Himachal Pradesh High Court
Gulzar Muhamad vs State Of H.P. And Anr. on 30 August, 2007
Equivalent citations: 2008CRILJ1350
Author: Kuldip Singh
Bench: Surjit Singh, Kuldip Singh
JUDGMENT Kuldip Singh, J.
1. This appeal is directed against the judgment dated 18/19-8-2003. passed by learned Sessions Judge, Marall, H.P. in Sessions Trial No. 13 of 1998, whereby the appellant (hereinafter referred to as the accused), has been convicted and sentenced, under Section 376(2), IPC to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 20,000/-. In default of payment of fine, he shall undergo rigorous imprisonment for a period of one year. Out of fine awarded, whole amount shall be payable to the prosecutrix on realization.
2. Facts in brief are that Khem Chand, brother-in-law of prosecutrix and husband of P.W. 2 Rita Devi died after consuming poison on 27-8-1994. The police implicated P.W. 2 Rita and Prem Chand husband of prosecutrix in that case that the poison was administered by these two persons to Khem Chand. This case was investigated by the accused. On 27-8-1994, at about 11 p.m. accused along with other officials went to the house of the prosecutrix and told prosecutrix that their statements are to be recorded on 28-8-1994 in connection with the death of Khem Chand and directed them to report at the Rest House, Majhwar on 28-8-1994. Accordingly, they reported at the Rest House at Majhwar and their statements were recorded. On 29-8-1994, the accused along with other police officials brought them to Police Station, Sadar Mandi and the statements of prosecutrix, her sister and husband of the prosecutrix were recorded. Thereafter, the husband of the prosecutrix was arrested. The prosecutrix, her mother and sister were sent back. On 30-8-1994, the prosecutrix and her mother were again called to the Police Station.:
3. The prosecutrix and her mother reached the Police Station as 12.00 noon on 30-8-1994. The accused called the prosecutrix and her mother to the upper storey of the Police Station, Mandi. When the prosecutrix and her mother entered the room, the accused bolted the door of the main gate leading to the stairs from inside. The mother of the prosecutrix was asked to sit in a room. The accused took the prosecutrix in the next room and bolted the room from inside. The accused told the prosecutrix that if she would not have sexual intercourse with him, he would implicate the prosecutrix, her mother and other family members in the case. The accused then committed forcible sexual intercourse with the prosecutrix against her wish. She did not raise any alarm as she got frightened and the accused also threatened her. The prosecutrix told the incident to her mother and none-else. Her mother told her to keep silent as accused is a police officer and he may implicate them in any other case. The husband of the prosecutrix was released on bail three-four days after accused had forcible sexual intercourse with the prosecutrix.
4. On 19-9-1994, a constable of police went to the house of the prosecutrix. He obtained signatures on some papers of the prosecutrix, her sister Rita Devi and mother Soma Devi and asked them to be present at Police Station, as the accused had called them. The prosecutrix and others, as per direction reached the Police Station at 11 or 11.30 a.m. but the accused was not there and they waited for the accused outside the Police Station under a tree. The accused thereafter came, he told the prosecutrix etc. that he would record their statements turn by turn. The accused asked the prosecutrix to come first. The accused took the prosecutrix on the second storey of the Police Station in a room and bolted the room from inside. The accused again subjected the prosecutrix to forcible sexual intercourse against her wish. The accused threatened the prosecutrix that he would arrest the prosecutrix her mother and sister if she would raise any alarm. After committing sexual intercourse, the accused told the prosecutrix to go down but not to disclose the incident to any person and he further cautioned her that in case she would disclose the incident to anyone he would kill the prosecutrix. The prosecutrix accordingly went down and accused also followed her. The accused thereafter directed the sister of the prosecutrix to come to Police Station in the lower storey for recording her statement. The statement of the sister of the prosecutrix was recorded, but statements of the prosecutrix and her mother were not recorded. The prosecutrix told her mother and sister the accused had subjected her to sexual intercourse against her wish.
5. At about 1.00 or 1.30 p.m. the prosecutrix, her mother and sister came to bazaar on the pretext of taking meals. They went to Chandermani, Mama (uncle) of prosecutrix husband. They narrated the entire incident to him. Chandermani accompanied them to the Superintendent of Police, Mandi. They narrated the entire incident to the Superintendent of Police, Mandi including the fact that the prosecutrix was subjected to sexual intercourse by accused against her wish twice. The prosecutrix requested the Superintendent of Police to get her as well as the accused medically examined. The Superintendent of Police told her that there was no need for her medical examination and asked them to sit outside his office. They kept on waiting outside the office of Superintendent of Police till 5.00 p.m. and at that time the Superintendent of Police asked them to report at Police Post City. They requested him to give order in writing but the Superintendent of Police did not give any order in writing.
