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Himachal Pradesh High Court · body

2012 DIGILAW 262 (HP)

Sukh Raj v. State of Himachal Pradesh

2012-05-08

SURINDER SINGH

body2012
JUDGMENT SURINDER SINGH, J. The appellant, hereinafter to be referred as ‘the accused’, was convicted and sentenced under Section 376 of the Indian Penal Code, vide judgment dated 16.2.2005/ 17.2.2005, passed in S.C. No.47-K/VII/03, S.T. No.43/04, by the learned trial Court whereby he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of ‘25,000/-, in default to further undergo simple imprisonment for one year. It was also ordered that the amount of fine, if realized, be paid as compensation to the prosecutrix for the ordeal and trauma faced by her. Thus the accused is in appeal before this Court. 2. Briefly stated, the facts as emerges from the evidence on record, can be stated thus. In the year 2002, the prosecutrix (19) had appeared in B.A. 1st year examination and in the month of May she was working in ‘Tapovan Trust’.ii)On 27.5.2002 in connection with the work of the Trust the prosecutrix intended to visit village Mangrela. Thus she started to her destination in the morning at 8.00 a.m. and reached bus-stand Nagrota from where she was to take bus for village Sadhun, but on enquiry she found that bus had already left and the second bus would arrive after about three hours. Therefore, she kept on waiting for the bus till 12.15 p.m. but the bus did not come. Thereafter she engaged a three wheeler of the accused. When the said vehicle reached village Ruhd, she met Usha aunty, another worker of the Trust. On enquiry she informed her that the bus had just left and the three wheeler could catch it at some distance, therefore, she asked the accused to drive fast. When the three wheeler covered some distance, at a bifurcation point the accused took her on the ‘Kacha’ road instead of taking on pucca road leading to village Mangrela. She enquired from the accused about the same. The accused told that though the road is ‘Kacha’ upto some distance thereafter it was mattled, but she did not find any mattled portion and asked the accused to stop. The accused told that he was not a foolish to bring her to that place. The prosecutrix asked for the fare, but the accused told her that he would not take the fare in case she would do whatever he would say. Then the accused started catching her hands to which she resisted. The accused told that he was not a foolish to bring her to that place. The prosecutrix asked for the fare, but the accused told her that he would not take the fare in case she would do whatever he would say. Then the accused started catching her hands to which she resisted. On this he gave 3-4 slaps to her, which ensued in scuffle for about 5-10 minutes. The accused pushed her. She fell down and received injuries on her left hand. Since she was exhausted and her shirt from the left shoulder was torn and could not resist, the accused opened her ‘Salwar’ and removed his pant and committed rape on her. She cried loudly, but there was no one in and around being a lonely place. When she tried to cry loudly, the accused told that he would call 4-5 boys. She felt giddy. Accused left her there and escaped.iii) The prosecutrix kept on sitting on the road while weeping and setting her clothes right. In the meantime, the bus came from the side of village Mangrela, she boarded the bus and came to village Nagrota, but did not reveal anything to her parents as she was feeling ashamed.iv) Next day, it was holiday. She was feeling pain in her body. When her mother asked the reason, she revealed every thing to her thereafter, she alongwith her mother Kamlesh Devi (PW8) and Renu Chaudhary (PW5) came to the Police Station and lodged FIR Ext.PW3/A on 29.5.2002.v)The prosecutrix was got medically examined by the Police in CHC, Nagrota on the same day from PW2 Dr. Ruby Bhardwaj. She revealed about the incident to the doctor to which she noted on the Medico Legal Certificate of the prosecutrix (Ext.PW2/B). The doctor clinically examined her and noticed 2 cm x 1 cm bluish brown bruise on the right forearm ventrally. No other injury was found on her body. The doctor found hymen crescent shaped but there was no injury and her private part only allowed one finger easily. The doctor prepared three slides of vaginal smear for chemical examination. She did not find any clinical evidence of recent rape nor the prosecutrix was found habitual of having intercourse, but however, did not rule out the possibility of attempted rape.vi)PW14 SI Mohinder Singh Minhas undertook the investigation of the case. The doctor prepared three slides of vaginal smear for chemical examination. She did not find any clinical evidence of recent rape nor the prosecutrix was found habitual of having intercourse, but however, did not rule out the possibility of attempted rape.vi)PW14 SI Mohinder Singh Minhas undertook the investigation of the case. He prepared the site plan of the place of alleged incident and took photographs. The accused was arrested. His identification parade was got conducted before PW15 Shri Bhim Chand, the then ACJM, Kangra. The prosecutrix is alleged to have rightly identified the accused.vii)The clothes of prosecutrix were stated to have been washed, but her trouser was taken into possession vide memo Ext.PW9/A in the presence of the witnesses, which was sealed on 30.5.2002 and sent for the chemical examination.viii)The three wheeler of the accused was taken into possession alongwith its documents, which was later on released to its owner by the orders of the Court.ix)When the accused was arrested he was got medically examined by PW1 Dr. N.S. Bedi. He was found fit to perform the sexual intercourse. Thus he issued MLC Ext.PW1 /B. 3.After recording the statements of the witnesses, the Challan was prepared and presented in the Court for the trial of the accused. 