HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 480 of 2010 Decided on: 20.12.2011 Suresh Kumar, son of Sh.Sadhu Ram, Resident of Village Heerpur, Tehsil Paonta Sahib, District Sirmour, H.P., presently lodged in Model Central Jail, Nahan. ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.Karan Singh Kanwar, Advocate. For the respondent: Mr.J.S. Guleria, Assistant Advocate General. Justice V.K. Ahuja, J.(Oral): This is an appeal filed by the appellant under Section 374 of the Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Sirmaur District at Nahan, dated 30.8.2010/31.8.2010, vide which the appellant was held guilty under Section 376 IPC and was sentenced to undergo rigorous imprisonment for 7 years and to pay fine of `20,000/-. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for a period of six months. 2. Briefly stated, the facts of the case are that on 19.6.2009, at 2.50 a.m., a statement was made by PW-14 Jogi Ram, a Home Guard official, to a Police Officer under __________________________________________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - Section 154 Cr.P.C. The complainant alleged that he is working in Home Guard and was on duty attached with Police Station, Paonta Sahib. On 18.6.2009, he alongwith another Home Guard official Joginder Singh, PW-1, was on patrolling duty near Bangran Bye Pass. He further alleged that when they were crossing the Bagran Chowk, they heard cries of a woman at about 11.30 p.m. They started looking to the place from where the said cries were coming and meanwhile they were joined by one Sandeep Batra, who was having his house nearby and had come out of his house alongwith a torch. All the three proceeded to the spot and saw one person in a half naked position and one woman in a naked position and the woman was screaming that rape was being committed. On seeing them, the said person ran away from the spot and was followed by the complainant and other person. The said person gave his name as Suresh Kumar, appellant. The said woman appeared to be mentally retarded. Suresh Kumar, appellant, was handed over to the police and the statement was made to the Police Officer, who had come to the spot on receipt of a telephonic message. The Police Station was at a distance of 1 km from the said place. 3. On the basis of the above statement made by PW-14 Jogi Ram, the case was registered, the prosecutrix as well as the appellant were medically examined, the case was investigated and on completion of the investigation, the challan was filed before the learned Judicial Magistrate Ist Class, Court No.I, Paonta Sahib, who committed the case to the court of the learned Sessions Judge. The learned Sessions Judge assigned the case to the learned trial Court, - 3 - who tried the respondent leading to his conviction and sentence, as detailed above. 4. I have heard Mr.Karan Singh Kanwar, learned counsel for the appellant and Mr.J.S. Guleria, learned Assistant Advocate General, for the respondent and have gone through the record of the case. 5. The submissions made by the learned counsel for the appellant were that all the three witnesses of the occurrence have not supported one another on all material particulars. It was also submitted that there are some contradictions in regard to the time when the statement of the witnesses were recorded and other such minor infirmities were also pointed out which shall be referred below while discussing the evidence of the main witnesses. It was submitted that the case was fastened upon the appellant on pressure from some top police officials and he was not present on the spot and was called from his house and the case was planted upon him. Thus, it was submitted that the appellant deserves acquittal. 6. On the other hand, Mr.J.S. Guleria, learned Assistant Advocate General for the State has supported the impugned judgment for the reasons given therein supplementing it by the submission that minor contradictions in time or minor infirmities do not cause a dent in the prosecution story which stands proved beyond any reasonable doubt and was rightly relied upon by the learned trial Court. 7. The three material witnesses, who are the eye witnesses, can be said to be PW-1 Joginder Singh, PW-14 Jogi - 4 - Ram and PW-2 Sandeep Batra, whose statements need to be carefully appreciated. 8. PW-14 Jogi Ram had lodged the report with the police, as mentioned above, and he reiterated the allegations made by him in the complaint lodged with the police that they heard the screams of a woman, went towards the place and accused attempted to run away from the place and was apprehended at some distance. He clearly stated that they all three moved together towards the place from where screams were being heard and saw a boy running near a small tree. He stated that he had only seen the boy running but did not see him doing anything to any lady. He was declared as hostile and was allowed to be cross examined by the learned Public Prosecutor for the State. He clearly stated in his cross examination that when he saw the boy for the first time his pants was open, which was lying slightly lowered on his waist. He clearly stated that the said boy was lying on the lady when he fist saw them. He stated that he could not see if he was committing sexual act with the prosecutrix. He also admitted the suggestion that on seeing them, the said boy run away after tying his pants. They followed him and caught hold of him. After apprehending him, he telephoned the police and the police came to the spot and the boy was produced to the police. He clearly identified the appellant present in the Court as the same person who was apprehended at the spot and had disclosed his name also as Suresh Kumar. 