IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 331 of 2005. Date of Decision: 20.6.2008 ____________________________________________________________ Nasardeen Appellant. Versus State of Himachal Pradesh Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Sh. AnupChitkara, Advocate. For the respondent : Sh. P.K. Sharma, Addl. Advocate General With Mr P.M.Negi, Deputy Advocate General. _________________________________________________________ Surjit Singh, J. (oral). Appellant has appealed against the judgment of Sessions Court, whereby he has been convicted of offence of rape under Section 376, I.P.C. and sentenced to under-go rigorous imprisonment for ten years and to pay a fine of rupees 50,000/-, in default of payment of fine to under-go rigorous imprisonment for a further period of one year and the entire amount of fine has been ordered to be paid to the prosecutrix by way of compensation. Prosecution’s case is like this. Appellant-accused is a Tantrik (exorcist). The people of the area avail of his services to dispel evil spirits. Prosecutrix, who was around sixteen years of age at the Whether reporters of the Local papers are allowed to see the judgment? - 2 - relevant time, had been having epileptic seizures for three years prior to the occurrence. Occurrence took place on 19.10.2003. At the instance of some people of the area, the appellant was contacted by the guardians of the prosecutrix to provide treatment to her. He visited the place of the prosecutrix, about fifteen days prior to the occurrence. Thereafter, once the prosecutrix was taken to the place of the appellant situated in a different village, by her Mama and Taya. She was again taken to the place of the appellant-accused on 19.10.2003 by her Mama Babu Ram (PW3) and brother Anant Ram (PW4). Appellant started the exercise for treating the prosecutrix by charm, around 10.00 in the night. Half an hour after the start of that exercise, he asked Babu Ram (PW3), Mama of the prosecutrix, to sit near the lighted lamp and Anant Ram (PW4), brother of the prosecutrix, to carry a ‘Rote’ (thick hard bread) to a water body. Appellant proclaimed that the prosecutrix was to be bathed by him, as part of the treatment. He then took the prosecutrix to a field about 200 meters away from his house. Anant Ram (PW4), the brother of the prosecutrix, and a son of the appellant accompanied the appellant and the prosecutrix up-to the fields, with a bucket of water and ‘Rote’. From the field, Anant Ram (PW4) and the son of the appellant proceeded towards the water body for offering Rote. When the appellant and the prosecutrix (PW1) were all alone, appellant forced the prosecutrix to un-dress herself and then committed rape on her. Thereafter, he poured bucket of water on her and took her back home. Prosecutrix was looking pale and shaky when she reached the house of the appellant. She did not take meals and went to sleep. Next morning, accompanied by her Mama Babu Ram (PW3) and - 3 - brother Anant Ram (PW4), the prosecutrix left the appellant’s place. Babu Ram went to his own village while the prosecutrix and her brother Anant Ram (PW4) went to their village. On reaching home, the prosecutrix got emotional, on seeing her mother and started crying. She told her mother that the appellant had subjected her to sexual intercourse. Next day, Bhago Devi (PW2), the mother of the prosecutrix, accompanied by the prosecutrix and her son Anant Ram, started for the Police Station at Bilaspur. Before that, a call was given to Babu Ram (PW3) to join them at Bilaspur. Babu Ram (PW3) was informed at Bilaspur that the prosecutrix had been raped by the appellant. The four then went to the Police Station, where the prosecutrix submitted application Exhibit PW1/A, written in her own hand. We may notice that the prosecutrix is an educated girl, having studied up to 10th standard. On the basis of this application, a case was formally registered. Prosecution was got medically examined. The doctor found that she was used to sexual intercourse. He also gave opinion that the possibility of the prosecutrix having been raped could not be ruled out, even though no physical injury was noticed on any part of her body, including genitalia. Trial Court charged the appellant-accused with the offence of rape, under Section 376, I.P.C and on his not pleading guilty, prosecution was called upon to adduce evidence. Prosecution examined the prosecutrix as PW1, her mother Bhago Devi as PW2, her Mama Babu Ram as PW3 and her brother Anant Ram as PW4. The Doctor who conducted her medical examination, namely Dr. D. Bhangal, was examined as PW10. Some other witnesses were also examined, whose evidence is of formal nature. - 4 - Appellant in his statement, under Section 313 of the Code of Criminal Procedure Code, admitted that the prosecutrix accompanied by her Mama Babu Ram (PW3) and brother Anant Ram (PW4) came to his place for her treatment for epileptic seizures on 19th October, 2003 and was there at his place for the night. He, however, denied that he had taken the prosecutrix to a lonely place, in the fields, on the pretext of bathing her and committed rape on her. Suggestion was thrown to the prosecution witnesses that there had been a quarrel between PW3 Babu