken the items for its deposit in Forensic Science Laboratory. PW10 Sub Inspector Raj Kumar investigated the matter. He denied that during investigation in this case the appellant was in the house of Nathu at Bilaspur for performing “Dharam- Shanti” with effect from 12.11.2008 to 15.11.2008. 19. DW1 Ram Krishan stated that the appellant remained at his place at Bilaspur on 15.11.2008 throughout the day. He did not say that on 13.11.2008 in the evening and on 14.11.2008 before-noon the appellant was at his place and it was difficult for him to - 10 - visit the residence of the prosecutrix at Totu, which is hardly 2½ hours journey from Bilaspur by bus. 20. On the critical examination and reappraisal of the aforesaid evidence, I find the prosecution case as spoken by the prosecutrix, corroborated by her husband, which is duly supported by the medical evidence and forensic examination. I also find her testimony worth inspiring confidence as the defence could not cause any dent in prosecution case to disbelieve it. 21. Though, the prosecutrix was of low- understanding, yet without mincing any word, testified that she was raped by the appellant a day before lodging the FIR. She fully corroborated her version given in the FIR. By not mentioning the date during the trial by her, will not shake her testimony in any manner. Otherwise also, the appellant has failed to prove any malice or grudge against the prosecutrix or her husband to foist a false case upon him, rather he was his friend. Even during the trial the doctor testified that with moderate low-understanding no person would falsely implicate any person on this earth. The unshaken testimony of the prosecutrix despite her low intelligence makes us to believe that she had made true statement before the Court on oath which stands corroborated on - 11 - material particulars. Therefore, I do not find any error in the impugned judgment of the learned trial Court. 22. Faced with the above situation, the learned Counsel for the appellant submitted that the sentence passed by the learned trial Court against the appellant is too excessive and it may be reduced. 23. I have also considered this argument of the learned Counsel. In the instant case, the prosecutrix was of a low-understanding, but the appellant used to do “Panditai” work and at the relevant time he was aged about 28/29 years. He made the prosecutrix a prey of his lust, who otherwise was a timid lady and was scared of even telling to her husband of the alleged incident at the cost of her martial ties. In these circumstances, when the crime against such a woman stands proved, no leniency can be shown to the appellant and the sentence passed would serve as a deterrence to the society. 24. Therefore, for the afore-stated reasons, I do not find any discrepancy or error which goes to the root of the impugned judgment of conviction and sentence. As such, it is upheld and the appeal sans merit and is accordingly dismissed. December 14, 2010. (Surinder Singh), J. (rc)