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Himachal Pradesh High Court · body

2005 DIGILAW 15 (HP)

VED PARKASH v. STATE OF HIMACHAL PRADESH

2005-01-07

M.R.VERMA

body2005
JUDGMENT M.R. Verma, J.—This appeal has been preferred by the appellant/ accused (hereafter referred to as the accused) against the judgment dated 22.9.2004 convicting him under Section 376 of the Indian Penal Code and me order dated 24.9.2004 whereby he has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo rigorous imprisonment for one year. 2. Case of the prosecution in brief is that the prosecutrix (PW-1) wife of Madan Lal (PW-2) was present in her house alongwith her children on 15.8.2000 and PW-2 had gone to Keylong. PW-1 usually remained ill. At about 8.45 p.m. the accused went to her house. He was offered tea and food. He disclosed that he had brought Dhuni for the treatment of the prosecutrix and the prosecutrix was to be treated in a lonely place. The children of the prosecutrix were then sent to another room. The accused bolted the door of the room where he and the prosecutrix were, caught hold of the prosecutrix and made her to lay on the cot. Thereafter he tore her salwaar and committed rape on her. In the meanwhile, PW-2 returned home and on suspicion he bolted the door of the room from outside. In the meanwhile, one Bhagwan Dass on being called by PW-2 also came on the spot. Thereafter the occurrence was reported to the police vide F.I.R. Ext.PW-1/A alleging that the accused pretending to treat the prosecutrix with Dhuni committed rape on her The prosecutrix was got medically examined and the M.L.C. on such examination issued by Dr. Renu Behl (PW-4) is Ext. PW-4/A. At the time of medical examination of the prosecutrix her wearing apparels and vaginal smear slides were taken in possession for the purpose of chemical analysis. On arrest of the accused, he was also medically examined and vide M.L.C. Ext.PX it was opined that he was capable of performing sexual intercourse. At the time of his medical examination his Payjama was also taken in possession for chemical analysis. The wearing apparels of the prosecutrix and the accused taken in possession, as aforesaid, were chemically analyzed in State Forensic Science Laboratory and as per the opinion vide report Ext.PY human blood was found on the Salwaar and vaginal smear of the prosecutrix and the Payjama of the accused. The wearing apparels of the prosecutrix and the accused taken in possession, as aforesaid, were chemically analyzed in State Forensic Science Laboratory and as per the opinion vide report Ext.PY human blood was found on the Salwaar and vaginal smear of the prosecutrix and the Payjama of the accused. On the Dupatta of the prosecutrix human blood was found. On completion of the investigation, a chargesheet was submitted against the accused who came to be tried on a charge under Section 376 of the Indian Penal Code. 3. To prove the charge against the accused, prosecution examined as many as nine witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was recorded wherein he admitted his presence in the house of the prosecutrix but denied the evidence regarding committing rape on her and claimed to be innocent. It was further claimed that he used to treat the prosecutrix as he is a Pujari of Bhima Kali and the prosecutrix used to come for treatment in the temple and sometimes she used to call the accused to her house for treatment and on the relevant day he had gone to the house of the prosecutrix to treat her. The accused, however, did not lead any defence. 4. On appreciation of the evidence on record, the trial Court found the accused guilty of the commission of an offence punishable under Section 376 of the Indian Penal Code and accordingly convicted and sentenced him, as aforesaid. Hence, this appeal by the aggrieved accused. 5. I have heard the learned Counsel for the accused and the learned Deputy Advocate General for the respondent/State and have also perused the relevant records. 6. It was contended by the learned Counsel for the accused that the statement of the prosecutrix is not confidence inspiring and she has made a tutored statement at the instance of her husband. She has not stated anything about the resistance having been offered by her to the accused and admittedly cried only after the alleged sexual intercourse with her by the accused and not immediately before or during the process of such intercourse. It is her admitted case that there are so many houses in the locality and had she cried some one would have come forward for her help but none heard her cries. It is her admitted case that there are so many houses in the locality and had she cried some one would have come forward for her help but none heard her cries. There is contradictory version as to who had lodged the F.I.R. inasmuch as the prosecutrix claims that she had reported the occurrence to the police whereas her husband (PW-2) claims that he reported the occurrence to the police. Statement of PW-2 who has been examined to corroborate the statement of the prosecutrix is also unreliable for the reason that he claims to have broken the pane of the window to see as to what was happening inside the room but the broken pane of the window has not been taken in possession by the Investigating Agency nor in the sight plan he has mentioned any window in the room wherein the alleged occurrence took place. It was also contended that no live or dead spermatozoa were seen in the smear of the prosecutrix on examination under microscope. Therefore, contended the learned Counsel, the charge against the accused was not proved and the impugned conviction and sentence are liable to be set aside. To substantiate his contentions, the learned Counsel relied on Shobha Ram and another v. State of Himachal Pradesh (Latest Himachal Law Judgment 2004 (HP) 491), Jeet Ram v. State of Himachal Pradesh, (2003(2) Latest Himachal Law Judgment (HP) 863) and State of Karnataka v. Mapilla P.P. Soopi, (2003) 8 SCC 202. 