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Himachal Pradesh High Court · body

2014 DIGILAW 711 (HP)

Nitin Kumar v. State of Himachal Pradesh

2014-06-03

P.S.RANA, SANJAY KAROL

body2014
JUDGMENT P.S.Rana Judge 1. Present appeal filed against the judgment and sentence passed by learned Sessions Judge Kinnaur Sessions Division at Rampur Bushehr camp at Reckong Peo in Sessions Trial No 28 of 2008 titled State vs. Nitin Kumar and another decided on 17th December 2009. Brief facts of the case as alleged by the prosecution:- 2. It is alleged that on 22nd April 2008 at about 8.20 AM one Ashwani Kumar had informed the police that his wife prosecutrix took some poisonous substance and she was taken to the hospital at Sangla. It is alleged by the prosecution that after incorporating the information in daily dairy the police party headed by SI/SHO Lekh Ram went to hospital where statement of Shri Ashwani Kumar under Section 154 Cr.P.C. was recorded who disclosed in his statement that on dated 21st April 2008 he was with his wife prosecutrix who is joint wife along with his brother Pawan Kumar having three children out of their joint marriage which took place about 9 years back. Complainant informed that prosecutrix had gone in village Sangla to the house of Suresh Kumar to attend social function known as Daroj. It is alleged by the prosecution that when Ashwani Kumar on dated 22nd April 2008 in the morning asked his wife to wake up as children were to be sent to the school and he was to go to his land then prosecutrix started weeping and when he asked about the cause of her weeping she disclosed that she took poisonous medicine. It is alleged by the prosecution that when Ashwani Kumar asked his wife prosecutrix about cause of taking poisonous medicine then prosecutrix disclosed that during night when she was coming back from the house of Suresh Kumar after attending the social function known as Daroj both accused persons have committed forcible rape upon the prosecutrix despite her resistance and raising hue and cry. It is further alleged by the prosecution that thereafter Ashwani Kumar brought his wife to the hospital for her medical treatment and handed over the small container of poisonous medicine to the doctor and also informed the police station. Complainant informed that accused persons have committed rape forcibly with his wife without her consent and thereafter she took poisonous substance in order to save her reputation. Complainant informed that accused persons have committed rape forcibly with his wife without her consent and thereafter she took poisonous substance in order to save her reputation. Statement of complainant Ashwani Kumar recorded under Section 154 Cr.P.C. was sent to the police station from the hospital and thereafter FIR was registered and it is further alleged by the prosecution that during investigation both accused were arrested who made disclosure statements during the custody of the police and also identified the place of incident of forcible rape. It is also alleged by the prosecution that in pursuance of disclosure statements the place of incident was identified in presence of witnesses and thereafter medical examination of the accused was conducted and medical officer opined that prosecutrix was multiparous. It is further alleged by the prosecution that both the accused were also medically examined and medical officer opined that both accused were capable of sexual intercourse. It is further alleged by the prosecution that human semen was also observed on the clothes of the prosecutrix and accused as per report of the Forensic Science Laboratory. On completion of investigation, challan under Section 376 (G) of IPC filed against the accused persons. 3. Learned trial Court framed the charge against the accused persons under Section 376(g) of the Indian Penal Code on 13th October, 2008. Accused persons did not plead guilty and claimed trial. 4. Prosecution examined as many as fourteen witnesses in support of its case and accused persons examined Smt. Sumitra Devi as defence witness:- Sr.No. Name of Witness PW1 Ashwani Kumar PW2 Prosecutrix PW3 Jayant PW4 Bhajan Singh PW5 Raj Bhagti. PW6 Purshottam PW7 Dr. Tulika Madaik PW8 Dr. Arun Sharma PW9 Dr. Parveen PW10 Shyam Singh PW11 Ramesh Kumar PW12 Rakesh Kumar PW13 Jawahar Lal PW14 SI Lekh Ram DW1 Smt. Sumitra Devi 4.1 Prosecution also produced following piece of documentary evidence in su pport of its case:- Sr.No. Description. Ext.PW1/A Statement of Ashwani Kumar under Section 154 Cr.P.C Ext.PW1 /B& C Photographs Ext.PW4/A Disclosure statement Ext.PW4/B Disclosure statement Ext.PW4/C Memo regarding demarcation Ext.PW4/D Memo regarding demarcation. Ext.PW7/A MLC of Smt. Suman Kumari. Ext.PW8/A FSL report. Ext.PW9/A MLC of Suman Kumari Ext.PW9/B Application for conducting medical examination of Suman Kumari Ext.PW9/C Application for conducting medical examination of Suman Kumari. Ext.PW1/A Statement of Ashwani Kumar under Section 154 Cr.P.C Ext.PW1 /B& C Photographs Ext.PW4/A Disclosure statement Ext.PW4/B Disclosure statement Ext.PW4/C Memo regarding demarcation Ext.PW4/D Memo regarding demarcation. Ext.PW7/A MLC of Smt. Suman Kumari. Ext.PW8/A FSL report. Ext.PW9/A MLC of Suman Kumari Ext.PW9/B Application for conducting medical examination of Suman Kumari Ext.PW9/C Application for conducting medical examination of Suman Kumari. Ext.PW9/D En dorsement on application Ext.PW9/E MLC of Nitin Kumar Ext.PW9/F MLC of Hans Raj Ext.PW9/G Application for conducting medical examination of Nitin Kumar Ext.PW9/H Application for conducting medical examination of Hans Raj Ext.PW10/A FIR Ext.PW12/A Abstract of Malkhana register Ext.PW12/B Copy of R.C. Ext.PW13/A to Ext.PW13/C Copy of daily diary No.3, 5 and 13 respectively. Ext.PW14/A Application for conducting medical examination of Smt. Suman Kumari. Ext.PW14/B Report of the doctor Ext.PW14/C Endorsement on Ext.PW1/A Ext.PW14/D Certificate of the doctor Ext.PW14/E to Ext.PW14/H Rough site plans. Ext.P-6 Camera reel 5. Statements of the accused were also recorded under Section 313 Cr.P.C. The accused examined one witness in defence. The accused persons took the plea of complete innocence and false implication. Learned trial Court convicted both the accused under Section 376 (2)(G) of the Indian Penal Code for committing gang rape and sentenced both the convicts to rigorous imprisonment for ten years and fine to the tune of ` 20,000/- (Rupees Twenty Thousand each). Learned trial Court further directed that in default of payment of fine convicts would undergo rigorous imprisonment for two years. Grounds of appeal 6. Feeling aggrieved by judgment and sentence passed by learned trial Court appellants Nitin Kumar and Hans Raj filed present appeal on the following memorandum of grounds of appeal. It is pleaded that accused