Himachal Pradesh High Court
Dharam Singh vs State Of H.P. on 5 January, 1996
Equivalent citations: 1997CRILJ2769
Author: Lokeshwar Singh Panta
Bench: Lokeshwar Singh Panta
JUDGMENT Lokeshwar Singh Panta, J.
1. The appellant was sent up for trial under Section 376 of the Indian Penal Code. The trial Court after appraising the evidence oh record found the appellant guilty of offence under Section 376, I.P.C. vide judgment dated 30-5-95 and imposed the sentence of seven years rigorous imprisonment on him and a fine of Rs. 5,000/-. In default of payment of fine, the appellant was to suffer three months simple imprisonment. Out of the amount of fine a sum of Rs. 3,000/- was ordered to be paid to the prosecutrix by way of compensation. The appellant has challenged his conviction and sentence in this appeal through Jail.
2. Briefly stated the prosecution case was that on April 17,1992, the prosecutrix Km. Indra Devi (PW-1) aged between 16-17 years went to village Bagyanda for learning weaving work at about 9 a.m. from village Chhinjra in tehsil Kullu. She is the daughter of one Uttam, resident of village Ghaniara, tehsil Anni, district Kullu. At that relevant time, the prosecutrix had been residing at her sister's house and brother-in-law Megh Nath (PW-4) at village Chinjra. The distance between village Chhinjra and village Bagyanda is about 3 Kms. The prosecutrix used to go some-times on foot and some-times by Bus. On the alleged day of occurrence when she was returning from Bagyanda after her study onfoot about 5 p.m. and reached the place Lalmod near village Chhinjra the appellant came from behind and caught hold of both her arms. She objected to it but in the meanwhile, the appellant pushed her to the down side of the road. The appellant pounced upon her and caught hold of her arm and gagged her mouth with his hands. The prosecutrix tried to assault the appellant in order to ward off the attack by him with a stone. In the meanwhile, the appellant pressed her throat. The appellant took out a knife from the pocket of his pant and threatened her that in case she raised noise, he would kill her and throw her body into the river. He removed her salwar. The appellant took possession of her salwar and told her to run away without it. She started running from there, but again the appellant jumped upon her and forcibly made her lie on the ground. The appellant himself lay over her. He pressed her throat with one hand and opened the zip of his pant with his other hand. Then the appellant had forcible sexual intercourse with her against her will and without her consent. He then returned the salwar to her. She put on it and ran towards the road. The appellant also followed her and caught hold of her arm on the road and started asking her not to tell the incident to anyone or else he would kill her. In the meanwhile, two boys Shiv Ram (PW-8) and Sher Singh (PW-15) came on the spot from the side of village Jaan. PW-Sher Singh asked the appellant as to what he was doing. In the meantime, a bus came from the side of village Jaan, and the appellant boarded it and slipped away from the spot. The prosecutrix came to the house of her sister at village Chhinjra accompanied by the aforesaid two boys. Her sister had gone at that time to her husband Megh Nath (PW-4) at village Kasol where he was serving as clerk in the H.P. State Electricity Board. The prosecutrix waited for the arrival of her sister but since she did not return till April 20, 1992, she went to the residence of PW-Megh Nath at village Kasol on April 20, 1992 and narrated the incident to her sister. When PW-Megh Nath returned from his office in the evening, he was also informed about the incident.
3. PW-Megh Nath brought the prosecutrix to Police Post, Manikaran on April 21, 1992 where she lodged the daily diary report (Ex.PW1/A) at about 4 p.m. about the incident. Her report was recorded by Dabe Ram (PW-12). The formal FIR (Ex.PW-13A) was accordingly registered on the basis of report (Ex.PW-1/A) at police station, Kullu by Inspector Gurditta Ram (PW-13).
