Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.396 of 2009. Date of Decision: May 10, 2011. ------------------------------------------------------------------------------------------------------------- Manish Thakur @ Monu …… Appellant. Versus State of Himachal Pradesh. ……. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting ? Yes. For the Appellant : Mr. J.R. Poswal, Advocate. For the Respondent : Mr. A.K. Bansal, Addl. Advocate General. Surinder Singh, J (oral) : The appellant (hereinafter to be referred as ‘the accused’) was tried for the offence punishable under Sections 341, 376 and 506 of the Indian Penal Code. At the end of trial, he was convicted for the offence punishable only under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `10,000/-. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for one year. Further, the fine amount on its realization was ordered to be paid to the prosecutrix. The benefit of Section 428 of the Code of - 2 - Criminal Procedure was also accorded. The accused felt aggrieved by the impugned judgment of conviction and sentence, therefore, preferred the present appeal. 2. In short, the prosecution story can be summed up thus : i) In the academic session for the year 2007-08, the prosecutrix (21 years), was a Drawing Teacher on PTA basis, posted in Government Middle School, Badhu. She used to commute to her School daily on foot from her village Tharala. ii) On 17th April, 2008, after the school hours the prosecutrix came to village Badnu, to attend a marriage of the daughter of an employee a ‘water carrier’ of their School. After taking meals when she was returning to her house through a short-cut to catch the bus, on the way around 2:45 p.m., came across the accused. He was not known to her. He called her “hello hello”, but the prosecutrix did not respond. The accused repeated the same words again. On this, the prosecutrix asked him as to what was the problem. On this, the accused came forward and proposed friendship with her, but she turned down his request. On her refusal, the accused caught hold her from the - 3 - wrist and dragged her towards bushes, where she was raped. She noticed a tattoo mark “Monu” on his left wrist. The prosecutrix (PW-1) shouted for her uncle, but there was none to help her. The accused threatened her with life and managed to escape. iii) After she recovered from trauma, the prosecutrix decided to go to her house. While she was on her way, she received a call of her father (PW-2) on her mobile phone. She started weeping. On having asked as to what had happened, she did not say anything. On this, her father entertained some doubt that something had happened to her and contacted PW-11 Man Singh to find out the whereabouts of his daughter. iv) While going to her house prosecutrix met PW-4 Smt. Phulan Devi, PW-22 Smt. Banti Devi and PW-23 Kapil. They noticed her weeping but she did not tell them anything. v) PW-11 Man Singh met the prosecutrix on the way, at that time, she was weeping but did not disclose anything to him. He took her to his residence. The parents of the prosecutrix reached there and she narrated the entire incident to her father (PW-2). - 4 - vi) Thereafter he took her to the Police Station, Barmana and lodged the F.I.R. Ex.PW1/A, wherein all the details of the incident and the marks of identification of the accused were mentioned by her. vii) The police got her medically examined from PW-9 Dr. Savita Mehta. No mark of injury was found on the body of the prosecutrix, however on the initial examination, she noticed grass on the pubic hair and an abrasion red in colour on the right side of labia minora over an area of 2” x 1/4 “in size, hymen was intact, only one finger could be passed in vagina with pain. The doctor opined it a case of an attempted sexual intercourse within 24 hours. However, after perusing report Ex.PE received from the Forensic Science Laboratory, the Doctor did not rule out the possibility of rape, her opinion is Ex.PW9/A on MLC Ex.PW1/C. viii) The wearing apparels of the prosecutrix i.e. shirt, Salwar along with undergarments Ex.P-8 to Ex.P-13 were taken into possession by the police, which were also sent for forensic examination. ix) PW-25 SI Mool Raj visited the spot and prepared site plan, Ex.PW1/B on the demarcation given - 5 - by the prosecutrix. He also noticed the struggle marks on the spot. As per the prosecutrix, the accused had used two condoms at the time of alleged rape which were thrown on the spot near bushes after committing rape. The police had also recovered two used condoms vide memo Ex.PW5/A in the presence of PW- 5 Budhi Ram along with torn wrappers from the spot. x) During the investigation, the police took into possession School Leaving Certificate (Ex.PW6/A) of the prosecutrix and PW-26 ASI Bhagat Ram also took into possession copy of the extract of Pariwar Register Ex.PW10/A. The skeletal age of the prosecutrix was assessed between 18-20 years. xi) On the description about the accused, given by the prosecutrix, the police prepared his sketch map, which was widely circulated, which facilitated his arrest by PW-26 ASI Bhagat Ram from Namhol where the accused was apprehended by Sita Ram and Gopal Dass. The accused had cut his hair to disguise his identity. The police also found tattoo mark of word “Monu” on his left wrist. The accused was also identified by the prosecutrix and was arrested by the police on the same day i.e. 22nd April, 2008. - 6 - 3. During interrogation, the accused made the disclosure statement under Section 27 Cr. P.C in the presence of witnesses and got recovered his pant and T- shirt which were worn by him at the time of alleged offence. The said clothes were washed and alleged to have been kept in a box. Pursuant to this disclosure statement, the police recovered his clothes. He was also medically examined. The Doctor found him capable of performing sexual intercourse. 