persons are innocent and they have not committed any offence as alleged by the prosecution. It is further pleaded that judgment and sentence passed by learned trial Court are based on conjectures and surmises. It is also pleaded that testimony of the prosecutrix did not inspire confidence and prosecution has failed to connect the accused persons with the alleged offence and it is further pleaded that attendance of prosecutrix in the house of Suresh Kumar and Sumitra not proved on record. It is further pleaded that even two witnesses Kubja Devi and Sunder Giani have not been examined by the prosecution for the reason best known to prosecution. It is further pleaded that even two witnesses Kubja Devi and Sunder Giani have not been examined by the prosecution for the reason best known to prosecution. It is further alleged that even Sumitra Kumari in whose house the function took place has deposed before the learned trial Court as DW1 that whole of the villagers were invited in the function at her house and villagers attended the function but prosecutrix was not seen during the function at her house. It is also pleaded that DW1 Sumitra has categorically denied the participation of prosecutrix in the function. It is pleaded that calls pertaining to the mobile of prosecutrix were neither verified nor calls received by the priest as well as his brother Jayant were verified. It is further pleaded that prosecutrix has involved the present accused persons because they have witnessed prosecutrix in compromise stage with Jayant. It is also pleaded that when prosecutrix took the poisonous substance at that time she did not disclose the names of accused persons qua commission of forcible rape upon her. It is pleaded that prosecutrix has spent whole night with Jayant brother of priest and in order to cover her act accused persons have been falsely implicated in the present case because accused persons have seen them in compromising stage. It is further pleaded that no injury upon the body or vital part of prosecutrix was found despite the allegation that rape was committed forcibly by accused persons one co-accused holding hands of the prosecutrix and other co-accused committed offence of rape on plain ground one by one. It is further alleged that no external injury on the person of prosecutrix was observed by medical officer whereas marks of violence are bound to appear on the person of prosecutrix in view of the manner of rape as alleged by the prosecution. It is further pleaded that as the accused persons have seen the incident of compromise stage of prosecutrix with Jayant with their own eyes they have been falsely implicated in the present case. It is further alleged that Jayant is neighbourer of prosecutrix and testimonies of prosecutrix and her husband are not corroborated by any other witness. It is further pleaded that as the accused persons have seen the incident of compromise stage of prosecutrix with Jayant with their own eyes they have been falsely implicated in the present case. It is further alleged that Jayant is neighbourer of prosecutrix and testimonies of prosecutrix and her husband are not corroborated by any other witness. It is also pleaded that learned trial Court has not taken into consideration the fact that there are number of houses nearby the place of incident and even one cry could be heard by many people residing nearby houses. It is also alleged that there is no reason explained by the prosecution as to why prosecutrix did not disclose the names of accused persons to Jayant and Purshottam. Prayer for acceptance of appeal sought. 7. We have heard learned Advocate appearing on behalf of the appellants and learned Additional Advocate General appearing on behalf of the respondent-State. 8. Question that arises for determination before us in this appeal is whether learned trial Court on the basis of material on record was justified in convicting both the appellants. ORAL EVIDENCE ADDUCED BY PROSECUTION: 9. PW1 Ashwani Kumar has stated that accused persons present in Court are known to him. He has stated that name of his elder brother is Pawan. He has further stated that he and Pawan had jointly married with prosecutrix about eight years back. He has further stated that after marriage of prosecutrix she started residing with them as their legally wedded wife. He has stated that she had given birth to three sons. He has further stated that on 21st April, 2008 his wife had left her house for attending Daroj ceremony at the house of Shri Suresh Kumar situated at village Sangla. He has also stated that other villagers and ladies were present in the house of Suresh Kumar and after ceremony of Daroj his wife had returned to her house on the intervening night of 21st April 2008 and 22nd April 2008. He has stated that when she reached the house other family members were sleeping. He has further stated that on 22nd April, 2008 in the morning he got up and asked his wife to get up. He has stated that his wife got up and when she got up she was in agony and tears and informed him that she had consumed poison. He has further stated that on 22nd April, 2008 in the morning he got up and asked his wife to get up. He has stated that his wife got up and when she got up she was in agony and tears and informed him that she had consumed poison. He has also stated that prosecutrix also requested him not to perform another marriage and to take care of her children. He has stated that he inquired from his wife about reason of consuming poison then his wife i.e. prosecutrix informed him that on the intervening night of 21st April 2008 and 22nd April 2008 when she was on way to her matrimonial house both accused persons present in Court intercepted her near the house of Vidya Ram. He has stated that accused persons namely Nitin Kumar @ Kuku and Hans Raj had committed sexual intercourse with prosecutrix without her consent and against her will and prosecutrix decided to end her life. He has stated that on receipt of this information he immediately took his wife to Sangla and dropped her at hospital. Thereafter he returned to his house and informed the police about incident. He has stated that when he reached the house the police had also reached within five minutes and interrogated him. He has stated that his statement Ext.PW1/A was recorded which was signed by him. He has stated that prosecutrix was medically treated and she survived. He has stated that later on his wife had pointed out the place where accused persons had intercepted her and had committed rape upon her without her consent and against her will. He has stated that police also took photographs of his wife and site where the crime had been committed. He has further stated that police again took photographs on 22nd April 2008 and his wife indicated in photographs Ext.PW1/B and Ext.PW1/C. He