4. The case was investigated by ASI Jindu Ram (PW-17). He got the prosecutrix medically examined from Dr. Neena Lal, Medical Officer, (PW-2), District Hospital, Kullu. The medical officer found a small abrasion on her left knee, joint and right fore-arm. The hymen of the prosecutrix was torn, small tages had been formed and slight bleeding was present from the hymen which was in the process of healing. Her vagina admitted one finger. In the opinion of Dr. Lal, the injuries on the person of the prosecutrix were found to have been sustained within a period of one week. Dr. Neena Lal referred the prosecutrix to the Radiologist, District Hospital, Kullu for finding out her skeletal age. The x-rays of her right wrist, elbow, ankle, knee, shoulder and hip joints were conducted by Dr. G.D. Gaur (PW-3) and gave his report (Ex.PW-3/A) and placed on record x-rays (Exts. PW-3/A and PW-3/B). Doctor Gaur opined that the radiological age of the prosecutrix appeared to be between 161/2 to 17 years.
5. Investigating Officer arrested the appellant on April 22, 1992. He was got medically examined from Dr. J.S. Thakur (PW-16) at District Hospital, Kullu. Dr. Thakur on medical examination of the appellant found the following injuries on the person of the appellant.
1. A bruise semilunar in shape size 0-25 cm. above medial end of left eye brow over fore-head. Scab present. 2. A bruise with scab formation over middle 1/ 3rd of nose.
3. A bruise with scab over right infra orbital region near to nose.
4. A bruise with scab vertical over right alanasi.
5. No mark of injuries over pubic region testes, No matting of pubic hair, no discharge present.
6. A bruise 0-25 cm. over right side of uretheral opening over glans, penis, smegma absent.
7. Secondary sex character present and fully developed. Fully grown moustaches, beard, axillary hair and pubic hair.
8. Fully developed and intact both testicles and penis.
6. The appellant was found fully grown up male capable of performing sexual intercourse. The probable duration of the above injuries were found to have been caused within seven days and were simple in nature. He issued medical certificate (Ex. PW-16/A).
7. The clothes which the prosecutrix was wearing at the time of occurrence, namely, shirt (Ex. P-8) and salwar (Ex. P-9) was produced by the prosecutrix on April 24, 1992 to the Investigating Officer. They were sealed in aparcel with seal-'A' and were taken into possession vide recovery memo (Ex. PW- 1/E) in the presence of PW-Megh Nath and Hira Lal (PW-10). The Investigating Officer took into possession stones (exhibits P-1 to P-5) from the spot which allegedly the prosecutrix used to assault the appellant in order to ward off the sexual assault upon her. Bangles pieces (Ex. P-6) which were broken during the struggle and at the time of occurrence were also taken into possession vide (Ex. PW-1/ B) and a site plan (Ex. PW-17/A) was also prepared on the spot. The under-wear of the appellant (Ex. P-10) was produced by him to the Investigating Officer on April 22, 1992 which was taken into possession vide memo (Ex. PW14/A). The knife which the appellant had used to threat the prosecutrix on the spot was produced by Trilok Nath (PW-9) in the presence of Megh Nath (PW-4) and Hira Lal (PW-10), which was taken in possession vide memo (Ex. PW-l/C). All these parcels were deposited by the Investigating Officer with MHC Duglu Ram (PW-7). The parcels of clothes were, sent through constable Mohar Dass (PW-6) on July 6, 1992 to Forensic Science Laboratory Bharari, Shimla for analysis. Subsequently report (Ex. PW-14/A) was received and according to the report human blood stains were found on the salwar (Ex. P-9) which had got spoiled and were not capable of chemically tested. However, human semen stains were not found on the salwar nor any blood or semen stains were found on the shirt (Ex.P-8). Human semen stains were found on the under-wear (Ex.P-10) of the appellant.
