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Uttarakhand High Court · body

2008 DIGILAW 342 (UTT)

Mahesh Singh v. State

2008-07-31

J.C.S.RAWAT

body2008
Judgment This appeal has been directed against the judgment and order dated 16.03.2002, passed by learned Sessions Judge, Tehri Garhwal in S.T.No. 17 of 2000, whereby the accused/appellant has been convicted & sentenced to undergo rigorous imprisonment for 10 years under section 376 Indian Panel Code, 1860 (for brevity as I.P.C.) and a fine of Rs.10,000/-. In default of payment of fine, the accused/appellant shall further undergo one year R.I. The accused/appellant was also convicted and sentenced to undergo six months R.I. u/s 323 I.P.C. and a fine of Rs. 1,000/-. In default of payment of fine, the appellant shall further undergo one month S.I. It was further directed that both the sentences would run concurrently. 2. Brief facts as emerges from the record are that the victim went to her cattle shed at about 10:00 a.m. on 26/03/2000 to feed her buffaloes. The accused/appellant suddenly emerged there and caught hold of the victim, took her inside the room and compelled her to lie down on the ground. The victim raised alarm and also resisted the accused/appellant to commit the forcible sexual assault on her. The accused/appellant also gave her beating and compelled her to submit her to his barbarous desires. Thereafter, the accused/appellant committed rape upon the victim and threatened her that if she would disclose this fact to anybody she would be killed. During the course of the commission of the offence, the victim had suffered several injuries on her person and her clothes were also torn to some extent. During the course of the offence, the victim became unconscious and after regaining consciousness, she left for home and narrated the entire incident to her mother-in-law and jethani Smt. Lakheri Devi. There was no male members in the house of the victim, therefore, the victim went to her parental house on the next day morning and narrated the entire incident to her brother Kishore Kumar. Kishore Kumar scribed the report and brought the victim in the office of S.D.M. Pratapnagar where a report was submitted on 27/03/2000. Thereafter, the Naib Tehsildar who was holding the charge of S.D.M. directed the Patti Patwari Budkot to register the case and do the needful in accordance with the law. The report was lodged with the Patti Patwari and the victim was medically examined by the doctor on 28/03/2000. Thereafter, the Naib Tehsildar who was holding the charge of S.D.M. directed the Patti Patwari Budkot to register the case and do the needful in accordance with the law. The report was lodged with the Patti Patwari and the victim was medically examined by the doctor on 28/03/2000. The Patti Patwari also brought the victim before the S.D.M. on 03/03/2000 where her statement u/s 164 Cr.P.C. was recorded. The Patti Patwari also recorded the statement of the victim u/s 161 Cr.P.C. and prepared the site plan of the place of the occurrence. After completing the investigation, the Investigating Officer submitted the chargesheet before the court concerned. 3. The accused/appellant was committed to the Court of Sessions and the trial court framed charge u/s 376 and 323 I.P.C. against the accused/appellant. The accused/appellant denied the charges and claimed to be tried. 4. The prosecution in support of its case examined as many as seven witnesses. PW1 is the victim of the offence. She has narrated the entire story of the alleged commission of the offence. Smt. Lakheri Devi PW2 is the Jethani of the victim PW1. Kishor Kumar PW3 is the brother of the victim who has scribe the report. Kapoor Singh PW4 is the Jeth of the victim. Dr. Meenu Rawat PW5 is Medical Officer who has examined the victim. Anjani Kumar Singh, the then S.D.M. Pratapnagar PW6 has recorded the statement of the victim u/s 164 Cr.P.C. Sangai Singh PW7 is the Patwari (Investigating Officer) who registered the F.I.R., prepared site plan, recorded the statement of the witnesses and submitted the chargesheet against the accused/appellant. 5. After recording the entire evidence, the accused/appellant was examined u/s 313 Cr.P.C. and he denied the entire evidence and pleaded that he has been falsely implicated in this case due to enmity. He has further stated in his statement that on the date of occurrence Puja ceremony was going on nearby the temple where 150 people were assembled. He has further stated that there is a High School, Basic School and Panchayat Hall where teachers and people used to reside. 6. The accused/appellant has adduced the evidence of Dinesh Bisht DW1 in support of his plea with regard to the Puja on the date of the occurrence in the temple. He has stated there was no such incident as alleged by the victim. 7. 6. The accused/appellant has adduced the evidence of Dinesh Bisht DW1 in support of his plea with regard to the Puja on the date of the occurrence in the temple. He has stated there was no such incident as alleged by the victim. 