IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 376 of 2009. Date of Decision: 22nd March, 2011. _______________________________________________________ Hem Raj ….Appellant. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. B.R. Kashyap, Advocate. For the respondent : Mr. A.K. Bansal, Additional Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral). The present appeal is directed by the appellant, feeling aggrieved and dissatisfied by the judgment of conviction and sentence passed by the learned trial Court for the offences punishable under Section 376 of the Indian Penal Code, whereby he has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 25,000/- and also under Section 506 (II) of the Indian Penal Code to undergo rigorous imprisonment for a period of one year and to pay Whether reporters of the Local papers are allowed to see the judgment? - 2 - a fine of ` 5,000/-, with the default clauses. Both the sentences were ordered to run concurrently. Brief facts: 2. (i) The appellant was put on trial on the allegations that on 29.3.2009 at about 12.00 noon, the prosecutrix accompanied by her mother Smt. Geeta Devi, went to ‘Dalog- Ghatti’ to tether their cattle and fetch the grass from ‘Ghasni’. At that time, the prosecutrix was studying in 8th standard of Garakufri School and was aged about 14 years. The moment, the prosecutrix started cutting the grass, it started raining. Her mother did not cut the grass, but went at a distance to collect fuel-wood. In the meantime, the prosecutrix started grazing the cattle. Since her mother used to remain unwell, prosecutrix asked her to go back home to avoid wetting by the downpour, but she did not pay much attention to it and went out of her sight. (ii) Around 1.30 p.m., while returning home with the cattle-heads, the prosecutrix met appellant in the jungle. He caught-hold of her and gagged her mouth, threw her on the ground and to satisfy his lust she was sexually - 3 - assaulted. She resisted and raised noise to call her mother. The button of her sweater got broken. The appellant threatened her with dire consequences. (iii) On hearing her shrieks, her mother rushed to the spot. On seeing her, appellant ran away. (iv) The mother of the prosecutrix saw her clothes lying on the spot. She picked it up and gave to the prosecutrix to wear. (v) The prosecutrix narrated the entire incident to her mother and also disclosed that she suffered injuries on her lips and face on account of tooth-bites by the appellant. (vi) Both of them returned to their home and thereafter went to the Police Station to lodge the matter. The mother of the prosecutrix, Smt. Geeta Devi, lodged FIR Ext.PW13/F. (vii) The prosecutrix was got medically examined. The clothes which were worn by her, were not changed. These were sealed by the doctor. (viii) On the clinical examination, the doctor noticed the following injuries on her person: - 4 - (a) Abrasions four in number on the lateral side of left thigh of the size of .25 cm x 1 cm red in colour. (b) Abrasions three in number on left knee of the size of .25 cm x 1 cm red in colour. (c) Contusions three in number on medial side of left thigh of the size of .5 cm x .25 cm red in colour. (d) One abrasion on back of the size of 4 cm x 1 cm red in colour. (ix) Samples of pubic hair were also taken. Hymen was found ruptured. Tear was present and bleeding was also present. Vaginal slides and swabs were taken and sent to the laboratory for examination. (x) The prosecutrix was also referred to the Radiologist for ascertaining the skeletal age. (xi) The appellant was arrested on the same day. He was also medically examined on 29.3.2009 at 10.15 p.m. His blood was taken for blood-grouping. His clothes including the underwear were sealed and sent for the forensic examination. (xii) The report of the forensic examination is Ext.PB. The blood group of the appellant was ‘A’ and that of the prosecutrix was ‘B’. Human blood of group ‘B’ was found on the underwear of the appellant and human - 5 - semen on the underwear of the prosecutrix. The blood traces were detected on the vaginal slides and swabs. (xiii) The appellant denied for DNA test. His statement is Ext.PC, which was recorded before the Magistrate. (xiv) On 30.3.3009, police also took the photographs Exts.PW13/B, 13/C and 13/E of the alleged place of incident and also prepared the site plan Ext.PW13/A, which indicated the marks of struggle. (xv) During the investigation, police took into possession the date of birth certificates Exts.PW3/A and 3/B from Government Senior Secondary School, Gara-Kufri vide memo Ext.PW3/C. Police also took into possession the Pariwar register Ext.PW6/A and birth certificate Ext.PW6/B issued by the Panchayat vide memo Ext.PW6/C, indicating her date of birth as 31.7.1995 and also took into possession the certificate Ext.PW7/A, i.e., abstract of the admission and withdrawal register and date of birth certificates Exts.PW7/B and PW7/C, produced at the time of her initial admission, vide memo Ext.PW7/D. - 6 - 3. After completing the investigation, Challan was presented in the Court for the trial of the appellant. He was accordingly charge-sheeted for the offences aforesaid and at the end of trial he was convicted and sentenced, hence the present appeal. 