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2009 DIGILAW 809 (HP)

Puran Chand v. State of Himachal Pradesh

2009-09-29

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J. 1. This appeal has been directed against the judgment dated 16.3.2009 passed by learned Sessions Judge, Sirmaur District at Nahan in Sessions Trial No. 17-ST/7 of 2007 convicting the appellant under Section, 376 read with Section 506-I IPC and sentencing to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo simple imprisonment for a further period of one year under Section 376 IPC and to undergo simple imprisonment for three months under Section 506-I IPC. The substantive sentences shall run concurrently, the amount of fine, if realized, shall be paid to the prosecutrix as compensation. 2. The prosecution case in brief is that on 11.9.2006 PW-1 prosecutrix aged 17 years got an FIR No. 186/2006 registered at Police Station, Nahan. She has stated that on 20.8.2006 at about 12.30 p.m. she had taken her goats for grazing in the forest at a distance of about 1/2 K.M. from the village. She was sitting alone on a foot-path, at about 2 p.m. somebody caught hold of her from her back and she found accused had caught hold of her. She asked him the reason for holding her, he did not respond. He made her to lie on the ground. He sat over her and started pressing her breasts, she objected but despite that he forcibly removed her Salwar and raped her. She raised alarm but none came there for her help. The accused after raping her left the place and threatened her that in case she would disclose the incident to anybody; she will have to pay for it. On account of this fear she did not disclose the incident to her parents, but she was tense. 3. On 2.9.2006 due to tension she attempted to commit suicide by consuming some poison, she became unconscious and was removed to hospital at Dadahu then to Nahan and PGI, Chandigarh. On regaining her consciousness she disclosed the incident to her parents and brother Ramesh Chand. She was discharged from PGI, Chandigarh on 10.9.2006 and thereafter she reported the case at Police Station, Nahan. 4. The prosecutrix was got medically examined and the case was investigated by PW-9 ASI Jagdish Chand. The accused was arrested on 12.9.2006. On regaining her consciousness she disclosed the incident to her parents and brother Ramesh Chand. She was discharged from PGI, Chandigarh on 10.9.2006 and thereafter she reported the case at Police Station, Nahan. 4. The prosecutrix was got medically examined and the case was investigated by PW-9 ASI Jagdish Chand. The accused was arrested on 12.9.2006. On completion of investigation challan was presented in the Court and the learned Chief Judicial Magistrate, Nahan committed the case vide order dated 19.5.2007. The accused was charged for offence punishable under Sections 376, 506 and 306/511 IPC; he pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses and placed on record documentary evidence. The accused was examined under Section 313 Cr.P.C. He denied the prosecution case and took the plea that the witnesses have deposed against him due to previous enmity. The learned Sessions Judge on conclusion of trial convicted and sentenced the accused as notice above. Hence, accused has come in appeal. 5. Heard and perused the record. Mr. Dharamvir Sharma, learned Counsel appearing on behalf of the appellant has submitted that appellant has been falsely implicated in the case due to previous enmity. The prosecution has failed to bring home the charge against the appellant. The learned Sessions Judge has not appreciated the evidence properly. It is not a case where sole testimony of the prosecutrix is enough to convict the accused. There is unexplained delay in lodging the FIR. The medical evidence belies the case of the prosecution. The compartment examination of the prosecutrix was to commence in September 2006 and out of fear of examination prosecutrix consumed poison and not for the reason that she was allegedly raped by the accused. The prosecutrix was admittedly about 17 years of age at the time of alleged occurrence. The learned Assistant Advocate General has supported the impugned judgment and has submitted that the occurrence took place at an isolated place. The defence of accused that he has been falsely implicated due to previous enmity has no foundation. The delay in lodging the report has been explained by the prosecutrix, she was threatened by the accused, she was hospitalized and after discharge from hospital she reported the matter to the police. In order to appreciate the rival contentions of learned Counsel for the parties, it is necessary to refer to the evidence. 6. The delay in lodging the report has been explained by the prosecutrix, she was threatened by the accused, she was hospitalized and after discharge from hospital she reported the matter to the police. In order to appreciate the rival contentions of learned Counsel for the parties, it is necessary to refer to the evidence. 