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2013 DIGILAW 184 (HP)

Parmod Chand v. State of Himachal Pradesh

2013-03-18

SURINDER SINGH, V.K.AHUJA

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JUDGMENT : SURINDER SINGH, J. : ” The appellant has challenged the judgment of his conviction and sentence passed by the learned trial Court in Sessions Case No.24-K of 2005, decided on 23.10.2007 /31.10.2007, whereby he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 25,000/- under Sessions 376 (2)(f) of the Indian Penal Code, for allegedly committing rape on the prosecutrix, a minor child, and also to criminally intimidate, as such sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 5,000/- under Section 506, Part II of the Indian Penal Code with the default clauses. Both the sentences were ordered to run concurrently. However, benefit under Section 428 of the Code of Criminal Procedure was accorded. Further, it was ordered that out of the total amount of fine, an amount of Rs. 25,000/- shall be paid as compensation to the prosecutrix, if realized. 2. In the instant case, the prosecutrix is the sister” s daughter of the appellant, hereinafter to be referred as ' the accused” . The prosecutrix was adopted by the accused when she was approximately six months old. She was residing in the house of the accused along with his wife and two siblings. (ii) In the year 2003, during summer vacation when she was a school going child, the wife of the accused fell sick, as such she along with her children went to her parental house. Taking advantage of their absence, the prosecutrix is alleged to have been sexually abused by the accused. She was also threatened to be killed in case she disclosed this fact to anyone else. However, on return she made a complaint to the wife of the accused, but she did not pay any heed towards it, rather dubbed her as a liar. (iii) Further on 9.12.2004, the wife of the accused had gone to the neighbour to attend the marriage and in her absence the accused again committed rape on the prosecutrix. Thereafter she informed her mother telephonically about this incident. On 15-12-2004, she along with her mother visited Police Station and lodged FIR Ext.PW3/A. (iv) The prosecutrix was got medically examined from PW1 Dr. Neelam Mahajan. Thereafter she informed her mother telephonically about this incident. On 15-12-2004, she along with her mother visited Police Station and lodged FIR Ext.PW3/A. (iv) The prosecutrix was got medically examined from PW1 Dr. Neelam Mahajan. On clinically examination, she found that the breast of the prosecutrix was not fully developed only nipples were present, menarche had not yet started and secondary sex characters were not developed. But, however, there was no mark of injury on her body. External genitalia was found normal and hymen intact. Vaginal smears were taken and it was also observed that after the incident she had taken bath and washed her clothes Exts.P1 to P3, but however, clothes were sealed and sent for forensic examination. Doctor issued the Medico Legal Certificate Ext.PW1/F. She was referred to Radiologist to ascertain the skeleton age. On the basis of X-rays, she was opined to be between 9-12 years. (v) After perusing the examination report Ext.PW1/G, the doctor opined that there was no evidence of sexual intercourse as the victim had taken bath after the episode and also washed her clothes, thus there is very rare possibility that semen or blood of the accused would be present, however, she did not rule out the possibility of rape. She also testified that in rape cases it is not necessary to receive injuries on the private parts of the prosecutrix. 3. Police on visiting the spot prepared the site plan Ext.PW9/A and also collected the birth certificate Ext.PW5/B from the school where she was studying. Police also took into possession bed-sheet Ext.P5 over which the accused is alleged to have committed rape with her. It was also sent for chemical examination. 4. The accused was arrested. He was also medically examined. He was found fit to commit sexual intercourse. His Medico Legal Certificate is Ext.PW9/F. The accused got identified the bed-sheet of the double-bed. The photographs were also taken. Police recorded the statements of the witnesses and after completing investigation, Challan was presented in the Court for the trial. 5. The accused was accordingly charge-sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. 6. To prove its case, the prosecution examined the prosecutrix, her mother, Dr. Neelam Mahajan (PW1), besides examining the other formal witnesses and also PW9 SI Sureshata Thakur, Investigating Officer. 5. The accused was accordingly charge-sheeted for the offences aforesaid to which he pleaded not guilty and claimed trial. 6. To prove its case, the prosecution examined the prosecutrix, her mother, Dr. Neelam Mahajan (PW1), besides examining the other formal witnesses and also PW9 SI Sureshata Thakur, Investigating Officer. From the perusal of cross-examination of the witnesses, the accused appears to have taken the defence that there was a dispute with respect to the land inter se the mother of the prosecutrix (sic) thus false implication; but when examined under Section 313 of the Code of Criminal Procedure his case was denial simpliciter and did not make any such allegations, rather, he chose to examine his mother DW-1 Chanchala Devi, who was earlier prosecution witness and her statement mark DA recorded under Section 161 of the Code of Criminal Procedure. When confronted with it, she stood contradicted. Though, she tried to corroborate the defence taken, but significantly in her cross-examination she admitted that nobody demanded any land from them or the accused and further stated that none of them own any land. Further DW2 Smt. Kanchan Devi, the wife of the accused was also examined. She stated that on the day of alleged occurrence, the prosecutrix came from the school and told her that she wanted to go to Kangra to meet her mother and had left the place, but thereafter she did not return. She also stated that the mother of the prosecutrix was demanding the land and a sum of Rs. 25,000/- from them and that was the reason the accused was implicated in a false case of rape. She was confronted with her statement (mark DB) recorded under Section 161 of the Code of Criminal Procedure to the effect that she was not present in the house on the day of alleged occurrence and she also stood contradicted. Significantly, she admitted that she had appeared as a defence witness to save the accused and made her above statement as was instructed. 7. The learned trial Court disbelieved the defence taken and while believing the statement of the prosecutrix which stands duly corroborated by her mother, convicted and sentenced the accused. 8. Significantly, she admitted that she had appeared as a defence witness to save the accused and made her above statement as was instructed. 7. The learned trial Court disbelieved the defence taken and while believing the statement of the prosecutrix which stands duly corroborated by her mother, convicted and sentenced the accused. 