6. In these circumstances, they constituted G.P. Guleria, Advocate in the Court and told him all facts. G. P. Guleria, Advocate prepared an application, under Section 156(3) of the Code of Criminal Procedure and presented that application in the Court of Additional Chief Judicial Magistrate. The learned Additional Chief Judicial Magistrate recited registration of the case and medical examination of the prosecutrix. They went to the Police Post City, but she was not medically examined on that day, as by that time it was already over 5.00 p.m. On 19-9-1994, the prosecutrix stayed at Mandi at the residence of Chandermani and her husband was not present that night in the house of Chandermani. On 19-9-1994 she did not have any sexual intercourse with her husband. The prosecutrix was medically examined on 20-9-1994. The police did not register any case. The police registered the case several days after the first order of the Additional Chief Judicial Magistrate. The police recorded the statements of prosecutrix, but told her that she was telling lie.
7. The prosecutrix thereafter filed a complaint before the Court and the same was committed by the learned Chief Judicial Magistrate to the learned Sessions Judge. On 23-11-1998, learned Sessions Judge ordered that the case be registered as a State case and the Public Prosecutor was directed to represent the State. The prosecution has examined 8 witnesses. The statement of the accused was recorded, under Section 313, Cr. P.C. The accused examined five witnesses in defence. The learned Counsel Judge convicted and sentenced the accused on 19-8-2003, as stated above. The accused is in appeal against the judgment of conviction and sentence, dated 19-8-2003.
8. We have heard Sh. Anup Chitkara, learned Counsel for the accused. Sh. S. D. Vasudeva, learned Additional Advocate General, for the State-respondent No. 1 and Sh. G.R. Palsra, learned Counsel for respondent No. 2.
9. The prosecutrix has appeared as P.W. 1 and stated that Khem Chand husband of her sister Rita Devi died after consuming poison on 27-8-1994. The police implicated her sister Rita, Premu husband of prosecutrix in the case falsely on the ground that Premu and Rita Devi gave poison to Khem Chand. The said case was investigated by the accused. In the course of investigation of that case, the prosecutrix and her mother were called in the Police Station, Mandi on 30-8-1994 and accordingly they reached there at about .12.00 noon. On 30-8-1994, the accused called the prosecutrix and her mother to the upper storey of the Police Station and when they entered the room, accused bolted the door of main gate leading to stairs from inside. The mother of the prosecutrix was made to sit in a room. The accused took the prosecutrix in another room and bolted the said room from inside. The accused told the prosecutrix that if she would not have sexual intercourse with him, he would also implicate the prosecutrix, her mother and other family members in the case. The accused then committed forcible sexual intercourse with the prosecutrix against her wish. She did not raise any alarm as she got frightened and accused also threatened her not to raise any alarm. The accused told the prosecutrix not to tell the incident to anybody otherwise she would face dire consequences. Thereafter the accused opened the bolt of the door. The prosecutrix told the incident to her mother and non-else, who told her to remain silent as the accused is a police officer. On 19-9-1994, a constable came to the house of the prosecutrix carrying with him some papers and obtained their signatures on those papers and asked them to present at Police Station as the accused had called them. The prosecutrix, her sister and mother in compliance to the direction reported at Police Station on 19-9-1994 at 11-00 or 11-30 a.m. The accused again had forcible sexual intercourse with the prosecutrix against her wish in the second storey of the Police Station. The accused threatened the prosecutrix that he would arrest the prosecutrix, her mother and sister in case she would raise any alarm. The accused asked her not to disclose the incidents to any person. The prosecutrix told the incident to her mother and sister that the accused had forcibly committed sexual intercourse with her against her wish. The statement of the sister of the prosecutrix was recorded, but not the statement of the mother of the prosecutrix on that date.
10. The prosecutrix her sister and mother at about 1.00 or 1.30 p.m. came to the bazaar on the pretext of taking meals and went to the shop of Chandermani, Mama of the husband of the prosecutrix. They narrated the incident to Chandermani, who accompanied them to the Superintendent of Police, Mandi. The prosecutrix narrated the entire incident to the Superintendent of Police, Mandi including the fact that she was subjected to sexual intercourse by the accused against her wish twice. The Superintendent of Police took no steps except asking them orally to report at Police Post City. The prosecutrix then consulted G. P. Guleria, Advocate in the Court and apprised him all the facts, who prepared an application, under Section 156(3) of the Code of Criminal Procedure. The learned Additional Chief Judicial Magistrate directed registration of the case and medical examination of the prosecutrix. They went to the Police Post City. The prosecutrix was not medically examined on that date, as by the time, it was already 5.00 p.m. She was medically examined on 20-9-1994. On 9-9-1994, she remained at Mandi and her husband was not with her on 19-9-1994 in the house of Chandermani nor her husband had sexual intercourse with her on 19-9-1994. The police did not register any case. The case was registered later on. The complaint filed by her before the learned Additional Chief Judicial Magistrate is Ext. P.W. 1 /A. In cross-examination, she has stated that application Ex. P.W. 1/A and the complaint filed before the learned Chief Judicial Magistrate were prepared on the dictation of her counsel and at her instructions.