6. PW-1 prosecutrix was examined on 3.10.2008 and on that date she has given her age 21 years. She has stated that on 20.8.2006 she had gone to graze her goats nearby jungle which is 1/2 K.M. from her house. At about 2 p.m. she was sitting on the foot path in the jungle. She was caught hold from behind all of sudden by some one, she noticed that she was caught hold by accused of her own village. She asked why he has caught hold her but he did not reply. He made her to lie on the ground, sat on her and started pressing her breasts. She objected but the accused did not pay any heed and opened the string of her Salwar and committed forcible sexual intercourse with her against her consent. She raised hue and cry. The accused after committing forcible sexual intercourse with her threatened her with dire consequences and told her that if she would disclose this fact to anybody she will have to face consequences thereof. She did not disclose this fact due to shame to her parents and she was mentally shocked due to the act of the accused. 7. On 2.9.2006 at about 8.30 p.m. she consumed poison and became unconscious. She was taken to hospital at Dadahu and thereafter to Nahan and PGI, Chandigarh. She remained admitted at PGI, Chandigarh till 10.9.2006. On regaining her consciousness at PGI, Chandigarh she disclosed the act committed by the accused to her father and brother. After discharge from PGI, Chandigargh on 10.9.2006 she reported the matter to police on 11.9.2006 at Nahan. In cross-examination she has stated that on the day of occurrence no animal of other villager was near to her. There were no pebbles at the spot. She tried to struggle and to escape from his clutches. She has denied that they had any litigation with the family of the accused. In 2006, in plus two she got compartment for which examination was to be held in September, 2006. There were no pebbles at the spot. She tried to struggle and to escape from his clutches. She has denied that they had any litigation with the family of the accused. In 2006, in plus two she got compartment for which examination was to be held in September, 2006. She could not appear in that examination as she was admitted in PGI, Chandigarh. She has denied that she had consumed poison due to compartment. 8. PW-2 Daulat Ram is the father of the prosecutrix and has stated that the prosecutrix became unconscious and they took her to hospital at Dadahu and from there to Nahan and then to PGI, Chandigarh where she remained admitted till 10.9.2006. The prosecutrix on regaining consciousness at PGI, Chandigarh was asked by witness and his son as to why she had consumed poison. On this, the prosecutrix told that on 20.8.2006 the accused had committed rape upon her in the jungle and due to shame and fear she could not disclose the fact to anyone and consumed the poison as she was feeling ashamed due to the act committed by accused with her. After discharge from PGI, Chandigarh on 11.9.2006 he alongwith prosecutrix and Ramesh lodged the report at Police Station, Nahan. In cross-examination he has stated that there was no civil litigation with the family of the accused. 9. PW-3 Ramesh Chand has corroborated the statements of prosecutrix and PW-2 Daulat Ram as to when the prosecutrix disclosed the fact that accused committed rape upon her. In cross-examination he has denied the suggestion of the defence that the false case has been planted against the accused on account of previous enmity and also for saving the prosecutrix from prosecution for consuming poison. PW-4 Prem Pal, Panchayat Sahayak, has proved Certificate Ex.PW-4/A and has stated that as per record date of birth of prosecutrix is 6.1.1987. 10. PW-5 Dr. Nirmala Vaish examined the prosecutrix and observed the following injuries on her person: Before examination of the prosecutrix she narrated the history which has been noted down by me in the MLC and I further observed as under: There was no fresh evidence, bleeding or tear or scratched over the vulva outside and inner mucosa. There was slightly reddened area over outer mucosa lower side which can be due to discharge not likely a tear or injury to mucosa at that time. Hymen was intact. There was slightly reddened area over outer mucosa lower side which can be due to discharge not likely a tear or injury to mucosa at that time. Hymen was intact. There was no evidence of any forceful action on the other parts of the body. As per verbal statement age was 17 years and for confirmation of the age the case was referred to X-Ray Radiologist. X-Ray of the ultrasonography for pulvic problem and referred to dental surgeon for the determination of age. No evidence of pregnancy as per X-Ray report seen on 13.9.2006. As per X-Ray expert report the age of the lady was about 16 -19 years. Hymen was intact as per question asked. As per verbal statement the probable duration of injuries was about 20 days. No act of rape was proved as per findings. Attempt of rape could not be proved because of the examination done after 21 days and otherwise also except history. She issued MLC Ex.PW-5/B. She has also stated that to constitute an offence of rape mere penetration is sufficient. In such eventuality hymen may rupture or may not. In cross-examination the doctor has stated that she did not find any injury on the body of prosecutrix. PW-6 Devender Dutt, Panchayat