1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 96 of 2005. Date of decision: 19-3-2008. ____________________________________________________________ Karan Singh 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 : Mr. Baldev Singh, Advocate. For the respondent: Mr. P.K. Sharma, Additional Advocate General. _________________________________________________________ Surjit Singh, J. (oral). Appellant has appealed against the judgment of the Sessions Court (Fast Track Court) Kullu, 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 1000/-, in default of payment of fine, to under-go simple imprisonment for a further period of two months. First the prosecution story, as unfolded by the evidence on record, may be summed up: PW1 Maila Lama had his temporary residence at a place called Jari in District Kullu. He lived there with his wife and four children. Prosecutrix is his third issue. She, at the relevant time, was about three years old. On the relevant date, PW1 Maila Whether reporters of the Local papers are allowed to see the judgment? 2 Lama, accompanied by his wife PW2 Binu Lama and two elder children, went to work as labourer leaving the appellant at his place to take care of the prosecutrix and his ten months old youngest child. Around 3.oo P.M., when accompanied by his wife and two elder children, PW1 Maila Lama returned to his aforesaid temporary residence, prosecutrix was found crying. On being asked by her mother PW2 Binu Lama, the prosecutrix told that the appellant had hurt her in her private part. On inspection, the vagina of the prosecutrix, was found to be bleeding. The appellant tried to run away. He was apprehended by PW2 Binu Lama, the mother of the prosecutrix at a distance of about 100 yards. The matter was reported to the Police the same day at 6.00 P.M vide report Exhibit PW5/A. The prosecutrix was got medically examined from PW3 Dr. Harsh Mehra the same night at 9.45 P.M who made the following observations: “1. Condition of clothing was normal (not wearing under clothes at the time of assault). 2. There were redness and swelling near genital organs at the time, i. e, at 9.50 P.M. There was evidence of bruises and haemotoma noted on both the thighs. 3. There was external genitalia-swellen inflamed and tender. 4. There were no other evidence of any injury anywhere in body”. Appellant was also got medically examined the same evening at 7.40 P.M. He had a few injuries on his person, which it appears, had been caused by Maila Lama (PW1), the father of the prosecutrix, on coming to know about the incident. The clothes 3 which the appellant was wearing at the time of the medical examination were got removed by the Doctor and made into a parcel and the same were sent to the Chemical Examiner. A slide of the glens smear from the male organ of the appellant was prepared. Clothes of the prosecutrix, which she was wearing at the time of her medical examination, as also the incident, were also taken into possession. Slides of her vaginal smear and genitalia smear were also prepared. Clothes of the appellant, the prosecutrix and the slides of smear of glens of the appellant and the vaginal and external genitalia of the prosecutrix were sent to the Chemical Examiner, who found human semen on the vaginal smear and smear from labia majora of the prosecutrix as also her Pajami. He also noticed human blood and human semen on the pant of the appellant. Human blood was noticed on his under-wear also. On the slide of glens’- smear of the appellant also human blood was noticed, even though no injury on his male organ was found. Trial Court has convicted and sentenced the appellant as aforesaid. Learned counsel representing the appellant has argued that the evidence on record does not prove the charge beyond reasonable doubt and that the appellant has been falsely implicated because the parents of the prosecutrix owed taxi charges to the appellant which he had gone to demand from them on the fateful day. We have been taken through the evidence. It is made out from the testimony of PW1 Maila Lama as also PW2 Binu Lama, the father and mother, respectively, of the prosecutrix, that on 5-3-2003, the appellant went to the house of PW1 4 Maila Lama and stayed there for the night. PW1 Maila Lama testified that meat and wine were also served to the appellant on the said night as he was their guest. The appellant did not challenge the testimony of PW1 Maila Lama and PW2 Binu Lama about his having gone to their house on 5-3-2003 and having stayed there for the night even though in his statement under Section 313 of the Code of Criminal Procedure, he denied this fact. As a matter of fact while cross-examining PW1, the defence counsel admitted that the appellant had stayed at his (PW1) place on the night preceding the date of the incident. Now when the appellant had stayed with PW1 Maila Lama and his wife Binu Lama on the previous night, as their guest, and was served with meat and wine, the story put-forward by him that he has been falsely implicated because of his having demanded the money due to him on account of taxi charges, cannot be believed. PW1 Maila Lama and PW2 Binu Lama, the parents of the prosecutrix, have very categorically stated that on 6-3-2003, they went to work, leaving the appellant at their place, to take care of the prosecutrix and their youngest child, aged about ten months and that when they returned at about 3.00 P.M, they saw the prosecutrix crying and on inquiry by PW2 Binu Lama, the prosecutrix told that the appellant had caused pain in her private part with his male organ. PW2 Binu Lama has further stated that she examined the private part of the prosecutrix and found that it was bleeding. It is also testified by Maila Lama (PW1) and Binu Lama (PW2) that when the private part was being examined and found to be bleeding, the appellant tried to run away but he was overpowered at a distance of about 100 5 yards by PW2 Binu Lama and thereafter he was taken to Police Post Jari where report was also lodged. The report had been lodged promptly. The same evening, both the prosecutrix and the appellant were got medically examined. Human semen was found on the vaginal swab and the swab taken from the external genitalia of the prosecutrix as also on the pant of the appellant. Besides the semen, blood was also found on the pant and the under-wear of the appellant. Blood was also found in the glens smear of the appellant. Human blood and human semen were found in the vaginal smear of the prosecutrix also. Report of the Chemical Examiner Exhibit PX proves these facts. PW3 Dr. Harsh Mehra, who conducted the medico legal examination of the prosecutrix, found bruises and haematoma on the thighs, swelling, inflammation and tenderness of external genitalia and hymen-upturned & Inflamed, besides bleeding profusely. Appellant was also medically examined by PW3 Dr. Harsh Mehra. He opined that the appellant was capable of performing sexual intercourse. Taking into consideration the above discussed evidence, which conclusively proves the charge against the appellant, we hold that the appeal is without merit. The same is, therefore, dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. March 19, 2008. (bm) 6