has stated that his wife had handed over the vial containing poison to the police. In cross examination, he has denied suggestion that prosecutrix had also consumed poison earlier. He has stated that he had produced the vial containing poison before the police officials. He has further stated that Jayant is related to him on account of village brotherhood. He has stated that his wife did not inform him about the incident at the time of return to her house. He has stated that he had produced the vial containing poison before the police officials. He has further stated that Jayant is related to him on account of village brotherhood. He has stated that his wife did not inform him about the incident at the time of return to her house. He has stated that two other women had accompanied his wife to the house of Suresh Kumar on 21st April 2008 in the evening. He has accepted suggestion that on account of Daroj ceremony entertainment and dance programme continued for the whole night. He has stated that he does not know whether accused persons and Vipin had participated in the entertainment programme and dance party programme for the whole night. He has stated that he could not state if Vipin had slept with accused persons after the dance party. He has stated that on 21st April 2008 his elder brother was in District Sirmaur with sheep and goats. He has stated that prosecutrix did not talk with him on the night when she returned. He has stated that he got up at 7 am and when he got up his wife was in bed. He denied suggestion that he was having doubt on the character of his wife. He has also denied suggestion that he was making false statement and also denied suggestion that his wife was with Jayant for the whole night. He has also denied suggestion that accused persons had seen her in the doubtful circumstances with Jayant and also denied suggestion that accused persons did not commit any rape with his wife/prosecutrix. 9.1 PW2 prosecutrix has stated that she stood married with PW1 Ashwani Kumar about 8/10 years back and she has stated that Pawan Kumar is elder brother of Ashwani Kumar. She has stated that she is joint wife of both of them. She has also stated that after her marriage she started residing with her husbands and gave birth to three sons. She has stated that on 21st April 2008 in the evening she left her house for participating in Daroj ceremony at the house of Suresh Kumar in village Sangla. She has stated that house of Suresh Kumar is at a distance of one kilometer from her house. She has further stated that accused persons present in Court are also residents of village Sangla. She has stated that house of Suresh Kumar is at a distance of one kilometer from her house. She has further stated that accused persons present in Court are also residents of village Sangla. She has stated that accused persons also visited house of Suresh Kumar for Daroj ceremony and there were 50-60 persons including men and women present at the house of Suresh Kumar. She has stated that Shankar Giani and Kubza were also present there. She has stated that accused persons asked her to return to her house at about 1 AM on 22nd April, 2008. She has stated that she refused to return to her matrimonial house with accused persons but both of them forcibly took her out of ladies. She has stated that Smt. Kubja and Shankar Giani intervened on her behalf. She has stated that accused persons took her and told that they would drop the prosecutrix at her matrimonial house. She has further stated that when she was near the house of Vidya Ram both accused persons caught hold her. She has stated that co-accused Hans Raj had caught hold her hands and co-accused Nitin had fallen her on the ground. She has stated that thereafter co-accused Nitin @ Kuku committed forcible sexual intercourse with her against her will and without her consent. She has further stated that when co-accused Nitin @ Kuku committed sexual intercourse with her other co-accused Hans Raj had caught hold her from her hands. She has stated that thereafter co-accused Nitin released her and caught her from her hands and co-accused Hans Raj committed forcible sexual intercourse with her without her consent and against her will. She has stated that she became unconscious. She has stated that after sometime she regained consciousness. She has stated that she contacted at her matrimonial house from her mobile number, but nobody had responded to her call and thereafter she telephoned her neighbourer namely Jayant by way of mobile phone and asked him to take her to her matrimonial house. She has stated that thereafter Jayant and Purshottam brought her at her matrimonial house at about 3-4 AM. She has stated that she was ashamed and she decided to end her life and she took poison. She has stated that thereafter Jayant and Purshottam brought her at her matrimonial house at about 3-4 AM. She has stated that she was ashamed and she decided to end her life and she took poison. She has stated that thereafter in the morning she narrated the incident of rape to her husband and thereafter her husband took her to hospital at Sangla and she was medically treated by the medical officer. She has stated that she located the site of incident of forcible rape and police officials also took photographs Ext.PW1/B and Ext.PW1/C. She has stated that she signed MLC at mark A. She has stated that she was examined by police officials on 22nd April 2008. She has stated that Jayant had dropped her near her courtyard and stated that Jayant is unmarried. She has denied suggestion that Vipin was with the accused persons for the whole night and she also denied suggestion that Vipin had participated in the dance party for the whole night. She has denied suggestion that accused persons and Vipin had slept together after the party was over. She has stated that her clothes were torn in the scuffle. She has denied suggestion that she was enjoying with Jayant for the whole night and accused persons had seen her in the company of Jayant. She denied suggestion that with a view to save her honour she has named accused persons in the false case. She denied suggestion that accused persons did not commit any crime of rape on her person. She has denied suggestion that she was deposing falsely against accused persons. She has stated that at the time of her medical examination Medical Officer Dr. Tulika Madaik had seized her shirt Ext.P-1, trouser Ext.P-2, lower Ext.P-3, underwear Ext.P-4, koti Ext.P-5. She has stated that Ext.P-1 to Ext.P-5 belong to her. She hasdenied suggestion that Shri Suresh Kumar had not invited her for Daroj ceremony on 21st April 2008 in the evening. 9.2 PW3 Jayant has stated that PW1 Ashwani Kumar and his wife are known to him and he is residing at a distance of about 80100 metres from the house of Ashwani Kumar. She hasdenied suggestion that Shri Suresh Kumar had not invited her for Daroj ceremony on 21st April 2008 in the evening. 