7. The learned Sessions Judge on appreciation of the evidence held accused/appellant guilty of the charges of offence framed against him and convicted & sentenced him as mentioned above. 8. I have heard Mr. Pankaj Purohit, Advocate for the appellant; Mr. Amit Bhatt, Addl. G.A. for respondent/State; Mr. U.P.S. Negi, Advocate for the complainant; and perused the record. 9. Now, it is to be adjudicated upon as to whether the accused/appellant had committed forcible sexual intercourse upon the victim or not on the date of the incident. The prosecution in support of its case examined the victim as PW1. She has narrated the entire incident with vivid details. She has stated in her evidence that on 26/03/2000 at about 10:00 a.m., she went to her cattle shed to feed her buffaloes. The accused/appellant suddenly emerged there and forcibly took her inside the room where the buffaloes were kept. The accused/appellant also hurled abuses and pushed her forcefully to lie down on the ground of the room. The accused/appellant also caused injuries on her person. The victim resisted the accused/appellant to commit forcible sexual intercourse upon her. During the course of the scuffle, the accused/appellant torn the clothes of the victim and thereafter laid her down on the floor of the room and committed forcible sexual intercourse. During the course of the offence, she became unconscious and when she regained consciousness, she found the accused/appellant there. The accused/appellant left her only on a forcible assurance from her that she would be available to him whenever he desires to have the sexual intercourse with her. She gave this assurance due to the threats so that the accused/appellant may leave the place of occurrence. She remained there for sometime. It is also in the evidence of the victim that the cattle shed is situated to some distant from the place where she and her family members reside. When she reached in her house, she narrated the entire story with vivid details to her mother-in-law and Jethani Smt. Lakheri Devi PW2. Her husband and Jeth Kapoor Singh were not available in the house at that time. When she reached in her house, she narrated the entire story with vivid details to her mother-in-law and Jethani Smt. Lakheri Devi PW2. Her husband and Jeth Kapoor Singh were not available in the house at that time. So on the next day, she went to her parental house and narrated the entire story to her brother Kishore Singh whom she got the F.I.R. scribe. Thereafter, she was taken to the S.D.M. Pratapnagar where she submitted her application to the Incharge SDM. The Incharge S.D.M. directed Patti Patwari to register the case and thereafter she was medically examined by the doctor. She has also stated in her evidence that her statement u/s 164 Cr.P.C. was recorded by the S.D.M. Pratapnagar. The victim has also stated that after the medical examination, her clothes were taken into possession by the Patti Patwari. 10. The prosecution also examined Smt. Lakheri Devi PW2 who is the Jethani of the victim. She has stated in her evidence that the victim has narrated the entire incident to her when she reached in her house. She has also found injuries on the person of the victim. She has supported the entire prosecution case during her evidence. 11. The prosecution also examined Kishore Singh PW3 who is the brother of the victim and who scribe the report. He has stated that on 27/03/2000, the victim came to her parental house and narrated the entire story with vivid details to him. He has also stated that the victim dictated the report to him. He took her to S.D.M. where the said report was given to the Incharge S.D.M. Pratapnagar. Thereafter, the Incharge, S.D.M. Pratapnagar directed them to go to Patti Patwari with the report. They went to the Patti Patwari where the case was registered. Thereafter, the Patti Patwari took the victim to Tehri Civil Hospital where she was medically examined by Dr. Meenu Rawat PW5. 12. The prosecution in order to support its case adduced the evidence of Kapoor Singh PW4 who happened to be the elder brother of the husband of the victim. He has stated in his evidence that he came to know about the occurrence at about 9:00 p.m. on 26/03/2000 through his wife Pushpa Devi. He went to the house of the victim in the morning on 27/03/2000 but found that the victim had already left to her parental house. He has stated in his evidence that he came to know about the occurrence at about 9:00 p.m. on 26/03/2000 through his wife Pushpa Devi. He went to the house of the victim in the morning on 27/03/2000 but found that the victim had already left to her parental house. He has also stated in his evidence that he met the victim and her brother Kishore Kumar PW3 at Lambgaon in the afternoon. He has stated that he did not go to the house of the victim in the night on 26/03/2000 because it was already late in the night. So, he went to the house of the victim in the morning. Till that time, the victim had gone to her parental house. This is the evidence with regard to the victim and her family members who have stated about the incident how the victim came to her house, what was her condition, what she narrated to the witnesses and what course of action was taken by the family members of the victim. 