Secretary has proved Pariwar register Ex.PW-6/A and has also stated that birth certificate Ex.PW-4/A was issued by him. PW-7 Inspector Khazana Ram has stated that he prepared the challan. PW-8 HC Kuldeep Singh has proved rapat Ex.PW-8/A. 11. PW-9 ASI Jagdish Chand is the investigating officer. In cross-examination he has denied the suggestion of the defence that a false case has been planted against the accused in connivance with the prosecutrix and her family to escape them from prosecution. He has denied that it has come in his investigation that the prosecutrix was frustrated due to compartment. PW-10 Dr. Navneet Sharma, Emergency Medical Ward, PGI, Chandigarh has proved admission card No. 75852 Ex.P-1 of the prosecutrix who was admitted at PGI, Chandigarh on 4.9.2006. PW-11 Dr. D.S. Dattal, has stated that in the year 2006 he was posted as Medical Officer at Referral Hospital, Nahan. On 12.9.2006 he examined Puran chand and issued MLC Ex.PW-11/A and found he was capable of performing sexual intercourse. 12. PW-11 Dr. D.S. Dattal, has stated that in the year 2006 he was posted as Medical Officer at Referral Hospital, Nahan. On 12.9.2006 he examined Puran chand and issued MLC Ex.PW-11/A and found he was capable of performing sexual intercourse. 12. The accused in his statement under Section 313 Cr.P.C. has denied the prosecution case and at that time stated that he will lead defence evidence but on 11.12.2008 he made a statement in the Court that he does not want to lead any evidence in defence. 13. Ex.PW-1/A is FIR No. 186 dated 11.9.2006 lodged by the prosecutrix. Ex.PW-1/B is the Matriculation Examination Certificate of the prosecutrix showing her date of birth of 6.11.1987. Ex.P-1 is the Discharge and Follow-up-Card of prosecutrix issued by Nehru Hospital, Postgraduate Institute of Medical Education and Research Chandigarh showing admission of prosecutrix on 4.9.2006 and her discharge on 10.9.2006. In birth certificate Ex.PW-4/A of the prosecutrix her date of birth is shown 6.11.1987. Ex.PW-5/B is the MLC of the prosecutrix. Ex.PW-5/C is the medical examination dated 12.1,2007 conducted by a panel of doctors of the prosecutrix. Ex.PW-8/A is the rapat No. 19 dated 11.9.2006 lodged by prosecutrix. Ex.PW-9/A is the site plan showing the place of occurrence an isolated place in the jungle. Ex.PW-11/A is the MLC of accused. 14. As per prosecution occurrence took place on 20.8.2006 at about 2 p.m., the FIR was lodged on 11.9.2006. In between on 2.9.2006 prosecutrix consumed poison and was taken to hospitals at Dadahu, Nahan and then PG1, Chandigarh. She was discharged from PG1, Chandigarh on 10.9.2006. The prosecutrix has fully supported the prosecution case opened by her by way of rapat No. 19 Ex.PW-8/A. The prosecutrix had gone to nearby jungle for grazing her goats. The accused found prosecutrix all alone in the jungle and committed forcible sexual intercourse with her. 15. The learned Counsel for appellant has submitted that medical evidence is not supporting the prosecution version. He has submitted that appellant has been falsely implicated in the case. The prosecutrix had consumed poison not because of shame but because of fear of exam which was to commence in September, 2006. He has pointed out that in cross-examination the prosecutrix has stated that she had sustained injuries on her right leg and chest but no such injuries were found by doctor when she was examined. The prosecutrix had consumed poison not because of shame but because of fear of exam which was to commence in September, 2006. He has pointed out that in cross-examination the prosecutrix has stated that she had sustained injuries on her right leg and chest but no such injuries were found by doctor when she was examined. The incident took place on 20.8.2006 and the prosecutrix was medically examined on 11.9.2006 after about 22 days of the occurrence. There is nothing in the statement of prosecutrix about the nature of the injuries which she sustained on her right leg and chest at the time when forcible sexual intercourse was committed upon her. It is not clear from the evidence that the injuries which the prosecutrix has stated in her cross-examination on right leg and chest would in normal course would come in medical conducted after 21 days. Therefore, appellant cannot take benefit of the statement of prosecutrix that some injuries were caused on her person and those injuries were not noticed by the doctor and reflected in the MLC. The prosecutrix has clearly stated that there were no pebbles at the place where she was raped. PW-5 Dr. Nirmala Vaish has stated that hymen may rupture or may not. The close scrutiny of statement of PW-5 Dr. Nirmala Vaish reveals that opinion with respect to hymen given by her as per question asked. It is not clear from MLC Ex.PW-5/B or from the statement of PW-5 that on actual examination the doctor found the hymen of the prosecutrix intact. In view of time gap between the sexual intercourse and the examination of the prosecutrix the MLC of the prosecutrix not reflecting sexual act is not of significance. The prosecutrix has specifically stated in her statement that accused performed forcible sexual intercourse with her against her wish on 20.8.2006. 