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2000 DIGILAW 337 (HP)

BUDH RAM ALIAS RAJINDER v. STATE OF H. P.

2000-12-25

KAMLESH SHARMA, M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This appeal has been preferred by the appellant accused (hereafter referred to as the accused) against the judgment dated 20.3.2000 passed by the learned Sessions Judge, Sirmaur District at Nahan whereby the accused has been convicted under Section 376 Indian Penal Code and has been sentenced to rigorous imprisonment for 10 years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for two years. 2. Case of the prosecution, in brief, is that Santosh Kumari (PW-5), aged 8 years at the relevant time, and is the adopted daughter of Maina Devi (PW-4), resident of village Junya Kanogta, Tehsil, Rajgarh. On 27.9.1999, she had gone to the fields to guard peas crop. At about 4 P.M., accused came there, picked up the prosecutrix ad took her inside the nearby Jungle and committed rape on her. In the meanwhile, Anup Singh (PW-6), uncle of the prosecutrix, came in search of the prosecutrix. On seeing him, the accused bolted away into the Jungle. The prosecutrix (PW-5) who was then lying with her lower limbs naked was made to wear the Salwar and brought home by PW-6. PW-5 narrated the occurrence to her mother PW-4 and PW-5. Thereafter, the matter was reported to the police and a case under Section 376 INDIAN PENAL CODE was registered at Police Station, Rajgarh on 28.9.1999 vides FIR Ex. PD. The prosecutrix was got medically examined. On such examination, her hyme was found absent. There was laceration present posteriorly in her perineum and the abrasions were found on both her thighs, front of the chest and whole of the back. MLC Ex. PC was accordingly issued by Dr. Mrs. Sunita Aggarwal (PW-3) who medically examined the prosecutrix opined that there was evidence of vaginal penetration and assault on the private parts with evidence of struggle by marks of injuries:. It was further opined that "as per the Radiologist and dental opinion, the age of the child is below 12 years". The opinion of the Radiologist is Ex .PA whereby it has been opined that the age of the prosecutrix at the time of her ossification test was below 12 years. As per the opinion by dental expert vide report Ex. PB, the age of the prosecutrix was more than 6 years but less than 12 years at the relevant time. The opinion of the Radiologist is Ex .PA whereby it has been opined that the age of the prosecutrix at the time of her ossification test was below 12 years. As per the opinion by dental expert vide report Ex. PB, the age of the prosecutrix was more than 6 years but less than 12 years at the relevant time. As per the entries in the Patiwar Register, a copy whereof is Ex.P-11, the date of birth of the prosecutrix is 12.6.1991. The same is the date of birth of the prosecutrix vide entries in the admission application Ex.P-12 and the School Admission Register copy whereof is Ex.P-13. At the time of medical examination of the prosecutrix, PW-1 had taken SalwarEx.P-7 and shirt Ex.P-8 of the prosecutrix in possesson. On arrest of the accused, he was also got medically examined and vide admitted MLC Ex. PH, the concerned Medical Officer opined that there was no evidence to suggest that the accused was not capable of performing sexual intercourse. A bruise over the dorsal aspect of the penis of the accused and multiple abrasions over his knees and feet were also noticed. On production by the accused, his pant Ex.P-14 was taken in possession by S.I. Sangat Ram (PW-10). Exs. P-7, P-8 and P-14 were got chemically analyses in the State forensic Science Laboratory and as per the report Ex. PA received from the said Laboratory, human semen was detected on Exs. P-7 and P-8 and human blood and human semen were found on pant Ex.P-14. On being satisfied of the commission of rape by the accused, the officer incharge, Police Station, Rajgarh submitted a charge sheet against the accused, against whom a charge under Section 376 INDIAN PENAL CODE was framed by the learned trial judge. 3. To prove the charge against the accused, the prosecution examined as many as 10 witnesses. 4. The accused in his statement under Section 313 of the Criminal Procedure Code denied the prosecution case as a whole and claimed to be innocent. He has further stated that he used to visit the house of Maina Devi (PW-5) which was objected to by Anup Singh (PW-6) and because of this; he had been falsely implicated in the case. The accused, however, did not lead any defence. 5. The accused was convicted and sentenced by the learned Sessions Judge as aforesaid, hence the present appeal. 6. The accused, however, did not lead any defence. 5. The accused was convicted and sentenced by the learned Sessions Judge as aforesaid, hence the present appeal. 