13 It is settled position of law that the victim in a rape case is not an accomplice after the crime. Her statement stands on a higher pedestal than any other witnesses. If the evidence of the victim inspires confidence, there is no need to seek any corroboration from any other witnesses on record. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. If the court comes to the conclusion that the evidence of victim is reliable and cogent, it does not need any further corroboration of any other independent and corroborative piece of evidence. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly reputation and not the least her chastity. Rape is not only a crime against the person of a victim, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Basically, it is a crime against basic human rights. Rape is not only a crime against the person of a victim, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Basically, it is a crime against basic human rights. Keeping in view of the aforesaid circumstances it must be expected from the court to deal with cases of sexual crime against women with utmost sensitivity. 14. Learned counsel for the accused/appellant contended that there is inordinate delay in reporting the matter to the police. The learned counsel for the appellant further contended that the incident took place on 26/03/2000 at about 10:00 a.m. and the F.I.R. was lodged on the next date, i.e. at about 2:30 p.m. on 27/03/2000. The learned Addl. G.A. refuted the contention and contended that the delay has been properly explained by the prosecution and there is no delay in lodging the F.I.R. He further contended that the prosecution case could not be thrown out only on the ground of delay in lodging the F.I.R. It is true that some delay has occurred in lodging the F.I.R. But keeping in view the trauma suffered by the victim, she remained in cow-shed for some time and thereafter reached her house and narrated the entire story to her mother-in-law and Jethani Lakheri Devi PW2. It is also in the evidence of the prosecution that there was no male member in the house of the victim to help her in lodging the report. It is also in the evidence that Kapoor Singh PW3 came home in the night and went to the house of the victim in the morning. But till that time, the victim left to her parental house for seeking advice and taking further recourse in the matter. The victim narrated the entire story to her brother who scribed the report and thereafter they went to the S.D.M. Pratapnagar to lodge the report. The said report was produced before the Incharge S.D.M. for being registered. Incharge S.D.M. directed Patti Patwari Budkot to register the report and the said report was lodged at 2:30 p.m. It is evident from the record that there was no male member at the time when she reached her home. The said report was produced before the Incharge S.D.M. for being registered. Incharge S.D.M. directed Patti Patwari Budkot to register the report and the said report was lodged at 2:30 p.m. It is evident from the record that there was no male member at the time when she reached her home. Therefore, she immediately on the next morning left for her parental house where she narrated the entire incident to her brother and thereafter presented the report before the S.D.M. The place of occurrence is 5 kms. from the headquarter of the Patti Patwari Lambgaon. The explanation put forward by the prosecution is plausible and the delay has been properly explained by the prosecution. But keeping in view of the fact that the victim became unconscious and regained her consciousness after sometimes. The victim was again threatened by the accused/appellant and she gave him assurance to be available as and when he would desire. Thereafter, the accused/appellant released her and she came to her house where no male members were present. On the next day, she went to her parental house, scribed the report; and submitted to the Incharge S.D.M. Thus, the delay has been properly explained in this matter. In view of the above, I do not find any force in the contention of the learned counsel for the appellant. 