Whether reporters of the local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.81 of 2005. Judgment reserved on: 17.8.2009. Date of decision: August 24th, 2009. Sewa Dass and others. ….Appellants. Versus State of Himachal Pradesh. … Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the appellants : Mr. Anup Rattan, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. Surinder Singh, Judge: The appellants were tried and convicted for the offences, punishable under Sections 376 (2)(g), 341 and 323 read with Section 34 of the Indian Penal Code and sentenced as follows:- Under Section 376 read with Section 34 IPC Rigorous Imprisonment for 10 years and fine of Rs.10,000/- each; in default of payment of fine rigorous imprisonment for a further period of 2 years each. Under Section 323 read with Section 34 IPC Rigorous Imprisonment for six months and fine of Rs.500/- each; in default of payment of fine rigorous imprisonment for a further period of 2 months each. Under Section 341 read with Section 34 IPC Fine of Rs.500/- each; in default of payment of fine to undergo rigorous Imprisonment for a period of one months each - 2 - The appellants have challenged their conviction and sentence passed by the learned trial court in Sessions Case No.12 of 2004, decided on 31.1.2005 in this appeal. The prosecution story as emerges from the evidence of the prosecution in short, can be stated thus. The prosecutrix (name withheld), resident of Nangal Jarialan in district Una was an old lady of 70 years. She was married to Bir Singh at the age of about 17 years. From their marriage, she has three sons and two daughters and all are married and living separately. She was residing with her son Madan, in her village. Her husband was not mentally stable and left her and his children about 20 years back and thereafter he was not heard of. According to her, she did not have any sexual relations with anyone after her husband went missing. She became “Bhagtani” (a devotee). On 18th February, 2004 at about 1.30 p.m., she went alone in a bus to Shiv Bari temple, to pay obeisance, which was at a distance of about 2 K.M. from her house. After performing “Puja” on her return, she boarded the bus from Ambota to the place nearer to her village. The appellants who are the residents of the same village were also traveling in the same bus. They had occupied seat next to her. Appellant Sewa Dass enquired from her as to where she would alight from the bus. She told him that she would deboard near the bridge at ‘Nangal Jarialan’. When the bus reached the aforesaid place, she alighted from the bus and the appellants got down. From there, she proceeded towards her house on foot, but when she reached near the Shed on the way, - 3 - the appellants, who were following her, asked her to get inside the shed, but she refused and kept on walking ahead. The place was secluded one, the appellants pounced upon her, caught hold her, tore her clothes and gagged her mouth with the “dupatta” and all of them committed sexual intercourse with her turn-by-turn. Thereafter they got escaped from the spot. On regaining senses, she collected her clothes and also found that the string of her ‘Salwar’ broken and misplaced. The prosecutrix carried her ‘Salwar’ between her armpit and went wearing the leggings (pajami) to which she was already wearing under her Salwar. She was totally depressed and felt dishonoured. The prosecutrix reached her house crying. Her cries were heard by PW5 Sushila Kumari, the Secretary of Mahila Mandal Nangal Jarialan. She alongwith some other ladies went to her house. The Prosecutrix narrated the entire incident to her daughter-in- law and the ladies who visited her. After sometime, her son Madan Lal reached home from his shop. He came to know about the said incident. He called PW4 Pritam Singh, the Member of the Gram Panchayat to his house. The Prosecutrix at that time was lying at the cot inside her room. She was having the abrasions on her face and some bleeding injuries and contusions on her person. She also narrated about the sexual assault on her by the appellants to Pritam Singh aforesaid. He sent for the lady ward-Panch. The appellants were not available in their village. A person was sent to call the Pradhan, but Up-Pradhan Harbans Lal alongwith a - 4 - ward member was available. They visited the house of the prosecutrix. Up-Pradhan advised them to report the matter to the police. On 19.2.2004, in the morning, all the three appellants confided in PW7 Brij Bala Sood, the Pradhan of the Gram Panchayat and revealed to her that they had committed the sexual intercourse with the prosecutrix and they be pardoned. She told them that she did not receive any information or complaint from anyone, but if it fell within the jurisdiction of the Panchayat, she would try to settle the matter. Thereafter the appellants went away. At about 10.30 a.m. on the same day, Madan Lal son of the prosecutrix came to her alongwith Pritam Singh, ward member and requested her to visit her house and enquire Reshamo Devi and also made the request to visit the spot of incident. She went there and enquired from the prosecutrix as to what had happened. She narrated the entire episode to her. Upon this, she (PW7) told her that the matter did not fall within the jurisdiction of Panchayat, so she directed them to report the matter to the police. The prosecutrix lodged the FIR Ex.PW2/A, stating