6. We had heard the learned counsel for the accused and the learned Additional Advocate General and the learned Asistat Advocate General for the respondent - State and have also gone through the records. 7. It may be pointed out at the very outset that one of the grounds of defence taken in the appeal is that the accused had worked in the house of the parents of the prosecutrix and when he demanded his remunerations to the tune of Rs. 12,000/- they refused to pay and instead got a false case of rape instituted against him. However, such a defence had neither been suggested to the prosecution witnesses nor has been stated by the accused in his statement under Section 313 of the Code of Criminal Procedure. Thus, we find no difficulty in rejecting this ground being unsupportable by any thing on the record and raised for the first time in appeal as an after thought. 8. The learned counsel for the accused had contended that as per the contents of the First Information Report Ext. PD, the accused only attempted to commit "Bura Kam" with the prosecutrix. The prosecutrix in her statement in the Court has stated that the accused did "Bura Kam" with the prosecutrix. The prosecutrix in her statement in the Court has stated that te accused did "Bura Kam" with her. PW-6 has also stated that when he reached at the spot, he found that the accused was doing "Bura Kam" with the prosecutrix. Similarly, PW-4 has stated that she was informed by PW-5 and PW-6 that the accused committed "Bura Kam" with the prosecutrix. Thus, the accused is alleged to have committed "Bura Kam" and none of the PWs. has stated that the accused committed sexual intercourse with the prosecutrix. It was further contended that the expression "Bura Kam" is too vague and denotes acts of various type and is neither stated to mean sexual intercourse by any of the witness nor does it mean so. has stated that the accused committed sexual intercourse with the prosecutrix. It was further contended that the expression "Bura Kam" is too vague and denotes acts of various type and is neither stated to mean sexual intercourse by any of the witness nor does it mean so. It was, therefore, urged by the learned counsel that in view of the above statements of the material witnesses, the charge under Section 376 of the Indian Penal Code against the accused was not established and it is more so in view of the contents of Ext. PD wherein the allegation is not that the accused committed rape or even "Bura Kam" with the prosecutrix but it was alleged that the accused attempted to commit "Bura Kam". 9. It is indisputably established in view of the shattered, cogent, reliable and confidence inspiring statements of PW-4, PW-5 and PW-6 that the accused committed "Bura Kam" with the prosecutrix (PW-5). All these witnesses have referred to the act imputed to the accused as "Bura Kam" without any further explanation as to what do they mean by the expression "Bura Kam". It is, therefore, necessary to find out as to what the witnesses meant by the expression "Bura Kam". 9-A. It cannot be disputed that when read out of context the expression "Bura Kam" will mean one of those acts which are anti social, anti religion or unlawful. However, this expression is used in the rural areas of Himachal Pradesh to denote an act of unlawful sexual intercourse beside other acts which may be anti-social, anti-religion or unlawful. Therefore, its true meaning has to be found with reference to the context in which this expression has been used. 10. PW-5 has narrated the occurrence thus: "I know the accused present in the court. He has been residing in the adjacent village. On the day of occurrence I had gone to the fields near our house to guard the peas crop. My mother was t feeling well and she was lying on the bed in the house. Budh Ram accused came to me and picked me up to the nearby jungle. He opened my Salvar and placed it on the ground. He also put off his pant and did Bura Kaam with me. I felt pain and started weeping. My mother was t feeling well and she was lying on the bed in the house. Budh Ram accused came to me and picked me up to the nearby jungle. He opened my Salvar and placed it on the ground. He also put off his pant and did Bura Kaam with me. I felt pain and started weeping. In the meanwhile I heard the call of my uncle Anoop Singh and by that time, he came there, the accused took on his pant and ran away. My uncle ran after the accused but he fled away. Then my uncle made me to wear the Salvar and brought me home. I told the occurrence to my mother." The expression "Bura Kam" as used by prosecutrix in her above quoted statement can only mean that the accused committed rape on her. This conclusion is strengthened by the trend of cross-examination of PW-5. She was put a suggestion in the cross-examination to which she replied that "It is incorrect to suggest that the accused did not any Bura Kaam with me. I had not been putting my finger in my vagina". It is implicit in this manner of cross-examination that even the accused knew it fully well that by "Bura Kam" the prosecutrix meant unlawful sexual intercourse. In view of the circumstances under which "Bura Kam" is stated to have been committed by the accused with the prosecutrix, it can mean only the "act of rape". 