11. P.W. 2 Smt. Rita Devi, the sister of the prosecutrix has stated that on 19-9-1994, she along with her mother and prosecutrix reached Police Station at about 11.00 or 11-30 a.m. the prosecutrix was asked by the accused to come to the upper storey of the Police Station and accordingly prosecutrix went to the upper storey of the Police Station. The prosecutrix when came down, she told her and her mother that accused had raped her. The prosecutrix was weeping. After sometime, the accused also came down and recorded her statement. Thereafter they came to the shop of Chandermani, the prosecutrix narrated the entire incident to Chandermani. They came to Superintendent of Police where the prosecutrix had narrated the entire incident to the Superintendent of Police. They requested the Superintendent of Police to take action against the accused. The Superintendent of Police asked them to sit outside his office. At about 5.00 p.m. the Superintendent of Police asked them to go to Police Post City and report the matter there. Thereafter they went to G. P. Guleria, Advocate. Her sister narrated the entire incident to him, who drafted a complaint and presented in the Court. Thereafter, they went to the Police Post City. The prosecutrix was not examined medically on that day. At night they stayed at the house of Chandermani.
12. P.W. 3 Soma Devi has corroborated the statement of prosecutrix regarding the incident dated 30-8-1994 and 19-9-1994. P.W. 4 Chandermani has stated that on 19-9-1994, prosecutrix, her mother and sister Rita Devi came to his shop at 1.15 p.m. The prosecutrix told him that accused had subjected her to sexual intercourse in the upper storey of the Police Station on that day and also on one day previously. They approached the Superintendent of Police, Mandi and prosecutrix narrated the entire incident to him. At 5.00 p.m. the Superintendent of Police asked them to go to the Police Post City. They then approached G. P. Guleria, Advocate, who drafted a complaint and presented it to Additional Chief Judicial Magistrate. It was already more than 5.00 p.m. They took the orders from the Court and went to the Police Post City. City police sent them to hospital but the prosecutrix was not medically examined there on that date. The prosecutrix, her mother and Rita Devi stayed in his house during the night. The prosecutrix was medically examined on next day.
13. P.W. 5 Narpat Ram, MC Police Post City, Mandi has stated that he was posted as M. C. in Police Chowki City on 19-9-1994. On receipt of complaint Ex. P.W. 1/A, he recorded the complain in the daily diary, copy of which is Ex. P.W. 5/A. He sent prosecutrix for medical examination. She was not medically examined on that date. She was sent again next day for medical examination on which date she was examined medically. He did not send the report to the police Station for registration of the case as Des Raj was incharge of the police post. After receiving medical report on next day he handed over it to Additional S.P. He was told by Superintendent of Police that inquiry is being conducted by the Additional Superintendent of Police. In cross-examination he has stated that Police Post city was under the charge of accused.
14. P.W. 6 G.P. Guleria Advocate has stated that he drafted application, Ex. P.W. 1/A, which was explained to prosecutrix who signed it and the same was presented before the Additional Chief Judicial Magistrate Mandi, who ordered registration and investigation of the case under Section 156 of the Code of Criminal Procedure. The Magistrate sent his orders immediately to Police Post City through his peon along with prosecutrix. The prosecutrix had told him the entire incident in detail, but he drafted the gist what she told and was relevant as it was already 5.00 p.m. and he had requested the learned Magistrate to wait for him for the disposal of his application.
15. P.W. 7 Dr. (Mrs) Sudesh Kaul examined the prosecutrix and issued medical certificate Ex. P.W. 7/B. In her statement, P.W. 7 has deposed as follows:
The subject had a history of rape in police custody on 19 September, 1994. On clinical examination I found the subject to be average built, height was 4' 10' weight 45 kg. blood pressure and pulse was normal. The subject was fully conscious.
All the teeth were present. The subject was wearing the clothes she was wearing on 19-9-1994 i.e. printed yellow shirt and salwar and plain yellow chuni, white under shirt. The clothes were not wet There was no blood stains on the clothes. Three white spots were found on the salwar near the area of the underwear. The spots were dry. The last menstrual was started to be three weeks prior.
On physical examination, I found secondary sex characters were well developed. No external or internal injury was seen anywhere over body. No marks of violence were seen on the body.
External gentilia (sic) area, pubic hair were not matted. No injury or marks of violence were seen over the external genitalia (sic). Vagina admits two fingers easily. There was no injury on the vagina. Uterus was of normal size at the time of examination. Fornics were free. Posterior pools smear was taken and (sic) Ram for microscopic examination.