4. Finding a prima facie case against the accused under the offence aforesaid, he was accordingly charge-sheeted. The accused pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined PW1 Dr. N.S. Bedi, PW2 Dr. Ruby Bhardwaj, PW3 prosecutrix, PW4 Usha Devi, PW5 Smt. Renu Chaudhary, PW6 Satya Devi, PW7 Gopal Krishan Sharma, Photographer, PW8 Kamlesh Kumari, mother of the prosecutrix, PW9 Shri Surinder Kumar, owner of the three wheeler, PW1 1 HC Ashok Kumar, PW14 SI Mohinder Singh, the Investing Officer, besides examining other formal witnesses including PW1 5 Bhim Chand, the then ACJM. 6. The accused was also examined under Section 313 of the Code of Criminal Procedure. The trend of cross-examination conducted on the prosecution witnesses reveals the defence of friendship and consent was alleged by the accused and the cause for the case on him was stated in answer to question No.23 of his statement under Section 313 of the Code of Criminal Procedure that PW6 Satya Devi had seen the prosecutrix in the compromising position and she had a fear that she would be removed from the service. When called upon to enter into defence evidence, he did not lead any evidence, nor such defence was put in cross-examination of PW6 aforesaid. 7. The learned trial Court placed implicit reliance on the statement of the prosecutrix and discarded the statement of PW2 Dr. Ruby Bhardwaj to the extent of attempted rape and note appended to the MLC as stated by the prosecutrix at the time of her medical examination. The defence raised was totally rejected, as such the accused was convicted and sentenced as aforesaid. 8. Shri N.S. Chandel, learned Counsel for the accused attacked the judgment aforesaid on the grounds that the manner and conduct of the prosecutrix was quite unnatural. The evidence on record reveals that it is a case of consent. The delay in lodging the FIR also gives rise to the presumption that it was lodged after due deliberation to implicate the accused in the present case. 9. Contra, Shri R.P. Singh, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and ventilated that the statement of the prosecutrix is inspiring confidence and the learned trial Court did not commit any error which is free from material contradictions and embellishments. He also argued that the defence taken is wrong and after thought. He further referred to the statement of PW6 Satya Devi and submitted that no such defence was ever suggested to her that she had seen the prosecutrix in a compromising condition, which made the prosecutrix to foist a false case against him. 10.I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 11.The cross-examination of the witnesses conducted on behalf of the accused, reveals an utter confusion in suggesting the defence which is even opposed to common sense, but however, that itself is not enough to prove the case of the prosecution for the offence of rape. The prosecution has to stand on its own legs and lead the evidence worth inspiring confidence. 12. The main evidence in all such cases is that of the victim herself. In practice a conviction for rape almost entirely depends on the credibility of the woman, so far as the essential ingredients are concerned, the other evidence being merely corroborative. The prosecution has to stand on its own legs and lead the evidence worth inspiring confidence. 12. The main evidence in all such cases is that of the victim herself. In practice a conviction for rape almost entirely depends on the credibility of the woman, so far as the essential ingredients are concerned, the other evidence being merely corroborative. It is not necessary that there should be independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it. The evidence, no doubt should not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with the crime. Corroboration may be by facts and circumstances. It is also well settled that the delay in lodging the FIR in a case of rape is not always fatal, if the incident is proved in accordance with law. 13. In this case, the prosecutrix when examined in the trial Court made the statement as referred above with respect to the alleged rape. She also stated about her medical examination and handing over her ‘Salwar’ to the police. She further stated that she had sustained injuries on her various part of the body and that the accused had penetrated his organ twice in her private part. She was subjected to lengthy cross-examination. She admitted the suggestion that on 30.5.2002 she alongwith PW6 Satya Devi and others had tried to find out the accused, who was identified and apprehended by the police on the same day. The identity of the accused is not in question. She was confronted with her statement Ext.PW3/A in cross-examination, with respect to the non-mentioning of the fact that after sometime there was some bifurcation and