HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 409 of 2004. Alongwith Cr.A. No.: 420 of 2004. Reserved on: 20.6.2008. Decided on: 24.6.2008. Cr.A.No.409 of 2004. Jasbir Singh ………Appellant. Versus State of H.P. ……Respondent. Cr.A.No.420 of 2004. Bir Singh ………Appellant. Versus State of H.P. ……Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. The Hon’ble Mr.Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the appellant in Cr.A. No.409 of 2004: Mr.Deepak Kaushal, Advocate. For the appellant in Cr.A. No.420 of 2004: Mr.K.B. Khajuria, Advocate. For the respondent(s): Mr.J.S. Guleria, Law Officer. 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. V.K. Ahuja, J: This judgment shall dispose of both the appeals filed by the appellants arising out of the same judgment of the learned Sessions Judge, Solan, dated 6.9.2004, vide which the appellants were held guilty and sentenced as under: Rigorous Imprisonment for 10 years and a fine of Rs.2,000/- each under Section 376, Sub Section 2, Clause (g). In default of payment of fine, the appellants were to undergo Rigorous Imprisonment for a further period of one year each. Briefly stated the facts of the case are that on 10.11.2003, at about 7.45 p.m., a statement was made by prosecutrix ‘M’ (name not mentioned) under Section 154 Cr.P.C. before the police officer. She alleged that she is a resident of District Bilaspur and had come to Kunihar where her elder sister Pushpa Devi was married to one Prem Singh. It was alleged that the said Prem Singh had fractured his left leg in an accident and her sister had called her to assist her in the household work and she was staying with her sister for the last about one month. Prem Singh was away to IGMC, Shimla for check up and her sister and she were present in the house. At about 1.30 p.m. today, when she went to the forest for easing, two persons, named, Jasbir Singh and Bir Singh came there and forcibly caught hold of her. Bir Singh closed her mouth with his hands, while Jasbir Singh opened the string of her Salwar and forcibly committed rape with her. She rescued herself from the clutches of those persons, who ran away from the spot. She came back to her house and told the occurrence to her sister and thereafter told the occurrence to her brother-in-law Prem Singh when he came back in the evening. It was alleged that while leaving, those persons had also given a threat to kill her if she disclosed the occurrence to any person. It was further the case of the prosecution that since Prem Singh was having a fracture, he gave a telephonic information to Police Post, Kunihar about the occurrence on which the police officer reached the spot and recorded the statement of the prosecutrix under Section 154 Cr.P.C. The girl was medically examined at Civil Hospital, Arki but the prosecutrix was not satisfied with the opinion given by the Medical Officer that the victim had not undergone sexual intercourse and, therefore, her fresh medical examination was conducted at IGMC, Shimla by a team of doctors, who gave their opinion and opinion of the Medical Officers was again taken after the receipt of the report of the Chemical Examiner. After investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned trial Court leading to the trial of the appellants and to their conviction and sentence, as detailed above. We have heard the learned counsel for the parties and have gone through the record of the case. The main plank of the submissions made by the learned counsel for both the appellants was that the prosecutrix had changed the place of occurrence. The prosecutrix was not knowing the names of the appellants and there is nothing in her statement to suggest how she learnt about the name of the accused persons. It was also submitted that there is contradiction if the father- in-law of the elder brother’s son of her sister’s husband was present in the house at the time she returned back or not. It was also submitted that her sister had stated differently about the exact place of occurrence and since the prosecutrix had made improvements in her statement, her solitary statement is not sufficient to prove the guilt of the appellants. It was further submitted that the appellants had taken the plea that they had been falsely implicated since Jasbir Singh, accused, had to take some money from Prem Singh, brother-in-law of the prosecutrix, for which a false case was foisted upon him. The other appellant Bir Singh had taken the plea of some minor dispute having occurred in between him and Prem Singh. It was also submitted that the statement of the Medical Officer shows that the girl was not subjected to sexual intercourse, her vagina was intact and as such the medical evidence does not corroborate the ocular version of the prosecutrix. Thus, it was submitted that the prosecution case is full of contradictions and infirmities and as such it cannot be relied upon. The evidence of the prosecution shall be appreciated in the light of the above pleas raised by the learned counsel for the appellants. Coming to the first contradiction pointed out by the learned counsel for the appellants that the prosecutrix had changed the place of occurrence, a perusal of her statement as PW-1 shows that she has stated that she walked along the path leading to the village Biran from the house of her sister and then at a point where Pagdandi breaks off, she followed that Pagdandi towards Nallah. She stated that she was at a point which is at a walking distance of 2-3 minutes from her sister’s house when the accused came there, lifted her and carried her to a point about 1/2 km. from that point, where she was