I received the clothes of the subject worn by her i.e. yellow shirt, salwar, yellow chuni, white undershirt in a packet and sealed packet was handed over to the constable Govind Ram. The report of the chemical examiner was received by me. In my opinion, the subject was habitual to sexual intercourse and showed evidence of recent intercourse at the time of my examination. There was nothing to suggest that rape has not been committed. I issued medical certificate which is Ex. P.W. 7/B and it bears my signatures.
16. P.W. 8 LHC Inder Dev has stated that accused had given him Hukamnama Talhi for calling prosecutrix, Soma Devi and Rita Devi. They were served and were called for 19-9-1994. D.W. 1 Chaman Lal HC has stated that that he was posted as Reader to SHO, Police Station, Sadar from 17-9-1994 till 1996. On 19-9- 1994, he along with accused came back to Police Station at 12.45 p.m. Many persons were present outside the Police Station. The SHO went to his room. One lady constable Daya Devi was sent to call Ritu Devi for interrogation. In the presence of said lady constable the SHO got recorded the statement of Ritu Devi, which was written by him. Thereafter, the prosecutrix was also interrogated orally. At 2.00 p.m. the mother of the prosecutrix came and asked the SHO that they had not taken their meals and so they be permitted to take their meals. At that time, it was 2.00 p.m. They were called to come back at 3.00 p.m. but they never returned back.
17. D.W. 2 Dr. D.K. Ghosh, State Medical Legal Advisor-cum-Professor and Head of Department of Forensic Medicines, IGMC, Shimla has stated that on the request of Superintendent of Police, Mandi vide his letter No. 32961 dated 8-11-1994, requesting for some clarification/review in respect of MLC issued on 20-9-1994 in the case of prosecutrix, and final opinion recorded on 5-10-1984. He had submitted a detailed report, copy of which is Ex. D-1 to Superintendent of Police, Mandi along with his letter dated 14-11-1994. In cross-examination, he has stated that Ex. PY, the FSL report is the same, which was sent to him at the time he submitted his detailed report.
18. D.W. 3 Yashodha Nand has stated that on 19-9-1994 he had come to Police (sic) accused came there 15-20 minutes after his arrival. He inquired for about one hour/75 minutes inside the room as well as outside the Police Station from some ladies present there, who were called through lady constable. Those ladies left at about 2.30 p.m. and one more lady came to ask for permission to leave since they had to take their meals.
19. D.W. 4 G.D. Bhargawa, S.P., P.T.C. Droh, District Kangra has stated that he had investigated the case against the accused. During investigation he sent some exhibits to the C.C.M.B. Hyderabad and vide letter dated 2-11-1995 C.C.M.B. Hyderabad had shown its inability to give any report as no seminal stains were found in the exhibits and there were certain marked portions which were already cut off by the F.S.L. Shimla. The letter is Ex. D-2. From his investigation, no case was made out against the accused, under Section 376, IPC. SHO Tulsi Ram had submitted the cancellation report, which is Ex. D-3.
20. D.W. 5 Ali Raza Rizvi Deputy Secretary, Department of Commerce, Govt. of India has stated that he was posted as Additional Deputy Commissioner, Mandi from May, 1993 to May, 1995. He conducted an inquiry against the accused. A copy of his report is Ex. D.W. 5/A.
21. The learned Counsel for the appellant has submitted that the complaint filed by the prosecutrix before the Chief Judicial Magistrate, on the basis of which the accused was summoned, under Section 376, IPC and ultimately tried and convicted was not proved and, therefore, conviction of the accused is illegal. He submitted that o cognizance could have been taken against the accused in absence of previous sanction of the State Government, under Section 197, Cr. P.C. for prosecuting the accused under Section 376, IPC, and for this reason also the correction of accused is bad. He has submitted that statements of prosecutrix as P.W. 1, her sister Rita P.W. 2 and her mother P.W. 3 regarding the allegations of rape against the accused do not inspire confidence. The prosecutrix has made material improvements in her statement during trial. The conduct of the prosecutrix and her mother is extremely improbable. The presence of human sperms on salwar and vaginal swab of the prosecutrix does not connect the accused with the commission of offence. There is delay in filing the complaint. The prosecutrix had the motive to falsely implicate the accused and lastly he has submitted that sentence imposed by the trial Court is excessive.
