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Himachal Pradesh High Court · body

2004 DIGILAW 52 (HP)

INDER PAUL v. STATE OF H. P.

2004-03-22

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the appellant/accused (hereafter referred to as the accused) against the judgment dated 1.7.2003 passed by the learned Sessions Judge, Kangra at Dharamshala whereby the accused has been convicted under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 5 years and fine of Rs. 2,000 and in default of payment of fine to undergo further rigorous imprisonment for six months. 2. Briefly stated, case of the prosecution against the accused is that on 6.8.2001 the prosecutrix (PW-3) had gone to Nadoli forest to graze her cattle. At about 12 noon accused met the prosecutrix in the jungle and enquired from her if she had any knowledge about the whereabouts of his mules. The prosecutrix responded in the negative. Thereafter the accused caught hold of the prosecutrix and threw her on the ground The prosecutrix raised cries which were not heard by anyone. The prosecutrix then tried her best to get rid of the accused but could not succeed. The accused wrapped her Dupatta on her wrist and after removing her Salwar committed rape on her. After the commission of the crime, the accused took the Chappal and Drati of the prosecutrix and left the place. Because of the force used by the accused in the commission of the offence prosecutrix suffered injuries. After the occurrence the prosecutrix returned home but her husband was not present there. Then she went to the Police Post, Kotla and got recorded statement Ext. PW-3/A on the basis of which FIR Ext. PW-8/A was registered by MHC Vishesh Kumar (PW-8) at Police Station, Shahpur and the investigation followed. The prosecutrix was got medically examined and the MLC issued by Dr. Anuradha Chaudhary (PW-1) on examination of the prosecutrix is Ext. PW-l/B. At the time of medical examination of the prosecutrix her Salwar Ext. P-2, two glass slides of vaginal smear, smear from vulva, swab from vagina, blood sample and public hair Exts. P-3 to P-7 were preserved by PW-1 for the purpose of chemical analysis and were later sent for such analysis and the reports of the Chemical Examiner in this regard are Exts. PW-l/C and PW-1/ D. The accused was arrested and was got medically examined from Dr. Mohan Singh (PW-2) and the MLC about his medical examination is Ext. P-3 to P-7 were preserved by PW-1 for the purpose of chemical analysis and were later sent for such analysis and the reports of the Chemical Examiner in this regard are Exts. PW-l/C and PW-1/ D. The accused was arrested and was got medically examined from Dr. Mohan Singh (PW-2) and the MLC about his medical examination is Ext. PW-2/B. While in police custody the accused made a disclosure statement Ext. PW-4/A about the Chappal (Ext. P-10) and Sickle (Ext. P-11) as a consequence whereof Ext. P-10 and P-11 were recovered vide Memo Ext. PW-3/C. 3. On being satisfied of the involvement of the accused in the commission of the offence, the concerned S.H.O. submitted a charge-sheet against the accused who thus came to be tried by the learned Sessions Judge, Kangra at Dharamshala on a charge under Section 376 IPC. 4. To prove the charge against the accused, prosecution examined 10 witnesses. Statement of the accused udner Section 313 Cr.P.C. was recorded wherein the accused denied his involvement in the commission of the offence and claimed to be innocent. He has further stated that he had taken the mules to the jungle where he saw the prosecutrix and Kundan busy in their work and he is not aware as to what happened thereafter but he was arrested by the police after about 2-1/2 hours the accused led defence and examined four witnesses in his defence. 5. On consideration of the material on record, the learned Sessions Judge held the accused guilty of the commission of an offence under Section 376 IPC and accordingly convicted and sentenced him, as aforesaid. Being aggrieved, the accused has preferred the present appeal. 6. I have heard the learned Counsel for the appellant and the learned Deputy Advocate General for the respondent/State and have also gone through the records. 7. The learned Counsel for the accused had assailed the impugned conviction and sentence on the following grounds:— (i) That the statement of the prosecutrix is unnatural, tainted, improbable and untrustworthy; (ii) That there is no cogent and reliable evidence on record to lend assurance muchless corroboration to the statement of the prosecutrix; and (iii) That the defence of the accused that he has been falsely implicated to shut his mouth as he had seen the prosecutrix and one Kundan Lai in compromising terms in the jungle, is quite probable. Ground No. (i): 8. Ground No. (i): 8. It was contended by the learned Counsel for the accused that the statement of the prosecutrix is unnatural, tainted, improbable and untrustworthy. To substantiate his contention, the learned Counsel has submitted that as per the site plan Ext. PW-9/B, the place of commission of rape is shown at Point C and the prosecutrix was alelgedly taken to Point C from Point B which is just by the side of a public path whereas it is improbable that the accused might have caught hold of the prosecutrix by the side of the public path and then dragged her to Point C. It was further contended that admittedly other villagers also graze their cattle in the jungle where the prosecutrix was grazing her cattle at the relevant time. It is, therefore, improbable that the accused in such a situation could have committed rape on her and. it is also improbable that her cries were not heard by anyone. It was further contended that the prosecutrix admittedly was in possession of a Drati a sharp edged weapon and that it is improbable that the accused would have caught hold of the prosecutrix who was armed with a Drati. These improbabilities, urged the learned Counsel, render the statement of the prosecutrix highly suspicious and unworthy of any credence. 