9.2 PW3 Jayant has stated that PW1 Ashwani Kumar and his wife are known to him and he is residing at a distance of about 80100 metres from the house of Ashwani Kumar. He has stated that on 22nd April 2008 in the morning his elder brother Purshottam had telephonically contacted him and informed him that prosecutrix was lying near the house of Vidya Ram and was to be taken to her matrimonial house. He has stated that he rushed to the place where prosecutrix was lying near the house of Vidya Ram. He has further stated that his brother Purshottam and he picked up prosecutrix and thereafter dropped her near courtyard of matrimonial house of prosecutrix. He has stated that earlier prosecutrix had given a call to his brother on his mobile phone and sought his assistance. In cross examination he has stated that he did not talk with prosecutrix because she was unconscious. He has denied suggestion that prosecutrix was with him for the whole night and accused persons have seen them in suspicious circumstances and thereafter he conspired to rope the accused persons in false case. 9.3 PW4 Bhajan Singh has stated that accused persons present in Court are known to him and he has stated that accused persons were arrested by the police officials and they informed the police that they could locate the site of crime where they had committed rape upon the prosecutrix. He has stated that their statements were reduced into writing by the police official in his presence. He has stated that accused persons and he signed statements Ext.PW4/A and Ext.PW4/B. He has stated that thereafter accused persons took the police party to the place near the house of Vidya Ram at Sangla and stated that accused persons had located the site vide Ext.PW4/C and Ext.PW4/D. He has stated that accused persons and he signed the documents. He has stated that rough sketch map was also prepared. He has further stated that accused persons had committed rape upon the prosecutrix at the site pointed out in photographs Ext.PW1/B and Ext.PW1/C. He has stated that no one was residing in the house of Vidya Ram and stated that Vidya Ram was residing in his another house. He has stated that rough sketch map was also prepared. He has further stated that accused persons had committed rape upon the prosecutrix at the site pointed out in photographs Ext.PW1/B and Ext.PW1/C. He has stated that no one was residing in the house of Vidya Ram and stated that Vidya Ram was residing in his another house. He has denied suggestion that accused persons have not given any disclosure statements under Section 27 of Indian Evidence Act, 1872. He has also denied suggestion that he was making false statement because of his relationship with prosecutrix. 9.4 PW5 Raj Bhagti has stated that she is ward member of Gram Panchayat Sangla w.e.f. January, 2006. She has stated that prosecutrix took her with the police officials to a place nearby the house of Vidya Ram at Sangla and pointed out the place where both accused had committed sexual intercourse with her without her consent and against her will. She has denied suggestion that prosecutrix did not take the police officials to the site of crime. 9.5 PW6 Purshottam has stated that he is permanent resident of village Sangla and holder of mobile No. 98160-44135. He has stated that on 21st April 2008 he was not feeling well and was suffering from dysentery and he was compelled to step out of his house for passing stool frequently. He has stated that at about 2 O’clock he received a call on his mobile phone from prosecutrix and she informed him that she was not keeping well and was on the ground near the house of Vidya Ram at Sangla. He has stated that prosecutrix requested him that she should be taken to her matrimonial house. He has stated that on receiving this information he rushed to the place near the house of Vidya Ram and found that prosecutrix was lying on the ground and she was not able to get up. He has stated that thereafter he contacted his brother Jayant on his telephone and Jayat also rushed towards the house of Vidya Ram and he has stated that Jayant picked up the prosecutrix and took her to her matrimonial house. He has stated that on the next day he visited Civil Hospital Sangla for his own treatment and found that Ashwani Kumar was present in the hospital. He has stated that on the next day he visited Civil Hospital Sangla for his own treatment and found that Ashwani Kumar was present in the hospital. He has stated that Ashwani Kumar informed him that his wife was admitted in the hospital and he has stated that Ashwani Kumar also informed that prosecutrix had consumed poison to end her life. He has stated that Ashwani Kumar had informed him that both accused persons have committed sexual intercourse with prosecutrix and with a view to save her honour prosecutrix had consumed poison for committing suicide. He has stated that he is Lama of the local temple. He has stated that residents of village Sangla worship the local deity. He has further stated that accused persons and their men have also provided offerings to him. He has stated that distance of house of Vidya Ram from his house could be covered on foot within five minutes. He has stated that house of Ashwani Kumar is situated at the distance of about ½ kilometer from the house of Vidya Ram. He has stated that he and his brother had dropped the prosecutrix at her house at about 2.30 AM on 22.4.2008. 9.6 PW7 Dr. Tulika Madaik has stated that Medical Officer had passed MBBS examination from Bangalore Medical College in 2004. Medical Officer has stated that Medical Officer is working as Medical Officer in Regional Hospital Reckong Peo w.e.f. 2.1.2008. Medical Officer has stated that prior to 2nd January 2008 Medical Officer was working in private hospital at Mumbai for one year and had done internship for one year from Bangalore Medical College in 2004. Medical Officer has stated that on 22nd April 2008 at 7.15 PM on reference from police Medical Officer had medically examined the prosecutrix aged 26 years and observed as follow. Medical Officer has stated that prosecutrix was conscious and well oriented to time, place and person and vitals were stable. Medical Officer has further stated that on general examination, struggle marks were not present anywhere over the body and genital area. Medical Officer has stated that abdomen was lax and stretch marks were seen. Medical Officer has also stated that vagina of the prosecutrix was partially exposed and cervical appears as a transverse slit. Medical Officer has stated that there was no bleeding or discharge. Medical Officer has stated that abdomen was lax and stretch marks were seen. Medical Officer has also stated that vagina of the prosecutrix