Ram and the appellant over the money demanded by the appellant in connection with the treatment of the prosecutrix. In his statement under Section 313, Cr.P.C also the appellant took this plea. He stated that he had demanded rupees 25,000/- on account of his charges but only a sum of rupees 100/- was paid to him. We have been taken through the evidence by the learned counsel for the appellant. Submissions made by the counsel for the appellant are three-fold . He says that the evidence on record does not prove the charge of sexual intercourse. In the alternative he submits that even if it be taken to be proved that sexual intercourse did take place, the same was with the consent of the prosecutrix. His third submission is that the sentence awarded by the trial Court is too harsh and it needs to be reduced at-least by three years. We have considered all the three submissions in the light of the evidence on record. Prosecutrix, who appeared as PW1, stated in no uncertain terms that she was taken to a field very late in the night by the appellant and that up to the field, her own brother Anant Ram (PW4) - 5 - and a son of the appellant accompanied them with a bucket of water and Rot and that after leaving the bucket of water at the site of the crime, when her brother Anant Ram and the son of the appellant went towards the lake to offer rot, appellant forced her to take off her clothes and thereafter committed rape on her and after that water from the bucket was poured on her. The testimony of the prosecutrix to the effect that she was taken to the field on the pretext of being bathed was not subjected to cross-examination. Babu Ram (PW3) and Anant Ram (PW4) also stated that the prosecutrix was taken away from his house by the appellant on the pretext that she was to be bathed and that when the appellant and the prosecutrix left the appellant’s house, Anant Ram (PW4) and a son of the appellant were in their company and they were carrying a bucket of water and a Rot. Babu Ram (PW3) stated that on reaching a field at some distance from the house of the appellant, he and the son of the appellant were required by the later to go to offer Rot at the lake, leaving the bucket of water in the field. No cross-examination was directed with respect to the testimony of PW3 Babu Ram and PW4 Anant Ram that the prosecutrix was taken out of his house by the appellant on the pretext of bathing her at some lonely place. PW4 Anant Ram as also PW3 Babu Ram and the prosecutrix who herself appeared as PW1, also stated that PW3 Babu Ram was asked to remain present in the house of the appellant, near lighted lamp, to ensure that the flame did not extinguish. In view of un-challenged testimony of the prosecutrix, her brother Anant Ram (PW4) and her Mama Babu Ram (PW3) that the prosecutrix was taken to the field on the pretext of being bathed, - 6 - appellant’s plea that he had not taken the prosecutrix to the fields cannot be accepted, especially when it was raised by him only when being examined, under Section 313 of the Code of Criminal Procedure. We see no reason to dis-believe the testimony of the prosecutrix that she was subjected to rape by the appellant. The story put-forward by the appellant that he has been falsely implicated on account of dispute over the money demanded by him as treatment charges, is nothing but an after-thought. Prosecutrix had been under treatment of the appellant for quite some time before the commission of the crime. Initially, she was treated at her mother’s place. Thereafter, she was called by the appellant to his own place twice. Had the prosecutrix and her guardians not been paying the appellant’s charges, he would have not continued the treatment. Thus, the aforesaid plea appears to be nothing but a ruse to escape punishment. There cannot be any question of the prosecutrix consenting to the sexual act. The prosecutrix was only sixteen years of age. She had been sick for the last two-three years. Appellant had been treating her for about twenty days prior to the occurrence. Appellant was in a position to dominate her will. Under these circumstances and especially in view of the fact that the appellant has not claimed that he committed sexual intercourse with the prosecutrix, with her consent, the second submission of the learned counsel is also rejected. We also see no justification for reducing the sentence awarded by the Sessions Court. Appellant is a Tantrik. Often this kind - 7 - of people exploit sick young women by making them believe that they are possessed by evil spirits. This is quite notorious. They win the confidence of illiterate innocent people. In most cases, sexual exploitation by this kind of people is not even reported to the Police, out of shame or for fear of evil-spirits being let loose on them. Deterrent punishment is the need of the hour, for this kind of people, when found guilty, especially when the guilt is proved to the hilt, as in the present case. So the third submission of the learned counsel is also rejected. Net result of the above discussion is that the appeal is dismissed and the conviction and sentence of the appellant, as ordered by learned trial Court, are maintained. (Surjit Singh) Judge. (Surinder Singh) Judge. June 20, 2008. (bm)