9. It may be pointed out here that by now it is well settled thta while evaluating the evidence of a victim of rape, the Courts must remain alive to the fact that no self respecting woman would come forward in a Court just to make a humiliating statement against her honour as is involved in the commission of rape on her. It can also not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of an offence, therefore, her evidence must be given the same weight as is attached to an injured in a case of physical violence and the degree of care and caution in evaluating the eivdence of the prosecutrix should be the same as in the case of an injured complainant or witness and no more. 10. 10. In the case in hand, the prosecutrix is a married woman, therefore, she cannot be expected to make false statement against the accused with a view to implicate him because such allegation will not only lower down her in the estimation of others but she may lose the respect and love of her husband and even children. It is in view of the above legal and factual aspects that the evidence of PW-3 has to be appreciated. 11. A perusal of the statement of the prosecutrix (PW-3) reveals that she had made a categorical statement about the commission of rape on her by the accused and has also stated that in the occurrence she suffered injuries on her lips, ribs and leg and that after the commission of rape the accused took her Drati and Chappal with him. Apparently there is nothing in her cross-examination which may raise any doubt about the trustworthiness of her statement. There is nothing on record to show that the path which leads by the side of Point B as shown in site plan Ext. PW-9/B is a busy path in continuous use of the masses. It may be pointed out that the accused had admitted his presence on the spot but there is no suggestion that at the relevant time even a single person had passed through the said path. Point O is 48 Kadam (120 Feet) deep into the jungle and is not shown visible from the said public path. It is also not suggested to the prosecutrix that at the relevant time cattle of any person other than the prosecutrix were grazing in the concerned area or any other person was present in the jungle for the purpose. Therefore, merely because at the place where the accused caught hold of the prosecutrix there is a path or ordinarily other people also graze their cattle in the jungle but none heard the cries the version of the prosecutrix is not rendered improbable. 12. It is neither the case of the accused by way of suggestion to the prosecutrix nor can be assumed that the prosecutrix at the time when she was caught hold of by the accused was actually having the Drati in her hand which she could use as a weapon of defence against the accused. 12. It is neither the case of the accused by way of suggestion to the prosecutrix nor can be assumed that the prosecutrix at the time when she was caught hold of by the accused was actually having the Drati in her hand which she could use as a weapon of defence against the accused. Ordinarily when a person is grazing cattle in the jungle and is sitting somewhere will not carry such like weapon in the hand but will keep it apart. It also emerges from the version of the prosecutrix that in fact the accused first engaged her in the talk by making queries about the whereabouts of his mules and immediately thereafter caught hold of the prosecutrix. In such a situation unsuspecting prosecutrix could not get ready for her defence, therefore, the mere fact that the prosecutrix while going to the jungle to graze her cattle was armed with a Drati does not render her statement improbable. The perusal of her statement further reveals that it is devoid of any improbability or infirmity and is confidence inspiring. Therefore, the contention for the accused that the statement of the prosecutrix is unnatural, tainted, improbable and untrustworthy is devoid of any merit. Ground No. (ii): 13. It was next contended by the learned Counsel for the accused that there is no cogent and reliable evidence on record to lend assurance muchless corroboration to the statement of the prosecutrix. Elaborating the contention, the learned Counsel submitted that the medical evidence regarding finding of injuries on the person of the prosecutrix and that of the accused, the reports received from the Forensic Science Laboratory and the recoveries of Chappal and Drati allegedly at the instance of the accused are unreliable and incapable of connecting the accused with the commission of the offence. It was submitted that neither in the MLC regarding medical examination of the prosecutrix nor in the M.L.C. regarding medical examination of the accused duration of the