8. The Investigating Officer collected the copy of the pariwar register of the family of the prosecutrix (Ex. PW8/A) from Sohan Lal (PW-8), Secretary of the Gram Panchayat, Anni. According to the document (Ex.PW8/A), the birth of the prosecutrix was shown as 1976 without meantioning the date and month. It was found during the investigation that the appellant was earlier working as a driver of taxi belonging to one Ludar Chand, Pradhan uncle of Trilok Nath (PW-9) at village Nagothi in the year 1992. Thereafter, the appellant had left the employment of Ludar Chand and had started working with PW-Trilok Nath as labourer. Trilok Nath (PW-9) had given his pant to the appellant for use. After allegedly commiting the offence, the appellant left the pant in the bed room of PW-Trilok Nath. In the pocket of the pant, knife (Ex. P-7) was found which was handed over to the police by PW-Trilok Nath. After recording the statements of the relevant witnesses and collecting necessary evidence, challan was laid before the Court of Chief Judicial Magistrate, Kullu on August 4, 1994. The learned Chief Judicial Magistrate vide order dated November 2, 1994 committed the appellant to the Court of Additional Sessions Judge, Kullu for trial as the case was exclusively triable by the Court of Sessions.
9. The prosecution examined as many as 17 witnesses. The appellant denied the allegations levelled against him in his statement recorded under Section 313, Cr.P.C. He claimed that he had been falsely implicated in this case. He stated that no injuries were found on his person by Dr. J.S. Thakur (PW-16) and that those injuries had been wrongly mentioned in his MLC (Ex.PW-16/A). He examined Ramesh Singh (DW-1) and Les Ram (DW-2) in his defence. Both these defence witnesses deposed that the prosecutrix was learning weaving work at village Bagyanda at the relevant time and she was seen by them in company of the appellant on different occasions.
10. The trial Court had found that the prosecution had been able to prove that the appellant had sexually assaulted the prosecutix without her consent and against her will and her age was between 16-17 years at the time of occurrence. Accordingly, the appellant was convicted and sentenced in the manner and extent already described in the preceding para of this judgment.
11. Sh. Anup Chitkara learned counsel for the appellant did not contest the findings as to the age of the prosecutrix. Therefore, the finding that the prosecutrix was more than 16 years of age at the relevant time is confirmed.
12. I proceed to deal with the other submissions raised by the appellant's counsel.
13. It was contended by learned counsel for the appellant that the version of the prosecution was highly un-dependable and, therefore, it should be rejected out-right. Corroboration of unsatisfactory nature and no reliance should be placed on it. The conduct of the prosecutrix after the commission of the crime about sustaining the injuries was also pressed in aid of the appellant. He contended that the proseculrix was the consenting party and a false case was cooked up against the appellant after due consultation and deliberation by her brother-in-law, PW-Megh Nath. Let the evidence be examined to see the correctness of the findings recorded by the trial Court in this case.
14. Though the appellant has denied the prosecution allegations as a whole in his statement recorded under Section 313, Cr.P.C. However, when the prosecutrix was examined suggestion was put to her that she was having love affairs with the appellant and that she herself accompanied him to the place of occurrence and had sexual intercourse with the appellant voluntarily. Similar suggestion has been put to Megh Nath (PW-4) brother-in-law of the prosecutrix as well. Such suggestion has been denied by both these witnesses. During the course of arguments, before the trial Court, it was observed by it that it was admitted by the appellant that he had sexual intercourse with the prosecutrix at the place of occurrence at the given time put the prosecutrix was the consenting party. Therefore, in view of such an admitted case of the appellant, the only poini for consideration is whether the appellant had sexual intercourse with the prosecutrix with her consent.
