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Himachal Pradesh High Court · body

2001 DIGILAW 339 (HP)

CHIRANJI LAL v. STATE OF H. P.

2001-11-21

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J. :- This appellant/convict/accused (hereafter referred to as the accused) has preferred the present appeal against the judgment dated 13/26.7.2001 passed by the learned Addl. Sessions Judge. Mandi. Where by he has been convicted under Section 376 IPC and has been sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.3000/- and in default of payment of fine, to undergo simple imprisonment for six months. 2. The case of the prosecution against the accused is that on 19.7.2000. there was a local fair in village Damahal to which the prosecutrix (PW-1) belongs. On the night intervening 19/20.7.2000. the prosecutrix and her cousin Promila (PW-11) were sleeping in the kitchen room of the house of the prosecutrix and at about 4 A.M.. mother of the prosecutrix (PW-2) had gone to see the fair. After departure of PW-1 from the house, the accused entered the kitchen room where the prosecutrix and PW-11 were sleeping and forcibly subjected the prosecutrix to sexual intercourse. On seeingthe advances of the accused. PW-11 left the kitchen room out of fear and went to the place of fair where she informed PW-2 that the accused was misbehaving with the prosecutrix. On receipt of this information. PW-2 returned home. In the meanwhile, the accused had left the place. The prosecutrix narrated the occurrence to her mother. The matter was reported to the police and FIR E.\.PW-1/A was registered against the accused under Section 376 IPC at Police Station. Karsog on 20.7.2000. On the request of the police, the prosecutrix was medically examined by Dr. Ajay Pathak (PW-7) who issued the MLC Ex.PW-7/C regarding medical examination of the prosecutrix. As per his opinion, sexual intercourse had taken place with the prosecutrix who was not habitual of sexual intercourse. At the time of medical examination of the prosecutrix. PW-7 took in possession the wearing apparels of the prosecutrix and swab. After arrest of the accused, he was also got medically examined from PW-7 who. on such examination vide MLC Ex.PW-7/E. opined that the accused . may not be incapable of performing sexual intercourse. At the time of his medical examination. PW-7 took the underwear of the accused in possession. The articles so taken in possession by PW-7 were handed over to the police for analysis. Opinion of Dr. S.K. Malhotra. on such examination vide MLC Ex.PW-7/E. opined that the accused . may not be incapable of performing sexual intercourse. At the time of his medical examination. PW-7 took the underwear of the accused in possession. The articles so taken in possession by PW-7 were handed over to the police for analysis. Opinion of Dr. S.K. Malhotra. Radiologist (PW-I3) was also taken regarding the skeleton age of the prosecutrix and as per the opinion of PW-13. the prosecutrix. at the time of her examination, was 13 to 15 years of age. During the course ofinvestigation. one chaddar Ex.P-1 of the bed on which the prosecutrix was sleeping at the relevant time was taken in possession by the investigating officer vide memo Ex.PW-3/A. On production by Meena Kumari. Sweater Ex.P-3 and shoes Ex.P-4 which the accused had left at the place of occurrence while slipping away after commission of the offence, were also taken in possession vide memo Ex.PW-3/B. On production by the accused, his shirt Ex.P-5 and pant Ex.P-6 were also taken in possession vide memo Ex.PW-3/C. The investigating agency further obtained and took in possession the Birth Certificate of the prosecutrix Ex.PW-3/D. entries in the Births and Deaths Register Ex.P\V-3/E and copy of the Pariwar Register Ex.PW-3/F vide memo Ex.PW-3/G. School Leaving Certificate of the prosecutrix Ex.PW-4/A was also taken in possession. The wearing apparels of the prosecutrix and the accused, the bed sheet and vaginal swab were sent for analysis to the State forensic Science Laboratory and the report received from the said Laboratory is Ex.PX. On being satisfied of the commission of an offence by the accused under Section 376 IPC. the officer incharge. Police Station. Karsog submitted a charge sheet against the accused who was tried by the learned Additional Sessions Judge. Mandi on a charge under Section 376 IPC. 3. To prove the charge against the accused, the prosecution examined 13 witnesses. Accused was examined under Section 313 Cr. P.C. wherein he denied the prosecution case and claimed to be innocent. He has further claimed that PW-2 and her relatives have planted a false case against him through the prosecutrix. The accused, however, did not lead any evidence in defence. 4. On consideration of the material on record, the learned Addl. Sessions Judge found the accused guilty of the commission of an offence punishable under Section 376 IPC and accordingly convicted and sentenced him as aforesaid. The accused, however, did not lead any evidence in defence. 