IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (Chapter VIII, Rule 32(2) (b) Description of the Case. Criminal Jail Appeal No. 205 of 2005 Date of decision : 27th, June 2008 A.F.R. (Approved for Reporting) Not approved for Reporting Initials of Judge Date: 27.06.2008 Note:- Bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 205 of 2005 Ashok @ Papu S/o Babu Lal ..…Appellant Versus State of Uttarakhand …..Respondent Mr. G.D. Kandpal, Amicus Curiae for the appellant. Mr. Amit Bhatt, Addl. G.A. for the respondent/State. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been directed against the judgment and order dated 21.02.2003, passed by learned Addl. Sessions Judge/1st F.T.C./ Special Judge C.B.I., Dehradun in S.T.No. 74 of 2002, whereby the appellant has been convicted & sentenced to undergo rigorous imprisonment for ten years under section 376 (2) (F) Indian Panel Code, 1860 and a fine of Rs.5,000/-. In default of payment of fine, the appellant shall further undergo R.I. for six months. 2. The facts in nutshell are that the informant Jagdish had been working as a Mason whereas his wife Bachi Devi had been working in the bungalows of different persons & used to clean utensils and houses there. On 13/04/2002 at about 12:30 p.m., the informant Jagdish Prasad, father of the prosecutrix lodged a report in the police station Cant, Dehradun alleging therein that on 11/04/2002, he and his wife had gone to discharge their duties leaving their daughter victim, aged about 8 years alone in the house. When they were out, the accused/appellant came to his house. The victim was outside her house and the accused/appellant asked a glass of water from the victim. When the victim brought the glass of water from her house, the accused/appellant also entered into house and thrown the glass of water brought by the victim. Thereafter, the accused/appellant grounded the victim and forcibly committed sexual intercourse with her. When the mother of the victim Smt. Bachi Devi came to house after finishing her works, she found her daughter (victim) in a precarious condition. She saw that blood was oozing from the person of her daughter. When she asked about the same, the victim narrated the entire incident to her mother. At about 5:00 to 5:30 the informant also came home from his work and his wife and daughter (victim) narrated the entire incident to him. The victim was taken to Archana Nursing Home where she was admitted and doctor Archana Luthara gave her medical treatment. Thereafter, the victim was taken to Doon Hospital where doctor Kiran Bist examined the victim and found that the victim was below the age of 12 years and she was subjected to sexual intercourse. The matter was reported to the police and thereafter the matter was investigated. Salwar of the victim and underwear of the accused/appellant were taken into possession by the police. Both the garments had the spot of semens according to the chemical examiner report. After completing the investigation, the police submitted the chargesheet against the accused/appellant. 3. After submission of chargesheet, the accused/appellant was committed to the court of Sessions for trial and the trial court framed charge u/s 376 I.P.C. against the accused/appellant. The accused/appellant denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined as many as six witnesses. PW1 is the prosecutrix and she had narrated the entire incident of sexual assaults by the accused/appellant in the court. Jagdish PW2 is the father of the victim who has lodged the report in the police station. Smt. Bachi Devi PW3 is the mother of the victim. Dr. Kiran Bist PW4 is the Medical Officer in Doon Hospital who has examined the victim on 13.04.2002. Dr. Archana Luthara PW5 is the doctor who has examined the victim in her hospital ‘Archana Hospital & Lithography Centre, Dehradun’. S.I. Mahendra Singh PW6 is the Investigating Officer of the case who has submitted the chargesheet Ex.Ka. 12 against the accused/appellant. 5. The accused/appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has further stated that he has falsely been implicated in this case. 6. The learned Addl. Sessions Judge, after appreciation of the evidence and hearing the parties convicted the accused/appellant and sentenced him as indicated above. 7. I have heard Mr. G.D. Kandpal, Amicus Curiae for the appellant and Mr. Amit Bhatt, learned Addl. G.A. for the respondent/State. 8. It is not disputed that the victim has not been the victim of sexual assaults on the date of the incident. According to the prosecution, the accused/appellant committed the forcible sexual intercourse upon the victim. The prosecution adduced the evidence of the victim as PW1 and her parents informant Jagdish PW2 and Smt. Bachi Devi PW3. The prosecution also adduced the evidence of Dr. Kiran Bist PW4 and Dr. Archana Luthara PW5. According to Dr. Archana Luthara PW5, the vagina of the victim was stitched, as such, minor operation was conducted. Both the doctors namely, Kiran Bist PW4 and Archana Luthara PW5 have opined that the victim was subjected to sexual intercourse due to which she sustained the injuries. According to the defence version, when the victim climbed on the tree, she fell down and a branch of tree caused injuries to the victim as indicated in the medical report of the doctor. 