Himachal Pradesh High Court
Baldev Singh @ Pawan vs State Of Himachal Pradesh on 10 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2024:HHC:8175 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Criminal Appeal No.259 of 2021.
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Reserved on: 04.09.2024.
Date of decision: 10.09.2024.
Baldev Singh @ Pawan ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? Yes For the Appellant : Mr. Bhupinder Singh Ahuja, Advocate.
For the Respondent: Mr. I.N. Mehta, Senior Additional Advocate General with Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General, Mr. J.S.Guleria and Mr. Raj Negi, Deputy Advocates General.
Tarlok Singh Chauhan, Judge The appellant has been convicted and sentenced by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur, H.P. vide its judgment/order dated 01.04.2021/07.04.2021 to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.20,000/- and in default of payment of fine to further undergo rigorous imprisonment for 2 years under Section 376(2(f) of the ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 2 Neutral Citation No. ( 2024:HHC:8175 ) Indian Penal Code (for short, 'IPC') and further sentenced to undergo rigorous imprisonment for 10 years and to pay a .
fine of Rs.20,000/- and in default of payment of fine to undergo rigorous imprisonment for 2 years under Section 376(2)(I) of IPC. The substantive sentences aforesaid were ordered to run concurrently and aggrieved thereby, the appellant has filed the instant appeal.
2. Precisely, it would be necessary to understand the relationship between the complainant party and the appellant. Appellant's daughter was married to the brother of the prosecutrix. Complainant (PW1) was working in a government institution and she was not living with her husband and was living at her parental house. Complainant had two children i.e. prosecutrix and a son.
3. The case of the prosecution, according to the complainant, is that on 12.07.2017, the appellant visited the house of complainant (PW1), who left her house at around 1.45 p.m. for her duty because her duty time was from 2.00 p.m. to 8.00 p.m. Daughter-in-law of the complainant and her daughter (prosecutrix) and appellant were at the house. Complainant told to the police that since there was no bus from the place of her work to her ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 3 Neutral Citation No. ( 2024:HHC:8175 ) village after 8.00 p.m., therefore, she went to the house of her sister at place Patta.
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4. On 13.07.2017 at around 8.00-9.00 a.m., the complainant reached at her village, however, directly went to the fields for work. At around 1.00 p.m., she reached at her house. On reaching, the prosecutrix told the complainant that on the previous day, the appellant removed her clothes, applied oil at the place of her urination and put his penis at the place of her urination and the prosecutrix further told that the appellant committed "Bura Kaam" with her and also touched her breast. The complainant further reported to the police that prosecutrix revealed her that she also started bleeding from the place of urination and when prosecutrix started weeping, the appellant intimidated her and asked her to keep quiet and he also did not hand over her clothes to her and asked her to take bath. When the complainant asked prosecutrix as to where was her sister-in-law (Bhabhi), prosecutrix told that at that time her sister-in-law (daughter of appellant) had gone to place Berthin. Prosecutrix further revealed to the complainant that at that time she was watching T.V. As per the complainant, the prosecutrix after the occurrence had ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 4 Neutral Citation No. ( 2024:HHC:8175 ) also told about the same to her sister-in-law, but the said fact was not brought to the notice of the complainant by her .
daughter-in-law. It was also reported by the complainant that when she checked her daughter, she found that "Galat Kaam" had really been committed with her. Complainant requested the police for medical examination of her daughter. It was on the basis of this information that FIR No. 66/17 dated 13.07.2017 came to be registered.
5. During investigation, the police got the statement of the prosecutrix recorded under Section 164 Cr.P.C. before the Judicial Magistrate 1 st Class. Upon examination in the Department of Psychiatry, IGMC, Shimla, prosecutrix was found to be having moderate to severe mental retardation. Therefore, she was referred to a clinical Psychologist and accordingly the psychological report was obtained from Composite Regional Rehabilitation Centre for persons with disabilities at Sundernagar in District Mandi, H.P.
6. Medical examination of the prosecutrix was got conducted on the date of FIR itself. In the medical examination, redness and lacerations were found in vaginal canal of the prosecutrix. The samples were also obtained.
::: Downloaded on - 10/09/2024 20:32:24 :::CIS 5Neutral Citation No. ( 2024:HHC:8175 ) In the forensic science laboratory, no blood or semen was detected on the examined exhibits but on clinical .
examination possibility of sexual intercourse was not ruled out. After completion of the investigation, the final report was filed by the police before the learned JMIC, Court No.2, Ghumarwin, who, committed the case to the Court of Sessions for trial.
7. On finding a prima facie case, charge under Section 376(2)(f) and (I) was framed against the appellant to which he pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case examined as many as 16 witnesses. On closure of the prosecution evidence, the appellant was examined under Section 313 Cr.P.C. whereby incriminating circumstances appearing from the prosecution case were put to the appellant. He denied all the incriminating material and pleaded his innocence. However, the appellant opted to lead evidence in defence and examined two witnesses including himself.
9. After recording evidence and evaluating the same, the learned Trial Court convicted the appellant as aforesaid.
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10. Learned counsel for the appellant would argue that since the findings recorded by the learned Trial Court .
are totally perverse, therefore, the same deserve to be set aside.
11. On the other hand, learned Additional Advocate General would argue that since the findings recorded by the learned Trial Court are based on the correct appreciation of the oral and documentary evidence that has come on record, therefore, the same does not warrant interference.
12. We have heard the learned counsel for the parties and have also gone through the records of the case carefully.
13. The mother of the prosecutrix, who is the complainant in this case, was examined as PW1. PW1 stated that she was employed as 'Safai Karamchari' at Civil Hospital, Ghumarwin and was residing separate from her husband in her paternal house at Sunhani. She had two children, a son and a daughter, who happens to be the prosecutrix in this case. Her daughter though was 30 years of age but was a slow learner and was of imperfect understanding. However, she had adequate sense of understanding regarding her good or bad. She deposed ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 7 Neutral Citation No. ( 2024:HHC:8175 ) that on on 12.07.2017, the father-in-law of her son Vinod Kumar, namely, Baldev Singh, the appellant herein, had .
come to their house at about 10.00 a.m. She further deposed that since her duty hours were to commence from 2.00 p.m., she had left home at about 1.45 p.m. Her daughter, daughter-in-law and the appellant were at home.