injuries found on their person at the time of their medical examinations have been specified and in the absence of opinion about the duration/age of the injuries it could not be said that such injuries were the result of any scuffle or resistance at the relevant time. It was further submitted for the accused that two of the slides of vaginal smear of the prosecutrix were found broken in the Laboratory and when the containers of incriminating articles were produced in the Court these were found to have the seals and signatures of the Doctros who had preserved these articles whereas in the event of chemical analysis of these articles in the laboratory and their return to the police these should have been sealed with the seal of the Laboratory. It was further contended for the accused that mere finding of the semen and blood in the smear and swab does not suggest commission of rape on the prosecutrix because there is no evidence that after the time of the alleged occurrence the prosecutrix had no occasion to remain with her husband till her medical examination. Thus, the medical evidence, including the reports received from the State Forensic Science Laboratory, does not in any manner lend support to the statement of the prosecutrix. 14. A perusal of the M.L.C. Ext. PW-l/B regardign medical examination of the prosecutrix and the evidence of PW-1 reveals that the case history given by the prosecutrix to the Doctor was that while she had gone to the forest to graze her cattle she was raped by the accused. On examination following injuries were found on the person of the prosecutrix: 1. There was swelling lower lip, purplish in colour; 2. Abrasion on the right fore-arm, approximately (4-5 cms) from writ joint reddish in colour size 8x5 cms. 3. Reddish bruise right side back between 10th to 12th ribs. 4. Patient was complaining pain in right thigh, upper lateral portion. It was also found that there was laceration of labia minora on the left side which was reddish in colour and that such injuries were capable of being caused because of resistance by the woman sought to be raped. Similarly a perusal of M.L.C. Ext. PW-2/B and statement of PW-2 regarding medical examination of the accused reveals that the accused was capable of having sexual intercourse. There were three scratch marks on his left fore-arm and multiple scratch marks on right leg capable of being caused by scratches by nail in the process of a woman resisting forcible intercourse. 15. It is no doubt true that neither PW-1 while preparing MLC Ext. There were three scratch marks on his left fore-arm and multiple scratch marks on right leg capable of being caused by scratches by nail in the process of a woman resisting forcible intercourse. 15. It is no doubt true that neither PW-1 while preparing MLC Ext. PW-1 /B about the medical examination of the prosecutrix PW-2 while preparing MLC Ext, PW-2/B regarding medical examination of the accused had given the duration of the injuries on the persons of the prosecutrix and the accused. It is also true that when PW-1 and PW-2 were examined for the State the concerned Prosecutor did not take due care and caution to elicit the opinions from PW-1 and PW-2 about the duration of such Injuries. However, dereliction of duty on their part is not sufficient to reject the evidence regarding finding of the injuries on the person of the prosecutrix and the accused, which, as per the medical opinion, were capable of being caused in case of forcible sexual intercourse and due to resistance by the woman sought to be subjected to rape. It is the initial version of the prosecutrix as given in the FIR Ext, PW-8/A and later affirmed by the prosecutrix on oath that she had sustained injuries because of the sexual assault on her by the accused. There is no specific suggestion that these injuries were sustained by the accused and the prosecutrix because of any causes other thant eh struggle at the time of the commission of rape. The statement of the prosecutrix in this regard remains unchallenged regarding the sustaining of the injuries by her at the time of the commission of rape on her. Thus there is no reason to disbelieve her version that the aforesaid injuries were sustained by her at the time of commission of the rape. The accused himself has admitted that he was medically examined but has failed to explain the injuries on his person because of any cause other than the resistance offered by the prosecutrix at the time of the occurrence. These facts do not permit any conclusion other than the conclusion that these injuries were sustained by the accused at the time of rape. 16. As per the reprot Ext. PW-l/C regarding analysis of the articles sent to the Chimical Examiner human semen was found on vaginal smear slides and bloods was found in vaginal swab of the prosecutrix. These facts do not permit any conclusion other than the conclusion that these injuries were sustained by the accused at the time of rape. 16. As per the reprot Ext. PW-l/C regarding analysis of the articles sent to the Chimical Examiner human semen was found on vaginal smear slides and bloods was found in vaginal swab of the prosecutrix. It is, however, true that as per this reprot the two vaginal smear slides were found broken when opened in the Laboratory. Nevertheless the report also reveals that the contents thereon were apparent and noticeable and are not reported to be incapable of analysis. The container containing the vaginal swab was found intact. The mere breaking of the two slides, therefore, does not render the findings in the report as dobutful or incapable of being accepted as correct but are suggestive of the fact that sexual intercourse was committed with the prosecutrix before preserving of these articles. 