4. On consideration of the material on record, the learned Addl. Sessions Judge found the accused guilty of the commission of an offence punishable under Section 376 IPC and accordingly convicted and sentenced him as aforesaid. Hence this appeal by the accused. 5. I have heard the learned counsel for the accused and the learned Assistant Advocate General for the State and have also gone through the records.; 6. It may be pointed out at the very outset that according to the prosecution version at the time of occurrence the prosecutrix was below 16 years of age and at the time of arguments it was not disputed by the learned counsel for the accused. Even otherwise, in view of the statements of prosecutrix (PW-1). her mother (PW- 2). Krishan Dev (PW-4). Roop Singh (PW-3) and Dr. S.K. Malhotra (PW-13). who has given opinion about the skeleton age of he prosecutrix. vide report Ext. PW-13 A read with certificate Ext. PW-4/A issued by PW-4. birth certificate Ext.PW-3/D. entry in the birth register Ext.PW-3/E and entries in the Parivar Register Ext. PW-3/F. it is full} and firmly established that at the time of occurrence the prosecutrix was below 16 years of age. 7. It was also not seriously disputed for the accused that on 20.7.2000 the prosecutrix was raped by someone. In view of the statements of the prosecutrix and PW-11 read with ML.C. Ext. PW-7/C there remains no doubt that the prosecutrix was subjected to sexual intercourse at the relevant time. 8. It was contended by the learned counsel for the accused that, as is the case of the prosecution, the occurrence took place at 4 a.m. when the prosecutrix and PW-11 were sleeping in the kitchen room of the house of the prosecutrix. At that time because of sufficient darkness the rapist could not be correctly and properly recognized and .identified by the concerned prosecution witnesses and it is a case of mistaken identity. To substantiate his contention, the learned counsel has submitted that the prosecutrix at the time of loading the F.I.R. has not made reference to any source of light-inside the room which could enable her and PW-I1 to identify the accused as the culprit. To substantiate his contention, the learned counsel has submitted that the prosecutrix at the time of loading the F.I.R. has not made reference to any source of light-inside the room which could enable her and PW-I1 to identify the accused as the culprit. The version of PW-1 and PW-11 that after entering the kitchen room the accused himself lit the lamp of kerosene oil and he was recognized by them is just an afterthought to wrongly implicate the accused as the rapist. It was further contended that about the manner, in which the rapist entered into the room, there are contradictions in the statements of the prosecutrix and PW-11. The version" of PW-2 that she saw the accused putting on his Pyjaina and while making good his escape from the place he had beaten up one Prakash. who was accompanying her when she reached her house, is just a concocted version and not substantiated for went of any such allegation having been made at the time of lodging the F.I.R. or at subsequent stage and for went of any corroboration even by the prosecutrix and non production of said Prakash. Thus, the statement of PW-2 also does not lend any support to the prosecution regarding he identity of the accused as the rapist. It was. therefore, further contended by the learned counsel that for want of correct identification of the accused as the rapist, the impugned conviction and sentence deserve to be set aside. 9. The accused was not an absolute stranger to the prosecutrix and PW-11. The prosecutrix has stated that the accused used to visit her house and was known to her. PW-11 has also stated that the accused was personal!} known to her as he used to visit the village frequently and on the evening prior to the occurrence he had come to the house of the prosecutrix. took his meals there and thereafter went to the "Mela1. Even the accused in his statement has admitted that on the evening of 19.7.2000 he had visited the house of the mother of the prosecutrix and left for the Mela1 at about 10 a.m. which admission makes it clear that the accused was earlier known to the prosecutrix and PW-11. 10. Even the accused in his statement has admitted that on the evening of 19.7.2000 he had visited the house of the mother of the prosecutrix and left for the Mela1 at about 10 a.m. which admission makes it clear that the accused was earlier known to the prosecutrix and PW-11. 