According to the version of the complainant, her duty hours ended at 8.00 p.m. on that day and since the last bus to her home had already left, she went to stay with her sister at village Patta. She reached in her village Sunhani at about 8.00-9.00 a.m. in the next morning i.e. 13.07.2017.
However, since the season was that of cultivation of maize crop, she decided to go to the fields first to do some agriculture work before going home. She thereafter reached her house at about 1.00 p.m. and when she reached there, her daughter(prosecutrix) told her that on the previous day i.e. 12.07.2017, the appellant had taken off her clothes and placed her scrotal area over her groin. Prosecutrix also told that the appellant had applied oil to her private part. For her understanding, we had made her understand that the place of urinating is a spot of shame and for that they used the expression "sung" for the same. The prosecutirx had ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 8 Neutral Citation No. ( 2024:HHC:8175 ) told her (PW1) that the appellant had placed his "sung' in her "sung". She told that the appellant had committed .
wrongful act upon her and she felt pain. Thereafter, the prosecutrix told her that her private part had started bleeding after the act of insertion by the appellant. She had told the complainant that the appellant had simultaneously grabbed her breasts. The prosecutrix also told her that when she started crying, the appellant had asked her to first take bath but thereafter had himself proceeded to give a bath. PW1 got shocked on hearing all these things and thereafter physically examined her daughter to verify the facts told by her daughter and found evidence of the same being true. When PW1 asked as to where her daughter-in-
law was at the relevant time, then her daughter (prosecutrix) informed her that she had gone to Berthin at that time. PW1 also asked her daughter-in-law about this and she stated that she had gone to Berthin. Her daughter-
in-law did not disclose anything further to her, save and except, that the prosecutrix told her that the appellant had brushed his body against her body. However, the prosecutrix told her (PW1) that her daughter-in-law had told the entire matter to her mother over telephone. PW1 ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 9 Neutral Citation No. ( 2024:HHC:8175 ) further deposed that thereafter she called her brother Ram Pal and sister Sunita and they accompanied her and her .
daughter to Police Station, Talai, where they got recorded FIR Ext. PW1/A. PW1 identified her signatures at point 'K'.
The police thereafter got the prosecutirx medically checked up at CHC, Berthin. She gave her consent at point 'K' on MLC of her daughter Mark-A. The prosecutrix was thereafter brought by the police in the Court where her statement under Section 164 Cr.P.C. was recorded. On 14.07.2017, the police came to her house and clicked photographs Mark P1 to P7 of the room and other portions of the house. Their statements were also recorded by the police. The prosecutirx told PW1 and the police that the appellant, after committing rape upon her, wiped her private parts with a 'Dupatta' which he had left in the room. She produced the said 'Dupatta' before the police. The 'Dupatta' was wrapped in a cloth parcel which was sealed and taken into possession vide seizure memo Ext. PW1/B. PW1 also deposed that police also took specimen of the seal on a separate piece of cloth vide Ext. PW1/C. PW1 produced disability certificate and identity card of her daughter before the police vide Ext. PW1/D and Ext. PW1/E. The ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 10 Neutral Citation No. ( 2024:HHC:8175 ) witness identified all these items and lastly deposed that the appellant by taking undue advantage of his relationship .
with their family and by taking advantage of the fact that the prosecutrix was not mentally fit had committed shameful act of rape for which he deserves to be sternly dealt with.
14. On being cross-examined, PW1 admitted that she did not have cordial relations with her husband since long and they had been divorced quite some years ago. The appellant was a truck driver as per her knowledge and she did not know from where he had come to her house on 12.07.2017. PW1 deposed that she also did not know by what means he had come and volunteered to state that she could not have known the same. All she knew is that the appellant had come to her house on that day. She denied the suggestion that on 12.07.2017, the appellant was not in District Bilaspur and had gone with the truck loaded with cement to Dharamshala from Barmana. PW1 stated that she had come to Ghumarwin on that day through Vineet Bus Service. She had reached at Ghumarwin at about 2.15 p.m. On 13.07.2017, she had used the implements kept by her in a room of her house which had been rented out but ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 11 Neutral Citation No. ( 2024:HHC:8175 ) one room had been retained. She had not told the police about the other house in which implements had been kept .
but volunteered to state that it was never asked from her.
She admitted that her daughter used to watch television and try to attend phone calls, however, she denied the suggestion that prosecutrix could dial the numbers perfectly and volunteered to state that prosecutrix juggled around with the digits and could not dial meaningful number on her own. PW1 admitted that she had not called at her home during the period between 2.00 p.m. on 12.07.2017 and 1.00 p.m. on 13.07.2017 and volunteered to state that there was no need to do so since her daughter-in-law and her father were at home to look after her daughter. She did not know at what time her daughter-in-law had gone to Berthin. The exact time of the incident was not disclosed by the prosecutrix to her. She denied the suggestion that the prosecutrix even had not told her whether it was day or night when the incident had occurred and volunteered to state that prosecutrix had told her that it was during day time when her daughter-in-law had gone to Berthin market.
PW1 admitted that the step-mother of the appellant resided in village Sunhani, however, she denied that they ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 12 Neutral Citation No. ( 2024:HHC:8175 ) were not having cordial relations with her and volunteered to state that she was her niece in relation. PW1 stated that .
they had gone to the Police Station at about 7.30-7.45 p.m. and remained there for about 30-45 minutes. Thereafter, they had gone to hospital but she did not remember the exact time nor she had noted down the same. PW1 denied the suggestion that since she had acquaintance with doctors, therefore, she got a false medical certificate prepared. PW1 admitted that when she reached home the next day, the appellant was not present in the house. She had asked her daughter-in-law to call for the appellant.
PW1 denied that they had planted a false case against the appellant.
