1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 424 of 2007. Date of Decision: 11-11-2008. ____________________________________________________________ Madan Jit Verma. Appellant. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Shri Navlesh Verma, Advocate. For respondent : Shri J.S. Guleria, Law Officer. _________________________________________________________ Surinder Singh, J. (oral) The appellant has challenged his conviction passed under Section 376 and 506 of the Indian Penal Code in Sessions Trial No. 4- S/7 of 2006 decided on 17-4-2007 by the Sessions Judge whereby he has been sentenced to under-go imprisonment for a period of seven years and to pay a fine of rupees 25,000/- under Section 376, I.P.C. and rigorous imprisonment for a period of two years and to pay fine of rupees 5000/- under Section 506 of the Indian Penal Code. Both the sentences were ordered to run concurrently and he was also given the benefit of Section 428 of the Code of Criminal Procedure. The factual matrix giving rise to this appeal is that on 26-7- 2005, the prosecutrix along with her friends Reena and Rita etc. had gone to attend the marriage of her friend Anjana in village Dhar. While Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 returning from there along with her friends and brother Chaman. At about 6.00 P.M, her brother Chaman left the house of Reena which fell on the way, along with his boy friends leaving behind the prosecutrix whereas the prosecutrix stayed back for some time in the house of Reena. Thereafter the prosecutrix also set her journey towards her village alone, following a bridal path through the jungle. When she reached near the place called Kuftu around 6.30 P.M, the appellant belonging to her village met her. He was related to her as brother in the village relations. She asked him as to where he was going and followed the route which was not a real one. The appellant replied that he was waiting for her and grabbed her from her arms. When she raised alarm, appellant snatched her handkerchief (Ext.P2) and thrust her into her mouth to gag her. She was dragged to the bushes near-by and was thrown on the ground. Appellant held her from both of her hands in her back. He broke open the string of her salwar. The appellant did not allow her to cry as he had full control of her within his grip and committed the sexual intercourse against her wishes. In this process, an injury on the lips of the prosecutrix was also caused. After satisfying the sexual lust, he threatened her not to disclose this matter to her mother and if she did so, he would kill her. The appellant ran away from the spot. She threw the broken string Ext. P1 at some distance and came to her house holding her salwar with both the hands. She reached in the village around 8.00 P.M. and narrated the entire story to her mother. PW2 Smt. Uma contacted the parents of the appellant telephonically and also Smt. Kamlesh, Pradhan of Gram Panchayat who is the aunt of the appellant. Pw3 Smt. Kamlesh visited the house of the prosecutrix along with parents of the appellant and begged pardon and also offered money to the prosecutrix to compound the matter. 3 The father of the prosecutrix had died long back. Her mother was illiterate. She kept on listening them but ultimately she decided to lodge the report in the Police Station. Next day, the father of the appellant met her and mounted pressure on her for the compromise and not to lodge the report. Anyhow, she managed to relieve the pressure and lodged the F.I.R. on 29.7.2005 in Police Station, Dhalli. Police got the prosecutrix medically examined in Indira Gandhi Medical College and Hospital, Shimla from PW14 Dr. Minakshi Raina. She issued the medico legal certificate Exhibit PW14/A. The hymen of the prosecutrix was found ruptured and in the opinion of the Doctor, the possibility of sexual activity could not be ruled out but further opined that since the spermatozoa was not found present in the vaginal smear as the recent activity was not there. Handkerchief Exhibit P1, Salwar Exhibit P2, Shirt Exhibit P3, bra etc. were taken into possession by the Police. The parcels of pubic hair and vaginal smear were also handed over to them by the Doctor which were sent for forensic examination. The examiner found the blood stains on the salwar of the prosecutrix. Police also prepared the site plan and arrested the appellant. He was medically examined. His medico legal certificate is Exhibit PW6/B. The appellant was found fit to perform the sexual activity. He was arrested on 30.7.2005. The skeletal age of the prosecutrix was opined to be more than seventeen years at the time of alleged occurrence by PW12 Dr. Anupam Jobta. The date of birth certificate Exhibit PW7/A reflected that she was born on 7.3.1988. After completing the investigation of this case, the challan was presented in the Court under the aforesaid Sections for the trial of the appellant. The appellant was charge-sheeted. He pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the case 4 and