raped, again stated that she was not lifted physically but was taken forcibly and she was being dragged on her own legs. Her sister, who was examined as PW-2, Pushpa Devi, has stated that her sister did not go to the forest via the path that leads to Village Biran, but she was taken forcibly by being pulled by the accused persons. She further stated that she was pulled for about 1/2 km. She was taken forcibly from a point in the fields where there are bushes where she had gone to answer the call of nature. The path by which she was taken is a narrow one. It is clear from the above discussion that the prosecutrix was the only witness to the place where she was raped and she may have described the place to her sister when she came back and it was not necessary for the prosecutrix to exactly pin point the place to her sister where she was raped, when she had gone to answer the call of nature. The contradiction referred to from the statements of these two witnesses cannot be termed as material and both the witnesses have clearly stated that the prosecutrix was carried or dragged for a distance of about 1/2 km. from the place where she had gone to answer the call of nature. Coming to the statement of the Investigating Officer PW-10, ASI Sohan Singh, who prepared the site plan Ext.PM, has stated that the prosecutrix had told him that she was hustled away to a distance of about 1 km. from the place where she had gone to answer the call of nature. The place where she had gone to answer the call of nature was at a distance of 1/2 km. from the house of Prem Singh. He stated that he had not shown the site where the prosecutrix had gone to answer the call of nature, though he has mentioned the place where she was taken at the time of rape, which has been shown in the site plan Ext.PM. The Investigating Officer had to show the place as explained by the prosecutrix and he has accordingly prepared the site plan and has stated so about the place of occurrence and there is no material contradiction in regard to the exact place of occurrence. Coming to the report lodged by the prosecutrix in her first statement, she had simply stated that when she had gone to the forest for easing, she was forcibly carried by the accused and was raped. She had not specifically stated the exact place of occurrence, to how much distance she was carried or dragged and no benefit can be taken by the appellants in regard to the improvements made or the explanation given in regard to the exact place of occurrence by the prosecutrix since she was not confronted with her statement Ext.PA recorded under Section 154 Cr.P.C. in regard to exact place where she was carried either in the bushes or near to the common path and as such no benefit can be taken by the appellants. In her statement, the prosecutrix had mentioned the facts which were necessary and had not exactly specified the place either where there were bushes or at how much distance the place was from the common path and this explanation was given by her when she appeared in the witness box. She was not required to give the minute details of the place of occurrence in her statement made at the time of registration of the case, though necessary facts were clearly mentioned by her and as such there is no improvement or contradiction in her statement made earlier to the police or in court with which she was not specifically confronted in regard to these facts. Coming to the variation in regard to exact place of occurrence, if any, though it is not there, we may make a reference to the decision cited by the learned Law Officer for the State in case State of Himachal Pradesh v. Gian Chand, AIR 2001 Supreme Court 2075, which case was also from Himachal Pradesh and the findings of the trial Court convicting the appellant were upheld by the Apex Court. In that case, it was observed by their Lordships in para 12 of the judgment that minor inconsistencies as to place of occurrence found in corroborating statement of the mother of the prosecutrix, who was not an eye witness. The prosecutrix had mentioned the place as that the rape was committed in the open on the lintel of the house whereas her mother had stated that the rape was committed in the room of the first floor of the building. It was observed by the Apex Court that the room and lintel are situated close to each other. The mother was not an eye witness to the incident. A perusal of the site plan showed that the distance between the two places was insignificant. It was held that such minor inconsistencies coming from the mouth of the mother, who was not an eye witness, was of no significance and caused no infirmity in the prosecution case when the overall narration to the incident given by her is found to be natural and trustworthy. The above decision, therefore, clearly supports our view that there is no material contradiction in regard to the exact place of occurrence where the prosecutrix was raped. Coming to the next contradiction that the father-in-law of her husband’s elder brother’s son was present in the house or not, PW-2 Pushpa Devi has stated that the father-in-law of her husband’s elder brother’s son was there and he had come to their place at about 1.00 or 1.30 p.m. and he left their place on the same day in the evening. PW-1 ‘M’ the prosecutrix has denied that the father-in-law of the son of her sister’s brother-in-law was also there in the house when her brother-in-law returned. She also stated that she and her sister were the only two persons present at that time but her statement is correct that the said father-in-law was not present there when her brother-in-law returned in the evening