15. The prosecutrix has been examined as PW13 without oath and she stated that it was an incident of Wednesday. On that day, her mother was on duty. Her sister-in-law Anu (Bhabhi) was at home. Her (Anu's ) father had come. Prosecutrix 's mother had gone to Berthin. PW13 deposed that she was at home and sitting in her room and watching T.V. The father of my sister-in-law came to her room and laid her on the ground and told her not to disclose it to her mother i.e. PW1. The appellant thereafter opened ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 13 Neutral Citation No. ( 2024:HHC:8175 ) her clothes and put his penis in her vagina. He also applied oil. The witness was thereafter asked as to what is .
meant by "sungu" and the witness clarified that it was a place from where urine is passed. She further deposed that when penis was put in her vagina, she felt pain. When it caused pain, she wept, upon this father of her sister-in-
law told her not to disclose this to her mother and caught hold of her from her breast. There was also blood due to this. On a court question being asked regarding when she had taken bath, PW13 stated that she took bath on the same day and he (appellant) made her to take bath. PW13 deposed that her sister-in-law had come at around 3.00 p.m. She told her sister-in-law that her father had opened her clothes but she did not pay any heed. Thereafter, her mother (PW1) came on the next day and she told her mother that her "Kudam" (father-in-law of son) had done this. Thereafter, she slept in the lap of her mother. She did not slap him(appellant) and had only told to her mother.
Thereafter, they went to the Police Station at Talai and thereafter to the hospital at Berthin and later came to the house. PW13 further deposed that the police had taken ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 14 Neutral Citation No. ( 2024:HHC:8175 ) photographs of their house. Ext. PW5/A-7 was one such photograph of that room where she was sitting.
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16. The prosecutrix was subjected to a lengthy cross-examination where she deposed that she could not tell how many years had since passed from the marriage of her sister-in-law and these were known to her mother. The marriage of her brother and 'Bhabhi' was court marriage which were performed in the temple. She denied the suggestion that in that marriage the father of her 'Bhabhi' had not come and volunteered to state that he had come in 'Milani'. She denied the suggestion that her 'Bhabhi' had eloped with her brother and thereafter they got married.
She stated that her father was residing in Manariya but did not come to the house. PW13 deposed that she did not know why her father did not come to the house. PW13 denied the suggestion that she had made such type of allegations against her father. She did not know that a litigation had been started between her father and mother and they had gone to the police station. The Trial Court thereafter made following observation:
"(At this stage, I find that the witness is not understanding the time period gap and is to be ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 15 Neutral Citation No. ( 2024:HHC:8175 ) assisted in properly making her understand about the time.
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The witness had no idea of arithmetics. To both hand fingers of Judge, which were eight, she told five. She could only tell two fingers correctly)."
17. PW13 further deposed that her mother and father of her sister-in-law i.e. appellant were not at talking terms, taking food and going to each other. She denied the suggestion that they were not at talking terms, taking food and going to each other since the marriage of her brother and 'Bhabhi' and volunteered to state that it stopped now.
She admitted that father of her 'Bhabhi' was not happy with the marriage of her brother and 'Bhabhi'. She further deposed that her 'Bhabhi' had given some medicine to her which was a wrong medicine and she had told this fact to the police. Police had not come in this regard. PW13 deposed that she could not make a call from telephone but she could hear the phone. She denied the suggestion that the day of which she had stated about the occurrence, her mother had kept her locked, volunteered to state that she was free and the room she lived in had a bathroom, toilet ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 16 Neutral Citation No. ( 2024:HHC:8175 ) and T.V. Her mother used to leave food items to her. She denied the suggestion that she(PW1) did not permit her .
'Bhabhi' to go to her parental house. She also denied the suggestion that today she was deposing upon being tutored by her mother and stated that she was giving the statement on her own and stated that she had been told by the police to make a statement. PW13 also deposed that she had earlier come to the Court and at that time there was another Judge. No police official had intimated her on that day. She used to go to school on her own and used to come from the school at 1.30 p.m. Her teachers were also present there and she pointed towards special educator Pooja Kumari. She denied the suggestion that father of her 'Bhabhi' i.e. the appellant had not committed any 'galat kaam' with her. She also denied the suggestion that her mother and brother had told her to tell about putting penis and applying oil and volunteered to state that she had already disclosed this to her mother. She admitted that her statement had been recorded by the police when she had gone to the Police Station. Her statement was also recorded at Berthin when she had gone there. Her statement had been recorded many days back but she did ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 17 Neutral Citation No. ( 2024:HHC:8175 ) not know the date of recording such statement and date of occurrence. She denied the suggestion that she had not .
told anything to her 'Bhabhi' and volunteered to state that she told it to her 'Bhabhi' and she had abused her (prosecutrix). She deposed that statement of her 'Bhabhi' was not recorded in her presence and she did not know what was taken into possession by the police. Her mother, 'mama' and 'massi' had gone with her.
r Police had taken photographs. She also denied the suggestion that she had made similar allegations against a taxi driver and one 'Fauji' of her village and Rs.1,00,000/- were taken from them. She denied that her mother had been demanding money from the appellant and volunteered to state that her mother was doing job and then why she would ask for money. Her mother was on temporary (Kachi) job. She denied the suggestion that they were not having good terms with the appellant because of the marriage of her brother and 'Bhabhi'. She denied that because of the marriage, parents of her 'Bhabhi' were not happy. She admitted that 'Barat' of her brother had not gone. She denied the suggestion that at the place of urination, she had caused injury herself with a finger on the asking of her ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 18 Neutral Citation No. ( 2024:HHC:8175 ) mother. Volunteered to state that it was the appellant, who had put his finger and she had told this fact to the police.
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She admitted that what had been told by her today in the Court, that had been told for the first time and volunteered to state that earlier there was another Judge. She denied that the statement which she had made in the Court had not been disclosed to the police. She denied that the allegations made by her were false.
r She also denied the suggestion that they did not allow the police to record the statement of her 'Bhabhi' and volunteered to state that her 'Bhabhi' had refused to make the statement. She also denied the suggestion that her mother had told her 'Bhabhi' that if she would make the statement that nothing had happened, then her mother would oust her 'Bhabhi' from the house. She denied the suggestion that the appellant had not come to their house. She stated that duty of her mother had started at 2.00 p.m. and she did not get bus for return. She denied the suggestion that the bus had come to their house at 9.00 p.m. She denied the suggestion that she did not remain associated with the police in the investigation of the case.