22. The contention of the learned Counsel for the accused that complaint filed by the prosecutrix for prosecuting the accused, under Section 376, IPC has not been proved and therefore, the accused is entitled to acquittal has been noticed only to be rejected. He has submitted that complaint is the foundation on which the entire structure of the trial was built by the prosecution and when the very base of the trial has not been proved, therefore, no case is made out against the accused. The complaint is not the evidence. The evidence is what has been recorded/produced in the Court during the course of trial. The complaint is comparable to FIR which has only corroborative value. In the Court after filing of the complaint, evidence is recorded and documents in support of the complaint are proved and exhibited and not the complaint. Therefore, submission of the learned Counsel for the accused that for want of proof of complaint, the case against the accused cannot be taken to be proved, is rejected.
23. The learned Counsel for the accused has contended that allegations against the accused are that he committed rape on prosecutrix as Police Officer when he was conducting investigation in a case in which husband of the prosecutrix and her sister Rita Devi were involved regarding the death of Khem Chand husband of Rita Devi. He has submitted that without previous sanction of the State Government, no cognizance could be taken against the accused, under Section 376, IPC or he could be tried for that offence. The perusal of Section 197 of the Code of Criminal Procedure would show that this Section would apply in those cases where the public servant is removable with the sanction of the State Government. In the present case, it is not the case of the accused that at the time of commission of the offence, he was removable by the State Government. Moreover, it was not part of the duty of the accused while acting as Police Officer to commit offence of the nature for which he was tried and hence for prosecuting accused for the offence under Section 376, IPC no sanction is required under Section 197, Cr. P.C. The act for which the appellant was tried and stands convicted has no relation, even the remotest, with his duties and functions as a public servant. Section 197, Cr. P.C. conies into play when the offence is committed while acting or purporting to act in the discharge of one's official duty. Here the appellant committed the act of gratifying his sexual lust, which had no link with the discharge of his duties as Investigating Officer. In this view of the matter, we are supported by a judgment of the Apex Court in Parkash Singh Badal v. State of Punjab . In any case, the objection of want of sanction under Section 197, Cr. P.C. is for the benefit of the accused, which he was required to take at an early stage. In the preset case he never took this objection during trial, therefore, in appeal this objection is not available to him. Hence, this submission of the learned Counsel for the accused is rejected.
24. The learned Counsel for the accused has submitted that the allegations against the accused are that he committed rape on prosecutrix on 30-8-1994 in the upper storey of the Police Station and more or less in the same manner again committed rape on her on 19-9-1994. The prosecution case suffers from contradictions, improvements and the manner in which the rape on two occasions alleged to have been committed is highly improbable. The presence of prosecutrix and her mother on 30-8-1994 at Police Station Mandi and again on 19-9-1994 the presence of prosecutrix, her sister and mother in the Police Station, Mandi has been proved on record, rather the trend of the cross-examination by accused of these witnesses also shows that their presence on aforesaid two days in the Police Station, has not been denied by the accused. There is nothing abnormal regarding the conduct of the prosecutrix for coming to police station on 30-8-1994 and 19-9-1994. There is specific evidence in the statement of the prosecutrix that on 29-8-1994 accused and other police officials brought them to Police Station. The statement of her sister and her husband were recorded and her husband was arrested. On the next day, she and her mother were called at the Police Station. In compliance to the direction of the accused, the prosecutrix and her mother come to the Police Station on 30-8-1994. She has specifically stated that on 30-8-1994 accused against her wish committed forcible sexual intercourse with her in the upper storey of the Police Station. She did not raise any alarm during rape or thereafter as she was under threat of the accused. She was also threatened by the accused not to disclose the incident to anyone, otherwise, he would implicate her and other members of her family in the case, in which her husband was already arrested. The prosecutrix was under threat and therefore, she had no option but to submit to the lustful demand made by the accused, but she disclosed the incident to her mother P.W. 3 immediately after she was raped by the accused. The immediate disclosure of the incident by the prosecutrix to her mother is relevant and admissible as res-gestae, under Section 6 of the Evidence Act.
25. The learned Counsel for the accused has submitted that the allegations against the accused for commission of the offence on 19-9-1994 are highly improbable inasmuch as the offence on 19-9-1994 was allegedly committed by the accused in almost the same manner as was committed on 30-8-1994. Here again, it has come on record that accused specifically called the prosecutrix and others at Police Station on 19-9-1994 by a written Hukamnama and this fact has been proved by P.W. 8 LHC Inder Dev, who has stated that accused had given him Hukamnama Talbi to call prosecutrix, Soma Devi and Rita Devi and all three of them were called for 19-9-1994. It appears the accused found an easy prey in the prosecutrix. The accused took undue advantage of the situation, he was aware that husband of the prosecutrix was involved in a case, who was arrested but later on released on bail the accused proceeded with the assumption that since the husband of the prosecutrix was involved in a case, therefore, in order to satisfy his sexual lust he could use the prosecutrix. The accused became bold because the incident of 30-8-1994, in his opinion, remained quiet and silent affair. Therefore, he called the prosecutrix again on 19-9-1994 at Police Station and committed forcible sexual intercourse with prosecutrix against her wish in the upper storey of Police Station, Mandi. She did not raise any alarm against forcible sexual intercourse as she was under threat of accused. The accused also threatened her of dire consequences if she would disclose the incident to anyone. The prosecutrix, however, disclosed the incident to her mother and sister who accompanied her to police station and, therefore, her disclosure of the incident to her mother and sister immediately after the occurrence on 19-9-1994 is again covered by the principle of res-gestae.