9. PW-1 Joginder Singh, the other Home Guard employee, who was also on duty alongwith PW-14 Jogi Ram, has stated similarly in support of the statement of PW-14 Jogi - 5 - Ram. He also gave the time of occurrence as 11.30 p.m. and also stated that they heard the cries of the lady and were joined by Sandeep Batra, who was having his house nearby and they saw the person running. He clearly stated that the man was on the lady when he saw him. The woman was naked while the man had clothes on his body. He was chased and was apprehended at some distance. He identified the accused person in the Court and also stated that the said person disclosed his name as Suresh. The police was informed who reached at the spot and the accused was handed over to the police. He was declared as hostile as he resiled from one part of his statement and he was confronted with his earlier statement. He admitted that the man was half naked and the woman was completely naked and also admitted having told the police that the said man was raping the woman. 10. PW-2 Sandeep Batra, who was having his house nearby the place of occurrence, had stated that he had come out of his house alongwith a torch and accompanied the Home Guard personnel to the place from where the cries were being heard. He also stated that he saw the woman in half naked position and the man was trying to commit something with her. He further stated that as they reached at the spot, the said man ran away and was chased by the Home Guard officials. To this extent, he supported the statement of both the other eye witnesses and then he stated that he does not know whether the said man was apprehended by them. He stated that he was called to the Police Station after two hours. He was declared as hostile and in cross examination he admitted that the man had his trousers open uptill knees and was semi nude. - 6 - He also admitted that the man got up from over the lady and ran away in semi nude position. It was suggested to him that the man was apprehended by the Home Guard people at a distance of 100 meters, but he denied this part of the suggestion. He admitted that the police came to the spot, though he claims that he was called from his house after two hours. He denied the knowledge in case the accused was handed over by the Home Guard personnel to the police but this denial appears to be incorrect. He also admitted that he had disclosed that the man was trying to commit sexual act with the woman and that may be reason of her crying. He admitted that the village of the accused is situated about quarter a kilometer away from his house and that may be the reason for him to have partly resiled from his statement when he appeared in the Court. 11. However, from the above discussion of the evidence of these three principal witnesses, it is clear that all the facts have been clearly stated by them that the man was half naked, the woman was also semi nude and the man had tried to run away and he was on the woman when they saw him and he was apprehended at the spot and was handed over to the police. Thus, the identity of the appellant is also not in dispute who was apprehended at the spot, who has not given any explanation for being present in the area at that time in the night. 12. The contradictions referred to or the infirmities pointed out are that PW-2 Sandeep Batra has stated that his statement was recorded by the police on the same night at about 2/2.30 a.m., whereas the Investigating - 7 - Officer PW-12 ASI Saleem Qureshi had stated that he recorded the statement of PW-2 Sandeep Batra at 10.20 a.m. on 19.6.2009 at the spot and that he was called on the spot through Constable. This contradiction in time of recording the statement is not very material. All the three witnesses have clearly stated the substance of the accusation as against the accused and the facts and there are no contradictions in their statements. The statement of PW-2 Sandeep Batra does not inspire confidence that the police had also reached the spot and he left the place, though in his presence the Home Guard officials had chased the accused. There appears to be reason for him to turn hostile to some extent since it was suggested to him and he admitted that his house is situated at a distance of 1/2 km or so from the village of the accused. He also denied the suggestion made to him that the accused and his father had contacted him several times in connection with this case and as is observed by the Courts in several cases that people change their stand subsequently if they belong to the nearby area or attempts are made to win over them. But the substance of the version given by all the three witnesses remains the same and there is no reason to disbelieve these witnesses. The identity of the accused stands established, who was apprehended at the spot, who offered no explanation for being present in the area from where he was apprehended. Moreover, the accused took the plea in cross examination of the witnesses that they have deposed falsely and he was apprehended because of pressure from the high-ups, but there are no specific suggestions of false implication by the police or any reason - 8 - that any person was interested in falsely implicating him in this case. Neither there were any specific suggestion nor these have been specified by any other evidence nor they are sufficient to raise any doubt in the mind of the court that the version of the prosecution