7. On the other hand, the learned Deputy Advocate General contended that the law is settled that statement of the prosecutrix in a rape case cannot be lightly brushed aside and can form the basis for conviction. In the case in hand, the statement of the prosecutrix (PW-1) is not only confidence inspiring and capable of acted upon but also corroborated by the evidence of her husband (PW-2) and the medical evidence to the effect that injuries were found on the person of the prosecutrix which could have been caused because of the resistance to the act of rape and furthermore human semen was found on her Salwaar, vaginal smear slides and Payjama of the accused and human blood was found on her Dupatta vide report received from the State Forensic Science Laboratory Ext. PY. PY. Thus, the charge against the accused is fully proved and the impugned conviction and sentence do not call for any interference. 8. It may be pointed out at the very outset that by now it is well settled that conviction of a person accused of the commission of rape can be based on the sole testimony of the prosecutrix because she is not an accomplice but victim of the offence, hence, the injured person. Her evidence can also not be suspected for the reason that no self respecting woman would come forward to lower her dignity and self esteem by making false allegations of rape on her. Therefore, a conviction can be based on the statement of the prosecutrix when her statement is found cogent, reliable and confidence inspiring. In case for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look into other evidence which may lend assurance to her testimony. In a case where the prosecutrix is adult and of full understanding the Court can base conviction on her evidence unless shown to be infirm or untrustworthy. In case the prosecutrix has no motive to falsely implicate the accused the Court should ordinarily have no hesitation in accepting her evidence. 9. In State of Punjab v. Gurmit Singh (1996 (2) SCC 384), the Apex Court held as under:— "21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womens rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Referring to an earlier judgment in Chandraprakash Kewalchand Jain case this Court in Gurmit Singh case held : (SCC pp. 395-97, paras 8-9) "The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed without doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecution may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must 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 another persons lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra v. Chandraprakash Keivalchanu Jain Ahamadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarized the position in the following words: (SCC P. 559, para 16) A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which required it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We are in respectful agreement with the above exposition of law. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence. We are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any corroboration. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix." 10. The above has been the constant view of the Apex Court regarding the appreciation and value of the evidence of a prosecutrix in a case of rape. Therefore, it is in view the above settled position in law that rival contentions of the learned Counsel for the parties are required to be examined. 11. It is not in dispute that on the relevant day the prosecutrix, alongwith her children, was present in the house and her husband had gone to Keylong. It is also not in dispute that the prosecutrix used to remain ill and was under the treatment of the accused a Pujari by profession. It is admitted case of the accused that at the relevant time and date he had gone to the house of the prosecutrix to treat her. Thus, there is no dispute that at the relevant time the accused was present in the house of the prosecutrix. It is in the evidence of the prosecutrix that after the accused had taken his meals in her house he sent the children of the prosecutrix to another room and bolted the door of the room from inside and also got the gate of the house locked. Thereafter, the accused tore the Salwaar of the prosecutrix and committed forcible sexual intercourse with her. In the meanwhile, her husband also returned home. Thereafter, she went to the police station alongwith her husband and lodged the report Ext.PW-1 /A which was recorded as per her version and which bears her signatures. Thereafter, the accused tore the Salwaar of the prosecutrix and committed forcible sexual intercourse with her. In the meanwhile, her husband also returned home. Thereafter, she went to the police station alongwith her husband and lodged the report Ext.PW-1 /A which was recorded as per her version and which bears her signatures. In the cross-examination she has admitted that prior to the occurrence she had been visiting the accused for treatment and the accused also used to come to her house to treat her. It is also in her evidence that when her son had locked the gate of the house as instructed by the accused, the accused started treating her which took about 5 to 10 minutes. She has admitted the suggestion that the door was bolted by the accused in order to treat her and after having treated her he told her to take rest. She has denied that she was not subjected to rape by the accused or that he has falsely been implicated. Her evidence seems to be quite natural except her statement that she raised cries after the rape had been committed on her. 12. It may be pointed out here that as per the version of the prosecutrix and the medical evidence on record it will not make much of the difference as to at what point of time the prosecutrix raised cries because her precise version about the commission of rape is that at the first instance accused tore her Salwaar and thereafter committed forcible sexual intercourse with her. Her statement that her Salwaar was torn by the accused finds corroboration from the statement of Dr. Renu Behl (PW-4) who had taken the wearing apparels of the prosecutrix in possession at the time of her medical examination and has stated that the Salwaar of the prosecutrix which as per the prosecutrix was not changed after the occurrence was found torn at the seem of the central portion thereof and her wearing apparels were stained with blood and discharge. Further version that the sexual intercourse with her by the accused was forcible is corroborated by the fact that at the time of her medical examination minor abrasions with clotted blood were found on her left wrist and