26. On 19-9-1994, the prosecutrix approached her husband's Mama (uncle) Chandermani P.W. 4 and disclosed him the forcible sexual intercourse committed by the accused on her on 30-8-1994 and 19-9-1994. Chandermani P.W. 4 took the prosecutrix, her mother and sister to Superintendent of Police, Mandi and the prosecutrix narrated him the entire incident of 30-8-1994 and 19-9-1994 including the fact that accused had committed forcible sexual intercourse with her against her wish. The Superintendent of Police did not respond to the oral complaint made by the prosecutrix against his subordinate. He took the entire matter very casually and made the prosecutrix and others to sit outside his office till 5.00 o'clock, though they met him after 1-15 p.m. on 19-9-1994 as per P.W. 4 Chandermani. The conduct of Superintendent of Police is highly condemnable and reprehensible for not taking any action against the accused on the face of allegations made by the prosecutrix and for not giving any direction for registration of FIR against the accused, despite the request of the prosecutrix to him to give directions in writing, he casually and orally asked the prosecutrix and others at 5 p.m. to go to the Police City knowing fully well that Police Post City was under the charge of accused at that time. In that situation, minimum expected from Superintendent of Police was to get the prosecutrix immediately medically examined and order for registration of the case against the accused. This apart, the prosecutrix, in these circumstances, through G.P. Guleria P.W. 6, made an application on 19-9-1994 Ex. P.W. 1/A to the Additional Chief Judicial Magistrate, who vide order dated 19-9-1994 sent the application to incharge, Police Post City, Mandi for investigation and report, under Section 156(3) Cr. P.C. with a direction that complainant be got medically examined, but despite the orders of Additional Chief Judicial Magistrate, the prosecutrix could not be examined medically on 19-9-1994, but she was medically examined on 20-9-1994 by P.W. 7 Dr. Mrs. Sudesh Kaul. The police registered the FIR on 5-10-1994.
27. The learned Counsel for the accused in support of his contention that there are contradictions, improvements and improbabilities in the statements of prosecution witnesses, has pointed out that prosecutrix has deposed that she did not state in her statement before learned Chief Judicial Magistrate that she spent night of 19-9-1994 in the house of Chandermani. She has also admitted that it was not recorded in her complaint that she spent night of 19-9-1994 in the house of Chandermani. She did not mention in application Ex. P.W. 1/A that the accused would involve her entire family in the case. It has also been urged that the prosecutrix in her statement has stated that in the application Ex. P.W, 1/A it was not mentioned that accused bolted the door from inside where she was taken and it has also not been mentioned that accused had threatened her that he would arrest her sister and mother in the case. The application Ex. P.W. 1/A was drafted by P.W. 6 G. P. Guleria, Advocate on the instructions of prosecutrix. It has come in evidence that prosecutrix had narrated the incident to P.W. 6 and then he drafted the application. P.W. 6 has stated that in the complaint Ex. P.W. 1/A, he has incorporated the gist of the allegations. Therefore, insignificant variations or omissions in the complaint Ex. P.W. 1/A cannot be stretched for the advantage of the accused. The mental condition of the prosecutrix on 19-9-1994 can be imagined when she gave instructions to P.W. 6, who drafted the application Ex. P.W. 1/A.
28. It has been submitted that the conduct of the prosecutrix, her mother (P.W. 3) and that of the accused is improbable when on 30-8-1994 the prosecutrix was allegedly called by the accused in the upper storey of the Police Station at Mandi. It has been argued that bolting of the door by the accused of the main gate leading to the stairs with two ladies inside was not possible in the Police Station which was open to public eye. The conduct of accused in broad day light of bolting the door of the main gate with two women inside is not believable. He has further submitted that silence on the part of the elder lady to remain quiet knowing fully well that the prosecutrix was called separately by the accused in another room, which was too bolted from inside is again not believable. On 29-8-1994, the husband of the prosecutrix was already arrested in a case by the accused. It can be safely inferred from the circumstances that the two women were not in a position to raise alarm or object to the boiling of the door by the accused. The prosecutrix and her mother are rustic village women. They were under the feat of a case which was already registered, in which one member of their family had already been arrested. They were facing accused, a police officer who arrested the husband of prosecutrix in another case. Their mental condition can be imagined. In any case, different persons in a given situation behave differently. The accused was the incharge of the Police Station and being a Police Officer, he called the two women in the upper storey of police station. The prosecutrix remained in the room with the accused, where he had forcible sexual intercourse with her. The accused cannot take advantage of forced and out of fear conduct of P.W. 3 Soma Devi and prosecutrix for remaining silent, when accused bolted the door of the gate leading to stairs of upper storey and then the room in the upper storey where he had forcible intercourse with the prosecutrix.