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18. PW12 Dr. Shilpa is the Medical Officer, who examined the prosecutrix and stated that on 13.07.2017 at .
around 10.35 p.m. (night), the prosecutrix, who was present in the Court, was brought to the hospital by the police with the alleged history of sexual assault. She examined the prosecutrix. A female member of her family i.e. her mother was also along with the prosecutrix. On seeing the prosecutrix, she found that the prosecutrix was appearing to be mentally retarded, so, she thought it proper to take consent of her mother and accordingly took consent of her mother on the margin of the MLC Mark 'A'. PW12 deposed that she took signatures of mother of the prosecutrix being the guardian and also obtained thumb impression of the prosecutrix as a person she was going to examine. The mother granted the consent and then she proceeded to examine the prosecutrix. The prosecutrix was found calm, conscious, cooperative and oriented to time, place and person. She was mentally retarded. PW12 further deposed that as per the history given by the mother of the prosecutrix, the prosecutrix had immediately taken bath after sexual intercourse because she was asked to take bath by that person. After clinical examination and receipt of FSL ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 20 Neutral Citation No. ( 2024:HHC:8175 ) report, this witness i.e. PW12 gave her final opinion by observing that the possibility of sexual intercourse could .
not be ruled out though there was nothing suggestive in the FSL report. She further stated that presence of redness and laceration in the vaginal canal were suggestive of some intrusion or penetration.
19. On being cross-examined, PW12 stated that she had not specifically mentioned that she had taken consent of the mother because the prosecutrix was mentally retarded and volunteered to state that prosecutrix appeared to be mentally retarded, therefore, she thought it necessary to obtain consent of mother. She admitted that there was no bleeding at the time when she examined the prosecutrix.
She also admitted that redness and laceration could be possible because of insertion of fingers. She also admitted that there could be many reasons for rupture of hymen.
She further deposed that no external injury was noticed by her on the private parts of the prosecutrix but denied that there were no signs of rape. PW12 stated that she could not conclusively say that rape was committed but volunteered to state that the injuries noticed by her were indicated in the MLC making probability of offence. She ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 21 Neutral Citation No. ( 2024:HHC:8175 ) also stated that there was no injury on labia majora and labia minora. PW12 denied the suggestion that she had .
prepared a false MLC in connivance with the police.
20. As regards the psychiatric evaluation, the prosecution has examined PW2 Dr. Shatrugan Singh, a Clinical Psychologist, who stated that on 19.07.2017, the prosecutrix was brought before him for assessing the level of mental retardation and mental age, IQ, as referred by Dr. Dinesh Sharma (PW3), Associate Professor, Department of Psychiatry, IGMC, Shimla. He clinically examined the prosecutrix and filled up the forms of clinical history/method on the basis of clinical history and mental status examination. The index patient i.e. prosecutrix seemed to be a case of mental retardation, however, after that psychological testing was selected or assessment of intellectual functioning. The prosecutrix was less cooperative for psychological assessment. Her attention could be aroused but could not be sustained for a considerable period. He deposed that on the basis of "Gessel Drawing Test", the prosecutrix's calculated mental age was found to be 4 years and obtain IQ 25 indicative of ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 22 Neutral Citation No. ( 2024:HHC:8175 ) "severe mental retardation". He issued psychological report of the prosecutrix, Ext. PW2/C. .
21. On being cross-examined, PW2 denied the suggestion that a patient of mental retardation of such degree would be totally dependent upon others for his/her daily routine activities. Volunteered to state that though they may require the assistance of others in some of the activities, but they may not be self-dependent where the activities involve judgmental faculties to be examined. He admitted that such patients are susceptible to be easily tutored by the persons on whom they repose faith and are looked after by any such persons. Such patient can express his/her feeling by gestures and can also express if anything wrong has happened with his or her, although through gestures and signs which are matter of interpretation by someone, who understands such gestures. In his opinion, the patient i.e. prosecutrix was capable of competently deposing before the Court regarding facts relating to her, though not verbally, but through gestures and sign language, if they are properly understood and interpreted by somebody, who can competently do so.
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22. PW3 Dr. Dinesh Dutt Sharma is a Psychiatrist and stated that on 18.07.2017, the prosecutrix was referred to .
him by the Senior Medical Superintendent, IGMC, Shimla and thereafter he examined the prosecutrix. Her history was suggestive of delayed mile stones, decreased understanding and difficulty in performing day to day activities. On mental status examination, she could understand simple r questions but had difficulty in understanding complex statements. Her attention could be aroused but concentration was ill sustained. He deposed that on the basis of the history obtained from her mother, mental status examination and clinical assessment of intellectual and adaptive functioning, the prosecutrix appeared to be moderate to severe mental retardation.
However, for assessing the level of mental retardation and mental age, IQ assessment needed to be done for which she was referred to PW2. After receiving the psychological report issued by PW2, he (PW3) issued final opinion about psychiatric assessment of the prosecutrix, Ext. PW3/B. The opinion was based on clinical evaluation and perusal of psychologist report from CRC, Sundernagar (IQ=25; mental age=4 years). He opined that the prosecutrix was suffering ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 24 Neutral Citation No. ( 2024:HHC:8175 ) from severe mental retardation. The prosecutrix was found to be capable of communicating basic things such as the .
parts of her body affected by distress or any external stimulus given to her. He further deposed that the prosecutrix was further found capable of making good communication through her mother when the latter gave her suggestions through sign language and gestures which were well deciphered by her mother. The prosecutrix could reasonably indicate her body parts which had been tampered with by way of gestures and other indications.
23. On being cross-examined, he denied the suggestion that the prosecutrix was susceptible to easy tutoring by the mother and she would invariably say what she was tutored to say by her mother.
24. The other witness examined in this case is PW5 Ajay Kumar, who has proved on record the photographs Ext.
PW5/A1 to Ext. PW5/A7. He was stated to have been captured by the I.O. during investigation of the case.
25. PW6 Ram Pal is the maternal uncle of the prosecutrix, who had accompanied the mother (PW1) of the prosecutrix Kashmiri Devi to the Police Station and has deposed exactly on the same lines as PW1. But, his ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 25 Neutral Citation No. ( 2024:HHC:8175 ) statement being primarily based on hearsay with regard to alleged incident cannot be relied upon and can be relied .
upon for the limited purpose of articles that were taken into possession vide seizure memo Ext. PW1/B.