15. It has been proved on record through MLC (Ex.PW-3/C) issued by Dr. G.D. Gaur (PW-3) that the age of the prosecutrix in April, 1992 was between 161/2-17 years. As perthe pari war register (Ex. PW8/A), pertaining to the father of the prosecutrix, she was born in the year, 1976. However, her exact date of birth was not entered in the pari war register as per certificate (Ex. PW8/ C). Therefore, it is proved that the prosecutrix was above the age of 16 years on the day of occurrence. The prosecutrix Km. Indra Devi (PW-1) deposed that Smt. Roshani is her sister who is married to PW-Megh Nath at village Chhinjra in tehsil Kullu. She had been residing in the house of her sister. She was learning weaving work at village Bagyanda. She used to go for her work at about 9 a.m. and returned in the evening at about 5 p.m. sometimes, she used to go on foot and some-times by bus. She is completely illiterate. On the day of occurrence, she left village Bagyanda her place of working at about 5.15 p.m. on foot and was going to the house of her sister. When she was walking, one person came from behind and pushed her as a result of which she fell down on the ground. She fell down below the road and that person also came down and caught hold of her arm. He gaged her mouth with his hand. She tried to raise alaram, but the appellant pressed her mouth. Then he opened the string of her salwar and took it off. She ran away without wearing her salwar from the spot. The appellant chased her and again caught her and pressed her throat. He laid her on the ground and said that he would rape her and in case she raised alaram, he would kill her with knife which he took out from his pant's pocket and throw her body into the nullah. The appellant had forcible sexual intercourse with her. She kept on sitting and weeping. The appellant handed over her salwar to her after some time. She put on it. The appellant again threatened to kill her in case she narrated about the incident to anyone. She had come on the road side but the appellant had been catching hold her arm. In the meanwhile, two boys, namely, PWs-Sheru and Shibu came there and enquired from the appellant as to why he was catching hold the arm of the prosecutrix. Then the appellant left her arm and boarded a bus which arrived in the meantime. Thereafter, she accompanied the aforesaid boys to village Chhinjra. On reaching the house of her sister, she found that her sister and brother-in-law had gone on that day to village Kasol. She kept on waiting for their arrival. Finally, on April 20, 1992 she went to village Kasol where her brother-in-law PW-Megh Nath was employed in H.P. State Electricity Board. She informed her sister about the incident who in turn narrated the incident to her husband PW-Megh Nath in the evening when he returned from his office work. On April 21, 1992, she accompanied her brother-in-law and went to police station Manikaran to lodge the report. She lodged the report (Ex-PWl/A). She could identify the appellant whose name was Dharam Singh and he was a taxi driver. She identified her clothes taken into possession by the police and also knife (Ex. P-7) in the Court. In her cross-examination, she denied the suggestion that she was earlier known to the appellant. It was admitted by her that 'Danga' was 4-5' in height from where she was pushed down by the appellant. She admitted that the appellant after putting off her salwar was keeping it in his hand. He had not put off her shirt but had turned it over upward. He had not put off his pant but had opened the zip of his pant. She stated that there were small pebbles laying on the ground where she was laid down by the appellant to commit the rape. She sustained some scratches on her back side. She categorically denied that she was friendly with the appellant and she accompanied him to the place where he had sexual intercourse with her. She also denied that she had voluntarily allowed the appellant to do intercourse with her. She also denied the suggestion that she alongwith her brother-in-law lateron made out a false case against the appellant when the villagers came to know about the incident. She admitted having come to know about antecedents of appellant on the next day of incident.
16. Megh Nath (PW-4) is the brother-in-law of the prosecutrix. He deposed that at the relevant time he was posted as Clerk with the Electrical Sub-Division of H.P. SEB at Manikaran. In the year 1992, he was residing at Kasol in a rented house due to his employment. The prosecutrix Kumari Indra is his wife's sister, who was staying at village Chhinjra as she was learning weaving work at village Bagyanda. The prosecutrix used to go to village Bagyanda daily from village Chhinjra. On 17-4-1992 his daughter had fallen ill, therefore, his wife came to Kasol alongwith his daughter in the morning of 17-4-1992 and then his wife also stayed with him at Kasol thereafter. On 20-4-1992, prosecutrix came to village Kasol. On his return from office in the evening, his wife told him that on 17-4-1992 when the prosecutrix was returning from village Bagyanda, she was raped 011 the way by some person who was found to be the appellant who was working as Taxi driver with Pradhan Dudar Chand. He made enquires about the incident from the prosecutrix who disclosed that while she was walking on the road near Lalmod, one person came from behind and pushed her down the road. She told him that she tried to ward off the assault on her but the appellant took off her salwar and made her to run away without it and thereafter the appellant again over powered her and committed rape. She told him that her clothes were torn in her struggle. She corroborated the version of the prosecutrix that the report was made to the police post Manikaran. He deposed that underwear of the appellant (Ex. P-10) and knife (Ex.P-7) were taken into possession by the police in his presence and he signed the recovery memos. The clothes of the prosecutrix were also taken into possession by the police in his presence. He denied the suggestion in his cross-examination that the prosecutrix used to take lift in the taxi of appellant from village Bagyanda after working hours. The prosecutrix verified about the identity of the appellant. He admitted that 'Danga' was 7-8' on the road side from where the prosecutrix was dragged and the surface of the earth was rough where the incident took place. He categorically denied the suggestion that the prosecutrix and the appellant were already having love affairs. He said that the prosecutrix was not knowing the appellant earlier at all. He also denied that the prosecutrix had voluntary sexual intercourse with the appellant and when the people came to know about the incident, a false case was allegedly made against the appellant. He stated that the prosecutrix had some injuries on the back side of her waist. He also denied the suggestion that his wife was very much present in village Chhinjra on 17-4-1992 and the case was registered against the appellant after consultation and due deliberation by him after about 4 days of the incident.
