IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 28 of 2009. Judgement reserved on: 27.10.2009. Date of decision: December 3 , 2009. Narinder Kumar ….. Appellant. Versus State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Vinod Arya, Advocate with Mr. Ashwani Kaundal, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. Advocate General with Mr. R.P.Singh, Assistant Advocate General. Kuldip Singh, Judge. This appeal has been directed against the judgement of conviction and sentence dated 2.1.2009 passed by learned Sessions Judge, Kangra at Dharamshala in Sessions Case No. 18-K/VII/2008 sentencing the appellant-accused to undergo rigorous imprisonment for three years and fine of Rs.1000/- under Section 376 read with Section 511 IPC, in default of payment of fine, the accused has been further directed to undergo simple imprisonment for two months. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The prosecution case in brief is that on 10.1.2008 prosecutrix aged 6 years and PW 4 Master Akshey aged about 7 years were playing outside the house of the prosecutrix. The accused had also been residing in the same village at some distance. The accused visited PW 3 at about 4.30- 5.00 p.m. and on the pretext of offering mango to the prosecutrix took her to a nearby forest. PW 4 followed the prosecutrix and accused, the accused once away from the path took off trouser of the prosecutrix as well as his own trouser and underwear, put the prosecutrix on the ground and laid himself on the prosecutrix and committed sexual intercourse with the prosecutrix. The prosecutrix felt pain and cried. There was none to take care of the prosecutrix. The accused after some time released the prosecutrix and asked her not to disclose the incident to anyone or else, she would be dealt with physically. 3. The prosecutrix returned to her house at about 5.30 – 6.00 p.m., she was weeping. She reported the incident to her mother PW 1 Smt. Rama Devi, who carried out local examination of her daughter and found evidence of rape on her person. PW 1 informed PW 2 Smt. Anju Bala, Pradhan of the Gram Panchayat. PW 1, PW 2 reached the house of the accused alongwith prosecutrix. PW 2 questioned the accused, who admitted that he has committed rape of prosecutrix. PW 2 telephonically informed the police and rapat No. 43 Ex. PW 8/A in daily-diary was recorded. PW 1 made statement Ex. PW 1/A and thereupon FIR Ex. PW 11/C was registered. The prosecutrix was medically examined by PW 5 Dr. Ravinder Kaur. The accused was arrested on 11.1.2008. The investigation was …3… conducted by PW 11. The report of Chemical Examiner was received and thereafter report under Section 173 Cr.P.C. was filed. 4. The charge was framed under Sections 376, 506 IPC on 19.7.2008. The accused pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses. The statement of accused under Section 313 Cr.P.C. was recorded, he denied the prosecution case and in his statement has stated that PW 1 had been quarreling with him for the last many years. She had constructed her new house, her husband had felled three trees of the accused. They were not on talking terms for the last 3-4 years. On account of ill-will PW 1 in collusion with PW 2 Smt. Anju Bala and the police had foisted false case against the accused with a view to settle the score with the accused. The accused had examined one witness in defence. The learned Sessions Judge ultimately convicted and sentenced the accused as noticed above. 5. I have heard the learned counsel for the accused and Mr. A.K. Bansal, learned Additional Advocate General representing the State and have also gone through the record. On behalf of the accused, it has been submitted that accused has been falsely implicated in the case on account of strained relations between PW 1 and the accused. The learned Sessions Judge has not properly appreciated the material on record. The prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. There are material contradictions in the prosecution story. The case of the prosecution is highly improbable. The appellant is innocent. In any case, the sentence imposed is excessive. The …4… learned Additional Advocate General has supported the impugned judgement and has submitted that learned trial court has properly appreciated the material on record. The learned Sessions Judge while convicting and sentencing the accused has taken a lenient view. 6. The evidence led by the prosecution has to be considered while appreciating the arguments advanced from either side. PW 1 Smt. Rama Devi is the mother of the prosecutrix. She has stated that the prosecutrix was in second standard in January 2008 and was about six years old. On 10.1.2008 at about 4.00 p.m., prosecutrix was playing with PW 4 Akshey, who was also of the age of prosecutrix. The accused had been residing at some distance from her house. The prosecutrix returned to her house at 5.30 -6.00 p.m. and was in tears. The prosecutrix told the witness that accused had committed sexual intercourse with the prosecutrix. The witness carried out local examination of the prosecutrix, she found evidence of commission of rape on the person of her daughter. The prosecutrix was complaining of pain in her private parts. There was swelling in the area of vagina of the prosecutrix. She informed telephonically PW 2 Anju Bala, Pradhan of Gram Panchayat. The witness, Smt. Anju Bala, prosecutrix and some others went to the house of the accused where accused admitted the charge. The Pradhan informed the police and the statement of the witness Ex. PW 1/A was recorded by the police. The witness identified the shirt Ex. P-1 and trouser Ex.P-2, which the prosecutrix had worn on 10.1.2008. 