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Himachal Pradesh High Court · body

2000 DIGILAW 328 (HP)

KRISHAN BAHADUR v. STATE OF H. P.

2000-12-21

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This jail appeal has been preferred by the appellant - convict (hereafter referred to as the accused) against the judgment dated 27.3.2000 passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur, whereby the accused has been convicted under Sections 451 and 376 IPC and has been sentenced to rigorous imprisonment for 7 years and fine of Rs.1000/- under Section 376 IPC and to undergo rigorous imprisonment for six months under Section 451 IPC. In default of payment of fine, the accused has been ordered to undergo further rigorous imprisonment for three months and the substantive sentences of imprisonment have been made to run concurrently. 2. Case of the prosecution, in brief, is that Rattan Dassi, prosecutrix (PW-2), aged more than 60 years, is an issueless widow and is residing in village Kurgu. On 25.5.1999 at about 8 P.M., when PW-2, after taking food, was washing the utensils, the accused and his companion Raja Ram visited her house. They informed the complainant that they had come from Mandi District and requested for shelter for the night. The prosecutrix refused to provide shelter to the accused and his companion but on their further request that they might be permitted to stay in the verandah of the house, the prosecutrix agreed. She provided food to them. They, however, informed the prosecutrix that they were not feeling safe and secure on the open verandah, therefore, they came into the room of the prosecutrix. The prosecutrix then provided them a separate bed where they slept. After some time the accused and his companion got up, caught hold of the prosecutrix, gagged her mouth to prevent her from raising a hue and cry and thereafter first the accused committed forcible sexual intercourse with her and then his companion also raped the prosecutrix. She was again raped by the accused and his companion in that order. After committing the rape, the accused and his companion left the house at about 12 o clock in the night. Out of fear, the prosecutrix left her house and sought shelter in the house of Birma Devi (PW-3) in a nearby village Dhiu and spent her night there. The prosecutrix returned to her house in the following morning .when she was not keeping fit because of the commission of rape on her and, therefore, remained confined to the bed. Out of fear, the prosecutrix left her house and sought shelter in the house of Birma Devi (PW-3) in a nearby village Dhiu and spent her night there. The prosecutrix returned to her house in the following morning .when she was not keeping fit because of the commission of rape on her and, therefore, remained confined to the bed. On 27.5.1999, she visited village Kurgu where she found the rapists working at the house of Missi Devi (PW-5) and informed PW-5 and other village women that the accused and his companion had raped her on the night intervening 25th and 26th of May, 1999. The prosecutrix was advised to report the matter to the local police. PW-2 then reported the matter at Police Post, Sarahan on 27.5.1999 at 5.15 P.M. vide, report No. 9 copy whereof is Ex.PW-2/A. The prosecutrix was got medically examined. Dr. Lalita Negi, Medical Officer, Civil Hospital, Sarahan (PW-6) who examined the prosecutrix on 27.5.1999 at 6 P.M., found multiple abrasions on different parts of the body of the prosecutrix and opined that the prosecutrix had been subjected to sexual intercourse within 48 hours prior to her medical examination. Shirt Ex.P-3 and Sal war Ex.P-4 of the prosecutrix were taken in possession, sealed and handed over to the police for chemical analysis by PW-6. The vaginal swab of the prosecutrix was also reserved, sealed and handed over to the police for the same purpose. The accused was arrested by the police on 29.5.1999 but his companion managed to abscond. On medical examination, the accused was found capable of committing sexual intercourse. The Medical Officer (PW-1) who conducted the medical examination of the accused also took in possession the underwear (Ex.P-1) of the accused which was also sealed and sent for chemical analysis. The police took in possession mattress Ex.P-2 vide recovery memo Ex.PW-2/D and the same was also sealed. Underwear Ex.P-1, mattress Ex.P-2, shirt Ex.-3 Salwar Ex.P-4 and the vaginal swab were chemically analysed and vide report received from the State Forensic Science Laboratory Ex. PX, human semen was detected on the underwear Ex.P-1, shirt Ex.P-3 and Salwar Ex.P-4 Blood was found in the vaginal Swab. On completion of the investigation, the officer incharge, Police Station, Jhakri submitted charge sheet against the accused under Sections 451 and 376IPC and a charge was accordingly framed against him by the learned trial judge. 3. PX, human semen was detected on the underwear Ex.P-1, shirt Ex.P-3 and Salwar Ex.P-4 Blood was found in the vaginal Swab. On completion of the investigation, the officer incharge, Police Station, Jhakri submitted charge sheet against the accused under Sections 451 and 376IPC and a charge was accordingly framed against him by the learned trial judge. 