9. Now, I have to consider whether the accused/appellant is responsible for committing the forcible sexual intercourse upon the victim or not. The prosecution in support of its case, examined the victim as PW1. She is a minor girl and the trial court after examining her found that she is a competent witness to give the evidence. The victim has stated that on the date of incident her parents had gone to work and she was all alone in her house. When she was playing outside her room, the accused/appellant came there and asked a glass of water from her. She went inside her house and the accused/appellant also entered into house and closed the door of the house. The accused/appellant thrown the glass of water which she brought to him. Thereafter, the accused/appellant grounded her and subjected her to sexual assaults. When she cried, the accused/appellant raised the voice of TV and closed her mouth. When her mother Smt. Bachi Devi PW3 came to her house, she narrated the entire story to her mother. Later on her father informant Jagdish PW2 also came at about 5 to 5:30 p.m. and she also narrated the entire story with vivid details to him. Thereafter, the victim was taken to hospital. 10. Jagdish PW2 and Smt. Bachi Devi PW3 have also corroborated the story narrated by the victim/their daughter. They have stated that they were not in the house at the time of the incident. When they came home after their work, the victim narrated the entire story with vivid details to them. Thereafter, the victim was taken to the hospital where the doctor gave her treatment. 11. After going through the entire evidence in toto, the trial court did not find the defence theory as propounded by the defence credible and cogent. The trial court further held that the victim remained consistent during the cross examination and her evidence in entirely believable. 12. It is pertinent to mention here that it is well settled position of law that if the evidence of victim is found reliable it does not require any corroboration on the material points. The 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 without corroboration in material particulars. She stands on a higher pedestal than an injured witness. If the court comes to the conclusion that the evidence of victim is reliable and cogent, it does not need any further corroboration of any other independent and corroborative piece of evidence. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly reputation and not the least her chastity. Rape is not only a crime against the person of a victim, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. Basically, it is a crime against basic human rights. 13. Learned counsel for the appellant further contended that Dr. Archana Luthara PW5 has stated that the parents of the victim have not stated to her that the victim was subjected to sexual assaults by the accused/appellant. If the victim was assaulted sexually, the parents of the victim must have stated this fact to the doctor before her treatment. It was further contended that the informant Jagdish PW2, father of the victim has admitted in his deposition that he has not stated anything to doctor and only he got treated of his daughter victim. The learned counsel for the appellant further contended that the conduct of the parents of the victim leads to take inference that the accused/appellant did not participate in the commission of the offence. The learned Addl. G.A. refuted the contention and supported the findings recorded by the trial court. It is pertinent to mention here that this is not a case where the injuries have been caused by the persons on any scuffle. It is a case where a minor girl of the informant Jagdish PW2 and Smt. Bachi Devi PW3 were subjected to sexual violence. The parents of the victim have to think over as to whether they should tell this fact to doctor or to the police or not because when the victim would grow up, there would be a problem for them to get their daughter married. The society would discard the girl and nobody would marry with the girl and whole life of the girl would be spoiled. The parents did not go to society or the neighbours because of the society attitude prevailing in the society towards such girls upon whom rape has been committed. Thus, it cannot be held that merely not telling this fact to the doctor would exonerate the participation of the accused/appellant in the commission of the offence. It has been indicated in the F.I.R. itself that when the father of the victim was persuaded to pursue the matter by the relatives and to get the guilty punished, only then he reported the matter to the police. In the case of sexual violence merely such conduct of the parties cannot create doubt about the testimony of the victim as well as the parents. 14. Learned counsel for the accused/appellant further contended that there are contradictions in the testimony of the witnesses. It was further contended that the F.I.R. did not contain the fact that the accused/appellant committed the rape; closed the mouth of the victim; and raised the sound of TV. Learned Addl. G.A. refuted the contention and contended that mere these omissions did not make the credible and cogent evidence doubtful. It is also pertinent to mention here that the F.I.R. lodged by the informant is not the encyclopedia of the facts of the incident. In the F.I.R, all the details are not required to be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The Investigating Officer has also recorded the statement u/s 161 Cr.P.C. There is no contradiction or omission on this point. Thus, the prosecution has taken these aspects from the very beginning in its case. Every minor detail is not required to be mentioned in the F.I.R. Thus, I do not find that these omissions are to be fatal to the prosecution. The story narrated in the F.I.R. is corroborated by the evidence of the victim and other prosecution witnesses with vivid details. I have gone through the entire oral evidence of the prosecution and I find that the prosecution has proved its case beyond reasonable doubt. The witnesses have been subjected to cross-examination but nothing could be elicited from their testimony. The witnesses had consistently narrated the story of the prosecution with vivid details and they remained consistent during the cross examination also. The approach of the learned trial court in arriving out to the conclusion that the evidence of the prosecution witnesses is credible and cogent is correct. I also concur with the findings recorded by the learned trial court. 