17. As per the reprot Ext. PW-l/C when these articles were opened in the Laboratory, the seals of the Doctor affixed to them were found intact and the parcels were opened with the process of cutting and not by tearing, therefore, if these articles were received back and produced in the Court the signatures and seals of the Doctor thereon were still identifiable that will not invariably suggest change of or bungling with the articles. 18. There is unchallenged statement of the prosecutrix that after the occurrence she came to her house but her husband was not there. Then she went to Police Post, Kotla where she made her statement Ext. PW-3/ A and after recording of such statement she was taken to the Hospital where she was medically examined. In view of this statement, the contention that there is no evidence to show that after the occurrence the prosecutrix had no occasion to met her husband till her medical examination is without any merit and substance. 19. According to the prosecution, after the commission of rape the accused had taken away the Chappal and Drati of the prosecutrix. It is so stated by the prosecutrix and not challenged in her cross-examination by appropriate suggestion(s) to the contrary. According to the prosecution, the accused made the disclosure statement Ext. PW-4/A about the place where he had kept these articles. This disclosure statement and consequential recovery vide Memo Ext. It is so stated by the prosecutrix and not challenged in her cross-examination by appropriate suggestion(s) to the contrary. According to the prosecution, the accused made the disclosure statement Ext. PW-4/A about the place where he had kept these articles. This disclosure statement and consequential recovery vide Memo Ext. PW-4/C are witnessed by Piare Lal and Ramesh Kumar. Out of these two witnesses Ramesh Kumar (PW-4) has been examined by the prosecution who has stated that disclosure statement Ext. PW-4/A was made by the accused and that pursuant to such statement accused got recovered one sickle and V-shaped Chappal which were taken in possession by the police vide recovery Memo Ext. PW-3/C. Tehre is nothing in the cross-examination of this witness which may create any suspicion about the making of the disclosure statement and getting the Chappal Ext. P-10 and Drati Ext. P-ll recovered by the accused. In this regard ASI Barfi Ram (PW-9) has also fully supported the prosecution version. 20. The above discussion leads me to the conclusion that the medical evidence, including the report of the Chemical Examiner and the recovery vide Memo Ext. PW-3/C lend full corroboration to the confidence inspiring statement of the prosecutrix. Therefore, the cotnention to the contrary cannot be sustained. Ground No. (iii) 21. The defence of the accused, as revealed in his statement under Section 313 Cr.P.C. is that he had gone to the jungle to graze his mules where the prosecutrix and one Kundan Lal met him. They were busy in their work and the accused is not aware as to what happened thereafter. He has not clarified as to in what work the prosecutrix and Kundan Lal were busy. However, it has been suggested to the prosecutrix that she had illicit intimacy with said Kundan Lal and that once she had eloped with said Kundan Lal and that at the time of the alleged occurrence in fact she was seen by the accused in compromising position with him. All these suggestions have been denied by the prosecutrix. It is also the defence of the accused that even the husband of the prosecutrix has lodged complaints with the authorities about the prosecutrix havign eloped with said Kundan Lai and even in this case Kundan Lai had filed an application for anticipatory bail because he was the real culprit. 22. All these suggestions have been denied by the prosecutrix. It is also the defence of the accused that even the husband of the prosecutrix has lodged complaints with the authorities about the prosecutrix havign eloped with said Kundan Lai and even in this case Kundan Lai had filed an application for anticipatory bail because he was the real culprit. 22. Regarding complaint by the husband of the prosecutrix, namely, Piaie Lal, accused examined Ajay Kumar (DW-2) and husband of the prosecutrix (DW-4) DW-4 has stated that he had not filed application Mark X to the Deputy Commissioner, Kangra, though his signatures were obtained by one Lal Chand, Ward Panch but he did not put his thumb mark on the affidavit. Thus, the application Mark X is not proved to have been made by DW-4. Even DW-2, Ahalmad of the Deputy Commissioner, to whom the complaint/application Mark-X purports to have been addressed had stated that there is no record in DCs office regarding receipt of application Mark-X. Thus, the alleged maker and the recipient of this application have denied the correctness 23. To prove that the prosecutrix had eloped with Kundan Lal, reliance has been placed on the evidence of Vishesh Kumar (DW-3) who has produced copy of report Daily Diary Ext. Dw-3/A. Evidently, this report does not contain the allegation that the prosecutrix had eloped with Kundan Lai. In fact, it is about the missing of the prosecutrix and it is indicated in the report itself that as per the version of the son of the prosecutrix she had gone to Beas. Thus, the allegation that the prosecutrix had eloped with Kundan Lal is also not established. 