3. To prove the charge against the accused, the prosecution examined 13 witnesses in all. 4. The accused was examined under Section 313 Cr.P.C. wherein accused has denied all the material evidence put to him. He has, however, not produced any evidence in defence. Finally, the accused was convicted and sentenced as aforesaid. Hence the present appeal. 5. I had heard the learned counsel for the accused and the learned Assistant Advocate General for the respondent/State and have also gone through the records. 6. The learned counsel for the accused had assailed the impugned conviction and sentence on the following grounds: (i) That the accused was not earlier known to the prosecutrix and no test identification parade was held. Therefore, the identity of the accused was not established; (ii) That there had been inordinate delay in lodging the FIR; and (iii) That the uncorroborated testimony of the prosecutrix, particularly in view of her conduct could not be relied upon to convict the accused. Ground No. 1 7. It was contended by the learned counsel for the accused that it is case of the prosecution that the accused was not known to the prosecutrix and no test identification parade was held. Therefore, identification of the accused by the prosecutrix for the first time in the Court is highly unreliable and the identity of the accused as the rapist is not established. It was further contended that the occurrence is alleged to have occurred during night time and facial features of the gorkhas being alike and so many gorkhas were working in the nearby places, therefore also, the identity of the accused on the sole statement of the prosecutrix is highly doubtful. 8. There is no dispute that prior to the occurrence the accused and his accomplice were not known to the prosecutrix and test identification parade was not held to lend corroboration to the statement of the prosecutrix at the trial. 8. There is no dispute that prior to the occurrence the accused and his accomplice were not known to the prosecutrix and test identification parade was not held to lend corroboration to the statement of the prosecutrix at the trial. However, it is not a case of trespass in the dead of night followed by rape in which case the contention raised for the accused may be most probable, rather almost certain. In the case in hand, the version of the prosecution is that the accused and his accomplice came to the house of the prosecutrix at about 8 PJVI. and requested for shelter. It was after some consultation that the accused entered the house of the prosecutrix to sleep inside the room. The prosecutrix has given detailed account of it in her statement on oath. She has also stated that she had seen the accused and his companion in the light of the kerosene lamp in her house for sufficiently long time. It is thus clearly established that the prosecutrix had seen the accused and his companion for sufficiently long time and in such an eventuality she could unmistakably identify the accused. It is not that after the occurrence the prosecutrix identified the accused only in the Court. It is not that after the occurrence the prosecutrix identified the accused only in the Court. It is stated by the prosecutrix and as is the case of the prosecution, that on the third day of the occurrence the prosecutrix had gone to village Kurgu when she saw the accused and his companion doing mud plaster work in the house of Missi Devi (PW-5) and informed the village women and PW-5 of the occurrence. The statement of the prosecutrix on this count is fully supported and corroborated by PW-3 and PW-5. Thus, the prosecutrix had identified the accused and his companion immediately after the occurrence which finally led to arrest of the accused whereas his companion absconded. Since the prosecutrix had identified the accused as the rapist in the presence of village women even before the lodging of the FIR, therefore, there was no necessity to hold a test identification parade. 9. Since the prosecutrix had identified the accused as the rapist in the presence of village women even before the lodging of the FIR, therefore, there was no necessity to hold a test identification parade. 9. Generally speaking, the Gorkhas hailing from particular areas of Nepal may have more or less identical general facial features but it cannot and does not mean that all Gorkhas have same facial features rendering it impossible to distinguish between two or more of them. There is nothing on the record to show that facial features of the accused are such which will render it impossible or even difficult to distinguish him from amongst other Gorkhas or that at the material time there were other Gorkhas having such resemblance with the accused so as to render the identity of the accused improbable. The contention is thus hypothetical and not based on established facts, lending no help to the accused. 