IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.41 of 2009 Laxman Singh … Appellant Versus State of Uttarakhand … Opposite Party Mrs. Pushpa Joshi, Sr. Adv. assisted by Mr. Amit Kapri, Adv. for the appellant Mr. M.A. Khan, Brief Holder for the State Dated: September 14, 2011 Hon’ble Servesh Kumar Gupta, J. This appeal has been preferred against the judgment and order of learned Sessions Judge, Champawat dated 12/17.02.2009 rendered in S.T. No.26 of 2007, State Vs. Laxman Singh. In the said trial, appellant/accused Laxman Singh was found guilty for the offence of Section 376 (2)(g) r/w Section 342 IPC. For the offence of Section 376(2)(g), he was sentenced to undergo ten years’ R.I. with fine of Rs.25,000/- and in default of payment of fine, he was further directed to undergo two years’ additional R.I. For the offence of Section 342 IPC, appellant/accused was directed to undergo one year’s R.I. with fine of Rs.1,000/- and in default of payment of fine, one month’s further imprisonment was awarded. Both the sentences had to run concurrently. It was also directed that out of the fine, so deposited by the appellant, Rs.20,000/- shall be paid to the prosecutrix Km. Bhanumati. 2. The incident of this alleged rape relates back to dated 2/3.7.2007 when Km. Bhanumati aged about 17-18 years was returning after participation in a marriage ceremony which was being solemnized in the village itself. She was overpowered by the appellant/accused Laxman Singh along with co-accused Mahendra Singh while on way to her home 2 which was passing through a forest. She was raped by duo at about 8:30 PM and they permitted her to return to house in the morning of the next day, i.e. on 3.7.2007 and then she disclosed the entire happenings with her. The report could be lodged on 4.7.2007 at 2:30 PM. The girl was sent for medical examination by the police on the same day and at 4 PM she was medically examined by Dr. Smt. Sushila Shah at Community Health Center, Lohaghat, Champawat. The following injuries were found on her body: - “On back, abraded contusion 12 cm x 1 cm which are of red and black colour. The hymen was absent. On right side thigh, multiple abrasions and contusions, bluish and reddish colour, were found. In vagina, only white discharge was found. Her vaginal smear was taken for pathological examination. 3. The above-said medical report is Ex.Ka-6. The accused persons were arrested on the next day and their under-wears as well as the breeches of the prosecutrix were taken into possession by the Investigating Officer and sent for the chemical examination. The Forensic Science Laboratory Report Ex.Ka-14 reveals that semen was detected in all the clothes which were taken in possession by the I.O. as above. 4. The chargesheet was submitted against both the accused persons for the offence of Section 376(2)(g) r/w Section 342 IPC but the co-accused Mahendra Singh, being a juvenile, was sent for trial in the Juvenile Board, so his file was separated and then appellant Laxman Singh alone faced the trial in the court of Sessions Judge, which ended in the conviction as above. 3 5. I have heard learned senior counsel of the appellant as well as the learned brief holder for the State and have gone through the records of the case. 6. The incident of this case has happened in a forest where no public witness was there; only the statement of prosecutrix coupled with the medical evidence is available before this Court for determination of the truth in the case. PW1 is Bhuwan Singh, who has lodged the FIR and is the real brother of the prosecutrix. He has proved that the marriage place was at a distance of 3 kilometers from his home. His entire family was invited but he along with his brother Angad and his sister Km. Bhanumati (in all three) went to participate in the marriage. After attending the marriage and having food there, he along with his brother Angad returned to his home but his sister Km. Bhanumati asked permission from them to remain in the marriage itself for the reason that she would come later after the sending-off ceremony of the bride. So on 2.7.2007, Km. Bhanumati did not return with her brothers and she reached her house in the morning of 3.7.2007 when she was very desperate and weeping. When all the family members asked the reason of her desperation and weeping, then she told the incident. She disclosed that after the sending-off ceremony of marriage party, she was returning at about 7 PM of the previous night. It is relevant to mention that in hills the marriages are solemnized in day hours. She was caughthold by the co-accused Mahendra Singh along with appellant Laxman Singh and putting her under the threat of killing, she was dragged in a nearby bush where the rape was committed against her will and without her consent, firstly by appellant Laxman Singh and later by co-accused Mahendra Singh. She disclosed that both the accused confined her there whole night and she was subjected to rape by each accused three times. She was allowed to leave for her house only at the dawn 4 hours. Both the accused persons were the resident of the village of prosecutrix, so there was no question of organizing any identification parade and she was well conversant with the accused persons. 7. When the report was lodged, Km. Bhanumati was taken to the C.J.M. for recording her statement u/s 164 Cr.P.C. on 6.7.2007. In her statement Ex.Ka-4, she has ruled out any threat or persuasion of anybody for making the statement before the Magistrate. She has reiterated the entire incident committed by accused persons with her during the intervening night of 2/3.7.2007. In her statement, she has disclosed the resistance extended by her against both the accused persons but she was stopped to resist further by gagging her mouth. She was laid down on the earth and despite of much resistance, her trouser and panty were put off. While she was caught hold firmly by accused Mahendra first, the appellant/ accused Laxman Singh committed sexual intercourse with her and after sometime, Laxman Singh caught hold of her firmly and accused Mahendra Singh committed forcible intercourse with her. Even after one time of sexual intercourse, she strived to get rid of herself for leaving home but she was not permitted to leave the place. Both the accused persons keep on waking whole night and committed sexual intercourse with her three times by each. In the dawn, the accused left the spot leaving the prosecutrix Km. Bhanumati there and then she could return to her house at about 5:30-6.00 AM in the morning and narrated the entire incident to her family members. 