24. Mast Ram (DW-1) has produced the record of the anticipatory bail application filed by Kundan Lal copy whereof is Ext. DW-l/A and the order passed thereon by the concerned Court is Ext. PW-1 /B. The contents of the application no doubt suggest that said Kundan Lal was apprehending his arrest in the case registered against the accused. However, in the case already registered vide FIR Ext. PW-8/A there is no allegation on the basis of which said Kundan Lal could have been arrested. The application was dismissed for the sole reason that no case was registered against him. 25. However, in the case already registered vide FIR Ext. PW-8/A there is no allegation on the basis of which said Kundan Lal could have been arrested. The application was dismissed for the sole reason that no case was registered against him. 25. The application Mark-X is dated 10.8.2001 containing the allegation that the prosecutrix and Kundan Lal were busy in sexual activities when the accused reached there and that he was beaten up by them. This application purports to have been made by Piare Lal to the Deputy Commissioner, Kangra. The anticipatory bail application of the accused is dated 13.8.2001 and was dismissed on 16.8.2001. The application Mark-X which is neither owned by the husband of the prosecutrix as its author nor was ever received in the DCs office could be a probable cause for Kundan Lal to apprehend his false implication in the case which could lead him to file the application for anticipatory bail, therefore, the mere fact that Kundan Lal had filed the application for anticipatory bail does not lead to the conclusion that the accused is innocent and has not committed the rape as alleged. In the given circumstances of the case, there is a strong possibility of Mark-X having been manipulated by the accused to defend himself. It is moreso when the accused has not explained as to how and from where he came to possess Mark-X. It cannot, therefore, be stated that the defence of the accused regarding his false implication in the case is quite probable. 26. As already stated hereinabove, the statement of the prosecutrix is cogent, consistent and confidence inspiring. It is further corroborated by medical evidence and the recovery of Chappal Ext. P-10 and Drati Ext. P-ll of the prosecutrix at the instance of the accused. Therefore, on the basis of the material on record, the learned trial Judge had rightly come to the conclusion that the accused was guilty of the commission of an offence punishable under Section 376 IPC. The impugned conviction and sentence, therefore, do not call for any itnerference. 27. It was also contended by the learned Counsel for the accused that in the event of maintaining the conviction of the accused a lenient view in the matter of punishment may be taken. The impugned conviction and sentence, therefore, do not call for any itnerference. 27. It was also contended by the learned Counsel for the accused that in the event of maintaining the conviction of the accused a lenient view in the matter of punishment may be taken. There is no reason to show any more leniency to the accused in the matter of sentence because he has already been shown more leniency than deserved by the learned Sessions Judge while awarding the sentence, 28. As a result, there is no merit and substance in the present appeal which is accordingly dismissed. 29. Before parting with the case, it may be observed that Dr. Anuradha Chaudhary and Dr. Mohan Singh of CHC Shahpur had not given the ages/ durations of the injuries found by them respectively on the persons of the prosecutrix and the accused despite the MX.C. format having a special column for the purpose. To say the least, it is not fair to do so inasmuch as the guilt or innocence of a person charged with the offence of rape, causing hurt etc. may be proved from the injury found on the body of the victim or the assailant because its appearance/age may or may not correspond to the time when such injury was inflicted/sustained. Similarly, while examining the aforesaid Doctors as witnesses in the case the Prosecutor conducting the case for the State had not taken care at least to put questions to the aforesaid Doctors to opine about the durations of injuries in question, if possible, on the basis of the contents of the M.L.Cs. Only three eventualities can be responsible for such a situation i.e. (i) either all these three were not well versed with the manner in which they were to discharge their duties; or (ii) they were negligent in the discharge of their duties; or (iii) it may be a deliberate act. In any case serious lapses were committed by them. It is hoped that the State of Himachal Pradesh will ensure that its employees belonging to the classes of the aforesaid persons do not repeat such serious lapses in the discharge of their official duties in future. 30. A copy of this judgment be sent to the Chief Secretary to the Government of Himachal Pradesh for doing the needful under intimation to the Registry of this Court. -