witnesses appears to be incorrect. According to the law laid down by the Hon’ble Supreme Court, the police officials or the Home Guard officials are also to be relied upon like any other witness until and unless some facts are brought on record to show that they had some enmity or reason to falsely implicate the accused, which is not so in the present case. 13. Apart from the above, it has come on the record from the statement of PW-5 Dr.Dinesh Dutt Sharma that he had examined the patient on 24.6.2009 in regard to her mental ailment and he issued the certificate Ext.PW-5/A that she was not fit to depose. She was suffering from major mental disorder and she needed long term treatment as indoor patient and accordingly the prosecutrix was not examined before the learned trial Court and no objection appears to have been taken before the learned trial Court or has been taken before this Court for non-examination of the prosecutrix, which, in the facts and circumstances of the case, was fully justified. 14. Apart from the above, the prosecution has produced PW-3 Dr.Daljeet Kaur, who examined the prosecutrix on 19.6.2009, on the application Ext.PW-3/A received from the police. She examined the patient on 19.6.2009 at 2.35 a.m. She observed as under: “The alleged history was rape said to have taken place at 11.30 P.M. on 18.6.2009. On examination:- - 9 - Conscious, mentally disturbed, wearing dirty clothes, uncleanwith average built, adult female, normal gait and giving irrelevant answers. Multiple mild abrasion present at upper back with presence of soil particles. GPE:- Vital signs stable. Obs. History/MH – not giving, talking irrelevant. Secondary sexual characters: Axillary and pubic hair present. Breast developed. No injury mark was present. Genito urinary Examination: No injury marks anywhere present. Pubic hair present and matted at lower side with white material present from introitus to pubic hair and leading to hip area. Hymen torn and old healed at 6.O’clock, 8.O’clock and 3 O’clock position. P/S – could not be done as person did not allow. PV- Admits 3 fingers easily, non-tender. Utterus – MPS, RV firm mobile, non-tender. Whitish discharge present in vagina. Vaginal smears slides were taken for chemical analysis. As per genital examination sexual intercourse had taken place recently. However, final opinion could have been given after the report of Chemical Analysis of Vaginal smear and pubic hair.” She issued the MLC Ext.PW-3/B and handed over the sealed clothes to the police for chemical analysis. The police produced the chemical reports before her on 9.11.2009 and she gave her opinion as under: “As per chemical report from State Forensic Science Lab., Junga, H.P. since no semen was detected in vaginal slides whether recent intercourse within 24 hours can’t be confirmed or barrier methods must had been used during that time.” - 10 - 15. The accused was also got medically examined from PW-4 Dr.K.D. Bhatt on 19.6.2009 at 11.30 a.m. and it was observed by the Medical Officer as under: “Pubic hair were well developed. All secondary sex character were well developed. Testicles were in scrotal sac and fully developed. Semi circular abrasions about 0.5 cm in diameter about 8 to 10 in number placed side by side over left chest. Two semicular abrasions about 0.5 c.m. in diameter on right cheek. Penis is about 4” in size and fully developed. Smegma was not present. No scratches or abrasions on the penis or scrotum. Pubic hair were cut and preserved sealed and handed over to the police. Swab from glams penis and prepuce taken, sealed and handed over to the police.” He issued the MLC Ext.PW-4/B on 19.11.2009. The report of the chemical examiner was produced before him and he observed as under: “As per chemical reports received from State Forensic Lab Junge, no semen was detected in any of the sample sent for examination, it cannot be confirmed whether he had performed intercourse within 24 hours or not. However, the absence of smegma during examination points towards recent intercourse.” 16. On appraisal of the above evidence, it is clear that there is sufficient evidence to prove that an attempt was made by the accused to commit rape upon the prosecutrix. The injuries suffered by the prosecutrix on her person are suggestive of the fact that the attempt was made to commit rape upon her and she suffered injuries on her back and there were injuries on the person of the accused also, which were abrasions on the right cheek and on the left chest - 11 - which are suggestive of the fact that the resistance was offered to the accused. For these injuries, the appellant has simply denied in the questions put up to him in his statement under Section 313 Cr.P.C., but did not offer any other explanation as to how he suffered these injuries. 17. However, from the above discussion, it is clear that an attempt was made to commit rape upon the prosecutrix, but it has to be seen as to whether the evidence also establishes that the rape was committed upon the prosecutrix. 