Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.479 of 2004. Judgment reserved on: 01.03.2008. Dated of Decision: March 13th,2008. --------------------------------------------------------------------------------------------------- Karam Singh and another …… Appellants. Versus State of H.P. ……. Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes.. For the Appellants : Mr. N.K.Thakur, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Dy. Advocate General. Surinder Singh,J. : The appellants were convicted in case No.32/2000 (RBT No. 8/2004) by the learned Trial Court, for committing a gang rape on a mentally retarded woman and were sentenced to undergo the life imprisonment and to pay a fine of Rupees 50,000/- each under Section 376 (g) of the Indian Penal Code and rigorous imprisonment for a period of 2 years and to pay a fine of Rs.10,000/- under Section 354 of the Indian Penal Code. Both the sentences were ordered to run concurrently. In brief, the prosecution story is that the complainant, Surinder Kumar (PW2) was running an “AHATA” near liquor vend at Una. On 2.11.1999, at about 8.30 P.M. the appellants alongwith one more person came there for drinks. While all of them were taking liquor, - 2 - they noticed a mentally retarded woman aged about 25 years(hereinafter to be referred as the prosecutrix), clad in a parrot coloured suit and having a green colour CHUNI, sitting adjoining to the place where they were taking liquor. All of them discussed with each other and shared the common intention to sexually assault her. The complainant Surinder Kumar (PW2) discouraged them to commit the offence, but in turn the appellants also invited him for sharing her to which he denied. Thereafter, the appellants and the third person (not identified) took the prosecutrix to nearby bushes to satisfy their lust. The complainant told about this fact to Som Nath (PW5) who was repairing his “REHRA” nearby who advised him to report the matter to the police. Thus he made the statement Ex.PA to the police under Section 154 of the Code of Criminal Procedure, next morning around 9.45 A.M., on the basis of which FIR Ex.PW8/A was recorded in the police station. After registering the case, police visited the spot and prepared the site plan of the alleged occurrence Ex.PW14/C. The police found a green coloured “CHUNI” Ex.P1 entangled with the barbed wire on the spot, which was taken into possession vide memo Ex.PW3/A in the presence of witnesses Kashmiri Lal and Narinder Rana (PWs). The victim was found mentally ill. She could not tell her name, address and other particulars. She was taken to Civil Hospital, Una, but she did not respond to the queries of the Doctor and also did not allow her medical examination. Thus she was referred to I.G.M.C. Shimla as per MLC Ex.PW17/A. On 4.11.1999, the lady ASI Sushil Kumari took the prosecutrix to Shimla and moved an application Ex.PW1/A to S.D.M. (U), Shimla for seeking permission for her medical examination, which was allowed. - 3 - PW 7, Dr. Lalit Mahajan examined her on the same day. She was found to be non-cooperative. The prosecutrix was speaking incomprehensive language, sometimes shouting and speaking to herself. She was unable to give her history and was not responding to the oral commands. Her Salwar was soiled with urine which contained the blood-stains. No visible injury was found on the prosecutrix. The doctor issued MLC Ex.PW7/A. She was referred to Psychiatry and Gyaene Departments for further examination. The prosecutrix was then examined by Dr. Mrs. Kushala Pathania (PW1). She was found suffering from Schizophrenia (mental illness). Her genital examination was done. The hymen was found absent. Her vagina admitted two fingers. The vaginal swab etc including Salwar were sent for the forensic examination. Vide report Ex.PW1/B, the Salwar contained the blood stains of group “A” and the semen stains. Her Posterior Fornix swab contained the human blood but was not sufficient for further examination. The medico-legal certificate of the prosecutrix in detail is Ex.PW1/A. On the basis of the above findings and the forensic science report the Doctor opined that there was an evidence of recent sexual activity. The appellants were arrested on 5.11.99. They were also medically examined. The samples of blood of both the appellants were sent for grouping to the forensic- laboratory. It was found to be of “B” group. Both the appellants were also found fit to perform the sexual intercourse, their MLC’s are Ex.PW16/A and Ex.PW16/B. The identity of the third accused could not be established. The police had prepared the site plan Ex.PW14/C and recorded the statement of witnesses under Section 161 of the Code of Criminal Procedure. The - 4 - prosecutrix was lodged in the “Nari Niketan” at Una from where she was referred for her treatment to the mental hospital, Ranchi. After completing the investigation, the challan was presented in the court for the trial of the appellant. The appellants were charge-sheeted for the above offences with the aid of Section 34 of the Indian Penal Code. They pleaded not guilty and claimed trial. The prosecution led their evidence to prove the charges. The appellants were also examined under Section 313 of the Code of Criminal Procedure. Their case was denial