10. In view of the fact that the prosecutrix had the occasion to see the accused for a sufficiently long time and identified him as one of the rapists on the third day of the occurrence, the identity of the accused as the rapist is fully established and the contention to the contrary is not sustainable. Ground No. (ii) 11. It was contended by the learned, counsel for the accused that the occurrence allegedly took place on the night intervening 25th and 26th of May, 1999 and the report was lodged on 27.5.1999 at 5.15 P.M., that too when the prosecutrix was accompanied by so many village women to the police post. Therefore, there was inordinate delay in lodging the FIR which was the result of due deliberations. 12. The delay in reporting the commission of an offence without any reasonable excuse is bound to adversely affect the case. However, if the delay is explained by reasonable and probable grounds, it cannot be held fatal to the case of the prosecution. In the case in hand, the reasons for delay in lodging the report had been stated by the prosecutrix at the time of making the report. Vide report Ex.PW-2/A it has been explained that the prosecutrix (who is a widow, more than 60 years of age) cold not disclose the occurrence initially because ?he was feeling ashamed and on the following day she was having body aches and was confined to bed throughout the day. Vide report Ex.PW-2/A it has been explained that the prosecutrix (who is a widow, more than 60 years of age) cold not disclose the occurrence initially because ?he was feeling ashamed and on the following day she was having body aches and was confined to bed throughout the day. On the third day, when she found the rapist working in the house, she disclosed the occurrence to the village women and thereafter the matter was reported to the Police without any further delay. Thus, the delay in reporting the occurrence to the police is duly and satisfactorily explained and thus incapable of making any dent in the prosecution case. This ground urged to disbelieve the prosecution case, therefore, does not hold good. Ground No. (Hi) 13. It was argued for the accused that the statement of the prosecutrix about the alleged occurrence is not corroborated by any other independent evidence. This coupled with her conduct viz. her not narrating the occurrence of rape to anyone for three days and instead while taking shelter in the house of Birma Devi (PW-3) informing her that thieves had entered her house render her statement self contradictory and highly unreliable. Therefore, the conviction based on her such statements unsustainable. 14. It is by now well established that a victim of rape is not an accomplice but her testimony stands almost at part with the victim of assault/injured and in view of the prevailing social conditions of the Indian society is even more reliable. The testimony of the victim in a rape case is vital and in the absence of compelling reasons necessitating corroboration of her statement, the Courts should not find any difficulty to convict an accused on the basis of such statement if found confidence inspiring and reliable. The Court while appreciating the testimony of a rape victim may look for some assurance of her statement to satisfy its judicial conscience but there is no legal requirement to insist upon corroboration of her statement to base conviction of an accused. 15. In the case in hand, the prosecutrix is a widow, aged more than 60 years. The accused was not known to her prior to the occurrence nor she had any vested interest to falsely implicate the accused for the offence alleged to have been committed by him. 15. In the case in hand, the prosecutrix is a widow, aged more than 60 years. The accused was not known to her prior to the occurrence nor she had any vested interest to falsely implicate the accused for the offence alleged to have been committed by him. Against this background, apparently there is no reason to suspect her statement regarding the commission of rape on her by the accused. The version regarding the occurrence as given by the prosecutrix is consistent and cogent, therefore, incapable of being ignored on ground of inconsistency or any major contradiction which may go to the root of the version. Apart from being reliable, her statement is corroborated by other evidence on the record. 16. The prosecutrix was medically examined by PW-6 on 27.5.1999 at 6 P.M. The MLR in this regard is Ex.PW-6/A. As stated by PW-6, at the time of medical examination of the prosecutrix as aforesaid a bruise on her left breast, tenderness on the right breast, an abrasion on left check, an abrasion below inner canthus of left eye, four abrasions on lower part of right cheek, a bruise on right side of the upper lip, bruise on left wall of vagine and tenderness on digital examination were found. PW-6 has opined that these injuries were caused within the probable duration of 48 hours before the medical examination. Thus these injuries are co-related to the time of commission of rape and are indicative of use of force and forcible sexual intercourse. On examination of the vaginal smear, dead