8. Learned Counsel for the appellant/accused vehemently argued that the statement of the prosecutrix cannot be believed in absence of material corroboration, there have been contradictions in the statements of the witnesses and the medical evidence supports the case of the accused. There was no injury on her person and her hymen was intact, thus in absence of any injury her testimony stands belied. 9. On the other hand, Shri J. S. Guleria, learned Assistant Advocate General, supported the reasoning given in the impugned judgment of conviction and sentence and further argued that the statement of the prosecutrix is confidence inspiring. The prosecutrix was a minor child and could not offer any resistance and it was a helpless surrender to the accused, therefore, there is no question of injury on the person of the prosecutrix. 10. We have given our thoughtful consideration to the rival contentions of the parties and have critically reappraised the evidence on record. 11. We are conceptually very clear that in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. Admittedly, it is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. Further, the evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. 12. The Supreme Court in Jogi Dan and others v. State of Rajasthan, 2004 Cri LJ 1726, reiterated the legal principle of law that whenever a great suspicion against the accused and however, strong is the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the guilt of the accused by reliable evidence lest the accused is entitled to the benefit of reasonable doubt. 13. By now it is well settled that the statement of the prosecutrix can be acted upon without any further corroboration. The Supreme Court as early as in the year 1952 in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 , declared that the corroboration is not the sine qua non for a conviction in a rape case. In the aforesaid case, Mr. Justice Vivian Bose speaking for the Court in para 19 observed as follows: ' The rule, which according to the cases has been hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge¦ . The only rule of law is that this rule of prudence must be present to the mind of the Judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.' Œ 14. The aforesaid principle of law has been reiterated by the Supreme Court in numerous judgments subsequently. 15. Further, it is also well established that to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Every partial penetration of penis within labia majora with or without any emission of semen or even an attempt of penetration is sufficient for purpose of offence of rape. Thus, the presence of injury would depend if resistance was offered or it was a case of helpless surrender. At times, but not essentially the absence of injuries also prove the innocence of the accused, but these facts require to be tested with reference to the statement of the prosecutrix and the material extracted in her cross-examination. Thus, the presence of injury would depend if resistance was offered or it was a case of helpless surrender. At times, but not essentially the absence of injuries also prove the innocence of the accused, but these facts require to be tested with reference to the statement of the prosecutrix and the material extracted in her cross-examination. Even the Supreme Court in Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661 held that the absence of marks of violence on private parts or else where on the person of the prosecutrix merely suggests want of violent resistance on the part of the prosecutrix which is wholly inconsequential when the prosecutrix is under 16 years of age, which fact holds good in the present case where she is merely a child of slightly less than 13 years and virtually surrendered to the accused seeing no escape. Thus by absence of any injury on the part of prosecutrix, no material benefit could be derived by the accused. Therefore, the defence taken with respect to the alleged land dispute for want of proof in accordance with law and in the absence of injuries would not cause any dent to the prosecution case. Rather she categorically stated about the alleged rape by the accused in the year 2003 during holidays in absence of the wife of accused and their children. She vividly narrated how the incident had taken place with her. She also stated about its disclosure to the wife of the accused (DW2) and DW1 Chanchala Devi, but they branded her as a liar. The accused is also alleged to have threatened her life. Thus she had no option but to keep mum qua earlier incident, but however again on 9.12.2004 when the accused repeated this nasty act in absence of other members of the family while changing her clothes and was caught hold by the accused, made her to lie and committed rape, she had informed to her mother telephonically. She testified that next morning she went to the school and in the evening her mother accompanied her to Police Station and lodged the report Ext.PW3/A wherein the entire facts were mentioned. She testified that next morning she went to the school and in the evening her mother accompanied her to Police Station and lodged the report Ext.PW3/A wherein the entire facts were mentioned. In cross-examination, she denied that her story was false; but quite surprisingly a positive suggestion was made to her that at the time of alleged rape no body was there and on 10.12.2004, she had also informed DW1 and DW2 aforesaid and further that no one had come to her rescue. Further, she also admitted the suggestion that she had not cried and made any noise when the said act was being committed by the accused, but volunteered to state that the accused had gagged her mouth. 16. PW2, mother of the prosecutrix, corroborated her version in material particulars, that she was informed about the said incident by the prosecutrix. Thereafter she asked about this incident from the accused-brother, but he told that he was drunk and because of that he committed the wrong act and begged pardon. She also stated that on 15.12.2004 she took the prosecutrix to Police Station and lodged the report. She denied in the cross-examination about the demand of money or land from the accused. She also refuted the allegations that she had disclosed wrong facts before the police and further that he was falsely implicated in the case. 17. Thus the upshot of the above entire discussion is that the statement of the prosecutrix is worth inspiring confidence, her mother affords material corroboration, which was rightly relied upon by the learned trial Court. The defence raised by the accused even by examining his wife and the mother as discussed above was obviously an attempt to secure acquittal but they could not probabilise the defence version. Their testimonies are tainted with favour, further both the witnesses stand fully contradicted with their earlier statements. Thus, we do not find anything to doubt the prosecution case, which stands otherwise proved beyond reasonable doubt. As such, the appeal is without merit, hence dismissed. Appeal dismissed.