was partially exposed and cervical appears as a transverse slit. Medical Officer has stated that there was no bleeding or discharge. Medical Officer has stated that there was no any external injury on the person of prosecutrix. Medical Officer has stated that vagina might be exposed due to repeated forcible sexual intercourse. The Medical Officer further stated that MLC Ext.PW7/A is signed by the Medical Officer. Medical Officer has further stated that Medical Officer obtained signatures mark X of prosecutrix on MLC Ext.PW7/A. Medical Officer has also stated that packet containing shirt Ext.P1, trouser Ext.P2, lower Ext.P3, underwear Ext.P4 and sweater Ext.P5 was prepared. The Medical Officer has further stated that Medical Officer took sample of public hair of prosecutrix and vaginal swab and sealed above stated items for chemical analysis. Medical Officer has further stated that seal of the Medical Officer was applied to items mentioned above. Medical Officer has stated that if one person forcibly catches hold of the prosecutrix and another commits sexual intercourse with or without her consent marks of violence may or may not would appear on the person of prosecutrix. Medical Officer has stated that Medical Officer inquired from prosecutrix and prosecutrix informed her that she was subjected to forcible sexual intercourse on the ground. 9.7 PW8 Dr. Arun Kumar has stated that he worked as Assistant Director Biology and Serology in State Forensic Science Laboratory Junga w.e.f. 13.8.1998 to 1.6.2008. He has stated that after 1st June 2008 he is posted as Deputy Director Forensic Science Laboratory Dharamshala and he was holding additional charge of Assistant Director Biology and Serology State Forensic Science Laboratory Junga. He has stated that in present case State Forensic Science Laboratory had received exhibits in sealed cover along with specimen impression of the seal used in sealing the exhibits. He has further stated that exhibits were examined by him and he had issued report Ext.PW8/A and his report is correct duly signed by him. 9.8 PW9 Dr. Parveen has stated that Medical Officer had passed MBBS examination from IGMC Shimla in 2001. Medical Officer has stated that Medical Officer is working as Medical Officer in Health and Family Welfare Department of the State of H.P. w.e.f. October 2003. 9.8 PW9 Dr. Parveen has stated that Medical Officer had passed MBBS examination from IGMC Shimla in 2001. Medical Officer has stated that Medical Officer is working as Medical Officer in Health and Family Welfare Department of the State of H.P. w.e.f. October 2003. Medical Officer has also stated that on 22nd April 2008 Medical Officer was working as Medical Officer CHC Sangla. Medical Officer has stated that on that day at 7.30 AM on reference from the police, Medical Officer had medically examined the prosecutrix and observed as follow. Medical Officer has stated that prosecutrix was semi conscious but was oriented to place and person. Medical Officer has stated that after inquiry husband of prosecutrix told him that prosecutrix had consumed poison and showed vacant container to him. Medical Officer has stated that vacant container was containing Ketoprofen, which is an insecticide for spraying upon vegetables and fruits. Medical Officer has stated that insecticide was consumed by prosecutrix for committing suicide. Medical Officer has stated that he had medically treated the prosecutrix and given her first aid and preserved her gastric lavage content and vacant container for chemical analysis and handed over items to the police in sealed cover having applied seal of the Medical Officer. Medical Officer has further stated that he had issued MLC Ext.PW9/A which is duly signed by him. Medical Officer has stated that police also filed application for clinical examination of prosecutrix to know whether or not she was subjected to forcible rape but since there was no female doctor at CHC Sangla on 22nd April 2008, he referred application Ext.PW9/C to Medical Officer Regional Hospital Reckong Peo vide endorsement Ext.PW9/D. Medical Officer has stated that he also medically examined both the accused persons present in Court as per MLCs Ext.PW9/E and Ext.PW9/F in response to applications Ext.PW9/G and Ext.PW9/H filed by police. In cross examination he has stated that drug Ketoprofen is used in allopathic medicines for treatment of athletes foot and is also used as anti fungal agent in medical science. He has stated that he also took into possession shirt, pant, underwear and vest of co-accused Nitin and pant and shirt of co-accused Hans Raj. He has identified the clothes of accused Nitin Kumar in Court and clothes of co-accused Hans Raj in Court. He has stated that he also took into possession shirt, pant, underwear and vest of co-accused Nitin and pant and shirt of co-accused Hans Raj. He has identified the clothes of accused Nitin Kumar in Court and clothes of co-accused Hans Raj in Court. 9.9 PW10 HC Shyam Singh has stated that he is working as Head Constable in Police Station Sangla w.e.f. 22nd April 2008. He has stated on 22nd April 2008 Shri Lekh Raj SI/SHO, Police Station, Sangla had handed over Ruka Ext.PW1/A to him with a direction to hand over the Ruka to MHC. He has stated that MHC registered FIR Ext.PW10/A on the basis of Ruka Ext.PW1/A and handed over the file to him. He has stated that he took photographs Ext.PW1/B and Ext.PW1/C of the site of incident at the instance of prosecutrix. Negatives of photographs are placed on record. Later on he also took photographs of the site of occurrence. He has stated that in his presence Shri Lekh Ram SHO interrogated the accused persons and accused persons stated that they could locate the site of occurrence and given disclosure statements Ext.PW4/A and Ext.PW4/B. Both accused persons took SHO him and Bhajan Singh to the place of incident and located the place of incident. He has stated that he deposited Ruka with MHC at 9.20 AM. He has stated that both accused persons were arrested by police officials on 22nd April 2008 and further stated that he did not notice any injury on the person of accused. PW10 has further stated that Shri Lekh Ram, SI/SHO has deposited the case property with MHC. 9.10 PW11 HHC Ramesh Kumar has stated that he is working as HHC in Police Station Sangla w.e.f. March, 2008. He has stated that MHC Rakesh Kumar P.S. Sangla handed over the sealed packet to him with a direction to deposit the sealed packet in the office of FSL Junga . He has stated that he took the sealed parcel from the Police Station Sangla and deposited these sealed packets with FSL Junga on 25th April 2008. He has stated that case property remained intact in his custody. 