18. Mr.J.S. Guleria, learned Assistant Advocate General appearing for the respondent State, had pointed out the opinion given by the Medical Officer PW-3 Dr.Daljeet Kaur, who examined the prosecutrix in which she opined that her conclusion of commission of sexual intercourse with the prosecutrix was on the basis of presence of whitish discharge inside and outside the vagina. The whitish material found was in the middle of buttocks. However, the semen was not found in the white material sent for chemical analysis and she observed that because of the said fact, she could not be definite qua the sexual intercourse. No semen was also found in vaginal slides as per the report of the chemical examiner. All the three principal witnesses examined by the prosecution about the occurrence have only stated that the accused was in semi nude position and was over the prosecutrix, but no conclusive evidence is there as to whether the rape was also committed on the prosecutrix or not. The prosecutrix herself, as mentioned above, could not be examined due to her mental disorder and the other witnesses have not specifically stated - 12 - about the rape having been committed upon the prosecutrix. The opinion of the Medical Officer, in such circumstances, cannot be said to be conclusive that the rape was committed upon the prosecutrix. 19. One of the essential ingredients of rape is penetration of the penis inside the vagina, which evidence is lacking in the present case. I may make a reference to the decisions relied upon by the learned Assistant Advocate General. The decision in Aman Kumar and another versus State of Haryana, AIR 2004 Supreme Court 1497, shows that while interpreting the word ‘rape’, as defined in Section 375 IPC, their Lordships had observed as under: “To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376, IPC.” 20. My attention has also been drawn to the judgment of a Division Bench of this Court, which was authored by me while sitting in the Division Bench, in State of H.P. versus Gouru Ram, 2009(1) Shim.LC 54, in which conviction under Section 376 read with Section 511 IPC was imposed allowing the appeal by the State against the acquittal of the accused. On facts of that case, the following observations were made: “………………..On careful examination of the statements of these three witnesses, we do not find any major infirmities or contradictions so as to hold that - 13 - the prosecution story cannot be believed. These statements have been fully corroborated by the other evidence including Medical Officer PW-4 Dr. Maulshri Lata who examined the prosecutrix and had observed that no dead or alive spermatozoa was seen. According to her opinion, there was no evidence of complete sexual act, though, she further stated that the injury noticed on the person of the girl could have been possibly caused as a result of sexual assault. In cross examination, she observed that she did not notice any injury of hymen, nor she come across any evidence suggesting that there was any penetration. Keeping in view the testimony of the Medical Officer, we are of the opinion that there is nothing on record to show that there was any penetration. The Medical Officer had also observed that the hymen admitted tip of small finger and the hymen was also intact and keeping in view the medical evidence we are of the opinion that the guilt of the respondent stands proved regarding attempt to rape under Section 376 read with Section 511 I.P.C. and not under Section 376 I.P.C.” 21. Reliance was also placed upon the decision in State of Maharashtra versus Rajendra Jawanmal Gandhi, (1997) 8 Supreme Court Cases 386, wherein after finding the accused guilty under Sections 376/511 IPC, even in the absence of a charge under Section 376 read with Section 511, it was held by their Lordships that the High Court could have convicted the accused under Section 376/511 by invoking Section 222 Cr.P.C. and not under Section 354 IPC. It was also held that keeping in view the objects of 1983 amendment to Section 376, no person committing or attempting to commit rape should be allowed to escape punishment. Having found the accused guilty, the quantum of punishment must be decided in - 14 - accordance with law without being influenced by the press, electronic media or public agitation, as a trial by such agencies is the very antithesis of rule of law. 22. After having considered the oral as well as medical evidence on record and the above case law, it is clear that no complete penetration was required and the offence of rape is complete if there was penetration only to some extent. In the present case, as discussed above, the facts do not conclusively establish penetration into the vagina, though the medical opinion is suggestive only of rape having been committed but not conclusively since the medical officer had given her opinion after considering the report of the Chemical Examiner that no semen was found inside the vagina. Therefore, I am of the considered view that the offence made out, in the facts of the case, was under Section 376 read with Section 511 IPC. Since it is a lesser offence than the offence with which the accused was charged under Section 376 IPC, it is not necessary to amend the charge and proceed with the case according to law. It will be sufficient in case the appellant is convicted and sentenced for lesser offence under Section 376 read with Section 511 IPC. 23. According to Section 511 IPC, in cases of attempt to commit an offence, the sentence which could be imposed upon the person if he is held guilty for attempt of having committed the substantive offence, the punishment is limited to 1/2 of the maximum provided. According to Section 376 IPC, the offence under Section 376 IPC is punishable for life or imprisonment for 10 years and once it is for life, as per the present law, the imprisonment for life is for whole - 15 - life and not for 14 years or 20 years only. However, it has to be necessarily for a minimum period of 14 years and accordingly, the appellant can be convicted for half of it i.e. for 7 years. The learned trial Court, while convicting the appellant,