26. PW7 Constable Vivek Singh has proved on record the FIR Ext. PW1/A and the certificates given by him under Section 65-B of the Indian Evidence Act with regard to FIR and DDR vide Exts. PW7/A, PW7/B and Ext. PW7/C.
27. PW8 Constable Raj Kumar is CCTNS writer and has proved on record DDR Ext. PW8/A entered by him in he official computer of Police Station and certificate given by him under Section 65-B of the Indian Evidence Act vide Ext.
PW8/B.
28. PW9 HHC Mangal Singh took the case property from MHC Ramesh Chand on 17.07.2017 vide RC No. 101/21 dated 17.07.2017 Ext. PW9/A and deposited the same at RFSL, Mandi and stated that the case property remained safe and intact with him till that was deposited with RFSL, Mandi.
29. PW10 LC Seema Devi stated that on 13.07.2017, she took the prosecutrix for medical examination to CHC Berthin vide docket Mark X-1 wherein the prosecutrix was ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 26 Neutral Citation No. ( 2024:HHC:8175 ) medically examined by the doctor. She deposed that the doctor handed over to her one parcel containing two vaginal .
slides and UPT kit, another parcel containing pubic hair and vaginal swab of the prosecutrix and another parcel containing blood sample of the prosecutrix which she deposited with the MHC and the case property remained safe and intact so long it was in her custody.
30. PW11 HC Sanjeev Chandel was holding r the charge of MHC in absence of MHC Ramesh Kumar and stated that on 14.07.2017 LC Seema Devi deposited with him one parcel stated to be containing clothes of the prosecutrix, another parcel stated to be containing vaginal swab and pubic hair of the prosecutrix, another parcel containing vaginal slides and UPT Kit of the prosecutrix and yet another parcel containing blood sample of the prosecutrix, two envelopes addressed to FSL which he entered them in the entry No. 62/17 of the Malkhana register. He deposed that on the same day, SI/SHO Karam Singh deposited with him one parcel which he entered vide entry No. 64/17 of the Malkhana register. He also deposed that on 15.07.2017, SI/SHO Karam Singh again deposited with him the property of 'jamatalashi' of the appellant which ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 27 Neutral Citation No. ( 2024:HHC:8175 ) he entered at entry No. 66/17. On the same day, SI/SHO Karam Singh deposited with him four parcels and one .
envelope which he entered at entry No. 68/17 of the Malkhana register. He produced the original Malkhana register, copies of which were Ext. PW11/A-1 to Ext.
PW11/A-5 which, according to him, were correct as per the original register brought by him. On return of MHC Ramesh Kumar, he handed over the case property to him and till the case property remained in his possession, it remained safe and intact.
31. PW14 SI Karam Singh was posted as SHO/IO at Police Station, Talai and in his examination-in-chief set out the prosecution case in detail.
32. On being cross-examined, PW14 stated that complainant at around 8.00-8.15 p.m. had come to the Police Station, Talai which is at a distance of 20 kilometres from village Sunhani. He had associated Sunita Kumari but did not remember whether her statement had been recorded by the police. He deposed that he had associated Anu Kumari in the investigation and recorded her statement and had given reference of the same in the case diary. He denied the suggestion that this was not so ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 28 Neutral Citation No. ( 2024:HHC:8175 ) recorded in the case diary. He stated that statement of Anu was not recorded under Section 161 Cr.P.C. and .
volunteered to state that she was interrogated. She had also revealed about her father coming to her house and also revealed about the offence. He denied the suggestion that Anu did not state anything and this was the reason why he had not recorded her statement under Section 161 Cr.P.C.
He also denied the suggestion that it had come r during investigation that complainant Kashmiri Devi and appellant had not in good terms. He further deposed that during investigation it had not come that earlier also prosecutrix and her mother had made allegations upon a 'Fauji' and a school vehicle driver. He stated that he had gone to the spot on 14.07.2017 and the house there was consisting of three rooms and a verandah. There was attached kitchen and a bathroom. The bathroom was in the backside. He could not state whether injuries were there on the body of the prosecutrix and stated that there was a lady constable accompanying him. She told him about the matter and then he wrote to the Medical Officer. Perhaps, she was lady constable Aruna. He also stated that the narration of incident was jointly given by the prosecutrix and her ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 29 Neutral Citation No. ( 2024:HHC:8175 ) mother. He did not know that the lady doctor Shilpa, who had examined the prosecutrix was not a gynecologist. He .
could not say that gynecologist sits at Regional Hospital, Bilaspur. He did not ask for referring the prosecutrix for medical examination by a gynecologist. He did not take any record about the duty time of the complainant Kashmiri Devi. He did not verify whether complainant came from the hospital and directly went to the fields. PW14 stated that he did not confirm whether from duty, the complainant had gone to her sister's house. He further denied the suggestion that no rape had been committed upon the prosecutrix and further that his investigation was not fair and impartial. He denied the suggestion that there was a dispute between the family of the prosecutrix and the appellant because the son of the complainant had married the daughter of the appellant without his consent.
33. PW15 HASI Kirpal Singh was posted as HHC at Police Station, Talai, at the relevant time and stated that on 16.09.2017, he had gone to RFSL, Mandi, from where he had brought the case property of this case along with result Ext. PW4/C and deposited the case property safely with ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 30 Neutral Citation No. ( 2024:HHC:8175 ) MHC Ramesh Chand. He deposed that the case property remained safe and intact till it was in his possession.
.
34. PW16 Inspector Shyam Parshad stated that he was posted as SHO at the Police Station, Talai. On 05.10.2017, he took over the case file and on perusing the same, he found that the result Ext. PW4/C had been received. He recorded the statements of HC Sanjeev Chandel, HC Ramesh Chand, HHC Mangal Singh, LC Seema Devi, Ajay Kumar and HHC Kirpal Singh as per their versions. During investigation, he imposed Section 376(2)(f) of IPC and after completion of the investigation, prepared the charge sheet and presented the same before the Court.