8. This statement, which Km. Bhanumati has given before the Magistrate u/s 164 Cr.P.C., has again been reiterated by her before the court on oath and not a single discrepancy or 5 contradiction has been pointed out in her version from the one which she has stated u/s 164 Cr.P.C. 9. The Hon’ble Apex Court in the case of “Shrawan vs. State of Maharashtra reported in 2006(6) SCJ 545” has held that conviction can be based solely on the basis of statement of prosecutrix in a case of rape if the evidence is trustworthy. 10. Further in the case of “State of Punjab Vs. Ram Dev Singh reported in 2004(1) U.C. 553”, the Hon’ble Apex Court has held that “there is no rule of law that the testimony of prosecutrix cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none reasonably exists.” 11. The above view has further been reiterated by the Hon’ble Apex Court in the case of “State of U.P. Vs. Pappu 2005 (1) J.Cr.C. 554” and it will not be out of place to mention an of- late law laid down by the Hon’ble Apex Court in the case of “State of U.P. Vs. Chhotey Lal reported in (2011) 2 SCC 550” wherein it was held- Testimony of prosecutrix in rape cases has the great evidentiary value and it itself is sufficient to punish the guilty without any corroboration, because a woman who is victim of sexual assault, is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice- As a matter of fact, evidence of prosecutrix is similar to evidence of injured complainant or witness. The Hon’ble Apex Court further has opined as under: - 6 “The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Indian society is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix, the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society’s belief and value systems need to be kept uppermost in mind, as rape is the worst form of women’s oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge.” 12. Learned senior counsel of the appellant has pointed out that FIR has been lodged with delay but this contention is not acceptable because in the opinion of the Court, there is no delay at all in lodging the FIR. The prosecutrix returned to her house in the morning of 3.7.2007 and it has been explained in the FIR itself that due to cats and dogs rain on 3.7.2007 and tardy hilly roads, the brother of prosecutrix Bhuwan Singh could not go to lodge the FIR. Next day, he went to the police station which is 45 kilometers away from the place of occurrence and in the hills, it is not always that vehicle is available at the doorstep of the house imminently. One has to 7 travel even a long way on foot to board a vehicle which is not every time available. So, there is no delay at all in lodging the FIR. 13. It was next pleaded on behalf of the appellant that the victim went along with her brothers but did not return with them. This fact has also been explained in the evidence because it is not unnatural for Km. Bhanumati to seek permission from her brothers to return later after sending-off ceremony of marriage party, inasmuch as, she might have been emotionally attached with the bride, so it was quite natural on her part to seek such a permission from her brothers to return later. 14. The next plea raised by learned senior counsel for appellant is that how could it come to the notice of accused that she was returning alone. This plea is also unsubstantial because there is nothing impossible for the sexual lust ridden boys and they easily anticipate the situation when the victim might be in solitude. 15. It has also been contended that no medical of the accused persons was conducted. Here also, the Court is of the view that it was not necessary to conduct the medical of the accused persons because even after three times of sexual intercourse, when she was completely overpowered by them, then any injury mark upon the body of accused persons was not probable. 16. It has further been contended that for the whole night, prosecutrix remained in the forest and lying her on the earth, she was raped, so in that case, some abrasions should have been upon her body. This contention is baseless, inasmuch as, on her medical examination, the medical officer has 8 reported the abraded contusions on her back measuring 12 cm x 1 cm. Besides, multiple abrasions and contusions were also found on her right side of thigh giving them the bluish and reddish colour. Her hymen was absent. On examination of the clothes of the victim, i.e. Panty and trouser as well as the under-wears of the accused persons, the mark of semen were detected in the chemical examination. 17. PW5 Narendra Sharma, Pathologist, B.D. Pandey District Hospital, Pithoragarh has been examined to prove the slides which were prepared having taken the vaginal smear of Km. Bhanumati. After examination of the said slides, he found the sperms in white discharge from the vaginal smear which was nothing, but the discharged semen of both the accused persons who committed rape upon her, not once but three times by each. It has been proved by PW5 that the sperms remained alive in the vagina up till six hours of the sexual intercourse and the dead sperms remain present in the vagina for 2-3 days. The slide of the vaginal smear taken from the prosecutrix was prepared on 4.7.2007, i.e. within 48 hours of the alleged offence. So, the presence of the dead sperms in the vaginal smear of the prosecutrix fortiori proves the offence committed upon the prosecutrix by the accused persons. 18. No enmity has been alleged by the accused persons either with prosecutrix or with her family members. Rather accused Laxman Singh in his statement has stated that the victim was not subjected to sexual intercourse by him without her consent. It infers his admission that he committed the sexual intercourse with the prosecutrix. Had she given her consent for such an abhorable act, in that case there was no probability of her reaching home in utter desperation and weeping state. 9 19. In view of the above, this appeal has no force and liable to be dismissed. The appeal is dismissed. Judgment and order passed by the trial court is affirmed. Bail application of the accused which is lying pending for a long time is also rejected accordingly. (Servesh Kumar Gupta, J.) September 14, 2011 Rajeev Dang