she was not aware of the road which led to village Mangrela and also that she had asked the accused to stop the three wheeler when she was taken on ‘Kacha’ road. She was confronted with her statement Ext.PW3/A in cross-examination, with respect to the non-mentioning of the fact that after sometime there was some bifurcation and she was not aware of the road which led to village Mangrela and also that she had asked the accused to stop the three wheeler when she was taken on ‘Kacha’ road. Further, there was also no mention about giving of 3-4 slaps to her in the statement aforesaid and also of that the accused threatened her to call 4-5 boys, but, in my opinion these contradictions are very minor in nature which are not sufficient to discard the prosecution case into.Pertinently, the prosecutrix in cross-examination admitted the suggestion that the lady doctor (PW2) who examined her had asked her about the occurrence. Another fatal question which was put to her is that the accused had laid her on the ground and she tried to relieve herself from him and in that process she received injuries on the buttock and back. She also admitted that the lady doctor examined her thoroughly and she had shown all the injuries to her and thereafter there was a ‘U’ turn in the cross-examination by denying the said incident. She denied that the accused was known to her and that she had come up with a false story. She further denied that the ladies of ‘Mahila Mandal’ had seen her with the accused in the three wheeler in a compromising position, thus a false story was concocted against the accused, this defence in the above factual background requires to be rejected. The learned Counsel for the accused also submitted that there was a fear of termination of her service from that Trust and this was the cause for implicating the accused in this case, which is unbelievable and beats common sense. 14. Further, the statement of PW8 Kamlesh Kumari, the mother of the prosecutrix, lends strength to the statement of the prosecutrix. She stated that on 27.5.2002 when the prosecutrix returned home it appeared to her that she had wept and her face was also pale and sullen. When asked her what had happened, she told that she was tired and hungry and did not tell about the occurrence but appeared to be frightened. She stated that on 27.5.2002 when the prosecutrix returned home it appeared to her that she had wept and her face was also pale and sullen. When asked her what had happened, she told that she was tired and hungry and did not tell about the occurrence but appeared to be frightened. Next day, i.e., on 28.5.2002 she kept sleeping and did not tell anything, but when snubbed by her she started weeping and revealed about the incident. Thereafter her mother informed the officials of the Trust and went to their office alongwith the prosecutrix and insisted them to take action against the accused. In cross-examination she was confronted with her statement recorded under Section 161 of the Code of Criminal Procedure with respect to the fact that she had informed the police about the condition of the prosecutrix that when she returned from the duty on 27.5.2002 her face was pale and sullen and appeared to have wept. She also stated that her husband was a labourer and she was not informed by the prosecutrix about the incident on the previous day. She also denied that Trust people had come to know about the friendship of the prosecutrix with the accused. 15.PW4 Usha Devi corroborates the version of the prosecutrix that she had met her at village Ruhd while traveling in three wheeler being driven by the accused and had enquired about the bus to Sadhun and she told her that bus had just left and she should ask the accused to drive the three wheeler fast to catch the bus. This portion of her statement is not challenged in her cross-examination. 16.PW5 Renu Chaudhary was deputed by the Trust authorities with the prosecutrix and her mother to lodge the report. She stated in her cross-examination that she did not know about any friendship inter se the prosecutrix and the accused, rather qualified that it was not so. PW6 Satya Devi is another employee posted in legal cell of the Trust. She was called by the Project Director and informed her that something wrong had happened with the prosecutrix and she was told to take her to her home and then she asked from the prosecutrix as to what had happened. She also stated the same sequence of incident. She further stated about the fact that the accused was identified by the prosecutrix when arrested by the police. She also stated the same sequence of incident. She further stated about the fact that the accused was identified by the prosecutrix when arrested by the police. In cross-examination she stated that the police was led by the accused to the place of incident to which he identified. She also denied the suggestion about the friendship of the prosecutrix with the accused. 17.The critical examination of the aforesaid evidence clearly leads to the conclusion that there was a sexual assault by the accused on the prosecutrix. The evidence on record does not show any unnatural conduct of the prosecutrix nor it is a case of consent. 