spermotozoa were found therein. The Salwar Ex.P-4 and shirt Ex.P-3 of the prosecutrix taken in possession by PW-6 and vaginal swab were sent for chemical analysis. Vide report Ex. PX received from the Forensic Science Laboratory, human semen was found on shirt Ex.P-3 and Salwar Ex.P-4. Human blood was found in the vaginal swab. Underwear Ex.P-1 of the accused was also taken in possession as stated by PW-1 Rajinder Negi who medically examined the accused and on chemical analysis human semen was found on Ex.P-1 also vide report Ex .PX. On the basis of the data collected on medical examination of the prosecutrix and the report Ex. Underwear Ex.P-1 of the accused was also taken in possession as stated by PW-1 Rajinder Negi who medically examined the accused and on chemical analysis human semen was found on Ex.P-1 also vide report Ex .PX. On the basis of the data collected on medical examination of the prosecutrix and the report Ex. PX, PW-6 has opined that there was evidence of sexual intercourse with the prosecutrix within 48 hours prior to her medical examination and the injuries noticed on her person were capable of being caused due to forcible sexual intercourse and in the process of resistance thereof. She has denied the suggestion that such injuries could be self inflicted or caused accidently while working in a maize field. The medical evidence thus lends full corroboration to the statement of the prosecutrix. 17. PWs 3 and 5, two of the village women to whom the prosecutrix had narrated the occurrence, have also corroborated her statement about such narration. 18. It is admitted by the prosecutrix as also by PW-3 that after having been ravished twice each by the accused and his companion, the prosecutrix went to the house of PW-3 and requested for shelter for the night saying that thieves had trespassed into her house and could again return and the prosecutrix did not state at that time anything about the commission of rape on her by the accused and his companion. The prosecutrix has explained that she did not narrate the occurrence at that time because she was feeling ashamed. Had she the intention to falsely implicate the accused in connivance with the village women, she and PW-3 would not have admitted the giving of the version about trespass by thieves. Therefore, on the facts and in the circumstances of the case as already dealt with heretofore, the explanation offered by the prosecutrix seems to be satisfactory and this conduct on her part does not demolish her testimony about the occurrence. 19. It can, therefore, be safely concluded that in view of the reliable statement of the prosecutrix duly corroborated by other evidence, the learned Sessions Judge has rightly convicted and sentenced the accused under Section 376 IPC and no interference therein is called for. 20. The conviction of the accused under Section 451 of the Indian Penal Code (hereafter referred to as the Code) and the consequential sentence, however, does not seem to be sustainable. 20. The conviction of the accused under Section 451 of the Indian Penal Code (hereafter referred to as the Code) and the consequential sentence, however, does not seem to be sustainable. Section 451 of the code reads as follows: "House trespass in order to commit offence punishable with imprisonment. - Whoever commits house trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description- for a term which may extend to two years, and shall also be liable to fine, and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years." 21. In view of the provisions of the above quoted section, before a person can be convicted of an offence punishable there under, the prosecution has to prove the following requisites: (i) that the accused committed house trespass; (ii) that he did so in order to commit an offence punishable with imprisonment; or (iii) that the offence so committed was theft. 22. In the instant case, the case against the accused is not that the house trespass committed by him was for the commission of an offence of theft, therefore, the aforesaid third requisite is not required to be proved in this case. However, the first two ingredients had to be established to bring home the head of charge under Section 451 of the code against the accused. 23. Section 442 of the Code defines the expression "house trespass" as follows: "House - trespass. - Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a place for worship, or as a placefor the custody of property is said to commit "house trespass". Explanation. - The introduction of any part of the criminal trespassers body entering is sufficient to constitute house trespass." 24. Explanation. - The introduction of any part of the criminal trespassers body entering is sufficient to constitute house trespass." 24. As is evident from the aforesaid Section, that one of the essential constitutents of house trespass is "criminal trespass" which has been defined under Section 441 of the Code, which reads as follows: "Criminal trespass.- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass". 