9.11 PW12 H.C. Rakesh Kumar has stated that he is working as MHC P.S. Sangla w.e.f. 2007 to July 2008. On 22nd April 2008 he had received Ruka Ext.PW1/A duly endorsed by Lekh Ram SI for registration of FIR through Shyam Singh HC. He has stated that case property remained intact in his custody. 9.11 PW12 H.C. Rakesh Kumar has stated that he is working as MHC P.S. Sangla w.e.f. 2007 to July 2008. On 22nd April 2008 he had received Ruka Ext.PW1/A duly endorsed by Lekh Ram SI for registration of FIR through Shyam Singh HC. He has further stated that he had registered FIR Ext.PW10/A and handed over the copy of FIR to HC Shyam Singh. He has further stated that thereafter case property was deposited with him and he handed over the case property to Shri Ramesh Kumar HHC with direction to deposit the case property with FSL Junga. He has stated that HHC Ramesh Kumar deposited case property with FSL Junga on 25th April 2008 and returned the RC to him. He has stated that he had entered the case property in the register. 9.12 PW13 HHC Jawahar Lal has stated that he is working as MHC Police Station Sangla from 2005 to August 2008. He has stated that he has brought the original daily dairy of April 2008 and documents Ext.PW13/A, Ext.PW13/B and Ext.PW13/C are correct. 9.13 PW14 SI Lekh Ram has stated that he was working as SI/SHO with Police Station Sangla w.e.f. January, 2008 to December, 2008. He has stated that Ashwani Kumar visited the Police Station on 22nd April, 2008 at 8.20 AM. He has stated that Ashwani Kumar told that prosecutrix had consumed poison and stood admitted in the hospital. He has stated that he registered report No. 3 copy Ext.PW13/A in the daily dairy and rushed to CHC Sangla and interrogated the prosecutrix and her husband. He has stated that he also filed application before the Medical Officer Ext.PW14/A for medical examination of prosecutrix and also requested the Medical Officer to certify whether prosecutrix was fit for giving statement or not. He has stated that Medical Officer has stated that prosecutrix was semi conscious and was not fit to give statement as per report Ext.PW14/B. He has stated that thereafter he interrogated Ashwani Kumar and recorded his statement Ext.PW1/A and forwarded the same for registration of FIR. He has stated that thereafter he again filed application before the Medical Officer and Medical Officer certified that prosecutrix was fit for giving her statement. He has stated that thereafter he recorded the statement of prosecutrix and proceeded against accused persons under Section 376 IPC. He has stated that thereafter he again filed application before the Medical Officer and Medical Officer certified that prosecutrix was fit for giving her statement. He has stated that thereafter he recorded the statement of prosecutrix and proceeded against accused persons under Section 376 IPC. He has stated that he applied for medical examination of both the accused persons and also requested to take sample of blood and pubic hair of the accused persons. He has stated that he carried out the spot inspection and took photographs Ext.PW1/B and xt.PW1/C. He has stated that negatives of photographs are also placed on record. He has further stated that accused persons also made disclosure statements Ext.PW4/A and Ext.PW4/B in presence of Bhajan Singh and Shyam Singh and located the site of incident in his presence and in presence of Bhajan Singh and Shyam Singh vide documents Ext.PW4/C and Ext.PW4/D. He has stated that he also obtained MLCs of accused persons and also obtained clothes of prosecutrix from the Medical Officer. He has stated that he also obtained sample of pubic hair and vaginal swabs in a sealed cover. He has stated that he also collected the samples of pubic hair and semen of accused persons from the Medical Officer and sealed them. He has stated that thereafter he deposited all sealed items with MHC with a direction to transmit the sealed packets to FSL, Junga. He also prepared rough sketch maps Ext.PW14/E, Ext.PW14/F,Ext.PW14/G and Ext.PW14/H as per the location shown by prosecutrix and also recorded statements of witnesses. He has stated that after receipt of report of Chemical Examiner Ext.PW8/A he prepared the final report against the accused persons under Section 173 Cr.P.C. He has denied suggestion that prosecutrix did not attend function i.e. Daroj ceremony. He has also denied suggestion that accused persons did not left the house of Sumitra Devi for the whole night. He has denied suggestion that prosecutrix remained in company of Jayant for the whole night and when she was detected false case has filed against accused persons. He has stated that he recorded statement of prosecutrix after 1.20 PM on 22nd April 2008. He has stated that co-accused namely Hans Raj is married and blessed with two children and co-accused Nitin Kumar was unmarried and deserted from the armed forces. He has stated that he recorded statement of prosecutrix after 1.20 PM on 22nd April 2008. He has stated that co-accused namely Hans Raj is married and blessed with two children and co-accused Nitin Kumar was unmarried and deserted from the armed forces. He has stated that two brothers of accused Nitin Kumar are working in H.P. Police Force as drivers in Kinnaur district. He has denied suggestion that accused persons did not commit any offence and also denied suggestion that prosecutrix did not consume poison. Defence evidence adduced by the accused persons 10. DW1 Sumitra has stated that both accused persons are known to her as both belong to her village. She has stated that on 22nd April, 2008 there was marriage function of her daughter in her house known as Daroj. She has stated that whole of the villagers were invited in the function at her house and the villagers attended the function. She has stated that she did not see prosecutrix during the marriage function. She has also stated that Kubja Devi of her village had attended the function as she was invited by her. She has stated that Kubja Devi returned to her house all alone. She has admitted that prosecutrix is wife of Ashwani Kumar and admitted that both accused came in her house for attending marriage function. She also admitted that her husband took liquor on the day of marriage function and gone to sleep. She has denied suggestion that she has deposed falsely in order to save accused persons because both of them are her neighbourers and are her relatives. 