35. On being cross-examined, PW16 stated that he had recorded the statement of Sanjeev Chandel on 05.10.2017. PW16 further deposed that he did not remember whether this statement was recorded before lunch or after lunch and further stated that he had not associated prosecutrix during investigation. He feigned ignorance regarding Dr. Shilpa not being a gynecologist. He further feigned ignorance regarding there being no post of gynecologist at Berthin hospital. He also feigned ignorance ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 31 Neutral Citation No. ( 2024:HHC:8175 ) as to whether a Medical Officer could not work as a gynecologist. He denied the suggestion that he had .
recorded the statements of the witnesses on his own. He stated that he did not know that both the families were having inimical relations with each other. He denied the suggestion that a wrong charge sheet had been prepared against the appellant.
This in entirety is the evidence led by the prosecution.
36. Thereafter, the appellant was examined under Section 313 Cr.P.C. wherein he denied the prosecution case and his defence was that he was not having cordial relations with the complainant party because the brother of the prosecutrix had taken his daughter without his consent and lateron had married with her and due to this reason, the complainant party had strained relations with him. He (appellant), his wife and relatives had gone to the house of the complainant party but they threatened them to lodge a report against them at the Police Station and now the mother of the prosecutrix was demanding money from his wife to compromise the matter.
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37. The appellant thereafter led evidence in his defence by examining his wife Lata Devi as DW1 and .
himself as DW2.
38. DW1 Lata Devi stated that her daughter had married as per her will at Sunhani with the son of Smt. Kashmiri (PW1). The marriage had been solemnized about 8-9 years ago. Her husband and her family was not happy with this marriage r because the marriage had been solemnized by her by eloping with the son of PW1. She further deposed that they never visited the house of Kashmiri alone, however, they had visited the house of Kashmiri before registration of this case along with panchayat members and some other relatives. DW1 also deposed that in her house, PW1 had threatened them that if they would come to her house, then she would implicate them in a false case. She further deposed that till now from the date of marriage they were not having any relations with PW1 and the present case had been falsely registered by Kashmiri.
39. On being cross-examined, DW1 stated that she had studied upto 8th standard, but, did not know when her daughter and son of PW1 performed court marriage. Then, ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 33 Neutral Citation No. ( 2024:HHC:8175 ) PW1 stated that she wanted to give 'Dham' (Local Feast) at her house, however, DW1 volunteered to state that they .
were not told. DW1 denied the suggestion that PW1 told them that she wanted to perform 'Milini' ceremony with the parents of daughter i.e. DW1 and appellant. She denied the suggestion that PW1 thereafter kept 'Dham' in her house and she along with her husband and relatives were invited by Kashmiri to her house for performance of 'Milini'. DW1 further denied the suggestion that thereafter she, her husband along with relatives had visited the house of PW1 for performance of 'Milini'. She denied the suggestion that when 'Milini' ceremony was performed, photographs had also been clicked. DW1 admitted that photograph Ext. PX-1 was of 'Milini' ceremony in which she and Kashmiri appeared to be hugging each other. She also denied the suggestion that photograph Ext. PX-2 was of 'Milini'. She admitted that in photograph Ext. PX-2, she and PW1 could be seen exchanging gifts. DW1 admitted that in photograph Ext. PX-3, she could be seen in circle 'A'. She admitted that in photograph Ext. PX-4, the appellant could be seen along with his daughter, who was in attire of bride and volunteered to state that this was not a photograph of ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 34 Neutral Citation No. ( 2024:HHC:8175 ) marriage. She admitted that in photographs Exts. PX-5 and PX-6, her husband i.e. appellant could be seen in red circle .
'A'. She denied the suggestion that all these photographs were of the house of Kashmiri Devi. She denied that when they came for 'Milini', they were welcomed by PW1 with pomp and show. She denied that during the 'Milini', video film was also made.
40. The Public Prosecutor then sought permission of the Court to play the C.D. Mark PX-6 received by him from the mother of the prosecutrix which was objected to by the appellant, however, the question was left open. After the C.D. was played, DW1 stated that the C.D. was not of 'Milini'. She admitted that in the C.D. film, there were pictures where she, her husband and other relatives could be seen and volunteered to state that it was of some other function but did not know of which function. She denied that the C.D. was of 'Milini'. DW1 further denied that she was deposing falsely to save her husband. DW1 also denied that she and her husband were happy with the marriage between her daughter and son of PW1. She denied the suggestion that they were at visiting terms after the marriage. She denied the suggestion that on ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 35 Neutral Citation No. ( 2024:HHC:8175 ) 12.07.2017 her husband visited the house of PW1 and committed rape on the prosecutrix i.e. daughter of Kashmiri .
Devi. She admitted that they and PW1 belonged to same caste and were having common relations.
41. DW2 is the appellant, who appeared in the witness box and stated that on 12.07.2017, he had not gone to village Sunhani. PW1 was related to him being mother-
in-law of his daughter. He deposed that marriage of his daughter with the son of PW1 was against his wish.
Relatives of Kashmiri Devi used to reside in his village. PW1 used to visit their village. He deposed that false case had been made against him because their relations were not cordial with Kashmiri Devi because son of PW1 had eloped with his daughter and married with her against his wish.
DW2 further deposed that he along with his relatives had visited the house of Kashmiri Devi once or twice and they used to quarrel with them and would ask them not to come to their house and also used to threaten them to implicate in a false case. He also deposed that the photographs were not of 'Milini' but of some other function and the C.D. was also not of 'Milini', but some other function. He deposed that earlier also Kashmiri Devi had made false ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 36 Neutral Citation No. ( 2024:HHC:8175 ) allegations on some 'Fauji' of that place and also on some driver. Kashmiri Devi was now asking for Rs.1,00,000/- for .
withdrawal of the case. He also deposed that PW1 had also taken money from 'Fauji' and driver and further deposed that he used to address prosecutrix as 'Beta' and treated her like her daughter and this was a false case.
42. On being cross-examined, DW2 denied the entire allegations of the prosecution and even feigned ignorance regarding prosecutrix being mentally retarded. He denied the suggestion that at the time when his daughter and son of PW1 had solemnized marriage, then PW1 had kept 'Dham' in her house at village Sunhani. He further denied the suggestion that in that 'Dham', PW1 had invited them and their relatives and also for 'Milini' ceremony. He denied that he was happy with this marriage. He also denied that photography and videography were also made in the 'Milini'. He admitted that in photograph Ext. PX-4, he was visible in red circle 'A' and his daughter was visible in red circle 'B' in the attire of a bride, but, volunteered to state that this photo is not of 'Milini' but was of some other function. He admitted that in the photographs Exts. PX-1 to PX-3 his wife was visible in red circle 'A'. He also admitted ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 37 Neutral Citation No. ( 2024:HHC:8175 ) that in photograph Ext. PX-1, his wife could be seen hugging Kashmiri Devi. DW2 admitted that in the photographs Exts.