17. Shiv Dass (PW-7) stated that on 17-4-1992 he alongwith Sher Singh (PW-8) was going from village Chhinjra to village Jaan to purchase some articles from a shop. When they were returning from village Jaan and had reached near Lalmod, they found the prosecutrix being caught hold by the appellant and she was weeping. PW-Sher Singh asked the appellant as to what he was doing and then he left her arm and boarded a bus which was coming from Manikaran side in the meantime. The prosecutrix accompanied them to the house of her sister at village Chhinjra. He slated that the prosecutrix told them that the appellant had committed rape on her. In his cross-examination, he deposed that he saw the appellant once prior to the date of incident when the appellant was driving a Taxi of Pradhan Ludar Chand but the name of the appellant was told to him later on by some boy. Sher Singh (PW-15) corroborated the version of PW-Shiv Dass. He also deposed that he saw the appellant catching hold of prosecutrix from her arm on 17-4-1992 when he was returning from village Jaan in the company of PW-Shiv Dass. The prosecutrix was weeping at that time. He asked the appellant as to what he was doing. The appellant boarded a bus which was coming from Manikaran side and fled away. Thereafter he asked the prosecutrix as to why she was weeping, who disclosed that the appellant had sexual intercourse with her. He also indentified the appellant. He said that he knew the appellant as he had been working as Taxi driver of Pradhan Ludar Chand.
18. The next material witness is Trilok Nath (PW-9). He deposed that the appellant was driver in a taxi of his uncle Ludar Chand in the year 1992. He left the employment of his uncle and thereafter started working with him as labourer. He had given his pant to the appellant for use as demanded by him and thereafter returned the same to him which was lying at his house in village Nagothi. On search, he found knife (Ex. P-7) in the pocket of the pant and handed over the same to the police on 24-4-1992. He stated that the pant was left by the appellant in his another house at Bhuntar in his absence in the bed room. He saw the pant after return only when the police enquired about the knife. The appellant had not told him about returning and keeping the pant in his bed room. Hira Lal (PW-10) was the recovery witness of stones, broken bangles pieces, knife, shirt and salwar belonging to the prosecutrix. In his cross-examination, he stated that the slope of down side of the road where the prosecutrix was alleged to have been dragged by the appellant was about 21/2-3 feet. The Investigating Officer ASI, Jindu Ram (PW-17) stated in his cross-examination that there was no broad path leading downwards from the road to the orchard where the offence was committed by the appellant. He denied the suggestion of the appellant that there was a 'Danga' (retaining wall) on the down side of the road. He stated that it was a vacant sloppy place towards the orchard.