simpliciter. According to them PW2 Srinder Kumar has deposed falsely but no reason for that was assigned. They were also called to lead their defence, however, no evidence in defence was led. At the end of the trial, both appellants were convicted and sentenced as aforesaid which has been assailed in the appeal. In this appeal, the appellants have assailed their conviction and sentence on the grounds that the prosecution has failed to prove the case against the appellants, the investigation was not fair, the conduct of the complainant was not above board and there has been delay in lodging the FIR. Thus on account of the improvements and embellishment in the statement of prosecution witnesses, the story of the alleged rape is highly doubtful. Therefore, the impugned judgment deserves to be set-aside. We have heard the learned counsel for the parties and have carefully reappraised the evidence on record. The question which arises for determination is whether the prosecutrix was sexually assaulted by the appellants? To answer - 5 - the above query, the oral as well as documentary evidence on record is required to be legally scanned. Undisputedly, the prosecutrix at the relevant time was a mentally ill- person. Her parentage and complete address was not known. According to the complainant PW2 Surinder Kumar, the appellants along with one more person were consuming liquor in his licensed “Ahata” at about 8.30 P.M. The prosecutrix was found sitting adjacent to it. All the three, despite his objection took her to nearby field to satisfy their sexual lust and they also invited him. PW5 Som Nath was repairing his Rehra nearby, though turned hostile, but stated that in the light of the vehicle he had seen one lady and three persons, in the field and later on he came to know that lady was mad. He has admitted in his cross-examination that earlier the accused and other persons were behind his shop and had seen the lady sitting there when he left his shop. PW3 Kashmiri Lal, a school teacher was present in the sweet-shop of his brother-in-law at about 8.30 P.M. After taking tea, he went for a walk towards Sajjowal Road, when he had reached near D.A.V. Sanskrit College, he heard a cry of a woman, from the side of the field. He went ahead on a katcha road and noticed Karam Chand appellant @ Chiru. He shouted for him as to what they were doing there, recognizing his voice, he responded “MASTER JI GO BACK”. He (PW3) flashed his torch to that side and saw Gurbux Singh appellant @ Bakka, was lying on the lady and one more person was sitting nearby but he did not know if Gurbax Singh was doing any sexual act with that lady. Further according to Kashmiri Lal (PW3), he told them that they were not doing good work. Thereafter, he returned and met Narinder Rana (PW4) on the way and told him about the - 6 - incident. Next day in the morning, he and Narinder Rana were called by the Police to visit the spot. They saw that small plants of cauliflowers were crushed on the spot in the field. A green coloured “Chuni” (Dupatta) Ext. P1 was found entangled with the barbed- wire, which was taken into possession vide memo Exhibit PW3/A. In the cross-examination he has stated that he (PW3) did not identify the lady as he did not go close to her, he had only heard a cry of the lady. PW4 Narinder Rana has corroborated the version of Kashmiri Lal (PW3). He has stated that PW3 Kashmiri Lal met him and told him about the entire story. He rang up to the Police. They assured him to visit the spot immediately. He has further deposed that both of them were associated by the Police during the investigation and they visited the spot. A green coloured Dupatta (EXT.P1) was recovered from the barbed wires in the field. In his cross-examination the above facts were not disputed except that the recovery of Chuni was from an open place. PW14, ASI Madan Lal was posted as the incharge of Police Post Santokhgarh, which falls under Police station Una. According to him, during the patrolling PW2 Surinder Kumar had made the statement EXT PW2/A, under section 154, of the Criminal Procedure Code, which was sent to P.S. Una for the registration of the case. He recovered Chuni EXT.P1 from the barbed wires from the spot, in the presence of witnesses aforesaid. He had prepared the site plan Ext.PW14/A and also noticed the crushed cauli-flowers in the field, which was fenced by the barbed–wire. Sunita Devi, lady constable was deputed from the police station with him. She had made enquiries from the prosecutrix but she appeared to be mentally-ill. - 7 - The prosecutrix was taken to District hospital Una on 3.11.99 where PW17 Dr.P.S Raizad found her suffering from mental ailment and referred her to Psychiatric department Shimla, he had issued the MLC EXT PW17/A. The prosecutrix was taken to IGMC Shimla for her medical examination. ASI Sushila Kumari PW11, as already stated above, sought the permission by moving an application from SDM (Urban) Shimla. PW7 Dr. Lalit Mahajan, did not find any external injury on her person. Her clothing were soiled. She was not responding to the verbal commands. She was referred to the psychiatric department. During the trial, the prosecutrix was identified by him. Dr.Ravi Sharma (PW15) vide his report EXT.PW15/B gave his opinion that the prosecutrix was suffering