the appellant was also examined under Section 313 of the Code of Criminal Procedure. His case was of denial simplicitor and his defense was that the prosecutrix as well as his mother were inimically disposed of towards him and his family. Further that the mother of the prosecutrix demanded financial help from his father which could not be provided. Thus because of these reasons, the case was fabricated against him. The appellant was also called upon to enter into his defense. He examined DW1 Jaiwanti, Teacher of Government School Boh to prove that Smt.Uma, the mother of the prosecutrix was a water carrier and was present on duty w.e.f. 26 to 28.7.2005 and on leave on 29.7.2005. DW2 Het Ram was also examined to prove the fact that in the month of July 2005, Uma Devi had requested to accompany him to a local depot of the father of the appellant. Both of them visited his shop and Uma requested the father of the appellant to lend her rupees 15,000/- which was required for the construction of her house. The father of the appellant had shown his inability to pay the entire amount but was ready to pay part of it to which Uma refused and threatened him to take revenge by lodging a false complaint as she had earlier done in case of Ram Lok. After hearing the parties and upon going through the evidence on record, learned trial Court convicted and sentenced the appellant as aforesaid which has been assailed in this appeal. Shri Lavnesh Verma, learned counsel for the appellant argued that the independent witnesses did not support the case of the prosecution on material aspects rendering the whole story un-believable and further that there was an un-explained delay in lodging the F.I.R. Learned trial Court also failed to take notice of the material contradictions and omissions in the statements of the prosecution witnesses and the medical evidence did not establish the facts of rape as alleged. It is also 5 argued that there were no dragging or other marks of injuries on the person of the prosecutrix which falsifies her story, thus it was difficult to comprehend that any incident of rape involving the physical struggle as stated by her on a thoroughfare went un-noticed. Alternatively submits that the circumstances show a clear cut case of consent. On the other hand, Shri J.S. Guleria, learned Law Officer for the State has supported the impugned judgment of conviction and sentence and vehemently argued that there is a consistency in the statement of the prosecutrix worth inspiring confidence which stands corroborated in material particulars from the evidence on record. The consent is not proved nor it is borne out from the evidence on record. Therefore there is no illegality in the conviction and sentence of the appellant recorded by the learned trial Court. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. It is well established and has been repeatedly reiterated by the Supreme Court that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the Court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance short of corroboration as understood in the context of an accomplice would suffice The reliance can be put on the judgments of the Supreme Court rendered in case State of Himachal Pradesh –v- Shree Kant 6 Shekari, AIR 2004 SC 4401 and State of H.P. –v- Asa Ram AIR 2006 SC 381). Now examining the facts of this case on the touchstone of the above principle of law, it shall be relevant here to discuss the statement of the prosecutrix. She has categorically stated as PW1 that after attending the marriage while returning to her village, she was accompanied by her friend Reena and her brother Chaman. They stayed in the house of Reena on the way in village Kiali. Her brother left with his friends earlier to her and she started from the house of Reena around 6.10 P.M. Reena insisted for her staying in her house but she declined and started running towards her home through a near-by jungle path. When she reached near Kuftu in the forest, appellant came from the upper side and asked him as to where he was going as the said path did not lead to his house. On this, he replied that he was waiting for her, thus caught hold of her hands. When she started crying, he threw her down and put her handkerchief into her mouth and caught hold of her from both the arms from behind and dragged her to the bushes forcefully, broke upon the string of her salwar and after removing it, forcibly committed the rape on her. She tried her best to get rid of his clutches but was of no avail. After committing the rape, the appellant kissed her and threatened her with life if she disclosed this incident to her mother. Thereafter he ran away. She came to her house holding her salwar with both hands since the string of the salwar was broken thus she threw the same on the way. The entire story was narrated to her mother because her father had already expired about twelve years back and she had one younger sister and a brother. Her mother made a telephonic call in the house of the appellant informing about the