Judgment V.K.Bali, J. 1. Appellants herein, having been found guilty of offence under Sections 376 and 342 Indian Penal Code, have been sentenced to undergo rigorous imprisonment for a period of five years each for the offence punishable under Section 376 Indian Penal Code as also to pay fine of Rs. 2000/- each, and in default thereof, to further undergo rigorous imprisonment for a period of one year. They have also been sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 342 Indian Penal Code. 2. Brief facts of the case giving rise to the present case are that Raj Kumari, aged 23 years, had come to Tanda, on 1.5.1990 to take her M.A. Panjabi Examination as a private candidate. She after taking her examination is stated to have gone to Talwara with one Rajinder Singh, PW4, stated to be her family relation, to meet somebody. She, however, could not find the person to whom she wanted to meet and in this process, they got late and were unable to get the last bus. In the circumstances aforesaid, she had no choice but for to stay in hotel. She alongwith her relation Rajinder Singh chose hotel Ashiana for their stay at night, least realising that she shall be subjected to rape by the appellants at dead of night. It is the prosecution case that the appellants herein, one after the other committed rape upon her regarding which, she made complaint Ex. PH in writing, which was endorsed by ASI Jagjit Singh, PW7, at 12.35 A.M. and on the basis of which, formal FIR Ex. PH/2 came to be recorded at 12.50 A.M., i.e., on the intervening night of 1/2.5.1990. 3. In its endeavour to bring home the offence against the appellants the prosecution examined Dr. (Mrs.) Harman Preet as PW2, who stated that she had examined the prosecutrix on 2.5.1990 at 9.30 A.M. The doctor found both the lips swollen with marks of teeth on the mucosa of both the lips. She also found scratch marks on her forearms. She took her vaginal swabs and vaginal smear slides and sent the same for chemical examination. The doctor also conducted the per vagina examination of Raj Kumari. On said examination, she found no matting of the pubic hair and marks of lacerations of the labia minora and labia majora.
She also found scratch marks on her forearms. She took her vaginal swabs and vaginal smear slides and sent the same for chemical examination. The doctor also conducted the per vagina examination of Raj Kumari. On said examination, she found no matting of the pubic hair and marks of lacerations of the labia minora and labia majora. She found no fresh bleeding from the hymenial area and similarly found no hymenial tags present. On 7.5.1990 she sent note regarding her observations to the S.H.O Police Station Talwara. She was again asked by ASI Jagjit Singh on 18.6.1990 by a written application to send her opinion in this behalf. Copy of application is Ex.PF. On 19.7.1990, ASI Jagjit Singh moved another application for her opinion. By that time, she had received the findings of the Chemical Examiner on the vaginal swabs and vaginal smear slide which had sent for chemical examination. Taking note of those findings, she was of the opinion that inter-course had been done with Raj Kumari. She gave her written opinion as Ex. PG on that behalf. Rajinder Singh PW4, who accompanied the prosecutrix, fully supported the prosecution case. Darshan Singh, who was examined as PW5, and who having his house near Ashiana hotel, after hearing the shrieks of the prosecutrix, arrived at the hotel and found that the accused were indulging in forcible sexual intercourse with the prosecutrix, also fully supported the prosecution case. Raj Kumari, the prosecutrix, who was examined as PW3, stated that after taking the examination, she had proceeded to Talwara alongwith her cousin Rajinder Singh. She had to see a relative, who was not available because he was out of station. She wanted to see him for a permanent job. She reached Talwara at about 4.30 P.M. and waited for her relative upto 6 or 7 P.M. because she had learnt from his mother that he was due to come back by that time. Her relative, however, did not return. In the process, she got late. After 6.00 P.M. there was no bus service from Talwara and one had to take a bus from Dasuya for onward journey. In this manner, she and her cousin then decided to stay at Talwara. They went to Ashiana Hotel. They hired a room in the said hotel in order to stay over night. They occupied the room after taking meals.
In this manner, she and her cousin then decided to stay at Talwara. They went to Ashiana Hotel. They hired a room in the said hotel in order to stay over night. They occupied the room after taking meals. At about 11.30 P.M., there was a knock at door. Rajinder Singh opened the door and found two persons present outside with muffled faces. Those persons removed Rajinder Singh from the room and raped her. Once the prosecutrix, even though, adhering to written complaint with regard to earlier portion when stated that the persons, who had raped her, had muffled their faces and she could not recognise them, was declared hostile and in the cross-examination, whereas, she confirmed her rape by two persons, she insisted that she could not recognise the accused persons present in the Court, as those, who had raped her, had muffled their faces. 4. The only question that needs adjudication by this Court in the context of the facts and circumstances of the present case is as to whether when two eye witnesses, one of whom, at least, is totally independent, have fully supported the prosecution case, would the contention raised by learned counsel for the appellants that since the prosecutrix did not support the case insofar as the identity of the accused is concerned, the whole prosecution case has to be rejected, has any merit ? This Court has given its thoughtful consideration to the contention of learned counsel, as noted above, but is of the view that when sufficient and ample corroboration comes from independent sources with regard to prosecution case, the Court can even rely upon the statement of a witness, who might have been declared hostile, particularly, when the said witness deviates from his/her version to a limited extent. It may be recalled at this stage that the prosecutrix had adhered to her complaint Ex. PH made before the police with regard to the entire occurrence upto the staying in the Ashiana hotel and being raped by two persons. She only deviates insofar as the identity of the accused is concerned. It is a case where she had back-tracked from her written complaint, wherein she had named the accused and had also stated that one was the owner of the hotel and the other was the employee.
She only deviates insofar as the identity of the accused is concerned. It is a case where she had back-tracked from her written complaint, wherein she had named the accused and had also stated that one was the owner of the hotel and the other was the employee. The fact that she was raped by the accused stands corroborated by PW4 Rajinder Singh and PW5 Darshan Singh, one of whom, i.e., Darshan Singh is absolutely an independent witness. A Division Bench of this Court in Om Parkash v. State of Haryana, 1995(1) RCR(Criminal) 69, held that statement of a hostile witness could be accepted to the limited extent at least to fix the place of occurrence as well as to prove the presence of PWs and that evidence of a hostile witness remains admissible in trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. The same view has been taken by the Honble Supreme Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat, 2000(1) RCR(Criminal) 26. In the present case the corroboration has not only come from the two eye-witnesses but also from medical evidence. 5. Having found no merit in this appeal, I dismiss the same. However, since the occurrence in this case pertained to the year 1990 and a period of more than 14 years have gone by, the Court is of the view that the interest of justice would be served if the sentence is reduced from five years to four years under Section 376 Indian Penal Code. So ordered. I may mention here that insofar as Malkiat Singh is concerned, his appeal has since already been abated as he is stated to have died. The order of reducing of sentence shall thus, only relate to appellant No. 2-Waryam Singh.