all the relevant facts to the police. The Investigating Officer took into possession her ‘Kameez’ Ex.P1 and ‘Salwar’ Ex.P2, which was without string, vide memo Ex.PW2/B in the presence of PW7 Brij Bala Sood and PW4 Pritam Singh. The prosecutrix was got medically examined from Dr. Neenu Narula. On the general - 5 - examination of the prosecutrix, the doctor noticed the following injuries on her person:- “1. Multiple bruises on face and around the lips; 2. It was black eye on left side; and 3. Multiple bruises on breast and those were tender also.” On examining the genital part, she did not find any injury. The prosecutrix had taken bath in the morning. She was found wearing the same legging and Shawl, which she was wearing at the time of incident. The Shawl and leggings (pajama) alongwith vaginal swabs were taken into possession and sealed by the doctor for its forensic examination. The injuries aforesaid were found simple in nature, having been caused within 24 hours. During the investigation, the police prepared the site plan and also recorded the statements of the witnesses. The appellants were arrested. They were got medically examined. The Doctor did not find anything suggesting that they were incapable of performing the sexual intercourse. As per report Ex.PX of the Forensic Science Laboratory, human blood was found on the Shawl and leggings (pajami) of the prosecutrix. During the interrogation, the appellant Jaswant Singh made his disclosure statement Ex.PW4/A to the police pursuant to it, he got recovered the broken string of the ‘Salwar’ of the prosecutrix from the spot of incident. After completing the investigation, the challan was presented in the court for the trial of the appellants. - 6 - Finding a prima-facie case against the appellants under the aforesaid sections, they were charge-sheeted to which they denied. After the full-dress trial, they were convicted and sentenced as aforesaid. The matter was listed for arguments before us on 8.11.2007, but none appeared for the appellants, as such this bench proceeded to decide the case on merits after perusing the record and hearing the learned Additional Advocate General. The appellants’ appeal was dismissed. The appellants felt aggrieved by the dismissal of their appeal, as such they filed the SLP in the Supreme Court. In Criminal Appeal No.1739 of 2008, arising out of Special Leave Petition (Crl.)No.5491 of 2008), the impugned judgment passed by this Court in appeal was set-aside and the matter was remitted to this Court, for consideration of the criminal appeal afresh, upon appointing an amicus curiae for the appellants, if no advocate appears for them. After receipt of the record, Shri Anup Rattan, Advocate put in appearance for the appellants and the arguments were finally heard on 17.8.2009. Shri Anup Rattan, learned counsel for the appellants has vehemently argued that the impugned judgment of conviction and sentence passed by the learned trial court is not legally and factually sustainable; firstly for the reasons that the statement of the prosecutrix did not inspire confidence, being unnatural, full of contradictions and also not supported by the medical evidence in - 7 - any manner; secondly, the appellants are from a lower caste, the prosecutrix has falsely framed them in this case. According to him, the appellants occupied the seat in bus near the prosecutrix on this she felt annoyed and slapped appellant Jaswant Singh, by saying as to how he dared to occupy the seat besides her in the bus which fact was corroborated by Bishamber Dass (DW1); and thirdly, the witnesses deposed against the appellants on the caste lines. Contra, Shri J.S. Rana, learned Assistant Advocate General has supported the impugned judgment, passed by the learned trial court as legally sustainable. He vehemently argued that the statement of the prosecutrix stands corroborated in material particulars on record and is worth inspiring confidence, therefore, calls for no interference. We have given our thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record. The prosecutrix while supporting the case of the prosecution has categorically stated that the appellants were travelling with her in the bus. When she got down from the bus, they also deboarded near the bridge at Nangal Jarialan and followed her. When she reached near the shed, they asked her to go inside the shed. When she refused, they pounced and caught hold her, tore her clothes and gagged her mouth with “dupatta”. Thereafter the appellants committed sexual intercourse with her to their full satisfaction and then fled away. - 8 - On regaining consciousness, she collected her clothes and went to her house. She identified each of the appellants during the trial of the case having committed the rape on her. She further stated that she narrated the entire episode to their family members, thereafter to the Panchayat members and later on, to the police. She proved the FIR Ex.PW2/A and further produced the clothes viz. ‘Salwar’ and ‘Kameez’ to the police, which were taken into possession vide memo Ex.PW2/B, which she identified during the trial of the case. She also identified the Shawl Ex.P3 and leggings (pajami) Ex.P5, which she was wearing at the time of alleged incident and further stated that she was also medically examined. She testified on oath that the string of the ‘Salwar’ was torn by the appellants and thrown away, which was