4. Shri B.R. Kashyap, learned Counsel for the appellant forcefully argued that the appellant is a poor man and belongs to Scheduled Caste community. There has been a litigation inter-se his family and the complainant-party over a water-source and the appellant was implicated in the false case on account of previous enmity. He further ventilated that there are material contradictions and improvements in the statements of the prosecutrix and her mother inasmuch as while going to the jungle the prosecutrix had seen the appellant sitting in the shop of Guddu, but this fact was not stated in the FIR. Further, the prosecutrix complained of tooth-bites on her lips and face at the time of alleged assault, but medical certificate did not say anything about it and lastly that the prosecutrix was taken to Shimla for the medical examination. Neither the prosecutrix nor her mother stated that brother of the prosecutrix was also accompanying them and after medical examination they stayed in the house of PW9 Constable Pardeep Kumar, whereas he denied the fact of staying with his family at - 7 - Shimla. Learned Counsel also submitted that Devinder alias Guddu was a material witness in this case, but he was not examined, therefore, adverse inference has to be drawn. It is further argued that in absence of examination of doctor medical certificate of the prosecutrix stood not proved and her testimony is not inspiring confidence, as such the conviction and sentence passed upon the appellant is wrong and illegal. 5. On the other hand, Shri A.K. Bansal, learned Additional Advocate General, supported the impugned judgment of conviction and sentence passed by the learned trial Court and argued that the testimony of the prosecutrix is worth inspiring confidence and it is corroborated in material particulars on record. 6. To appreciate the rival contentions of the parties, I have thoroughly and thoughtfully considered the factual and legal aspect of the case to come to the right and just conclusion. 7. There is plethora of decisions of the Apex Court that once the statement of the prosecutrix inspires confidence and accepted by the Courts as such, conviction can be passed only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitated the Courts for corroboration of her statement. - 8 - Corroboration of the testimony of the prosecutrix is a condition for judicial reliance, not a requirement of law, but a guidance of prudence under the given facts and circumstances. Further, the minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution. In State of Madhya Pradesh v. Dayal Sahu, 2005 CRI. L.J., 4375, the Supreme Court also held that the non-examination of the doctor and even non-production of doctor’s report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence. 9. Against the aforesaid legal backdrop, now reverting back to the facts of the case, the statement of the prosecutrix requires to be legally scanned. She stated on oath that she alongwith her mother went to Ghasni to cut the grass and tether the cattle, but, however, her mother started collecting fuel-wood in the jungle at some distance and was not visible to her. Around 1.30 p.m. when she was grazing her cattle, the appellant to whom she identified during the trial of the case came there. Further, without mincing any word she stated that the appellant caught hold of her leg and threw her on the ground, opened the string of her Salwar and threw her Salwar and underwear on one side and climbed upon - 9 - her. She tried to save herself, but in vain. The appellant, then raped her. He had also gagged her mouth. She cried for help. After 5-7 minutes her mother reached the spot. Seeing her mother, accused threatened her, if she narrated the incident to anyone, she would be killed and fled away. She divulged to her mother the entire story. PW2, her mother, made her to wear the clothes which were thrown away by the appellant. Thereafter both of them reached their house. PW2 aforesaid contacted her husband telephonically. He advised them to go to the Police Station and report the matter. Thereafter they reported the matter to police. She stated that she was got medically examined by the police at Shimla. She also stated that on 30.3.2009 she returned to her village and showed the place of incident. Police recorded her statement. She further stated that while going to the Ghasni she had seen the appellant sitting in the shop. She stated that her clothes were taken by the doctor and sealed and identified her signature at point ‘A’ on her medico legal certificate and further stated that her date of birth is 31.7.1995, which has not been assailed in her cross-examination. She also identified her sweater Ext.P.1, Salwar Ext.P.2, shirt Ext.P.3 and underwear Ext.P.4, which were taken into possession by the doctor at the time of her medical examination. - 10 - 10. Mother of the prosecutrix, PW2, corroborated her version. She stated that on hearing the shrieks of her daughter she went to the spot. Appellant was there. He was tying the cord of his Pajama. While leaving, the appellant threatened the prosecutrix that in case she disclosed about the incident, she would be killed. On enquiry from the prosecutrix while weeping told her that the appellant raped her. She further stated that she picked-up the Salwar and underwear of the prosecutrix which were lying on the spot and gave them to her to wear the same, thereafter both of them went to their house. She rang up her husband, who in turn told to report the matter to police. Police brought them to Shimla and got prosecutrix medically examined at Ripon Hospital and for the night they stayed with the family of a constable. Next day, on reaching their village they alongwith police officials got the place of incident identified. 