IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeals Nos. 131 and 169 of 2006 Decided on : 19th August, 2009 Cr. Appeal No.131/2006 Yatin Kumar and another Versus State of H.P. Cr. Appeal No.169/2006 Sushil Kumar Versus State of H.P. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : M/s Suneet Goel and Neeraj Sharma, Advocates, in both the appeals. For the respondent: Mr. J.S. Rana, Assistant Advocate General in both the appeals. Surjit Singh, Judge (Oral) These two appeals are being disposed of by a common judgment, as both of them are directed against the same judgment of the trial Court. Appellants in both the appeals have been convicted by the trial Court of offences of gang rape and wrongful confinement, punishable under Sections 376(2)(g) and 342 of the Indian Penal Code. For offence, under Section 376(2)(g) IPC, appellants have been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- each; in default of payment of fine, to undergo simple imprisonment for a further period of two years. For offence, Whether reporters of the local papers may be allowed to see the judgment? …2… under Section 342 IPC, they have been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1000/-, each; in default of payment of fine, to undergo simple imprisonment for a further period of one month. 2. First, the prosecution case may be noticed. On 20th April, 2005, a nun, aged about 37 years, hereinafter referred to as prosecutrix, went to PW-3 Tenzing Dolkar, employed as a health worker at Mcleodganj. She was looking depressed. On inquiry by PW-3 Tenzing Dolkar, the prosecutrix, who is a native of Tibet, told her that on 15th April, 2005 around 6 PM, when she was returning to her residence, after paying obeisance at Dalailamas’ Temple, she went to a fruit shop to buy oranges and that when she was looking for the oranges at the shop, the shopkeeper called her inside the shop, which was in the form of a kiosk, on the pretext that better oranges were inside the shop. She further told that as soon as she entered the shop, the shopkeeper pulled her to the inner portion of the shop and threw her on the ground and committed rape on her, after wearing a condom. She also told PW3 Tenzing Dolkar that another person stood as guard at the door when the shopkeeper was raping her. PW-3 Tenzing Dolkar is also a Tibetan. So, the prosecutrix was at ease with her in explaining and narrating the incident to her. The …3… prosecutrix then took PW-3 Tenzing Dolkar to the fruit shop. She identified appellant Yatin Kumar as the person, who committed rape on her and the other appellant Sushil Kumar as the person, who guarded the door, when the crime was being committed by appellant Yatin Kumar. PW- 3 Tenzing Dolkar knows Tibetan as also Hindi and perhaps English also. Prosecutrix knew only Tibetan language. So, PW-3 Tenzing Dolkar lodged report with the police, on behalf of the prosecutrix. The said report is Ext. PW3/A. 3. Police got the prosecutrix medically examined. The medical examination showed that there was fresh tear of hymen at 5 O’clock position. Vagina admitted two fingers with difficulty. When the fingers were inserted, bleeding was noticed, indicating that the tear of hymen was not very old and had not healed up. Both the appellants were arrested. They were got medically examined. Medical examination of appellant Yatin Kumar did not suggest anything, indicative of his being incapable of performing sexual intercourse. Before the report was lodged with the police, the prosecutrix and PW-3 Tenzing Dolkar, took into confidence PW-7 Sonam and PW-10 Dorje, both of whom are Tibetans. They too were taken to the shop where the prosecutrix had been raped. Appellants were found present in the shop. Both of them begged to be pardoned for their wrongful act. …4… 4. During the course of investigation, police inspected the inner portion of the shop, which had been separated by means of a plastic sheet and recovered wrapper of a condom Ext. P2. Slides of vaginal swab of the prosecutrix were prepared and sent to Chemical Examiner, who, vide report Ext. PW1/B, opined that traces of blood had been found in the vaginal swab and on the underwear of the prosecutrix. 5. On completion of investigation, appellants were challaned. Learned Judicial Magistrate, in whose Court the Challan was filed, committed the case to the Sessions Court, after completing the requisite formalities. Learned Sessions Court charged the appellants with the aforesaid offences. Appellants pleaded not guilty. So, they were put on trial. 6. Prosecution examined 12 witnesses, to bring the charge home to the appellants. Testimony of PW-1 Dr. Kalpana Negi, who conducted the medical examination of the prosecutrix, PW-2 the prosecutrix herself, PW-3 Tenzing Dolkar, PW-7 Sonam, PW-10 Dorje and PW-12 ASI Kamal Chand, who conducted the investigation, is material for the decision of the case. 7. We may notice that during the course of investigation test identification parade was arranged. PW-6 Shri Hitender Sharma, Judicial Magistrate, supervised the …5… parade and drew up a report of the proceedings. In the Course of such test identification parade, the prosecutrix could not identify appellant Yatin Kumar, though as per testimony of PW-6 Hitender Sharma, she did identify the other appellant. However, the prosecutrix herself, stated, while appearing as PW-2, that she could not identify either of the two appellants. 8. Appellants denied that they had committed the crime. Trial Court came to the conclusion that the evidence on record established, beyond reasonable doubt, that the two appellants were guilty of the offences of gang rape and wrongful confinement. 9. We have heard the learned counsel for the appellants as also the learned Assistant Advocate General and have also perused the record. 