11. The after effects of the "Bura Kam" committed by the accused with the prosecutrix can also be of immense help and use in interpreting this expression. 12. The prosecutrix was medically examined by PW-3 after the occurrence. At the time of such examination the relevant and material observations made by her are as under: "Local Examination External: - Marked vulval cedema was present. Hymen absent. Public Genitalia hair absent. Presence of old blood in vaginal cavity. Laceration 1 CM long present posteriorly in perinium. No evidence of presence of semen. Abrasions present on perivulval region. Vagina admitting one little finger. Slide Plenty of epithelial cells present, no live or dead Examination sperms seen. Injuries Multiple abrasions were present on medial aspect of both thighs. Multiple abrasions on front of chest. Multiple abrasions on whole of the back. 13. No evidence of presence of semen. Abrasions present on perivulval region. Vagina admitting one little finger. Slide Plenty of epithelial cells present, no live or dead Examination sperms seen. Injuries Multiple abrasions were present on medial aspect of both thighs. Multiple abrasions on front of chest. Multiple abrasions on whole of the back. 13. As per the opinion given by PW-3, "The duration of the injuries on the person of Santosh Kumari was between 12 to 24 hours. In my opinion there is evidence of vaginal penetration and assault on the private parts with evidence of struggle by marks of injuries." The probable duration of the injuries found on the person of the prosecutrix is relatable to the time of occurrence and the medical opinion confirms the commission of rape on the prosecutrix. In view of the available data as per the observations of PW-3, the only conclusion which can be drawn is that force was used against the prosecutrix and she was sexually assaulted around the time when accused is stated to have committed "Bura Kam" with her. 14. The accused was also medically examined on 30.9.1999. While replying to question No. 15, the accused has admitted that he was medically examined and M.L.R. in this regard is Ext. PH. As per this admitted M.L.R., a bruise over the dorsal aspect of his penis.multiple abrasions on his knees and feet were noticed. These are also indicative of use of force by the accused in committing sexual intercourse. 15. On chemical analysis of the wearing apparels of the prosecutrix and the accused, namely, Salwar" Ext. P-7, shirt Ext. P-8 of the prosecutrix and pant Ext. P-14 produced by the accused, human semen was found on Exts. P-7 and P-8 and human semen and human blood were found on Ext. P-14. But for the "Bura Kam" by the accused, we do not find other reason from the record which could have led to the detection of human semen and blood on these wearing apparels. 16. The facts and circumstances as stated above make it clear that the expression "Bura Kam" as used by PW-4, PW-5 and PW-6 in their statements means unlawful act of sexual intercourse. 17. 16. The facts and circumstances as stated above make it clear that the expression "Bura Kam" as used by PW-4, PW-5 and PW-6 in their statements means unlawful act of sexual intercourse. 17. We have carefully gone through the evidence on record and find that the statements of the prosecutrix (PW-5) and the eye-witness of the occurrence (PW-6) are quite natural, cogent, trustworthy and confidence inspiring, there is nothing in their cross-examination or otherwise which may create even an iota of doubt about their credibility. These statements are further corroborated by PW-4 and the medical evidence already discussed. In view of this evidence, it is fully and firmly estbalished that the accused subjected to prosecutrix a girl of about eight years to rape. 18. In view of the above conclusion the mention in the First Information Report that the accused attempted to commit "Bura Kam" with the prosecutrix is of no help to the accused as it is not substantial evidence nor the mother (PW-4) had been confronted therewith. 19. No other point was pressed before us nor do we find any thing worth being taken note of. 20. The above discussion leads us to the conclusion that the learned trial Judge has after due and proper appreciation of the evidence on the record, rightly convicted and sentenced the accused. Therefore, the impugned conviction and sentence do not call for any interference by us. 21. As a result, this appeal merits dismissal and is accordingly dismissed. 22. Since the accused is in jail and was represented before us by a counsel provided at State expenses, therefore, a copy of this judgment be sent to the accused through the concerned Jail Superintendent.