18.Further, the incident in question is proved to be true and the delay stands properly explained. Thus delay, if any, is not fatal to the prosecution. The statement of the prosecutrix is also worth inspiring confidence. Further the statement of PW2 Dr. Ruby Bhardwaj also lends corroboration to her version. She noticed 2 cm x 1 cm bluish brown bruise on right forearm ventrally, which matches to the same time and statement of the prosecutrix that she had sustained injuries. The other injuries which she stated to have shown to the doctor might be physically unnoticeable and worth mentioning in the MLC, but her testimony is confidence inspiring qua the assault. 19.Now the question arises whether it was a case of rape or attempted rape. Though, the prosecutrix alleged rape on her by the accused, but in this behalf the statement of PW2 Dr. Ruby Bhardwaj needs consideration. On 29.5.2002 at about 11.55 p.m. prosecutrix was examined by the said doctor. The prosecutrix revealed the story to the doctor that she was going in a three wheeler from Nagrota to village Mangrela, near Mangrela three wheeler was stopped and she was taken to the jungle forcibly and raped. She was not wearing the same clothes which were worn by her at the time of incident. Further she revealed to the doctor that she was not very sure whether the accused was able to insert his penis into her vagina but she thought that once he penetrated but as she made her perineum tight, his penis immediately came out and no ejaculation occurred. She also stated that all times his penis was loose, i.e., not erected. Further she revealed to the doctor that she was not very sure whether the accused was able to insert his penis into her vagina but she thought that once he penetrated but as she made her perineum tight, his penis immediately came out and no ejaculation occurred. She also stated that all times his penis was loose, i.e., not erected. Coupled with the above fact, on clinical examination of the prosecutrix, the doctor did not find any injury on her genital examination. Even the hymen was not recently injured. It was found intact in a crescent shape, though her private part admitted only one finger easily. These facts were mentioned in the MLC Ext.PW2/B which was issued by the said doctor at the earliest point of time. Further the doctor stated that there was no clinical evidence of recent rape and she was not habitual, but possibility of attempted rape was not ruled out by her. Even on the forensic examination of the articles sent there was no evidence of any semen stains or blood. She also suggested that the injury sustained by the prosecutrix could be in a scuffle which is synchronizing with the time of alleged incident. Even in the cross-examination this part of the examination-in-chief of the doctor has not been challenged. Rather she admitted it to be correct that the history was narrated by the prosecutrix and also that the injuries shown in the MLC of the prosecutrix could be possible by a fall which is consistent with the statement of the prosecutrix. 20. Now, there are two versions deducible from the evidence on record. One about the commission of the rape and another about the attempted rape more specifically when the prosecutrix revealed to the doctor, as indicated in MLC Ext.PW2/B stating that the prosecutrix was not very sure whether he was able to insert his penis into her vagina. Further on the examination of the private part of the prosecutrix she did not indicate any injury on the labia majora or labia minora which could even establish partial penetration which is a sine-qua-non for the offence of rape. Therefore, it cannot be said to be a case of rape, but the prosecution has been able to prove a case of attempted rape by the accused beyond doubt. Therefore, it cannot be said to be a case of rape, but the prosecution has been able to prove a case of attempted rape by the accused beyond doubt. Therefore, in my opinion, the accused is guilty and deserves to be convicted for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. Therefore, his conviction is accordingly converted from Section 376 of the Indian Penal Code to the attempted rape. 21. The learned Counsel for the accused confronted with the above position prays for leniency and also submitted that the accused remained in custody nearly for about 11/2 months during the investigation of the case and is the sole bread winner of the family, whereas the learned Assistant Advocate General submitted that the appropriate sentence permissible under the law may be passed. 22. I have considered the above submissions in the light of factual background. In my opinion, the interest of justice would be met in case the substantive sentence is reduced to one year without disturbing the fine by giving the benefit of set-off under Section 428 of the Code of Criminal Procedure. Ordered accordingly. However, in default of payment of fine he shall further undergo the imprisonment for a period of three months. The fine amount, if realized be paid as compensation to the prosecutrix as ordered by the learned trial Court. 23. The sentence of the accused stands suspended vide order dated 23.5.2005. He is ordered to surrender before the learned trial Court on 11th June, 2012 to serve out the sentence, failing which, the learned trial Court shall take coercive steps to commit the accused/convict to imprisonment to serve out the sentence, in conformity with this judgment. The appeal stands partly allowed with the modification in sentence to the above extent.