forearm and she complained of pain in both hands though no external injury was visible, therefore, the version of the prosecutrix that she was subjected to rape by the accused cannot be brushed aside simply for the reason that she had stated that ^he cried after the commission of rape on her. She had no motive to falsely implicate the accused who was admittedly treating her. It may also be pointed out here that the version of the prosecutrix that 3 or 4 days prior to the occurrence her husband had left the house and had gone to Keylong. Thus, she was not in the company of her husband for a couple of days before the occurrence. However, on chemical analysis of her Salwaar and vaginal smear slides human semen was found present which is indicative of the act of sex having been performed with the prosecutrix. Similarly, in the Payjama of the accused human semen stains were found vide report Ext.PY. When questioned vide Question No. 22 in his statement under Section 313 Cr.P.C. the accused had not explained that the semen on his Payjama was because of any reason other than his having committed rape on the prosecutrix. In view of this undisputable situation, it is inconsequential that on examination under microscope in the hospital no spermatozoas were found in the vaginal smear. Thus, the statement of the prosecutrix cannot be disbelieved on the basis of the contentions raised for the accused. 13. PW-2 lends corroboration to the statement of the prosecutrix to the extent that he returned home on the day of occurrence at about 10 p.m. and was informed by his children that the accused was in the house and was treating the prosecutrix. Then he proceeded towards the room where the accused was and on getting suspicious bolted the room from outside and then after breaking a window pane saw the accused in the room in naked condition alongwith his wife who was on the bed and was crying. He called one Bhagwan Dass and after his arrival made inquiries from his wife who informed him that the accused had committed forcible sexual intercourse with her. He called one Bhagwan Dass and after his arrival made inquiries from his wife who informed him that the accused had committed forcible sexual intercourse with her. In his cross-examination, there is nothing which may render his testimony unreliable. No motive has been imputed to him to falsely implicate the accused except the suggestion that he was suspicious of the character of his wife, therefore, he manipulated this story to implicate the accused. If PW- 2 was suspicious of the character of the prosecutrix there is no reason for him to falsely implicate the accused who had admittedly been treating his ailing wife. Thus, the otherwise reliable statement of the prosecutrix finds corroboration on material particulars from the evidence of PW-2 and the medical evidence hereinabove referred to and it cannot be said that the impugned conviction and sentence are based on unreliable, untrustworthy or uncorroborated evidence of the prosecutrix. 14. The contention that no window has been shown in the room where the occurrence took place nor the broken window pane pieces had been taken into possession by the Investigating Officer may be a minor lapse in collecting evidence by the Investigating Officer but has no adverse bearing on the case of the prosecution. Similarly the contention that the prosecution case must fail for want of production of Pravesh Kumar son of the prosecutrix and Bhagwan Dass is unsustainable because they were given up by the prosecution on the ground that they were merely repetitive. 15. In Shobha Rams case (supra), the evidence of the prosecutrix was disbelieved by this Court on the ground that her statement was found self contradictory, self destroying and non confidence inspiring and there was no other evidence lending assurance to the version of rape on her by the accused therein as is not the case here, therefore, the ratio of the case does not lend any help to the accused. 16. In Jeet Rams case (supra), the conviction of the accused under Section 376 I.P.C. was set aside because there was delay of five days in reporting the occurrence to the police which was not explained and it was admitted by the material witnesses that before their making the statement in the Court the police had informed them of the facts to be stated by them. In the case in hand, there is nothing on the record from which it may be inferred that the prosecutrix had been tutored by someone to make a false statement to implicate the accused, hence, the ratio in the case relied is also not applicable to the facts of this case. 17. In Mapillas case (supra) the Apex Court disbelieved the version of the prosecutrix on the ground that she had stated that immediately after the respondent entered her house she raised an alarm but despite her children and other adults near about the house of the victim none responded to the said alarm whereas the witnesses examined stated that they had heard the alarm but by the time they went to the place of incident they could only see the accused walking away. It was, therefore, concluded that the prosecutrix had raised alarm only after the respondent had walked away from the house. This fact was further coupled with the fact that there were no injuries on the person of the prosecutrix indicating any use of force against her person. The facts of this case are thus not identical to the facts of the case in hand because herein at the time of medical examination of the prosecutrix injuries were found on her person which are suggestive of struggle. In the case in hand, the prosecutrix appears to have been unsuspectingly trapped by the accused on the pretext of treating her and her not raising cries at the first instance when the accused tore her Salwaar and forced her to sexual intercourse may be because the prosecutrix was struggling in silence as is suggested by the injuries on her person, so that the incident is not exposed to her young children. 18. In view of the above discussion and conclusions, there is no infirmity in the conclusions arrived at by the trial Court after due appreciation of the evidence on record, therefore, the impugned conviction and sentence does not call for any interference. 19. As a result, this appeal merits dismissal and is accordingly dismissed. Appeal dismissed.