incident. The mother of the appellant informed her that they would be coming to their house. Local Pradhan Smt. Kamlesh and the parents of the 7 appellant visited her house along with one Roshan Lal around 10.00 P.M. They requested not to inform the Police as the life of the appellant would be spoiled and they would settle the matter by paying adequate money. Her mother told them that they were talking about the life of their son but the life of her daughter was already ruined then how this matter could be settled. She further deposed that there was none in the village to cooperate them, everyone was siding with the appellant party. Since there was no elder member in the family, her uncle advised them to approach the maternal uncle for help. Her mother went to him on 29. 7.2005 at 5.00 A.M. thereafter on 29.7.2005, she along with her mother went to the Police Station accompanied by her maternal uncle, even there the father of the appellant prevented them to lodge the report. However, they were successful in lodging the F.I.R. Exhibit PW1/A and thereafter she was medically examined by the Doctor. She also narrated to the Doctor about the rape in question. She further stated that during the investigation, the police took into possession the broken string Exhibit P1 from near the spot and identified it during the trial. The Court also noticed that the knot of the string was intact. She also identified the handkerchief Exhibit P2 recovered from the spot which belonged to her which was used by the appellant to gag her mouth. She further identified her clothes which she was wearing at the time of the alleged incident. In cross-examination, she admitted that her Tauji was at home with his family on 26.7.2005. He was also informed by her but he did not respondent on that day, rather asked to contract the parents of the appellant. She denied that the cries/voice could be heard easily in the village from the place of alleged incident, Village Kuftu was visible from the place of occurrence. She further stated that where she was raped, there were no stones. It is surprising to note she was given a fatal suggestion to which she denied that there were stones. It means that 8 the appellant was having special knowledge about the place of occurrence. She stated that she was not dragged but carried forcibly to the bushes. According to her, she could not use her teeth for biting since the appellant had put her handkerchief into the mouth. She further stated that her date of birth is 7.3.1988 but denied that she had made the false statement against the appellant. She categorically stated that the salwar was not washed by her when it was taken into possession by the Doctor. It is pertinent to note that the salwar, on forensic examination contained the blood-stains. PW2 Uma Devi, the mother of the prosecutrix, has corroborated her version. She stated, when the parents of the appellant were contacted, they told them to settle the matter in the house she was also threatened. Thereafter they kept on visiting and offered the money from 15000/- to 20000/- for not reporting the matter to the Police. In cross- examination, she admitted that the father of the appellant was a Panch at that time but nothing material could be extracted in her cross- examination. It is significant to note that PW3 Kamlesh was Pradhan of the Panchayat and related to the appellant. She denied that she demanded the money from the father of the accused for the construction work. She stated the fact that there was bruise on the lips of the prosecutrix, which was also noticed by the Doctor at the time of her medical examination. PW3 Kamlesh, Pradhan resiled from her earlier statement recorded by the Police. She denied that she along with the parents of the appellant had visited the house of the prosecutrix and any talks were held in her presence. She admitted that the appellant is her nephew in the relations. She also admitted to have signed the memo Exhibit PW3/A after reading its contents by which the jeans pent Exhibit P7 of the appellant was taken into possession. The police had visited the site 9 of the incident and prepared the site plan also proved that the handkerchief Ext. P2 was taken into possession from the spot of incident vide memo Exhibit PW1/C. PW5 Reena Devi has also stated that on return from the marriage, the prosecutrix was accompanied her and she left her house at about 6.10 P.M. to go to her village. The appellant was medically examined by Doctor by PW6 Dr. Aman Madhaik on the request of the Police and issued the M.L.C. Exhibit PW7/A. PW7 Rakesh Kumar had issued the birth certificate Exhibit PW7/B. To PW14 Dr. Minakshi Raina the prosecutrix had given the history at the time of her medical examination on 29.7.2005 that she was ravished by the appellant around 6.15 P.M. on 26.7.2005, when she resisted and shouted, the appellant had over-powered her. There was an injury on the right side of upper lip which was bluish in colour. Hymen was ruptured. Because of the ruptured hymen, the possibility of