25. From the above definition of expression "criminal trespass", the following requisites have to be established so that an entry upon any property in the possession of others may be held criminal trespass: (i) there should be an entry into or upon property in possession of another; (ii) the entry must be unlawful i.e it must be with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property; or (iii) having lawfully entered into or upon such property, unlawfully remaining there with intent to commit an offence or with intent thereby to intimidate, insult or annoy any such person. 26. From the above quoted sections and the ingredients thereof it is clear that if a person enters into the house of another person with the latters consent and permission and thereafter stays therein for a considerable time and then commits an offence, he cannot be said to have committed criminal trespass but only the offence which he has actually committed after the entry and stay in the house. 27. The view I have taken hereinabove about the position in law is fully supported by the ratio in Ahamadkhan v. Emperor (AIR 1936 Nagpur 176), the relevant part thereof reads as under: "It cannot be supposed that the offence of house trespass is committed if, on a person entering a house at the invitation of another, a quarrel breaks out between them in the house. It is admitted that there was no request on the part of the complainant that the accused should leave the house. It is admitted that there was no request on the part of the complainant that the accused should leave the house. His entry was lawful and until he was requested to go, his continuation in the house was also lawful. The second part of the section reads" or having lawfully entered unlawfully remains there." The intention, therefore, whatever it be, does not come into effect unless the remaining is unlawful, and it is not the manifestation of a subsequent intention that in itself makes the remaining unlawful unless that is apparent from the fact of the person who has made a lawful entry remaining there. The word "thereby" occurring in the second part of the section is significant. There was no intention of intimidation, insult or annoyance by the mere fact of the accused remaining in the house, such as there might have been, had he obtained lawful entry and concealed himself afterwards behind a door and the owner of the house imagined that he had departed, or if he insisted on remaining after having been requested to leave. It is not to be presumed that having obtained lawful entry into the house he should then, if he had occasion to abuse the complainant for not paying his debts; bethink himself that it is his duty to retire outside the house before abusing him, as otherwise he would be liable for house trespass. To commit the offence of house trespass, as to commit any other offence, there must be mens rea in respect of the offence that may exist where the entry is unlawful but where the entry is lawful and whatever offence may be committed, it is independent of the question of the entry into the house or the remaining there: there is no mens rea in respect of such remaining. Whatever offence, therefore, the accused may have committed, he has not committed the offence of house trespass." 28. It is admitted case of the prosecution that the accused and his companion visited the house of the prosecutrix with the request to spend the night there and after some hesitation, the prosecutrix permitted them to stay for the night in the verandah but subsequently on their request, they were permitted to enter the room of the house and thereafter they were served with food. Evidently, their entry into the house of the prosecutrix was with her consent and permission. Evidently, their entry into the house of the prosecutrix was with her consent and permission. 29. After having entered into the room, their remaining inside the room will become unlawful only if for one or the other reason, they were asked to get out of the room by the occupant, i.e. the prosecutrix. This is also not so in the present case. On the contrary, a bed was laid for them and they slept in the bed inside the room and thus, their remaining in the room can also not be said to be unlawful. Therefore, the accused cannot be held guilty for the commission of an offence punishable under Section 451 of the Code. Thus, in the instant case, neither of the essentials (ii) or (iii) supra are established. 30. In view of the above, the conviction of and sentence awarded to the accused under Section 451 of the Code is unsustainable and, therefore, liable to be set aside. 31. As a result, this appeal is partly allowed and the impugned conviction of and sentence awarded to the accused under Section 451 of the Code is set aside. However, his conviction under Section 376 of the Code and the punishment awarded there under is upheld. The appeal is accordingly disposed of. 32. This being a jail appeal and the accused having been represented by a counsel provided at State expenses, a copy of this judgment be sent to the accused through the Jail Superintendent.