15. The accused/appellant has stated in his statement recorded u/s 313 Cr.P.C. that he had to take Rs.4,000/- from the informant Jagdish PW2. The informant has taken this money for purchasing the liquor from him and when he demanded the said money, the informant has beaten him. After this, when he went to lodge the report to the police station, then he found that the informant has already written a false report against him. During trial when suggestions were put to the witnesses, the defence has taken a theory that the victim had an elder brother and there was scuffle in between the elder brother of the victim and the accused/appellant. Thus, the suggestion which has been put forward during the cross examination had taken a different theory. The defence has also explained the injuries on the person of the victim by saying that the victim was climbing on the tree situated near her house and she fell down from the tree and a branch of the tree hit her private part due to which she sustained the injuries. Thus, three versions had come before the trial court by the accused/appellant. The accused/appellant also adduced the evidence of Kishan Lal DW1. He has stated that he knew both the parties very well. He is also neighbour of the accused/appellant and both of them have been living together since their childhood. On the date of the incident, he found that the victim was climbing on the tree. She fell down from the tree and sustained the injuries on her private parts by a branch of the tree. He was present there at that time. Thereafter, he took the victim and kept her inside her house. Thereafter, he left the house of the victim. The learned trial court after appreciating evidence found the evidence of Kishan Lal DW1 unreliable. I have gone through the entire evidence of Kishan Lal DW1 with the help of the learned counsel for the parties. It is pertinent to mention here that the accused/appellant and the witnesses are neighbours. They live there since their childhood. Kishan Lal DW1 has stated that on the date of the incident, he did not meet the informant. During his cross examination he has stated that he worked till 5:30 p.m. with the informant. If he was with the informant, it would have been his natural conduct to tell the informant that his daughter has been injured in the manner as stated in the evidence. He should have asked him to go to home. Non- disclosure of this fact to the informant till 5:30 p.m. belies his testimony out rightly. Apart from this, he has not narrated this fact anybody till he appeared before the court. His conduct is also unnatural when he left the victim in her house. He did not inform the neighbour to look after the victim. He left the victim after keeping her inside the house without informing anybody. Thus, the conduct of this witness makes the evidence of the witnesses doubtful and it is not reliable. The trial court has rightly rejected the defence version in toto. I am completely in agreement with the findings recorded by the learned trial court while discarding the evidence. 16. The learned Amicus curiae further contended that the incident took place on 11/04/2002 and the report was lodged on 13/04/2002. There was inordinate delay in reporting the matter. It is true that report was lodged on 13/04/2002 whereas the incident took place on 11/04/2002. The victim was medically examined by Dr. Kiran Bist PW4 in Doon Hospital. The medical was conducted immediately after the incident. As I have stated earlier that the victim was a minor girl and the parents would think twice due to social obligation, restriction and attitude of the society to approach the police. The reluctance to go to the police is because of the attitude of the society towards the victim. Therefore, delay in lodging the F.I.R. in such cases does not unnecessarily indicate that the witnesses’ version is false. The F.I.R. itself explained the delay in reporting the matter. In the F.I.R. the informant has stated that after being relieved from hospital on 12/04/2002, the relatives of the informant asked him to report the matter and to get the guilty punished. Only then, the informant got courage to come out from such shadow and reported the matter to the police station. Thus, there is plausible & satisfactory explanation of lodging the F.I.R. in inordinate delay. 17. The evidence of the prosecution is further corroborated by the evidence of Dr. Kiran Bist PW4 and Dr. Archana Luthara PW5 who have categorically stated in their evidence that the victim was subjected to sexual intercourse. The injuries on the persons of the victim are possible if any person commits sexual intercourse with the victim. Thus, the evidence of the prosecution is further fortified by the corroborative piece of medical evidence. The Chemical examiner report further reveals that there were spot of semens in the salwar of the victim and underwear of the accused/appellant. The Chemical Examiner report further fortifies this fact that the girl was subjected to sexual intercourse and the theory that the injuries were sustained by the branch of tree becomes false. If the victim had fallen down from the tree, the spot of semen would have not been found on salwar and undergarment. 18. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has been able to establish the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has rightly convicted and sentenced the accused/appellant. The judgment and order dated 21.02.2003 passed by learned Addl. Sessions Judge/1st F.T.C./ Special Judge D.B.I., Dehradun in S.T.No. 74 of 2002 is hereby confirmed. The appeal is liable to be dismissed and is hereby dismissed. 19. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted in four weeks. (J.C.S. Rawat, J.) Dated 27th June, 2008 Shiv