.
PX-5 and PX-6, he was visible in red circle 'A'. He denied the suggestion that photographs Ext. PX-5 and Ext.PX-6 were of the house of Kashmiri Devi and volunteered to state that these photographs were not of 'Milini' and were of some other function. DW2 then stated that it was retirement function of r their common relative and that of Kashmiri Devi. He deposed that he did not know the name of that person whose retirement function he was referring to. He was shown album and then he stated that it did not have photograph of said common relative. He further stated that Kashmiri Devi had demanded money from his family members 15-20 days ago. He denied the suggestion that Kashmiri Devi had not demanded any money from his family members. DW2 further denied the suggestion that he was deposing falsely about lodging of allegation against some 'Fauji' and driver by PW1.
43. At this stage, on the request of the Public Prosecutor the C.D. was played and after seeing the same, DW2 denied that C.D. related to the 'Milini' function, but admitted that he could be seen in the C.D. standing with his ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 38 Neutral Citation No. ( 2024:HHC:8175 ) daughter and volunteered to state that it was of some other function. He admitted that his daughter was in bridal dress .
in the C.D. standing with him and again volunteered to state that such dress was worn in every function. He admitted that in the C.D., his wife and PW1 could be seen exchanging gifts. He volunteered to state that the function was pertaining to some other retirement qua which he had spoken in the contexts of photographs in the album.
r He admitted that in the C.D., his daughter and son-in-law could be seen in the attire of bride and bridegroom and volunteered to state that these could be of some other function. He could not tell the name and village of 'Fauji' and the driver qua whom he stated that Kashmiri Devi had made similar allegations and volunteered to state that they were of village Berthin. He denied that he was deposing falsely.
44. At the outset, it needs to be observed that rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 39 Neutral Citation No. ( 2024:HHC:8175 ) shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent .
scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness.
45. Rape is the most hated crime, which tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
46. The committal of rape is a beastly act and takes out the life from the life of victim. The scars of rape always remain engraved in her mind and she cannot overcome throughout her life. Rape leaves physical as well as mental scars on the victim. Physical wounds may heal up, but the mental scars, though less visible are more difficult to treat.
47. Rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. "Rape" not only lowers the dignity of a woman but also mars her reputation. The plight of the woman and shock suffered by the victim can be well visualized. The victim of rape grows with traumatic experience and an ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 40 Neutral Citation No. ( 2024:HHC:8175 ) unforgettable shame haunted by the memory of the disaster forcing her to a state of terrifying melancholia. The .
torment on the victim has the potentiality to corrode the poise and equanimity of any civilized society. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The offence of "Rape" is grave by its nature, which warrants a strong deterrent by judicial hand.
48. In State of Punjab vs. Ramdev Singh, AIR 2004 SC 1290, the Hon'ble Supreme Court held as under:-
"This Court dealt with the issue and held that rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the courts should deal with such cases sternly and severely. Sexual violence, apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 41 Neutral Citation No. ( 2024:HHC:8175 ) offence against the person of a woman, rather a crime against the entire society. It is a crime .
against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution."
49. In Jugendra Singh vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held:-
r to "Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple.
No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."
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50. In Shyam Narian Vs. State (NCT of Delhi) (2013) 7 SCC 77, the Hon'ble Supreme Court has .
elaborately dealt with the issue as discussed in Madan Gopal Kaakar Vs. Naval Dubey and Anr., (1992) 3 SCC 204, State of Andhra Pradesh Vs. Bodem Sundra Rao, (1995) 6 SCC 230 and State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75 and has held that :
"It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed."
51. Equally settled is the proposition of law that conviction can be based on the sole testimony of the victim of sexual assault without corroboration from any other evidence. The statement of the victim is more reliable than any other witness. Where the testimony of victim of sexual assault instills the confidence in court, the same can be relied upon for conviction of the accused. It is also a well settled principle of law that corroboration as a condition for ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 43 Neutral Citation No. ( 2024:HHC:8175 ) judicial reliance on the testimony of the victim is not a requirement of law but a guidance to prudence under the .
given circumstances.
52. In Vijay @ Chinee vs. State of Madhya Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court has dealt with the issue and held that :
"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."
53. There are catena of judgments passed by the Hon'ble Supreme Court wherein it has been held that only the deposition of the prosecutrix by itself is also sufficient to record conviction for the offence of rape if that testimony inspires confidence and has complete link of truth.
54. In Md. Ali vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "be it noted, there can be no iota of doubt that on the basis of the sole testimony of the victim, if it is unimpeachable and beyond reproach, a conviction can be based" and in Mohd. Iqbal ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 44 Neutral Citation No. ( 2024:HHC:8175 ) vs. State of Jharkhand reported in (2013) 14 SCC 481, the Hon'ble Supreme Court has held that "there is no .
prohibition in law to convict the accused of rape on the basis of sole testimony of the victim and the law does not require that her statement be corroborated by the statements of other witnesses".
55. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A victim complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the victim on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony.
56. After all, the Court cannot overlook where the victim or a girl is subjected to sexual assault, she is not accomplice to the crime, but is victim of another's lust.
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57. Bearing in mind the aforesaid exposition of law, it would be noticed that the prosecutrix (PW13), even .
though, is suffering from mental retardation, but, has duly proved on record that she had been subjected to rape by the appellant.