7. PW 2 Smt. Anju Bala was the Pradhan of Gram Panchayat, Busal at the relevant time. She has stated that on …5… 10.1.2008 at about 7.00 p.m. PW 1 had informed her telephonically about the rape of her daughter PW 3 prosecutrix by the accused. The witness, PW 1, victim and some others reached the house of the accused where he was present. The accused admitted having committed rape of the prosecutrix. The victim had also told the witness that accused took her to nearby isolated place and committed rape on her person. The witness thereafter telephonically informed the police. The police reached the spot and recorded the statement of PW 1. This witness has been cross-examined on the point of election rivalry between the witness and the accused. 8. PW 3 is the prosecutrix. The learned trial Judge has observed that prosecutrix does not understand the meaning of oath, however, she has given coherent answers put to her by him to various questions. The prosecutrix has stated that when she returned from the school, the accused took her towards the mango tree and thereafter laid her on the ground and took off her trouser. The accused thereafter laid on the prosecutrix and she felt pain in her private parts. The accused asked her not to disclose this fact to anyone. She returned to her house and informed her mother of the act of accused. PW 4 Akshey and the prosecutrix had been at play outside their house prior to the occurrence. She was medically examined. Master Akshey was also present at some distance when accused had laid on her person. In cross-examination, she has denied that she was tutored for making the statement. She has also denied that whatever her mother told her, she made the statement in the court on that basis. …6… 9. PW 4 Master Akshey child witness aged eight years was also examined without oath by the learned trial Judge after observing that he had given coherent answers to the questions put to him by the learned trial Judge. He has stated that prosecutrix and he had been at play, the accused took the prosecutrix with him to provide her a mango. The accused had taken off the trouser of the girl. The witness was at some distance from the accused. He denied that PW 1 or Pradhan had tutored him for making the statement against the accused. 10. PW 5 Dr. Ravinder Kaur has stated that on 11.1.2008 she was on duty in casualty wing of Medical College, Tanda. On the application Ex. PW 5/A of the police, she medically examined the prosecutrix and found no signs of external injuries and hymen was intact. Mild to moderate redness was present in mucosa, vaginal swabs were preserved. The trouser and shirt of the prosecutrix were preserved, after the receipt of report Ex. PX of the Chemical Examiner she opined that there was nothing to suggest that girl had not been subjected to sexual assault. She issued MLR Ex. PW 5/B, which is duly signed by her. As per clinical observations found by her there was definitely sexual assault on the girl, but the male organ had not penetrated in the vagina of the victim. She has preserved the clothes Ex. P-1 and Ex. P-2 of the victim. The witness was generally cross-examined. PW 6 Dr. Gurdarshan Gupta has medically examined the accused and issued MLR Ex. PW 6/A. 11. PW 7 Meena Kumari took the prosecutrix to Medical College, Tanda. She has stated that PW 5 had handed over sealed …7… packet to the witness, which she deposited with S.H.O. PW 8 Som Raj constable recorded rapt No. 43-A Ex. PW 8/A. PW 9 Madan Lal has stated that on 14.1.2008 Kuldip Singh MHC had handed over three sealed packets to him alongwith sample seal, which packets and the sample seal were deposited by him in the laboratory of Chemical Examiner on 15.1.2008. PW 10 Kuldip Singh HC has stated that Surinder Sharma, Inspector had deposited three sealed packets and sample seal with him on 11.1.2008, which he handed over to Madan Lal HHC with a direction to deposit the said items in the laboratory of Chemical Examiner, Junga. 12. PW 11 Surinder Sharma, Inspector is the Investigating Officer. He has stated that after completion of investigation, he prepared final report under Section 173 Cr.P.C. and submitted the said report in the court. FIR Ex. PW 11/C was registered by ASI Avtar Singh. In cross-examination, he has stated that he had recorded statement under Section 154 Cr.P.C. of Rama Devi. He arrested the accused on 11.1.2008. The accused in his statement, under Section 313 Cr.P.C. has denied the prosecution case and has stated that false case has been foisted on him by PW 1 Rama Devi in collusion with PW 2 Anju Bala and police in order to settle old score. The accused has examined DW 1 Mehar Singh in defence, who has stated that accused is married and living with his wife and children. The accused has enmity with PW 1 and her husband. The witness remained