sexual activity was not ruled out by the Doctor. There were no other fresh injuries on the private parts of the prosecutrix. On culling the evidence of the prosecution, it is apparent that it is not a case of consent at all for the reason that immediately after the occurrence, the prosecutrix had complained about the incident to her mother who in turn, contacted the parents of the appellant telephonically and it is also in evidence that the parents of the appellant had tried to influence the prosecutrix and her mother by money power and even put hurdles by using the office of Pradhan (PW3) who was related to the appellant not to lodge the report against the appellant with respect to the said incident. The prosecutrix and her mother informed the Police and made the statement under Section 154 of the Code of Criminal Procedure against the appellant and narrated the entire incident vividly. Thereafter, when she was examined as a prosecution witness, she also 10 corroborated her earlier version without any blemish and any material contradiction. Further, the string of the broken salwar Exhibit P1 which was recovered from the spot was having a knot as observed by the Court when it was exhibited during the trial. Had there been consent, then no occasion to break open the string would have arise. The handkerchief Exhibit P2 was also recovered from the spot which corroborates the version of the prosecutrix. The said handkerchief was put into her mouth to gag her which also caused the injury on the lips of the prosecutrix. Therefore, the above facts do not make out a case of consent as ventilated by the learned counsel for the appellant. Further, the age of the prosecutrix is proved to be more than seventeen years on the day of alleged incident, but in view of the above facts, it is not going to help the appellant in any way when there was no consent given by the appellant for the sexual intercourse, therefore the appellant cannot take benefit of her majority in any manner. The delay in FIR as projected by the leaned counsel for the appellant is also not fatal to the prosecution in view of the detailed facts narrated above. The prosecutrix as well as her mother have categorically stated that on contacting the parents on the telephone, they along with PW3 Pradhan Smt. Kamlesh had tried to concile the matter and even offered money for lodging the report to the Police. Further according to the prosecutrix, her father had expired and except her mother, there was no body in the village who could help them. PW2 Uma Devi, her mother took the help of her brother who assisted them in lodging the report to the Police. Even her Tauji was not of much help to them. He only advised her to speak to the parents of the appellant but even he did not intervene or assisted them in any manner to take recourse to law. It has also come in the evidence that even on the date of lodging the FIR, the father of the appellant had intervened. So every 11 possible effort was made by the family of the accused person duly assisted by his near and dears to suppress the voice of the prosecutrix to be ventilated legally. Therefore, in these circumstances, it cannot be held that the delay of approximately three days in lodging the F.I.R. was not explained or it was in any way fatal to the prosecution. Shri Verma, learned counsel for the appellant has also argued that the absence of the injuries on the person of the appellant as well as that of the prosecutrix negate the offence of rape but this argument is raised only for its rejection. The Doctor has found the rupture of hymen. She was not cross-examined whether it had found the currenculae so as to say that the rupture was very old but according to the Doctor, it was indicative of sexual assault for which she could not give specific time. Further, the absence of spermatozoa is also not a fact to be viewed against the testimony of the prosecutrix with suspicion. After going through the testimony of the prosecutrix, I found it worth inspiring confidence. It is corroborated by material facts like recovery of broken string Exhibit P1 and her handkerchief Exhibit P2 from the spot. The blood stains on her salwar and rupture of his hymen are other factors coupled with testimony of her mother, which cannot be dis- believed. Thus, looked from every angle, I do not find that in the instant case, the version of the prosecutrix can be faulted at any rate on any point. She has given the story of rape having been committed by the appellant in clear and unambiguous words. The appellant was known to her. The defense raised by the appellant is far fetched which could not demolish the story of the prosecution and the defense witnesses were introduced only to help him in distress which could not cause any dent in the prosecution case. Therefore, in the above circumstances, the judgment 12 of conviction and sentence passed by the learned trial Court requires no interference. Accordingly, the appeal sans merit and is dismissed. (Surinder Singh) Judge. November 11, 2008. (bm)