4. The police also took the photographs of the accused. 5. The report Ex.PE of FSL, confirmed human semen in the condoms. The blood traces were detected on the vaginal swab of the prosecutrix. 6. After completing the investigation of this case, challan was presented in the court for the trial of the accused. The accused was charge-sheeted for the offences aforesaid, to which he pleaded not guilty and claimed trial. 7. To prove its case, the prosecution examined twenty seven witnesses and also examined the accused under Section 313 Cr. P.C - 7 - 8. The accused took up the defence of consensual intercourse, but in his statement under Section 313, Cr. P.C, he did not take this stand but alleged his false implication. 9. When called upon to enter into his defence, he did not lead any evidence in defence. 10. The learned trial Court on examination of the evidence disbelieved the defence of consensual intercourse and believed the version of prosecutrix, thus he was convicted and sentenced as aforesaid, which has been challenged in this appeal. 11. Shri J.S. Poswal, learned counsel for the appellant vehemently argued that the identification of the accused, in the instant case is not proved. He strongly contended that the suggestion of consensual sexual intercourse was put to the prosecutrix only to test her veracity and these suggestions cannot be read in evidence. It is also submitted that there was no mark of violence on the body of the prosecutrix which negates forcible sexual intercourse. Therefore, the conviction of the accused-appellant is wrong and illegal. To buttress his arguments he cited Yerumalla Latchajah vs. State of A.P: (2006) 9 SCC 713; Pratap Misra and others vs. State of - 8 - Orissa: AIR 1977 SC 1307; Koli Trikam Jivraj & another vs. The State of Gujarat: AIR 1969 Gujarat 69 and Budh Ram vs. State of Himachal Pradesh: Latest HLJ 2010 (HP) 58. 12. Contra, Shri A.K. Bansal, learned Additional Advocate General supported the impugned judgment of conviction and sentence and led me through the evidence on record to show that the accused stands linked with the offence. Further, the medical evidence also corroborates the prosecution version. Hence, the accused was rightly convicted for the aforesaid offence and the learned trial Court has awarded the minimum sentence in the matter which cannot be further reduced, in absence of any special reason. 13. I have given my thoughtful consideration to the rival contentions of the parties and have closely, cautiously and meticulously scanned and reappraised the evidence led against the accused. 14. It is now well settled that the statement of the prosecutrix has to be examined like an injured witness and no corroboration is required provided, it inspires confidence. 15. In the instant case, the accused was not known to the prosecutrix prior to the alleged incident. The F.I.R - 9 - Ex.PW1/A was lodged on the same day wherein, she got recorded about the aforesaid incident in the manner it took place with her. She clearly stated about having noticed the tattoo mark of “Monu” on his left wrist. She stated in the F.I.R that she could recognize him. 16. During the trial prosecutrix testified her version initially given in the F.I.R. She further stated that the accused, in order to perpetrate the crime, used two condoms Ex.P5 and Ex.P6, which after committing the rape were thrown by him in the bushes nearby which were later taken into possession by the police along with torn wrappers and sealed in the presence of witnesses. She stated about her medical examination by PW-9 Dr. Savita Mehta and further stated that her shirt Ex.P8, Salwar Ex.P9, dupatta Ex.P10, bra Ex.P11, underwear Ex.P12 and undershirt Ex.P13 were taken into possession by the Doctor. She further stated that the accused was nabbed on the details given by her and she identified him to be the same person. She also identified the clothes of the accused, which were worn by him at the time of the alleged incident and to this effect memo Ex.PW1/E was also prepared, which was duly signed by her. - 10 - 17. In cross examination she clarified that she disclosed about using two condoms by the accused to the police on the next day. She further stated that she identified the accused on the basis of clothes and tattoo mark of his wrist. She also admitted the suggestions put to her that at the place of occurrence there was an electric tower nearby and the houses were also visible which in my opinion are fatal to the accused as he appears to have a special knowledge about the place of incident. She also stated that the accused had caught her both the hands that his other hand had also used to fetter her legs thus, she could not offer any resistance. She also stated as to how the accused took out the condoms from his pocket and applied on his male organ and then subjected her to forcibly intercourse. She explained that she did not think fit to publically tell about the incident to the persons she met being an unmarried girl and also to maintain the prestige of the family without consulting her parents. She also admitted the suggestion that she did not