15. Learned counsel for the accused/appellant further contended that there were no marks of injuries on the private parts of the prosecutrix, as such, the prosecution has failed to establish that rape had been committed upon the victim. The learned Addl. G.A. refuted the contention and contended that the victim was a married woman having two children at the time of the commission of the offence. Even if there were no injuries on her private part, it is not fatal to the prosecution case. It is a settled position of law that the medical evidence is a corroborative piece of evidence and if the evidence of the prosecutrix inspires confidence then there is no need to search for a corroborative piece of the evidence. The prosecution adduced the evidence of Dr. Meenu Rawat PW5 who had medically examined the victim and prepared the medical report Ex.Ka.1, 2 and 3. After examination of the victim, the following injuries were found on her person:- "1. Teeth mark present on Rt. The prosecution adduced the evidence of Dr. Meenu Rawat PW5 who had medically examined the victim and prepared the medical report Ex.Ka.1, 2 and 3. After examination of the victim, the following injuries were found on her person:- "1. Teeth mark present on Rt. side of cheek (oval shape) (14 marks) size (5 x 3 cm.) 2. Teeth mark pt on left side also, they are intermingled with each other and clotted blood is present over there teeth mark (size 3 x 2cm.). 3. Bruise with size (2 x 1 cm.) is present below Rt. eye (bluish in colour). 4. Abrasion over left eye is present size (2 cm. x 1 cm) colour brown. " 5. Abrasion size (2 cm. x 1 cm.) is present over fore head region. Examination of forearms (1) Contused abrasion size (5 cm. x 3 cm.) with clotted blood is present over Rt. elbow joint. (2) Abrasion size (2 x 1 cm) is present over Rt. writ joint. Examination of back No external injuries are seen. Examination of hip Abrasion mark size (4 x 1 cm.) is present over Rt. hip. Examination of Internal Organs She is having 2 child elder is 9 months. Labia majora & minora damaged during delivery. Mild prolepses of Ut. is present. There are no external injuries over private part. Vagina No bleeding of any kind." The doctor has opined that the victim was subjected to forcible sexual intercourse within 2-3 days from the date of the examination. She has further found that there were no marks of injuries on the private part of the victim. The doctor has also examined the accused/ appellant on the same day and found the following injuries on his person:- "1. Abrasion multiple in circular diameter. Size (4 x 3 cm) are present over face (below Rt. eye). Colour brown. 2. Teeth mark size (3 x 1 cm.) is present over index finger. Colour reddish brown" The doctor has opined that these injuries were simple in nature and caused by sharp edged object. It was further opined that the duration of the injuries were 2-3 days from the date of examination. 16. The doctor has further stated in her evidence that if a married woman is subjected to forcible sexual intercourse, it is not necessary that there should be any injury on her private part. It was further opined that the duration of the injuries were 2-3 days from the date of examination. 16. The doctor has further stated in her evidence that if a married woman is subjected to forcible sexual intercourse, it is not necessary that there should be any injury on her private part. The doctor has not found any dead or alive spermatozoa, so she has also explained that after 72 hrs. dead or alive spermatozoa may remain there but such spermatozoa would not be visible. The doctor has stated that it is not always required that the injuries would be available on the private part of the victim. The Hon'ble Apex Court in the case of B.C. Deva Alias Dyava Vs. State of Karnataka reported in (2008) 2 SCC (Cri) p/253 has held that even if no marks of injuries either on the person of the victim did not lead to any inference that the accused has not committed forcible sexual intercourse on the victim. The same view has been reiterated in the case of Viswanathan and others Vs. State represented by Inspector of Police, Tamil Nadu reported in (2008) 5 SCC p/354. The Hon'ble Apex Court has held at para 14 as under:- "14. The fact that an incident of the nature disclosed in the FIR had taken place is not in question. The fact that she was found lying naked at the place of occurrence in an unconscious state, stands proved not only by PW7 but also by PW8 Chinnadurai. The evidence of PW8 remains uncontroverted. He has not been cross examined. PW9 is the investigating officer. He stated that the FIR was lodged at about 7:00 p.m. in the evening on 21-11-1994. She was sent to the hospital for medical examination. Indisputably, the prosecutrix did not suffer any injury. For the purpose of proving commission of the offence of rape, however, the same was not necessary as she was a grown- up girl aged between 20 to 23 years as opined by Dr. Gopikrishnan. She was furthermore mother of two children" In view of the above, the contention raised by the learned counsel for the accused/appellant has no force. 16A. The injuries on the person of the victim and the accused further give credence to the prosecution version that the victim resisted the commission of rape upon her and she sustained the injuries. Gopikrishnan. She was furthermore mother of two children" In view of the above, the contention raised by the learned counsel for the accused/appellant has no force. 