10. The prosecutrix has stated that when the accused came in the room, he himself lit the lamp hf the kerosene and she recognized him and so is stated by PW-11. No doubt, it is not mentioned in the F.I.R. that the accused after entering the kitchen room lit the kerosene lamp, however, the investigation has not been directed to find out from the prosecutrix or PW-11 as to how they could see and recognize the accused. PW-12. the Investigator, who has also recorded the F.I.R.. on a court question has admitted that the prosecutrix and.;-PW-l 1 were not interrogated by him to ascertain as to how they Md identified the accused on the day of occurrence. A girl of about 15 years and another of about 10 years were not expected to give minute details of the occurrence to the Investigating Officer unless they were specifically questioned about the various aspects. The prosecutrix and PW-11 have been cross-examined at length to shake their veracity about the sitting up of the lamp by the accused after entering into the kitchen room but their statements remain unshaken and are reliable regarding proper identification of the accused by them. If the minute details of the occurrence were not given in the F.I.R. that does not render their statements unreliable. Thus, in view of the reliable version given by the prosecutrix and PW-11 the commission to mention in the F.I.R. that the accused had lit the lamp after entering into the kitchen room pales into insignificance. 11. The learned counsel for the accused has pointed out certain minor contradictions in the statements of the prosecutrix and PW-11 about the manner as to how the accused entered the kitchen room to perpetrate the crime. In Sand Lai v. Stale of HP. 2000 Cri. L.J. 3106. this Court held as under: - "18. The Court while appreciating the evidence must not attach undue importance to minor discrepancies which do not shake the basic version of the prosecution. In Sand Lai v. Stale of HP. 2000 Cri. L.J. 3106. this Court held as under: - "18. The Court while appreciating the evidence must not attach undue importance to minor discrepancies which do not shake the basic version of the prosecution. Such discrepancies may creep due to normal errors of perception and observe action and lapse of memory, therefore, should be given due allowance. As and when a doubt arises in respect of certain facts stated by a witness the proper course is to ignore such facts which may seem to be exaggerated unless the go to the root of the case so as to demolish it entirely." 12. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753). the Apex Court held as follows: "5. ...We do not consider it appropriate or permissible to enter upon a reappraisal or re appreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned counsel for the appellant. Over much importance cannot be attached to minor discrepancies. The reasons are obvious:- By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ" from person to person. What one may notice, another may not. An object or movement might emboss its image on one persons mind, whereas it might go unnoticed on the part of another. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. , In regard to exact time of a incident, or the time duration of a occurrence, usually, people make there estimates by quest work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operators on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. 6. Discrepancies which do not go to the root of the matter and sake the basic version of the witness, therefore, cannot be annexed with under importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witness. 7. It is not time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex offences. This court, in Rameslnvar v. State of Rajastalm. 1952 (3) SCR 377 at p. 386: (AIR 1952 SC 54 at p. 57). has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the court in Rameshwar may be replayed, across the time gap of three decades which have whistled past, in the inimitable voice of Vivian Bose. J.. "who spoke for the Court . The rule, which according to the cases has hardened into one of law. is not that corroboration is essential before there can be a conviction but that the necessity of conroboration. as a matter of prudence, except where the circumstances made it safe to dispense with it. must be present to the mind of the Judge. The rule, which according to the cases has hardened into one of law. is not that corroboration is essential before there can be a conviction but that the necessity of conroboration. as a matter of prudence, except where the circumstances made it safe to dispense with it. must be present to the mind of the Judge. The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in even case, be corroboration before a conviction can be allowed to stand." 