11. PW13 Inspector Khazana Ram stated in the cross-examination that spot was identified by the prosecutrix and the same was shown by him in red circle in photograph Ext.PW13/E. The spot-map Ext.PW13/A was also prepared by him on 30.3.2009, i.e., next day of the alleged incident, which shows the marks of struggle, i.e. tell-tale story. - 11 - 12. PW14 ASI Ajay Kalia got the appellant medically examined on 29.5.2009. On 5.6.2009 he moved an application for taking the blood sample of the appellant for DNA test to which he refused. The copy of the statement of the appellant is Ext.PC. 13. Ext.PA is the Medico Legal Certificate of the appellant which was admitted by the appellant, thus was tendered by the learned Public Prosecutor in evidence vide his statement dated 22.7.2009. It reveals that the blood sample of the appellant for grouping was also taken and his clothes were also sealed and taken into possession by the doctor. This fact has been corroborated by PW14 ASI Ajay Kalia and he had identified Pajama Ext.P.5, shirt Ext.P.6, vest Ext.P.7 and underwear Ext.P.8 to that of the appellant which were taken into possession by the Medical Officer. In reply to Question No.22 recorded under Section 313 of the Code of Criminal Procedure, the appellant also admitted this fact to be correct including the fact that he denied the blood sample for DNA test to a question at Sr. No.26. 14. As already stated above, the case of the appellant even in his statement recorded under Section 313 of the Code of Criminal Procedure was that a water dispute was going on, with the complainant party for the last about ten years. The civil and criminal litigation was - 12 - pending and he was involved in a false case and further that the complainant party is habitual of lodging false cases. 15. In the cross-examination of the prosecutrix and her mother though these suggestions were put, but denied by them. However, they stated that they have no “Bartan” with accused/appellant family and are not in visiting terms for the last many years. 16. On the critical analysis of aforesaid evidence, in my opinion, the appellant failed to probablise the defence. Even otherwise, the pending litigation or enmity as alleged is of no consequence, as no one on this earth would impute such a serious allegation against anyone by putting at stake the future of a minor girl. On merit the incident stands proved. The prosecutrix is proved to be a minor. She testified her date of birth as 31.7.1995 and this fact has not been assailed in her cross-examination. Further, her mother affords corroboration to her version and categorically stated that the prosecutrix at the time of alleged incident was 14 years of age. PW3 Keshwa Nand Sharma was the Class-Incharge of the prosecutrix in Government Senior Secondary School, Garakufri. He also stated the same date of birth as stated above and proves it from the school-record, i.e., admission and withdrawal register, abstract whereof is Ext.PW3/A. Earlier to this - 13 - School, she was studying in the primary school. PW7 Jeet Ram Sharma is the Centre Head Teacher. According to him, the prosecutrix was initially a student of their school. He stated that the entries in the register were made on the basis of certificate issued by the Panchayat, copy whereof is Ext.PW7/C and he issued certificate Ext.PW7/B. PW6 Jagdish Sharma, Assistant Panchayat Secretary has proved the birth certificate Ext.PW6/B. Thus, there is overwhelming evidence that on the date of incident the prosecutrix was minor. 17. From the above evidence, the conclusion which can safely be drawn is that the statement of the prosecutrix a minor child of 14 years is inspiring confidence. She had no personal grudge against the appellant to grind her own axe by putting her future at stake. Her version also finds corroboration in material particulars on record. Although, the doctor issuing the certificate was not examined, but the prosecutrix has proved that she was wearing underwear and the clothes as mentioned above when she was sexually assaulted. She was having the blood of ‘B’ group. Her private part was bleeding. Vaginal swabs show the presence of semen and blood. The appellant admitted having taken his clothes and blood for grouping. The forensic report shows that the blood group of the appellant was of ‘A’ - 14 - group, i.e., different from the prosecutrix. His underwear was found to have the blood group of the prosecutrix and thus no explanation was offered by him. The prosecution evidence aforesaid also proves the criminal intimidation, the evidence on record completely rules out his false implication. 18. For the aforesaid reasons, the conviction and sentence passed by the learned trial Court cannot be interfered with, as such, the appeal sans merit and is accordingly dismissed. March 22, 2011. (Surinder Singh), (rc) Judge.