16. There is no confusion about the identity of the accused. It has come in evidence that the occurrence took place in a jungle at a distance of 1/2 K.M. from village. The learned Counsel for the appellant has submitted that the appellant has been falsely implicated in the case due to enmity and in support of his submission he has referred to Annexure A-2 filed with the appeal indicating that one Tota Ram was convicted under Section 324 IPC and released on probation on 2.5.1988. The learned Counsel for the appellant has submitted that the appellant has been falsely implicated in the case due to enmity and in support of his submission he has referred to Annexure A-2 filed with the appeal indicating that one Tota Ram was convicted under Section 324 IPC and released on probation on 2.5.1988. According to learned Counsel for the appellant Tota Ram is none else but is the brother of the father of prosecutrix and he was prosecuted on the complaint of Dropti Devi grand-mother of the accused and for that reason the family of the prosecutrix had inimical relations with the family of the accused. The Annexure A-2 was not produced during trial. In any case the reason given by the learned Counsel for the appellant for false implication of the accused in the case is very weak and is not believable. Tota Ram was acquitted on 2.5.1988 and therefore it cannot be said that in order to take revenge against the family of accused the family of prosecutrix has falsely implicated the accused in the case. 17. The learned Counsel for the appellant has submitted that there is delay in lodging the FIR in as much as the alleged occurrence took place on 20.8.2006 and the FIR was registered on 11.9.2006. He has submitted that prosecutrix had not consumed poison on account of alleged act of accused but she consumed poison due to the fear of plus two compartment examination in September 2006. The prosecutrix has specifically denied that she took poison because of fear of examination. PW-9 ASI Jagdish Chand has also stated that it has not come during investigation that prosecutrix consumed poison due to fear of examination. According to accused the compartment examination of the prosecutrix was to commence in September, 2006, therefore, it is not believable that the fear of examination in August, 2006 was so intense which compelled the prosecutrix to consume poison. 18. There is a ring of truth in the explanation given by the prosecutrix that she was threatened by the accused not to disclose incident to anyone otherwise she would face the consequences and she was also ashamed of the act of accused. This thought was going on in the mind of prosecutrix and therefore she consumed poison on 2.9.2006. 18. There is a ring of truth in the explanation given by the prosecutrix that she was threatened by the accused not to disclose incident to anyone otherwise she would face the consequences and she was also ashamed of the act of accused. This thought was going on in the mind of prosecutrix and therefore she consumed poison on 2.9.2006. The mental state of prosecutrix coupled with Act of taking poison has not only explained the delay in lodging the FIR but it has also explained why she did not narrate the incident earlier to any one else. The prosecutrix after regaining consciousness at PGI, Chandigarh got strength and confidence and narrated the incident to her father and brother and later on immediately after the discharge from PGI, Chandigarh on 10.9.2006 she reported the matter to the police without delay on 11.9.2006. 19. The learned Counsel for the appellant in support of his submissions has relied Dilip and Anr. v. State of M.P. (2001) 9 SCC 452, Sadashiv Ramrao Hadbe v. State of Maharashtra and Anr. (2006) 10 SCC 92 and Lalliram and Anr. v. State of Madhya Pradesh (2008) 10 SCC 69. In Dalip and Anr. supra the Supreme Court has held that it is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. In Sadashiv Ramrao Hadbe supra it has been held by the Supreme Court that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix. The Courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. In Laliram and Anr. supra it has been held that it is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. In Laliram and Anr. supra it has been held that it is true that injury is not a sine qua non for deciding whether rape has been committed. But it has to be decided on the factual matrix of each case. If the Court finds it difficult to accept the version of a prosecutrix on the face value, it may search for evidence direct or circumstantial. 20. It is settled law that conviction can be based on the sole testimony of the prosecutrix; if it inspires confidence. In the present case there is nothing on record to disbelieve the version given by the prosecutrix who has fully proved the prosecution case. The learned Sessions Judge has rightly appreciated the material on record in convicting and sentencing the accused. The learned Counsel for the appellant has failed to make out any case for interference. 21. No other point was urged. 22. The result of the above discussion, appeal fails and is accordingly dismissed.