Pradhan of Gram Panchayat, Busal from 2002 to 2005. The accused had complained to him against Ram Lal husband of PW 1 in the year 2005. The accused worked against PW 2 in the …8… Panchayat elections. PW 1 and PW 2 knew about the occurrence under Section 376 IPC against the accused. In cross-examination, he has stated that accused has not lodged written complaint to him. 13. The prosecutrix immediately after the incident reported the act of the accused to her mother PW 1 Rama Devi. Therefore, the statement of PW 1 Rama Devi regarding the act of accused is relevant under the principle of res gestae. The prosecutrix has stated that the accused laid her on the ground and taken off her trouser. Thereafter the accused laid on her and she felt pain in her private parts. The accused told her not to disclose this fact to anyone. She has stated that master Akshey was also present at some distance when accused laid her on the ground. PW 1 Rama Devi has stated that at about 5.30 – 6.00 p.m., the prosecutrix returned to her home, she was weeping, Akshey was accompanying her daughter. She has also stated that prosecutrix had told that accused took her to an isolated place, took off the trouser of the prosecutrix and his own pant and committed sexual intercourse with the prosecutrix. She carried out local examination of the prosecutrix and found evidence of commission of rape on the prosecutrix. The prosecutrix had complained of pain in her private parts. There was swelling in the area of vagina of the prosecutrix. PW 1 Rama Devi has been cross- examined generally. PW 5 Dr. Ravinder Kaur has examined the prosecutrix and issued MLR Ex. PW 5/B and has opined that there was nothing to suggest that girl had not been subjected to sexual assault. She has also stated that as per clinical observations found by her there was definitely a sexual assault on the girl but the male …9… organ had not penetrated into the vagina of the victim. PW 5 found mild to moderate redness in mucosa of the prosecutrix. 14. PW 1 has stated that in presence of PW 2 Smt. Anju Bala and the victim the accused admitted the charge levelled against him in his own house. This part of the statement of PW 1 was not challenged by the defence in the cross-examination of PW 1. PW 2 Anju Bala has corroborated the statement of PW 1 that accused had admitted the charge levelled against him in her presence as well as in the presence of PW 1 and prosecutrix. PW 4 Master Akshey, who was also present nearby at the time of occurrence has stated that accused took the prosecutrix with him and took off the trouser of the girl. 15. It has been submitted on behalf of the accused that PW 3 prosecutrix and PW 4 Master Akshey are child witnesses, they were tutored and therefore, their statements have no evidentiary value. The learned trial Judge before examining prosecutrix and PW 4 Master Akshey had questioned both of them generally and after satisfying himself that both the witnesses are in a position to make the statements, the witnesses were examined. The prosecutrix and PW 4 Master Akshey have denied that they made the statements in the court on the tutoring given by the prosecution or any other witness. 16. The defence has also taken the plea that appellant has been falsely implicated in the case on account of strained relations of accused with the mother and father of the prosecutrix. This argument has no substance. The strained relationship of the accused with the father and mother of the prosecutrix remained up to the level of only …10… putting some suggestions. The defence witness DW 1 Mehar Singh has also stated about the strained relationship of accused with the father of the prosecutrix, but there is no worth believing evidence on record to come to the conclusion that the relationship of accused with the father and mother of the prosecutrix were strained and, therefore, the accused has been implicated in the case. This apart, no father or mother normally will involve his or her daughter in a case, under Section 376 IPC, merely on account of strained relationship with the offender. The allegation of rape against the girl itself affects not only the reputation of the girl but also the family of the victim. Therefore, the contention of learned counsel for the accused that accused has been falsely implicated in the case because of strained relationship of accused with the father and mother of the prosecutrix is rejected. 17. There is no reason to disbelieve the statement of PW 3 prosecutrix, her statement inspires confidence. The statement of prosecutrix on material particulars has been corroborated by her mother PW 1 Rama Devi, PW 4 Master Akshey and PW 5 Dr. Ravinder Kaur. DW 1 has also stated that PW 1 and PW 2 knew about the case under Section 376 IPC against the accused. The learned Sessions Judge has rightly appreciated the material on record in returning the findings that offence punishable under Section 376 read with Section 511 IPC has been proved against the accused. The appellant has failed to make out any case for interference. There is no merit in the appeal. 18. No other point was urged. …11… 19. The result of above discussion, the appeal fails and is accordingly dismissed. December 3, 2009. ( Kuldip Singh ), (Hem) Judge.