13. In Appabhai & Anr: v. State of Gujarat AIR 1988 SC 696. the Apex Court held as follows: "13. On the second contention, the learned counsel highlighted many of the contradictions in the evidence of Devji (PW-4) as against his previous statement : one recorded by the Executive Magistrate (Ext.66) and another by the Police during the investigation. We have, however, also examined the relevant evidence. It is true that there are many contradictions in the evidence of Devji. He has not attributed overt acts to individual accused in his statement before the police whereas he has attributed such overt acts in his evidence before the Court. But that is no ground to reject his entire testimony. It must not be forgotten that he was a victim of the assault. Fortunately he has survived. He must, therefore, be considered as the best eye-witness. The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve" the evidence of such witnesses altogether if they are otherwise trustworthy. Jaganmohan Reddy. J.speaking for this Court in Sohrab v. State of Madhya Pradesh 1972 Cri. L.J. 1302 at I3O5:AIR 1972 SC 2020 at p. 2024 observed: "This Court had held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered." The contradictions pointed out by the learned counsel have to be examined and appreciated in view of the above settled position in law. 14. The first contradiction pointed out by the learned for the accused is that the door of the kitchen was opened by her as the accused knocked the same whereas according to PW-1 I the accused entered the kitchen room after opening the door. The other contradiction pointed out in their statements is that according to the prosecutrix the kitchen was bolted from inside whereas according to PW-1I the door was closed but was neither bolted from inside nor from outside, whereas according to PW-2 the kitchen door had no bolt either from outside or from inside. In so far as the door being bolted or not bolted or its having bolt or no bolt is concerned, is irrelevant for the reason that this confusion appears to have been created by the word "Band" of Hindi. The prosecutrix has stated that the kitchen door was "Band" from inside. PW-11 has also stated that door of the kitchen was "Band". The prosecutrix has stated that the kitchen door was "Band" from inside. PW-11 has also stated that door of the kitchen was "Band". However, in the English version of the statement of the prosecutrix it has been recorded that, "the kitchen was bolted from inside" whereas the version of PW-11 has been translated as the door of the kitchen was closed. The word Band thus apparently has been translated into English as bolted" in so far as the statement of the prosecutrix is concerned and as closed in so far as the version of the PW-11 is concerned. The word "Band" does not ordinarily convey "bolting". It will simply convey closed. Therefore, giving due preference to the Hindi version as is given to the statements of the witnesses, who have made their statements in vernacular, what emerges is that the prosecutrix has never stated that the door was bolted from inside but what she has stated is that the door was closed from inside which does not mean that the door was bolted. In any case. the statements of the prosecutrix an PW-11 and their respective ages have to be kept in view while appreciating these statements as per the legal position already stated hereinabove when examined, inview of the said legal position.these minor contradictions do not in any manner render their statements unreliable or unbelievable. 15. There is yet another undisputed circumstance which lend credence to the statements of the prosecutrix and PW-11. Neither these two witnesses nor any of their relatives have any enmity with the accused. Thus, there is not motive either suggested by the defence or inferrable from the facts and circumstances of the case which could have persuaded the prosecutrix or her mother to falsely implicate the accused in the commission of the offence. Unless a very strong motive exists, no person will make false accusation against a person whom he had served as a host at his house shortly before the occurrence. Even on this score the statements of the material prosecution witnesses cannot be disbelieved. 16. PW-2 when cross-examined for the accused has stated that w hen she and Prakash came to the house accused w as there and he w as putting on his Pyjama and gave beating to said Prakash and run away from the spot. Said Parkash has not been examined. 16. PW-2 when cross-examined for the accused has stated that w hen she and Prakash came to the house accused w as there and he w as putting on his Pyjama and gave beating to said Prakash and run away from the spot. Said Parkash has not been examined. May be that PW-2 has made an exaggerated statement about her having seen the accused wearing his Pyjama. giving beating to Parkash and then running away from the spot but that is not enough to discard the statements of he prosecutrix and PW-11 which are reliable and trustworthy. In the given circumstances, production of Parkas as a witness was not necessary. In view of the statements of the prosecutrix and PW-11. the correct and proper identification of the accused as the rapist cannot be doubted particularly when he was earlier known to them. Therefore, the impugned judgment does not call for any interference by this Court. 17. As a result, the present appeal merits dismissal and is accordingly dismissed.