29. The learned Counsel for the accused has submitted that it has not been explained why on 30-8-1994 and 19-9-1994 no male member had accompanied the females and more particularly on 19-9-1994, when as per prosecutrix, she was already raped on 30-8-1994 by the accused. It has come on record that on 29-8-1994, the accused specifically directed the prosecutrix and her mother to come to Police Station and, therefore, the prosecutrix and her mother came to the Police Station on 30-8-1994. The prosecutrix could never imagine that on that date she would be raped and, therefore, some male member should accompany her! The prosecutrix out of fear did not disclose the incident of 30-8-1994 to her husband and, therefore, no male member accompanied the prosecutrix, her mother and sister when they again visited the Police Station on 19-9-1994 in compliance to Hukamnama issued by the accused. The prosecutrix could never think that she would be ravished again on 19-9-1994. In these circumstances, absence of male member accompanying the prosecutrix, her mother and sister when they visited the Police Station on 30-8-1994 and 19-9-1994 is explainable and accused cannot take any advantage from this.
30. The learned Counsel for the accused has submitted that presence of human sperms on the salwar and vaginal swab of the prosecutrix does not necessarily connect the accused with the commission of offence. This submission of the learned Counsel in isolation is true, but when M.L.C. of prosecutrix is considered in the light of other facts of the case, it does not indicate that the prosecutrix was recently subjected to sexual intercourse and thus corroborates her testimony. In M.L.C. Ex. P.W. 7/B of the prosecutrix, the final opinion after chemical analysis is that the patient is used to habitual intercourse and shows evidence of recent intercourse. There is nothing to suggest that rape has not been committed. The prosecutrix was not with her husband on 19-9-1994 and 20-9-1994 before her medical examination. But there is evidence of recent sexual intercourse in Ex. P.W. 7/B, therefore, it does indicate that at the time of medical examination of the prosecutrix, she had recent sexual intercourse. In the facts and circumstances of the case, MLC Ex. P.W. 7/B corroborates the case of the prosecutrix that she was subjected to sexual intercourse, as stated by her.
31. The learned Counsel in order to show possibility of prosecutrix having sexual intercourse with her husband on 19-9-1994, has submitted that it has come in the statement of P.W. 5 MC Narpat Ram that prosecutrix was accompanied by her husband when she came to Police Station on 19-9-1994. The statement of P.W. 5 Narpat Ram on this count, cannot be believed for the reasons that even the accused admitted that husband of prosecutrix was not accompanying her on 19-9-1994. A positive suggestion was given to prosecutrix in her cross-examination by the accused that her husband did not come on 19-9-1994, as he remained behind to look after the daughter and cattle etc., which was admitted by the prosecutrix. P.W. 5 Narpat Ram was the subordinate of the accused and, therefore, in cross-examination, he out of way tried to help the accused by stating that on 19-9-1994 the prosecutrix was accompanied by her husband when she came to Police Station.
32. It has been submitted that there is delay in filing the complaint for prosecuting the accused. The complaint was filed on 1-8-1995 for the incident allegedly took place on 30-8-1994 and 19-9-1994. It has come in the statements of prosecutrix and other witnesses that prosecutrix approached Superintendent of Police, Mandi and informed him that accused had forcible sexual intercourse with her against her wish on 30-8-1994 and 19-9-1994. The fact that prosecutrix met the Superintendent of Police, Mandi in this context has not been denied by the accused in answer to Question No. 27 in his statement recorded, under Section 313 of the Code of Criminal Procedure. The prosecutrix had done her best and informed the highest Police Officer of the District regarding the rape committed on her by the accused, but unfortunately no effective steps were taken immediately for registration of the FIR against the accused. The prosecutrix then submitted an application under Section 156(3) of the Code of Criminal Procedure on 19-9-1994 itself, on which learned Additional Chief Judicial Magistrate ordered investigation by the Police. The FIR was registered on 5-10-1994, but the investigation in the case proceeded in different direction, which is clear from the fact that police submitted cancellation report on 27-11-1996, but before that the prosecutrix filed complaint on 1-8-1995 in the Court of Chief Judicial Magistrate, Mandi, who on 20-11-1997 issued process to accused under Section 376, I.P.C. and committed the case to the Court of learned Sessions Judge, Mandi on 26-5-1998. In these circumstances, there is no delay in filing the complaint. In fact the prosecutrix on 19-9-1994 itself took steps and reported against the accused to the Superintendent of Police, Mandi but unfortunately no action was taken against the accused.