since as per PW-2 Pushpa, he was present there earlier but had returned back in the evening. This witness was not a witness to the occurrence or a witness to the facts and he was nowhere present near the place of occurrence. Therefore, the contradiction, if any, as to whether he was present at the time the prosecutrix returned to her house or not is not material and does not affect the credibility of the statement made by the prosecutrix. Coming to the next contradiction in regard to the identity, the prosecutrix as PW-1 stated the names of both the accused persons present in the Court, the part played by them i.e. Bir Singh shut her mouth, while Jasbir Singh loosened the string of her Salwar and committed the sexual intercourse with her. She clarified that she learnt about the names of the accused persons when the police people told their names and also when their names appeared in the newspapers as well as because her brother-in-law had seen them running towards the road. This part of the statement that when their names appeared in the newspaper, she learnt about the names of the accused, appears to be an exaggeration because when she lodged the report on the same day, the newspaper report, if any, must have come on the next day or thereafter. Moreover, she has clearly stated that earlier also she used to visit her sister’s house in Village Biran and as per her statement she was staying in her sister’s house for the last about one month. This clearly shows that she had learnt about the identity of the accused persons since she had been staying there in the village for the last one month and had earlier been also visiting her sister in village Biran. Therefore, she may have learnt about the accused persons or their identity from her brother-in-law at that time and the village where she was living was consisting of only 2-4 houses contiguous to each other and accused are from other villages adjoining to Biran though their exact distance has not been pointed out to have been proved on record. Coming to her statement Ext.PA recorded under Section 154 Cr.P.C., she has clearly named both the accused persons, who committed this offence and she was never confronted with her statement Ext.PA as to how she mentioned the names of the appellants in the report when they were not known to her earlier or she had learnt their names on that evening. No benefit of any such improvement or omission made in the earlier statement can be taken by the accused until and unless she was confronted with her earlier statement wherein she had mentioned the names and in case she had been confronted only then she could have given an explanation as to how she mentioned the names at that time. It is true that by the evening, her brother-in-law had returned and when she made statement to the police at about 7.45 p.m., the occurrence had already taken place about 6 hours earlier and she had learnt the names and mentioned their names in her statement with which she was not confronted. During the cross examination of the prosecutrix and her sister, no such questions were put up to the prosecutrix or her sister that the identity of the appellants was not known to them or they only suspected the involvement of the appellants or that they falsely introduced the names of these persons, except the defence plea taken which shall be discussed below. However, from whichever angle the statement of the prosecutrix is looked into qua the question of identity, the statements of the prosecutrix and her sister do not show that it was in case of mistaken identity or that the accused persons were falsely named by the prosecutrix at the instance of her brother-in-law who had some disputes with the appellants, as discussed below. Coming to the defence plea taken by the accused person Jasbir Singh in his statement under Section 313 Cr.P.C. that he and his father work as goldsmiths. Prem Singh, the brother-in-law of the prosecutrix, had purchased ornaments from them for Rs.3,000/- and again for Rs.5,000/-. But the sum of Rs.3,000/- was only paid and the remaining amount was not paid, and when they demanded the money, he became aggressive and denied having purchased the ornaments and quarreled with them and threatened that if they demanded money, he would kill them. He also took up the plea that once Prem Singh tried to hit him by the bus which he was driving, when he was going on a scooter. The learned trial Court rightly disbelieved the plea of Jasbir Singh observing that he could have examined his father to prove this plea had it been true. It was also observed that otherwise also it is unbelievable that a man would make a false accusation of rape, involving his wife’s unmarried sister, against a person to avoid payment of a paltry amount of Rs.5,000/-. Apart from this, in his statement under Section 313 Cr.P.C., the accused did not mention the date, month or the year when the purchase was made by Prem Singh, in whose presence it was made and he could have proved the entries in the register maintained by him since it was a sale made on credit as per him, but neither he examined his father nor substantiated it from any other evidence and, therefore, this plea of Jasbir Singh is not sufficient to raise a doubt that the version of the prosecutrix may be incorrect. Coming to the defence plea taken by Bir Singh in his statement under Section 313 Cr.P.C., he simply stated that once Prem Singh had quarreled with him at Kunihar Bus Stand and, therefore, he was falsely named. There is nothing as to the date, month or year when the quarrel took place, whether any report was lodged or not and as to the fate of the report, if any, and