16A. The injuries on the person of the victim and the accused further give credence to the prosecution version that the victim resisted the commission of rape upon her and she sustained the injuries. The evidence of victim that she bite the fingers & cheek of the accused/appellant further found corroboration from the injuries found on the person of the accused/appellant. 17. The learned counsel for the accused/appellant further contended that there are certain omissions, contradictions and developments in the evidence of the victim. The learned counsel for the accused/appellant pointed out that the F.I.R. did not contain that the finger of the accused/appellant was bite by the victim at the time of the commission of the offence. It was further contended that the F.I.R. did not mention that the victim sustained teeth bite on her cheeks by the accused/appellant during the course of the commission of the offence. He has further pointed out that it is not stated in the F.I.R. that the bangles and ear-ring were broken at the place of the occurrence during the commission of the offence. The learned counsel for the accused/appellant also pointed out certain other omissions, discrepancies and inconsistencies in the evidence. The learned counsel for the accused/appellant further stated in the F.I.R. the victim has stated after two hrs., she went to her house whereas during the course of the evidence she has stated that she went to her house in the evening. The learned Addl. G.A. refuted the contention and contended that the omissions, contradictions and developments are not of vital importance. The genesis of the incident has not been disturbed during the course of the evidence. It is well settled position of law that the FIR is not the encyclopedia in which all the details should be mentioned. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to set the investigation in motion. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to give the motion to the investigation. If the informant has narrated merely of the incident, it is sufficient to give the motion to the investigation. The FIR is lodged only to set the investigation in motion. If the genesis of the incident has been mentioned in the FIR, it is sufficient. The FIR is lodged only to give the motion to the investigation. If the informant has narrated merely of the incident, it is sufficient to give the motion to the investigation. The omissions which were pointed out by the learned counsel for the appellant are not required to be mentioned in the F.I.R. There is no doubt that the victim is an illiterate lady and she did not know how to put her signature. Perusal of the entire evidence reveals that the victim was an illiterate lady. The discrepancies as pointed out by the learned counsel for the appellant is of no consequence. The evidence of the victim was recorded on 09/10/2000 and the incident took place on 26/03/2000. If the witness is produced before the court after few days, the contradictions are bound to creep in the statement of a truthful and reliable witness. Witness cannot depict the entire story of the commission of the offence in the same details as had happened due to lapse of memory and time. It is pertinent to mention here that when a witness appears before the court, sometimes he may not stand the test of cross examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. (See Krishna Mochi Vs. Vs. State of Bihar 2002 (6) SCC p/81). 18. The Hon'ble Apex Court has held in Munshi Prasad Vs. State of Bihar 2002 SCC(Cri) 175 as follows :- "10. . Incidentally, be it noted that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. If the general tenor of the evidence given by the witness and the trial court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of, and we do not see any justification to pass a contra-note, as well, on perusal of the evidence on record. In this context reference may be made to two decisions of this Court. The first being State of U.P. v. M.K. Anthony 1985 SCC(Cri) 105 as also a later one in the case of Leela Ram v. State of Haryana 2000 SCC(Cri) 222. Needless to record that difference in some minor detail, which does not otherwise affect the core of the prosecution case, may be there but that by itself would not prompt the court to reject the evidence on minor variations and discrepancies. In Leela Ram (supra) this Court observed in para 10 of the Report: (SCC pp. 532-33) " 10. * * * ' 24 . When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.' This Court further observed: '25 . It is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeaching the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness. The material portion of the section is extracted below: "155. Impeaching credit of witness .The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the court, by the party who calls him (1)-(2) * * * (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;" 26. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Only such of the inconsistent statement which is liable to be "contradicted" would affect the credit of the witness. Section 145 of the Evidence Act also enables the cross-examiner to use any former statement of the witness, but it cautions that if it is intended to "contradict" the witness the cross- examiner is enjoined to comply with the formality prescribed therein. Section 162 of the Code also permits the cross-examiner to use the previous statement of the witness (recorded under Section 161 of the Code) for the only limited purpose i.e. to "contradict" the witness. 27. To contradict a witness, therefore, must be to discredit the particular version of the witness. Unless the former statement has the potency to discredit the present statement, even if the latter is at variance with the former to some extent it would not be helpful to contradict that witness (vide Tahsildar Singh v. State of U.P. AIR 1959 SC 1012" The discrepancies which have been pointed out by the learned counsel for the accused/appellant is of no consequence. I do not find that these discrepancies corrode the credibility of the evidence of the victim. Therefore, I do not find any force in the contention raised by the learned counsel for the accused/appellant. 19. Learned counsel for the accused/appellant further contended that the conduct of Kapoor Singh PW4 belies the total prosecution evidence. The learned Addl. G.A. refuted the contention. Therefore, I do not find any force in the contention raised by the learned counsel for the accused/appellant. 19. Learned counsel for the accused/appellant further contended that the conduct of Kapoor Singh PW4 belies the total prosecution evidence. The learned Addl. G.A. refuted the contention. It is in the evidence of Kapoor Singh PW4 that his wife Smt. Pushpa Devi narrated the entire incident to him when he reached in his house at about 9:00 p.m. on the date of the incident. The learned counsel for the accused/appellant further led stress that Kapoor Singh PW4 being the Jeth of the victim, it would have been his natural conduct to immediately rush to the house of the victim and assist her for further course of action. Perusal of the entire evidence reveals that there were two houses in the village out of which one belonged to Kapoor Singh PW4 and the other belonged to the victim, her husband, mother-in-law and Jethani of the victim. Nowhere it has been explained that Kapoor Singh PW4 came in the village to the same house in the night. It is also in the evidence that Kapoor Singh PW4 had a shop and carries out business in Lambgaon. It is not in the evidence that whether on the date of the incident he came to the same village and there Smt. Pushpa Devi narrated the entire story to him. It is also not in the evidence of the victim as well as in the cross examination of the witnesses that Pushpa Devi was present in her house when the victim came to her house and thereafter, the victim narrated the incident to her. Even if it is presumed that Kapoor Singh PW4 came to his house in the village at about 9:00 but it was too late to go to the house of the victim in the night. Therefore, he went to the house of the victim in the morning to see her, to get the information about the incident and to take the future recourse. But as soon as he reached in the house of the victim, the victim left to her parental house. Merely the fact that Kapoor Singh PW4 did not come to the house of the victim, did not belie the entire credible and cogent testimony of the victim. But as soon as he reached in the house of the victim, the victim left to her parental house. Merely the fact that Kapoor Singh PW4 did not come to the house of the victim, did not belie the entire credible and cogent testimony of the victim. The victim, the Investigating Officer Sangai Singh PW7 & other witnesses have been cross examined at length and they remained consistent during the lengthy and searchy cross examination of the defence and the defence could not elicit anything from the evidence of the prosecution witnesses. The learned trial court after going through the entire evidence has found the evidence of the prosecutrix as well as the other witnesses to be credible and cogent. I have gone through the entire evidence on record with the help of the learned counsel for the parties. I have also independently analyzed entire oral and documentary evidence appearing on the record. The prosecutrix in her deposition clearly and unequivocally stated that on 26/03/2000 she went to her cow-shed to feed the buffaloes. The accused/appellant suddenly emerged there and tried to forcibly lay her down on the ground and in the scuffle the accused/appellant sustained injuries on his person also. The victim also sustained the injuries on her person. The blouse of the victim was torn by the accused/appellant. The victim was forced to submit her and thereafter the accused/appellant committed the forcible sexual intercourse upon the victim. After committing the crime, she became unconscious and when she regained her consciousness, the accused/appellant was present there and he threatened her also. She has also stated that she narrated the entire incident to her mother-in-law and Jethani Lakheri Devi PW2. On the next day, she narrated the entire story to her brother. All the prosecution witnesses including the victim had been put to lengthy cross examination by the defence but her testimony has not been shattered on any material aspects. Thus, the evidence of the victim inspires confidence to convict the accused/appellant. The prosecution evidence is credible and cogent. Therefore, I do not find any force in the contention of the learned counsel for the accused/appellant. 