recovered by the Investigating Officer from the spot as discussed herein-after and she also identified the string of the ‘Salwar’ Ex.P4 during the trial of the case. The prosecutrix was subjected to a lengthy cross- examination. She categorically stated that after her husband went missing, she did not have any sexual intercourse with anyone. She gave the details of her journey from her house to Shiv Bari temple and back till the time she was sexually molested by the appellants. She further stated that there was rush in the bus. It was full to its capacity. She did not meet any other person who was known to her and she further stated that she did not see any person of the Band party travelling in the said bus. According to her she did not know Bishamber Dass (DW1), if he was the head - 9 - of the Band party travelling in the said bus. However, she admitted that the appellants are from the lower caste, but denied the defence version put to her. She clarified that the appellants were sitting on the next seat and no such dispute arose as suggested while travelling in the bus. She further denied that she picked up the altercation with the appellants and that they threatened her to lodge a criminal case and in retaliation she implicated them in a false case. She also denied that she sustained the injuries due to a fall in darkness. On further probe with respect to the incident, she clarified that she became slightly unconscious when the appellants thrust “dupatta” in her mouth and gained consciousness after the appellants completed the sexual act with her. She was hearing and feeling whatever was being done with her. She also stated that she left for her house crying all the way loudly. On reaching home, she narrated the entire episode to her daughter-in-law (PW6 Kamlesh Kumari), PW5 Sushila Kumari and thereafter to Shakuntla, Brij Bala Sood (PW7), who arrived there. PW4 Pritam Singh, PW5 Sushila Kumari, PW6 Kamlesh Kumari and PW7 Brij Bala Sood, the Pradhan of Gram Panchayat have corroborated her version. Further PW7 Brij Bala Sood further testified on oath that next day of the alleged occurrence i.e. on 19th February, 2004 at about 10 a.m., the appellants came to her house and admitted having committed sexual intercourse with the prosecutrix and begged to be pardoned, but when she told them that she did not - 10 - receive any complaint from anyone, they left her place. This extra judicial confession corroborates the version of the prosecutrix. Madan Lal alongwith PW4 Pritam Singh, a ward member, also came to her house on the same day around 10.30 a.m. and requested her to visit his house and enquire from the prosecutrix about the incident and also to visit the spot. She went there. On her visit, the prosecutrix narrated the entire story to her that the appellants had committed sexual intercourse with her. She stated that she advised them to lodge the FIR. She herself also accompanied them to the police station. The medical evidence, further lends corroboration to her version. PW1 Dr. Neenu Narula examined the prosecutrix on 19.2.2004 and noticed simple injuries on her person, as narrated above, having been caused within 24 hours from the time of her examination. The recovery of the string Ex.P4 from the spot at the instance of appellant Jaswant Singh, which was identified by the prosecutrix during the trial also lends strength to the version of the prosecutrix. The blood stained Shawl and legging (pajami) further makes the statements of the prosecutrix more trustworthy. The contention of the learned counsel for the appellants that the absence of spermatozoa would negate the case, finds no merit in view of the judgment passed by the apex Court in Prithi Chand v. State of H. P., reported in AIR 1999 SC 702. - 11 - Further the contention of the learned counsel for the appellants that the version given by DW1 makes the defence probable is also incorrect. He is a chance witness. His presence in bus stands not probablised even by preponderance of probabilities. The alleged occurrence took place after deboarding the bus when the prosecutrix was on foot on her way to her village and DW1 was neither with the appellants nor happened to meet them thereafter. Therefore, on culling the evidence, we find the plea of the appellants worth rejecting. The statement of the defence witness could not shatter the truthful version of the prosecutrix. The testimony of PW7 Brij Bala Sood, Pradhan itself makes the case set-up by the appellants against them. She did not state anywhere that the appellants made any complaint to her on the caste lines as propounded in defence and there is no allegation imputed to her as to why she was deposing against the appellants. There is an overwhelming evidence led by the prosecution to prove the charges. On reappraisal of the evidence, we find that the testimony of the prosecutrix is worth inspiring confidence and it also stands corroborated by the material particulars on the record and can be safely be relied upon to sustain the conviction and sentence passed by the learned trial court against the appellants. Therefore, for the foregoing reasons, we do not find anything worth interfering in the impugned judgment of - 12 - conviction and sentence passed by the learned trial court, as such, the appeal sans merit and is accordingly dismissed. Send down the records. (Surjit Singh) Judge (Surinder Singh) August 24th, 2009. Judge *Pds*