58. Though, a faint attempt is made by Mr. Ahuja, learned counsel for the appellant, to contend that the prosecutrix had been tutored. But, we find that such contention loses its sheen, particularly, when the prosecutrix has been subjected to lengthy cross-
examination, but, nothing could be extracted from her, out of which the appellant could take an advantage. Her statement is clear, categorical, cogent and consistent and has successfully withstood the cross-examination. The prosecutrix can conveniently be termed to be a sterling witness of a very high quality and calibre whose version is unassailable. The burden put forth by the prosecution can be accepted at its face value without any hesitation. The prosecutrix appears to be absolutely truthful and, as observed above, consistent right from the starting point till the end. Her statement is natural, consistent with the case ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 46 Neutral Citation No. ( 2024:HHC:8175 ) of the prosecution qua the appellant. There is no prevarication in the version of the prosecutrix and she has .
withstood lengthy cross-examination which is not difficult to comprehend must have been extremely strenuous upon the prosecutrix given the fact that she is mentally retarded.
59. Mr. Ahuja, learned counsel for the appellant, would then contend that medical evidence in the instant case does not support the case of the prosecution and, therefore, the appellant deserves to be acquitted. He would strenuously argue that no semen or blood was found on 'Dupatta' which as per the prosecution had been used for cleaning after the commission of offence.
60. However, we find no merit in such contention. A perusal of the FSL report would go to indicate that RFSL had conducted tests for detecting blood in semen and no other test and it was not the case of the prosecution that the appellant had ejaculated so that there could be semen found on the 'Dupatta'. The appellant is only assuming such allegation, whereas, this is not the case of the prosecution. Therefore, in such circumstances, obviously, there would be no traces of semen on the 'Dupatta'.
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61. Mr. Ahuja would then argue that going by the statement of Dr. Shilpa, no case of rape is made out as she .
has specifically stated in her cross-examination that "I cannot say conclusively the rape was committed".
62. However, we again find no merit in such submission as the statement of PW12 Dr. Shilpa cannot be read in isolation as she has specifically deposed that the presence of redness and laceration in vaginal canal were suggestive of some intrusion or penetration. No doubt, in her cross-examination, she did state that redness and laceration could be there because of insertion of fingers.
But, then it has come in the statement of prosecutrix herself that it was the appellant, who inserted the finger.
Furthermore, the witness (PW12) after stating that she cannot say conclusively that rape was committed, but, volunteered to state that the injuries noticed by her were indicated in the MLC that make the probability of offence.
63. For the purpose of satisfaction of the ingredients of rape, it is more than settled that it is not necessary that there should be complete penetration (See: Aman Kumar vs. State of Haryana(2004) 4 SCC 379).
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64. Here, it shall be apt to refer to Modi's Medical Jurisprudence, 23rd Edition, at P.P. 897 and 928, wherein it is .
stated:
"To constitute the offence of rape, it is not necessary that there would be complete penetration of the penis with emission of semen and the rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law. It is, therefore, quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.
* * * In small children, the hymen is not usually ruptured, but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and perineum."
65. Apart from the above, it is more than settled that even if medical evidence vis-a-vis ocular evidence is contrary, then in those cases the eye witness account and in the instant case the victim's account, if found, credible and trustworthy would have to be accepted, rather than, ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 49 Neutral Citation No. ( 2024:HHC:8175 ) accepting the alternative possibility of the medical opinion.
Where, there is contradiction between the medical and .
ocular evidence, the ocular testimony of the witness and in this case the victim has greater evidentiary value vis-a-vis the medical evidence. It is only when medical evidence makes the ocular evidence improbable, then that becomes a relevant factor in the process of the evaluation of evidence or where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, then the ocular evidence may have to be disbelieved.
66. Mr. Ahuja would then contend that the prosecutrix is not so mentally retarded as is sought to be pointed out by the prosecution and in support of such contention has referred to the medical certificate to show the physical handicap disability of the prosecutrix, but, the same is of no avail to the appellant as the medical certificate of the prosecutrix dated 20.02.1998 Ext. PW1/D clearly shows that she was suffering from 50% permanent disability.
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67. In addition, Mr. Ahuja would also refer to Appendix III appended along with Schedule in the Scheduled .
Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, where definition of Mental Retardation and its categories have been set out. But, we find no merit in such contention and, therefore, need not to reproduce the definition and categories of Mental Retardation as the prosecutrix in the instant case has already been clinically examined and evaluated as is evident from the testimonies of PW3 and PW12.
68. As a last ditch effort, learned counsel for the appellant would argue that the appellant could not have been convicted for the offence under Section 376(2)(f) of IPC. However, we find no merit in the aforesaid contention.
69. Section 376 of IPC reads as under:
"376. Punishment for rape.--(1)Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine] (2) Whoever,--::: Downloaded on - 10/09/2024 20:32:24 :::CIS 51
Neutral Citation No. ( 2024:HHC:8175 )
(a) being a police officer, commits rape--
(i) within the limits of the police station to .
which such police officer is appointed; or
(ii)in the premises of any station house; or
(iii)on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under sixteen years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or ::: Downloaded on - 10/09/2024 20:32:24 :::CIS 52 Neutral Citation No. ( 2024:HHC:8175 )
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily .
harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Explanation.--For the purposes of this sub-section,
--
(a) "armed forces" means the naval, military r and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government;
(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
(c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution"
means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.::: Downloaded on - 10/09/2024 20:32:24 :::CIS 53
Neutral Citation No. ( 2024:HHC:8175 ) [(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous .
imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.]"
70. Section 376(2)(f) refers to the accused being a relative, guardian or teacher or a person in a position of trust or authority towards the woman, commits rape on such woman.
71. Here, admittedly, the appellant was a relative being father of the wife of brother of the prosecutrix. Apart from that, he even held a position of trust on account of such relationship and, therefore, appellant has rightly been convicted under the provisions of the aforesaid Section.
72. That apart, as already observed above, the prosecutrix has been a sterling witness of high quality and calibre whose version has been found to be unassailable.
::: Downloaded on - 10/09/2024 20:32:24 :::CIS 54Neutral Citation No. ( 2024:HHC:8175 ) This Court has already held that her version can be accepted without hesitation on its face value as it is truthful .
and consistent right from the starting point till the end.
There is no prevarication in the version of the prosecutrix and, above-all, she has withstood lengthy and strenuous cross-examination.
73. In view of the aforesaid discussion and for the reasons stated here-in-above, we find no merit in this appeal and the same is accordingly dismissed.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) 10 September, 2024.
th Judge (krt) ::: Downloaded on - 10/09/2024 20:32:24 :::CIS