20. On the scrutiny of the evidence of the victim, it appears to me that the defence tried to build up a case that the accused/appellant has been falsely implicated in this case. The prosecution evidence is credible and cogent. Therefore, I do not find any force in the contention of the learned counsel for the accused/appellant. 20. On the scrutiny of the evidence of the victim, it appears to me that the defence tried to build up a case that the accused/appellant has been falsely implicated in this case. The accused/appellant did not make any attempt to commit the sexual intercourse upon the vicitm. He has also produced the evidence of Dinesh Bisht DW1 who has stated in his evidence that on the date of the incident, puja ceremony was going on in the temple nearby the place of the incident. The learned trial court has found his evidence devoid of any credibility in view of the fact that he is the son of the cousin sister of the appellant and also during the cross examination he has admitted that if the occurrence relates to 26th March, then he was not there and he had no knowledge for the same. He had stated in his evidence that the temple puja was performed on 27th March and there was no occurrence as stated by the prosecution on 27th March, 2008. Thus, the evidence of Dinesh Bisht DW1 is of no avail to the defence as he is not aware about the date of the incident. He has further stated in his evidence that the place of occurrence is not visible from the temple. If anybody goes on the roof of the house, then the person would be visible from the temple. Thus, it is apparent that the place of occurrence was not visible from the temple also. In view of the above, I do not find any force in the contention of the learned counsel for the appellant. 21. The learned counsel for the accused/appellant further pointed out that there are certain lapses on the part of the Investigating Officer. He pointed out that the report was lodged u/s 307 I.P.C. alongwith other sections whereas there was no iota of fact or ingredients in the F.I.R. of being registered u/s 307 I.P.C. It is a settled position of law if there is any defect in the investigation, it would not lead the acquittal of the accused/appellant. Merely on the ground that wrong section has been mentioned in the F.I.R., does not mean that total investigation has been affected by the said fact. Merely on the ground that wrong section has been mentioned in the F.I.R., does not mean that total investigation has been affected by the said fact. He further pointed out that the Investigating Officer has not sent to chemical examiner the clothes so recovered from the possession of the victim as such, it cannot be held that rape had been committed upon the victim. Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer if the investigation designedly defective. 22. The Apex Court has while maintaining the conviction of the accused in Karnel Singh Vs. State of M.P. reported in 1995(5) SCC 518, 1995 SCC (Cri) 977 & 1995 CRL.L.J 4173, observed:- "Notwithstanding our unhappiness regarding the nature of investigation, have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In case of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the Chaddi. That is the reason why we have said the investigation was slipshod and defective." 23. The Hon'ble Apex Court has held in Krishna Pal (Dr) v. State of U.P. 1996 SCC (Cri) 249 that :- "9. . The Investigating Officer in his deposition has also admitted that through mistake he omitted to mention the crime number in the inquest report. It appears to us that the Investigating Officer had not been diligent enough but for that reason we do not feel that reliable and clinching evidences adduced in this case by the eyewitnesses particularly by Dr Rajveer Singh should be discarded. It appears to us that the Investigating Officer had not been diligent enough but for that reason we do not feel that reliable and clinching evidences adduced in this case by the eyewitnesses particularly by Dr Rajveer Singh should be discarded. In this connection, we may refer to a recent decision of this Court in Karnel Singh v. State of M.P.1995 SCC (Cri) 977. In the said decision, it has been indicated by this Court that in a case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. As we do not find any reason to disbelieve the testimonies given by eyewitnesses of this case, we do not find any reason to take a contrary view and to interfere with the impugned judgment. These appeals, therefore, are dismissed." 