11. Submission of learned Advocate appearing on behalf of the appellants that judgment and sentence passed by learned trial Court are based upon conjectures and surmises is rejected being devoid of any force for the reasons hereinafter mentioned. In present case prosecutrix PW2 has stated in positive, cogent and reliable manner that on the intervening night of 21st and 22nd April, 2008 after midnight co-accused Hans Raj caught hold her hands and co-accused Nitin Kumar committed forcible rape upon her. PW2 prosecutrix has further stated in positive manner that thereafter co-accused Nitin Kumar caught hold her hands and co-accused Hans Raj committed forcibly rape upon her. PW2 prosecutrix has further stated in positive manner that thereafter co-accused Nitin Kumar caught hold her hands and co-accused Hans Raj committed forcibly rape upon her. It is also proved on record that thereafter prosecutrix narrated the entire incident of rape to her husband in the morning and also consumed Ketoprofen insecticide and tried to commit suicide after the incident of rape. PW1 Ashwani Kumar has stated in positive manner that his wife narrated the entire incident to him that forcible rape was committed by accused persons in the intervening night of 21st and 22nd April 2008. It is proved on record that even PW4 Jayant and PW5 Purshottam have stated in positive manner that prosecutrix called them and they left her in her matrimonial house. Both have stated that prosecutrix was lying near the house of Vidya Ram and also stated that prosecutrix was semi-conscious and was not able to get up. Even medical officer PW7 Dr. Tulika Madaik has stated in positive manner that vagina of prosecutrix was exposed and the vagina might be exposed due to repeated sexual intercourse and even Medical Officer has also stated that when Medical Officer examined the prosecutrix she was semi conscious. Even as per the opinion of Medical Officer accused persons were capable of performing sexual intercourse and even as per FSL report placed on record human semen was found on glans penis swab and underwear of co-accused Nitin Kumar and on lower and underwear of prosecutrix. 12. Submission of learned Advocate appearing on behalf of the appellants that prosecution has failed to prove on record participation of prosecutrix in the house of Suresh Kumar and Sumitra in Daroj ceremony in view of testimony of DW1 Sumitra and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Accused persons also took the plea of alibi and accused persons have stated that they were not present at the place of incident. It is the case of prosecution that prosecutrix was lifted by accused persons from Daroj ceremony, which was solemnized in the house of Suresh Kumar in presence of Kubja and Shankar Giani. Accused persons also took the plea of alibi and accused persons have stated that they were not present at the place of incident. It is the case of prosecution that prosecutrix was lifted by accused persons from Daroj ceremony, which was solemnized in the house of Suresh Kumar in presence of Kubja and Shankar Giani. In order to prove the plea of alibi that prosecutrix was not lifted from the Daroj ceremony in presence of Kubja and Shankar Giani accused persons did not examine Kubja and Shankar Giani in their defence in order to rebut the testimony of prosecutrix and in order to prove plea of alibi took by accused persons in defence by way of cross examination. No reason has been assigned by the accused persons that as to why they did not examine Kubja and Shankar Giani in order to prove their innocence and in order to prove the plea of alibi. Sole testimony of Sumitra that prosecutrix did not participate in Daroj ceremony cannot be relied and we hold that it is an afterthought story deposed by Sumitra in order to help the accused persons. Even accused persons did not examine Suresh Kumar husband of Sumitra in order to prove that prosecutrix did not participate in Daroj ceremony. Testimony of Sumita that prosecutrix did not participate in Daroj ceremony cannot be relied upon in view of the testimony of prosecutrix which is trustworthy, reliable and inspire confidence of Court and in view of corroborative evidence of Jayant and Purshottam who had lifted prosecutrix in a very critical condition during midnight from the place situated nearby the house of Vidya Ram. 13. Submission of learned Advocate appearing on behalf of the appellants that Kubja Devi and Shankar Giani have not been examined by prosecution and on this ground appeal be accepted is rejected for the reasons hereinafter mentioned. We are of the opinion that onus to prove the plea of alibi is always upon the accused persons. No reason has been assigned by the appellants as to why they did not examine Kubja Devi and Shankar Giani in order to prove their plea of alibiin the present case took by them in cross examination and took by them by way of examining Smt. Sumitra. 14. No reason has been assigned by the appellants as to why they did not examine Kubja Devi and Shankar Giani in order to prove their plea of alibiin the present case took by them in cross examination and took by them by way of examining Smt. Sumitra. 14. Another submission of learned Advocate appearing on behalf of the appellants that in present case call received by priest namely PW6 Purshottam from the prosecutrix who in turn called his brother PW3 Jayant has not been verified by the prosecution and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned because appellants have took the plea of alibiand onus to prove the plea of alibiwas on the accused persons which has not been proved by the appellants in accordance with law. In present case PW6 Purshottam and PW3 Jayant have stated in positive manner that they lifted the prosecutrix during night period in critical condition and left her in the courtyard of her matrimonial house. 15. Another submission of learned Advocate appearing on behalf of the appellants that prosecutrix did not narrate the incident of gang rape to her husband when she reached her matrimonial house from the place of incident and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that when prosecutrix reached at her matrimonial house at that time her husband was sleeping and it is also proved on record that prosecutrix had consumed Ketoprofen insecticide on the same night and it is also proved on record that thereafter in the morning prosecutrix narrated the entire incident of rape to her husband and thereafter prosecutrix was taken to the hospital for her medical treatment. 16. Another submission of learned Advocate appearing on behalf of the appellants that prosecutrix spent whole night with Jayant brother of priest namely Purshottam PW6 and accused have seen them in suspicious circumstances and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. There is no evidence on record to prove that prosecutrix spent whole night with Jayant PW3, hence plea of the appellants that prosecutrix had spent whole night with Jayant PW3 is rejected on the ground of concept of ipse-dixit(An assertion made without proof). 17. There is no evidence on record to prove that prosecutrix spent whole night with Jayant PW3, hence plea of the appellants that prosecutrix had spent whole night with Jayant PW3 is rejected on the ground of concept of ipse-dixit(An assertion made without proof). 