disclose about the said incident to the son of Man Singh PW-11 as well as Banti Devi PW-22 which is consistent to the prosecution case. She specifically denied that she was carrying packets of condoms in her bag and wanted - 11 - to have sex with the accused. Thus, both of them sat together at one place for about 15 minutes and had conversation with each other, thereafter she handed over the packets of condoms (Nirodh) to the accused, in a heat of passion both prepared themselves for sexual intercourse. She also denied that the accused was advised by her to put another condom on his private part as one may tear during the course of sexual play. She also denied that while inserting his penis in her private part, fearing some one in the close proximity, the accused ejaculated. She specifically denied that the entire episode was the result of mutual consent. These suggestions, as contended by the learned counsel for the appellant cannot be said to have been made to test the veracity of the prosecutrix, but it was a specific defence raised by the accused, which he failed to probablise, even from the facts on record. In this factual background AIR 1969 Gujarat 69 (DB) cited by the learned counsel for the appellant is not applicable. 18. On the close scrutiny of the statement of the prosecutrix and also the suggestions put to her with respect to consensual sexual intercourse, at least it stands established that the sexual intercourse had taken place - 12 - with the prosecutrix and at the same time the identity of the accused also stands established. 19. Further, no reason has been assigned to foist a false case upon the accused. Had there been consensual intercourse with the prosecutrix, she might not have been wept while going to her house as stated by PW-23 Kapil, PW-4 Phulan Devi and PW-22 Banti Devi. She also may not have complained about the said incident to her parents. She also gave vivid account of the incident at the time of making the F.I.R and clearly disclosed the identity of the accused. Therefore, the possibility of consensual sexual intercourse is totally ruled out and the offence of rape stands proved. 20. Further PW-2 Devi Ram, father of the prosecutrix also stated about having called his daughter on her mobile phone and hurled her weeping. When (PW-2) reached in the house of Man Singh PW-11, she was sitting in the lap of PW-22 Banti Devi, the mother of Man Singh. Her father asked as to what had happened to her. She narrated about the said incident in the presence of Banti Devi PW-22 and her mother, in the same sequence as mentioned in the F.I.R. - 13 - 21. The above apart, statement of PW-9 Dr. Savita Mehta, also helps the prosecutrix not the accused. She had noticed an abrasion which was red in colour tender to touch 2” x ¼ “ in size on the right side of labia minora and in her opinion there was a possibility of attempted sexual intercourse within 24 hours. Although, in cross examination she stated that it was the case of an attempted sexual intercourse, but in view of the statement of the prosecutrix and also the injuries found on her private part relatable to the time of alleged incident further strengthens the case of the prosecution as stated by her. Thus, Yerumalla Latchajah’s case (supra), where the prosecutrix was 8 years of age sing of rape was absent and the accused was a fully grown man, she was examined immediately after the incident, but had no such sings, thus prosecution story was rejected. In the instant case both are adult and the accused used lubricated condoms, therefore, no sign of rape would appear, but, however, the presence of there was an abrasion on the labia minora as stated above indicate interference, therefore, the judgment cited above is not applicable. Even Pratap Misra’s case (supra) cannot be cited as a precedent in this case because in that case - 14 - there were three rapist and the prosecutrix did not resist, she was held to be a consenting party in the factual background of that case which was relied in Budh Ram’s case (supra) by this Court, but has no application in the present case. 22. On the critical examination of the aforesaid evidence, I find that the statement of the prosecutrix worth inspiring confidence and the circumstance aforesaid corroborate her version in material particulars. Therefore, the conviction of the appellant/accused for the offence punishable under Section 376 of the Indian Penal Code cannot be faulted with and is accordingly upheld. 23. Now, the question for consideration is about adequacy of sentence. Learned counsel for the accused submitted that there is no previous criminal history and the accused is a sole bread earner of the family, he may be given a chance to reform himself. 24. Keeping in view the aforesaid facts and circumstances of the case and the traumatic experience to which the prosecutrix had undergone, the learned trial Court has already awarded a minimum sentence under the law. The prosecutrix has been an unmarried girl at - 15 - the time of alleged incident and this act has left such a scar to which she would not forget through out her life. The prosecutrix has a right to live with dignity which is a recognized ‘human right’, which has been violated by the accused with infirmity, showing his muscular and masculine power in such a barbaric manner which deserves no leniency, as such the sentence awarded is also upheld. 25. For the reasons aforesaid, the appeal is without any merit, hence dismissed. May 10, 2011. (Surinder Singh) cs Judge.