24. It has been held in Chhotu Vs. State of Maharashtra 1987(4) SCC 533 & 1997 CRI.L.J 4394 (SC) that:- "That necessarily means that all of them were the most natural and probable witnesses to an incident that then took place near his house, notwithstanding the fact that they were not residents of that locality. It also requires to be mentioned here that if the Investigating Officer failed to seize the bloodstained clothes of PWs 3 and 8 and to promptly examine PW3, whose names as any eye witness was disclosed immediately after the incident, it only indicates remissness on his part but the evidence of PW3 and 8 was not in any way impaired thereby." 25. It has been observed by the Hon'ble Supreme Court in Dhanaj Singh @ Shera and others Vs. State of Punjab 2004 (3) SCC P-654 that in the instant case, the High Court found several disturbing features which indicated how the investigating officer had made out a new case to save the accused persons and to implicate the complainant party. Hence, the High Court analyzed the evidence of the eye witnesses with due care and caution. On finding the said evidence to be credible, the High Court upheld the conviction recorded by the trial court. Hence, the High Court analyzed the evidence of the eye witnesses with due care and caution. On finding the said evidence to be credible, the High Court upheld the conviction recorded by the trial court. Before the Hon'ble Supreme Court, the accused appellants challenged the conviction on the grounds (1) that the police after thorough investigation had concluded that it was the complainant party which caused the death of the deceased (ii) that the pellets, wads and cartridges were not recovered from the spot, (iii) that the weapons of assault and the pellets were not sent for ballistic examination, (iv) that the blood stained earth was not sent for chemical examination (v) that many persons who could have thrown light on the incident had not been examined, and (vi) that the evidence being that of highly interested and inimical persons, should have been discarded. Dismissing the appeal, it was held by the Apex Court that even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect. To do so would tantamount to playing into the hands of the investigating officer if the investigation designedly defective. 26. The Hon'ble Apex Court in its latest decision in the case of Rotash Vs. State of Rajasthan 2007 AIR SCW 44 has held that:- "32. The investigation was not foolproof but then defective investigation would not lead to total rejection of the prosecution case. 33. In Visveswaran v. State 2003 (6) SCC 73, this has held: Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be borne in mind that the approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. In such cases, the broader probabilities are required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved." In view of the above, I do not find any force in the contention of the learned counsel for the accused/appellant. 27. Whereas the factum of corroboration is concerned, as I have pointed out that there is no need to seek the corroboration from other facts if the evidence of victim inspires confidence. The evidence of the victim inspires confidence in this case. At the same time there is corroboration of the incident by the medical evidence. The victim has stated that she resisted at the time of the incident. There are injuries on the persons of the victim as indicated in para 15 of my judgment. The victim has also stated that she bite the finger of the accused/appellant due to which he sustained the injuries as stated in para 15 of my judgment. It reveals that the incident as narrated by the prosecution occurred at the time of incident and the duration of the above injuries correspondents the time of the incident. This fact also gives credence to the evidence of the prosecution. 28. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has been able to establish the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has rightly convicted and sentenced the accused/appellant. The judgment and order dated 16.03.2002 passed by learned Sessions Judge, Tehri Garhwal in S.T.No. 17 of 2000 is hereby confirmed. The appeal is liable to be dismissed and is hereby dismissed. 29. I find that the learned trial court has rightly convicted and sentenced the accused/appellant. The judgment and order dated 16.03.2002 passed by learned Sessions Judge, Tehri Garhwal in S.T.No. 17 of 2000 is hereby confirmed. The appeal is liable to be dismissed and is hereby dismissed. 29. Let the lower court record be sent back to the court concerned for compliance. Compliance report be submitted within a period of four weeks.