17. Another submission of learned Advocate appearing on behalf of the appellants that no injury was found on private part of the prosecutrix and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that arms of the prosecutrix were caught hold by one of the co-accused when another co-accused committed forcible intercourse upon prosecutrix during the midnight of 21st and 22nd April, 2008 turn by turn. Due to catch of both arms of prosecutrix by co-accused when another co-accused committed forcible rape turn by turn resistance on part of prosecutrix was not possible. In case reported in AIR1981SC559 titled Rafiq vs. State of Uttar Pradesh it was held that absence of injuries on person of victim is not fatal in each case. It was held in case reported in AIR1972SC 2661, titled Gurcharan Singh vs. State of Haryana that prosecutrix cannot be considered as an accomplice and therefore her testimony cannot be equated with that of accomplice in an offence. It was held in case reported in AIR 1983 SC 753 , Bharwada Bhoginbhai Hirjibhai vs.State of Gujarat that refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to prosecutrix. We are of the opinion that when arms of prosecutrix were caught by one of the co-accused when another co-accused committed forcible sexual intercourse upon prosecutrix, non-injury on the person of prosecutrix is not fatal in the present case in view of the manner in which forcible rape was committed upon prosecutrix by two persons. 18. Another submission of learned Advocate appearing on behalf of the appellants that prosecutrix is married woman having two husbands and children and she used to do sexual intercourse with her legally wedded husbands in routine manner and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. 18. Another submission of learned Advocate appearing on behalf of the appellants that prosecutrix is married woman having two husbands and children and she used to do sexual intercourse with her legally wedded husbands in routine manner and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. As per prosecution case, rape was committed in the midnight of 21st and 22nd April 2008 and as per testimony of PW7 Medical Officer prosecutrix was medically examined on 22-4-2008 at 7.15 PM and there was exposure in the vagina of prosecutrix. 19. Another submission of learned Advocate appearing on behalf of the appellants that even the story of consumption of Ketoprofen insecticide on the part of prosecutrix is also not proved on record and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. In present case PW1 Ashwani Kumar has stated in positive manner that prosecutrix had consumed Ketoprofen insecticide immediately after the incident of rape committed by accused persons. Even PW2 prosecutrix has stated that in order to save her honour in the society she consumed Ketoprofen insecticide after the commission of rape. Even PW6 Purshottam has stated that in order to save her honour, prosecutrix attempted to commit suicide. Even medical officer has stated in positive manner that when prosecutrix was brought in the hospital for her medical treatment it was observed that prosecutrix had consumed Ketoprofen insecticide. It is also proved on record that prosecutrix remained unconscious after the alleged offence and she was not able to get up when she was brought to her matrimonial house by PW6 Purshottam and PW3 Jayant. 20. Another submission of learned Advocate appearing on behalf of the appellants that there were number of houses nearby house of Vidya Ram and even one cry could be heard by many people residing nearby houses, but prosecutrix did not seek help from anybody and on this ground appeal filed by appellants be accepted is also rejected being devoid of any force for the reasons mentioned hereinafter. It is proved on record that Vidya Ram did not reside in the house situated nearby place of incident of rape. It is proved on record that Vidya Ram was residing in some another house at the time of commission of offence of rape. It is proved on record that Vidya Ram did not reside in the house situated nearby place of incident of rape. It is proved on record that Vidya Ram was residing in some another house at the time of commission of offence of rape. It is proved on record that house of Purshottam was situated at a distance which could be covered within five minutes. Prosecutrix called Purshottam PW6 at about 2 AM during midnight for help and thereafter PW6 Purshottam and PW3 Jayant came during midnight at 2 AM to help prosecutrix and brought prosecutrix to her matrimonial house during night period. It is proved on record that when PW6 Purshottam and PW3 Jayant reached at the place of incident during midnight at 2 AM at that time prosecutrix was lying on the ground and was not able to get up. 21. Another submission of learned Advocate appearing on behalf of the appellants that testimony of prosecutrix is not trustworthy and on this ground appeal be accepted is also rejected being devoid of any force for the reasons mentioned hereinafter. It was held in case reported in (1996) 2 SCC 384 ,titled State of Punjab vs. Gurmit Singh and others that testimony of prosecutrix must be appreciated in the background of entire case and trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.(Also see (2000) 5 SCC 30 , titled State of Rajasthan vs. N.K. the accused. Also see (2000) 1 SCC 247 ,titled State vs. Lekh Raj and another, (1992)3 SCC 204 , titled Madan Gopal Kakkad versus Naval Dubey and another). Even disclosure statements given by accused persons under Section 27 of the Indian Evidence 1872 is also proved on record by way of testimonies of PW4 Bhajan Singh and PW14 SI Lekh Ram and it is well settled law that discovery of fact in pursuant of disclosure statement recorded under Section 27 of Indian Evidence Act, 1872 is admissible evidence under Section 27 of the Indian Evidence Act 1872. It is also well settled law that concept of falsus in uno falsus in omnibus is not applicable in criminal cases. (See AIR 1980 SC 957 titled Bhee Ram vs. State of Haryana. See AIR 1971 SC 2505 titled Raisingh vs. State of Haryana.) 22. It is also well settled law that concept of falsus in uno falsus in omnibus is not applicable in criminal cases. (See AIR 1980 SC 957 titled Bhee Ram vs. State of Haryana. See AIR 1971 SC 2505 titled Raisingh vs. State of Haryana.) 22. In view of above stated findings, we are of the considered view that learned trial Court has correctly and completely appreciated the evidence so placed on record by prosecution and we hold that it cannot be said that judgment of learned trial Court is perverse, illegal and erroneous or based upon incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. In view of the above findings, the appeal is dismissed being devoid of any force. Pending miscellaneous application(s) if any also stands disposed of.