33. It has also been submitted that the case against the accused is false. The accused in his statement under Section 313, Cr. P.C. has stated that he joined S.H.O. Sadar on 18-8-1994 and prior to him Roshan Lal Guleria was the S.H.O. who was not willing for his transfer and has manipulated this complaint in connivance with G.P. Guleria and D.C. Guleria, Advocates practicing at Mandi. It is not believable that a village rustic woman would put her honour at stake by joining a conspiracy as alleged by accused. It is not the case of accused that prosecutrix was to gain something from this conspiracy and it has not been shown why she would help Roshan Lal Guleria and the two Advocates by joining the conspiracy. It has been submitted that the accused has been implicated because he arrested the husband of the prosecutrix in another case. In support of this submission, help has been taken from cancellation report of the case Ex. D-3 and inquiry report Ex. DW 5/A, which was conducted by DW 5 Ali Raza Rizvi, the then Additional Deputy Commissioner, Mandi. The benefit of cancellation report Ex. D-3 and inquiry report Ex. DW 5/A is not available to the accused inasmuch as on the basis of evidence, which has been recorded in the Court, it has been proved that accused had forcible sexual intercourse with the prosecutrix on 30-8-1994 and 19-9-1994 against her wish.
34. It is settled law that conviction can be based, under Section 376, I.P.C. on the sole testimony of the prosecutrix, if it inspires the confidence of the Court. In the present case, the prosecutrix has specifically deposed that the accused had forcible sexual intercourse with her on 30-8-1994 and 19-9-1994 against her wish. The statement of prosecutrix has been corroborated in material particulars by her sister P.W. 2 and her mother P.W. 3. The medical evidence Ex. P.W. 7/B has also supported the case of the prosecutrix. There is no reason to disbelieve the statements of prosecutrix, her sister P.W. 2 Rita Devi and her mother P.W. 3 Soma Devi that the prosecutrix was subjected to forcible sexual intercourse by the accused. The learned Sessions Judge has appreciated the material on record rightly and has drawn correct inference.
35. The learned Counsel for the accused has lastly submitted that sentence imposed is excessive. The accused had unblemished service record and keeping in view the facts and circumstances of the case, lenient view may be taken while imposing sentence. We have considered the submission of the learned Counsel. The accused was police officer and he took undue advantage of his position for committing rape on prosecutrix, a hapless rustic village woman, her husband was arrested in another case. She was put to threat of involving other members of her family in the case if she would not satisfy the sexual lust of the accused. She was even not helped by Superintendent of Police, head of the District Police. The offence committed by the accused probably would not have come to the light but for help rendered by P.W. 4 Chandermani to the prosecutrix and courage she has herself shown by approaching P.W. 6 and then filing application under Section 156(3), Cr. P.C. and then complaint against the accused in the Court. Therefore, keeping in view the fact that the accused was in-charge of the Police Station and he committed rape on the prosecutrix taking benefit of his position, he is not entitled to any leniency for imposing the sentence, hence submission of the learned Counsel for the accused for taking lenient view for reducing the sentence is rejected.
The result of the above discussion, judgment of conviction and sentence passed against the accused by the learned Sessions Judge, Mandi on 18/19-8-2003, is upheld and the appeal is dismissed.
36. We would be failing in our duty if we re the allegations, which have been made by the prosecutrix, her mother and P.W. 4 Chandermani against the then Superintendent of Police, who allegedly discouraged the prosecutrix in pursuing the matter, inasmuch as he declined her request for medical examination saying that she being already married, what help the result of medical examination could be of. He also committed an act of dereliction of duty by not taking any action on her oral complaint and adopting delaying tactics by keeping the prosecutrix waiting outside his office up to 5.00 p.m. so that in the meanwhile Courts were closed and action even by the intervention of the Courts was not initiated promptly. It appears from the allegations made against the then Superintendent of Police in the testimony of the aforesaid three witnesses that he (the then Superintendent of Police) had been trying to help the appellant against whom serious allegation of rape, in the Police Station, had been made.
37. If the aforesaid allegations against the then Superintendent of Police are true, they not only constitute an act of dereliction of duty on his part for which he may be liable to be proceeded against departmentally, but also certain offences punishable under the penal laws of land. Let a notice be issued to the then Superintendent of Police (by name) calling upon him to appear in the Court on 13-9-2007 in person and show cause why he should not be prosecuted under the penal laws of land for his alleged acts of omission and commission and also why a direction be not issued to his Appointing Authority to initiate departmental action against him for major penalty. We were told during the course of hearing of the matter that the name of the officer (the then Superintendent of Police) is O.C. Thakur and presently he is posted as I.G. (CID), Shimla.