therefore, this defence plea is not sufficient to raise a doubt in the mind of the court of any nature. Coming to the statement of the Medical Officers, who examined the prosecutrix, the prosecutrix was firstly examined by PW-9 Dr.V.K. Kaushik on 10.11.2003 at 11.00 p.m., who noticed the following injuries on the person of the victim: “(i) Multiple linear abrasions bearing size 6cm x 2cm. The abrasions were vertical and transverce and were present on the right and left gluteal region. They were light red in colour. (ii) The examinee complained of pain in the lower back. There was however, no apparent external injury nor tenderness or swelling. (iii) Two linear abrasions 3cm x 0.2 cm vertical on left scapular region, light red in colour. (iv) Examinee complained pain in the neck back region but no apparent tenderness or (v) The examinee complained of pain intermammary region, but no injury, tenderness or swelling was noticed. (vi) One linear abrasion 4 cm x 0.1 cm was noticed on the right forearm on dorsal aspect. It was light red in colour. (vii) Abrasion 0.2cm x 0.1 cm was noticed on left hand thumb base. It was light red in colour. (viii) One abrasion 1 cm x 0.2 cm light red in colour on right ankle joint in front with mild tenderness.” It is further observed by the Medical Officer as under: “On examining of private parts, no matting of pubic hair was noticed. Pubic hair was shaved during the examination and preserved for being sent to the Chemical Examination. No marks of violence on and around the vagina were seen nor was there any discharge of any kind present. Hymen was intact. Vagina admitted two fingers with great difficulty. No discharge inside or around the vagina or orifice was noticed. Vaginal swabs were taken and preserved. Slides made of vaginal secretions were also preserved.” Thereafter, the prosecutrix was again taken to IGMC, Shimla where she was examined by a team of four doctors and one of them Dr.Anita Pal has been examined as PW-4. She observed the following bruises and abrasions on the person of the prosecutrix: “(1) Two bruises on left scapular regions each measuring 1x2 cm. Colour was brown. (2) Four abrasions on left gluteal region 3-4 cm long. Brown in colour. (3) Two bruises on left ankle region 1-2 cm long. Brown in colour. (4) There were no abrasions on labia majora or inner side of thigh. (5) Hymen was intact. (6) Vagina admitted one finger. After examining the said girl a record of the aforesaid observations was prepared, which is Ex.PG. Thereafter Medical Board prepared its report which is Ex.PH. The final opinion was reserved to be given only after perusal of the result of Chemical analyst and the swab sent to the Chemical Examiner by doctor who earlier examined her. The results of the Chemical Examiner were shown to the Board on 11.12.2003 and the Board observed on the basis of the reports that sexual intercourse had taken place, because stains of semen were noticed by the Chemical Examiner on the clothes of the girls as also on the slides of her swab. The Board recorded its opinion to the aforesaid effect on the reverse of the Medical Board’s report Ex.PH. The said opinion is Ex.PH/1.” It is clear from a perusal of this statement that by mere observation that the hymen was intact and the vagina admitted two fingers with difficulty or as per PW-4 Dr.Anita Pal, it admitted one finger, the Medical Officers opined that any sexual intercourse may not have taken place. However, after the receipt of the report of the Chemical Examiner and the swabs sent to the Chemical Examiner by the doctor, it was found that sexual intercourse had taken place. This plea has also been considered by the learned trial court and no positive opinion can be given by the Medical Officer that no sexual intercourse has taken place and it is from the observations made in regard to the hymen being intact or the vagina admitting two fingers with great difficulty, this opinion was given by the Medical Officers but after perusal of the report of the Chemical Examiner, they gave their final opinion that the prosecutrix had been subjected to sexual intercourse. The report of the Chemical Examiner Ext.PN shows that the human blood was found on the shirt, duppatta of the prosecutrix but no semen was found. However, on the Salwar of the prosecutrix, human blood and semen was found though it was not found on the bra sent for analysis. However, the Chemical Examiner further observed that the vaginal smear slides and vaginal swabs do not show the presence of any blood but it shows human semen having been found on it. This clearly shows that the report of the Chemical Examiner corroborated the statement of the prosecutrix and the observations made by the Medical Officers in regard to the injuries also, which were found on the person of the prosecutrix, when she was examined on the same date and second time also and these tally with the probable period given by the Medical Officer when these were sustained by the prosecutrix. Coming to the plea that the hymen was intact or vagina admitted one finger or two fingers with great difficulty, these do not lead to the inference that the prosecutrix was not subjected to rape. Even in case of a sexual intercourse, which takes place for the first time, the hymen may remain intact and it is not necessary that it must be ruptured in the first sexual intercourse and it depends upon the various factors including the extent of penetration. The mere insertion of penis into the vagina is sufficient to complete the offence of rape and we find no reason to disagree with the findings recorded by the learned trial Court that the statement of