from Schizophrenia, a psychic disorder. PW1, DR. Mrs.Kushala Pathania, on the examination of the prosecutrix found an old scar of laparoscopic sterilization on her body. Her vagina admitted two fingers easily. She noticed a blood stain on the salwar. The following specimens were sent for the forensic examination: 1.Endocervical swab and slide 2.Posterior fornix swab and slide 3.Pubic hair clippings 4.Salwar (Light parrot coloured) The forensic examination Report (PW/A) shows the human blood of Group “A” and semen stains on the salwar of the prosecutrix. Posterior fornix was also having the human blood and semen stains. Posterior fornix swab contained the human blood. In the opinion of the said Dr.PW1, on the above findings the possibility - 8 - of the recent sexual intercourse could not be ruled out. She issued the MLC Ext. PW1/A which contained the detailed findings and her opinion. She also identified the prosecutrix during the trial. Against the above background the learned counsel for the appellants has argued that there was a delay in lodging the FIR, the statement of Som Nath makes a dent in the prosecution case by stating that where he had allegedly seen the three persons during the night in the field was not having the cauliflower crop and further that the police took no pains to find out the identify of the third person to establish the truthfulness of the prosecution case, despite the fact that during the trial the third person was stated to be the resident of Sajjowal by Dy.S.P. Vimal Gupta PW18. These facts make the prosecution evidence highly improbable We have given thoughtful consideration to the above arguments advanced by the learned counsel, but we do not find any force in it. In fact, the alleged incident had taken place around 8.30 PM on 2.11.99. The appellants were identified by PW-2 Surinder Kumar and Kashmiri Lal teacher PW-3, as stated above. Even Som Nath (PW5) has admitted their presence with the lady behind his shop. PW2 Surinder Kumar reported the matter to the police in the morning whereas Narinder Rana (PW4) had informed the police during the same night. The police arrived on the spot next morning and recorded the statement (ExtPW1/A) of Surinder Kumar and sent it to Police station Una on the same day for the registration of FIR. The victim in this case is a mentally retarded woman. There was nobody to pursue her case. Said Surinder Kumar got recorded his statement next morning which culminated into the FIR. Thus, we do - 9 - not find any delay in the matter, which can render the prosecution case doubtful. Further the statement of Som Nath that the said field was not having the cauliflower crop is also wrong in view of the statement of the Investigating Officer, ASI Madan Lal. He has recorded in the site plan the existence of the cauli-flower crop and its condition on the spot. As far as the identification of the third accused is concerned, the Dy. Superintendent of Police (PW18) has stated that the third-one was resident of Sajjowal but his identity could not be established. If the third person whose identity was not established and he was not arrested and put to trial, this will not make the case against the appellant weak. On reappraisal of the evidence on record, we have found the statements of the complainant (PW2) and Kashmiri Lal, Teacher (PW3) and PW4 Narinder Rana, worth inspiring confidence. PW5 Soma Nath has also afforded the material corroboration to their testimonies. The identity of the appellants stands established. The recovery of Chuni Ext.P1 from the barbed-wire of the fencing of the field, where the prosecutrix was ravished, coupled with the circumstance that the cauliflower crop was found crushed in the field, as noticed by the investigating officer on the spot as deposed by him and noted in the site plan EXT PW14/A, further corroborate and strengthens the case of the prosecution. The doctors in their statements as discussed above have not ruled out the possibility of sexual intercourse with the prosecutrix. She was identified by them during the trial. Her Salwar was found having blood stains of group ‘A’ and the vaginal swab was having stains of blood and semen. In - 10 - these circumstances, the innocence of the appellants is totally ruled out. Thus, on examination of the impugned judgment of the trial court, we do not find any perversity therein, therefore, the conviction of the appellants for the offences charged is upheld. As far as the sentence is concerned, we feel that in the facts and circumstances it is harsher. The appellants are young persons. Therefore, we reduce the sentence for the offence of gang rape from life imprisonment to 10 (Ten) years rigorous imprisonment in respect of each of the appellant. However, sentence awarded for the offence under Section 354 of the Indian Penal Code and fine imposed by the learned trial court for the offence of rape shall remain undisturbed. Sentences of substantive imprisonment shall run concurrently. The appellants shall be entitled to the benefit of section 428 of the Criminal Procedure Code. The trial court is directed to send the modified warrants to the jail authorities concerned, forthwith. Registry to send down the record of the trial court. (Surjit Singh) Judge. March , 2008. (Surinder Singh) (Pds) Judge.