10. First submission that has been made on behalf of the appellants is that the prosecutrix having failed to identify the appellants, at the test identification parade, trial Court was not justified in holding that they were the persons, who had perpetrated the crime. We have considered the submission in the light of the evidence that has come on record. It is true that the prosecutrix herself, in her deposition as PW-2, testified that she had not been able to identify either of the appellants, in the jail, where test identification parade was held and, therefore, despite …6… the statement of PW-6 Hitender Sharma, Judicial Magistrate, there can be no escape from the finding that neither of the two appellants was identified during the test identification parade, but that does not mean that the identity of the appellants as the perpetrators of the crime does not stand established. There is other evidence which establishes the identity of the appellants as perpetrators of the crime, beyond reasonable doubt. 11. PW-3 Tenzing Dolkar very categorically stated that on 20th April, 2005, when the incident was narrated to her by the prosecutrix, the latter took her to the shop where she had been raped and that at that time both the appellants were present at that shop and the prosecutrix told that they were the persons, who were involved in the commission of crime. Statement of PW-3 Tenzing Dolkar, with respect to this fact, is corroborated, not only by the prosecutrix, who appeared as PW-2, but also by the contents of FIR Ext. PW3/A, in which it is specifically mentioned that after narrating the incident to PW-3 Tenzing Dolkar, the prosecutrix took her to the fruit shop, where the crime had been committed and at that time both the appellants were there, whom the prosecutrix identified as the offenders. 12. Not only this, the prosecutrix and PW-3 Tenzing Dolkar apprised PW-7 Sonam and PW-10 Dorje of the …7… incident, before the matter was reported to the police. The two later named witnesses were also taken to the shop by the prosecutrix and PW-3 Tenzing Dolkar. At that time also, both the appellants were present in the shop. Both of them apologized to the prosecutrix for having committed “the mistake” and begged to be pardoned. PW-7 Sonam and PW-10 Dorje very categorically stated that on 20th April, 2005, the prosecutrix and PW-3 Tenzing Dolkar told them that the prosecutrix had been raped in a fruit shop at Mcleodganj and thereafter they were taken to that shop where both the appellants were present and they begged to be pardoned for their wrongful act. There should be no reason to disbelieve the testimony of either of these two witnesses or the prosecutrix and PW-3 Tenzing Dolkar, because none of them has any motive to falsely implicate the appellants. No suggestion was thrown to PW-3 Tenzing Dolkar or PW-7 Sonam or PW-10 Dorje that the fruit shop did not belong to the appellants, though it was specifically suggested that the appellants had not apologized or admitted their guilt. 13. Police visited the shop on the day next following the day of the lodging of the report, i.e. 21st April, 2005, and recovered wrapper of a condom Ext. P2. The fact is testified by PW-3 Tenzing Dolkar, the prosecutrix herself, who was examined as PW-2 and the Investigating Officer of …8… the case, namely PW-10 ASI Kamal Chand. A suggestion was put to the Investigating Officer PW-12 ASI Kamal Chand that wrapper of condom, Ext. P2, had been planted to create evidence against the appellants. The suggestion means admission by the appellants that the shop, from where the wrapper was recovered, is theirs. The suggestion lends credibility to the testimony of the prosecutrix that she had been raped in the shop of appellant Yatin Kumar. It is not the case of appellant Yatin Kumar that the shop is run not by him, but some other person. So, it can legitimately be presumed that it was he who was present in the shop and conducting the business of fruit vending, when the prosecutrix visited that shop on 15th April, 2005, to purchase oranges and it was he who called her inside the shop and committed the offence. 14. Testimony of the prosecutrix about the allegation of rape is corroborated by medical evidence. Prosecutrix is a nun. She was a devout and a chaste nun. This is proved by the fact that she was virgin, before the commission of the offence, in question. PW-1 Dr. Kalpana Negi has testified that there was bleeding from the tear of the hymen, when she medically examined the prosecutrix. The doctor also noticed that vaginal orifice admitted two fingers with difficulty, indicating that the prosecutrix was not used to or habitual of sexual intercourse. Her virginity was …9… violated for the first time when the offence, in question, was committed. 15. Another submission made on behalf of the appellants is that there was delay of five days in lodging the FIR, even though the Police Station is situated not far off from the place of occurrence. It is true that there is delay of five days in lodging the FIR, but it has been fully and satisfactorily explained. Prosecutrix came from Tibet to India only in January, 2005. She was not knowing Hindi or English. Incident took place in April, 2005. During this short period of 3-4 months she was not expected to have learnt much of Hindi and/or English. Also, she did not have any close relative or friend in India to confide in about the incident. However, she went into depression, on account of the incident and on 20th April, 2005, when she went to PW- 3 Tenzing Dolkar, a Health Worker, and the latter noticed that she was looking depressed and enquired the cause of depression, she narrated the incident to her. Prosecutrix is a Nun. As already noticed, hereinabove, she had been virgin till the incident happened. The incident of rape was, therefore, doubly traumatic and shocking for her. Coming to light of the incident, per her own deposition, was likely to affect her religious status as a Nun and for this reason she kept quiet and did not report the matter to the police or anybody else. …10… 16. In view of what has been discussed hereinabove, we have no doubt in our mind that the conviction of the appellants is well founded. We also do not find any reason to interfere with the sentence, awarded by the trial Court. The reason is that the appellants have committed heinous crime against a nun, who is supposed to have vowed not to have sexual intercourse. Consequently, both the appeals are dismissed. (Surjit Singh), J August 19, 2009(ss) (Surinder Singh), J.