19. The prosecutrix has given a comprehensive account of the occurrence though she was 16-17 years at the time of incident. Her narration about the incident clearly points out that it was the appellant who had committed rape on her forcibly without her consent. There could be no reason for this girl to implicate the appellant. There is nothing to suggest in the version of the prosecutrix that she was a consenting party to sexual intercourse with the appellant. Rather, her evidence shows that she was not knowing him earlier and she came to know his name only after the incident. It would be pertinent to refer to the evidence of Dr. J.S. Thakur (PW-16). Dr. Thakur found as many as six injuries detailed herein above on the front portion of the body of the appellant. The probable duration of these injuries were found to be within seven days and such duration conforms to the day of occurrence which was April 17, 1992. No suggestion was put to Dr. Thakur by the appellant that he did not find such injuries on his person. The plea of the appellant that the doctor did not find any injury on his person is un-believable as no such suggestion was put to the Medical Officer and further there was no occasion for the doctor to have mentioned injuries in the MLC (Ex.PW-16/ A) without finding them on the person of the appellant. It was not the case of the appellant that Dr. Thakur in any way was inimical towards him. Shirt (Ex. P-8) and salwar (Ex. P-9) were found to be torn at 2-3- places as mentioned in the recovery memo (Ex. PW-1 /D). This fact also finds mention in the report (Ex. PW-14/A) received from the Forensic Science Laboratory. The presence of injury on the person of the prosecutrix as well as the appellant does indicate that it was not a case of voluntary sexual intercourse. The plea of the prosecutrix that she was forcibly subjected to sexual intercourse by the appellant is fully corroborated by the medical officer. It has come in the evidence of Dr. Neena Lal that hymen of the prosecutrix was torn from which there was slight bleeding even after five days of occurrence and the hymen was in the process of healing. The vagina admitted only one finger. It is clear from such report of the medical officer that the prosecutrix was not habitual of sexual intercourse but was subjected to intercourse by the appellant which was his admitted case also.
20. The contention of the learned counsel for the appellant that no marks of injuries were found on the back side of prosecutrix by the doctor suggesting that she was forcibly thrown on the place of occurrence and struggled with the appellant, is completely un-satisfactory. He contended that it has come in the evidence of the prosecutrix that on the road side there was a 'Danga' of 4-5 in height and she was thrown from the road side by the appellant on the otherside of the 'Danga' and if the incident had happened like that, the prosecutrix would have received many injuries simple as well as grievous but no injuries were found by the doctor on her body. This conduct of the prosecutrix also shows that she was a consenting party. In support of his contention, he relied upon Pratap Misra v. State of Orissa, AIR 1977 SC 1307 : (1977 Cri LJ 817).
21. I have perused the judgment. In that case the Hon'ble Judges of the apex Court on consideration of the entire evidence found that the appellant committed sexual intercourse with the prosecutrix with tacit consent of the prosecutrix who was a pregnant woman and in connivance with her husband. There was no material at all to prove the allegation of rape and the medical evidence did not support the case of the prosecutrix and further the circumstances proved in the case and the conduct of the prosecutrix and her husband itself was inconsistent with the allegation of rape. The proposition of law settled in Pratap Mishra's case (supra) is un-disputed. However, the facts of that case was different than the facts of the present case and each case has to be seen on the basis of the appreciation of evidence produced on the record.
22. In case the submission of the prosecutrix inspires confidence, conviction on be based on it. However, in the present case, her statement is corroborated by Megh Nath (PW-4), Shiv Dass (PW-5) and Sher Singh (PW-9) besides by medical evidence as well. The corroborative evidence is sufficient to connect the appellant with the crime. There is no legal principle of universal application laying down that the absence of injuries on the back portion of the prosecutrix would be fatal to the prosecution case and rule out the commission of rape on the prosecutrix. However, case has to be approached on facts and circumstances in which the offence was committed. (See: (1993) 2 SCC 622, State of H.P. v. Raghubir Singh, 1990 Cri LJ 1434; Jito alias Ajit Kumar v. State of H.P. and 1995 Cri LJ 158, Parkash Chand v. State of H.P. It was contended that there are discrepancies in the statements of the prosecution making the prosecution story of doubtful nature. The minor discrepancies pointed out by the learned counsel for the appellant were that the prosecutrix stated that she remained in the house of her sister from 17-4-1992 to 20-4-1992 all alone as her sister and brother-in-law were not there and went to village Kasol but PW-Shiv Dass said that PW-Megh Nath and his wife Roshani were present in village Chhinjra on the day of occurrence. The plea is opposed by Shri Kashmiri Lal learned Additional Advocate General. He contended that a sentence from here and a sentence from there cannot be used to condemn the prosecution case as false. The minor discrepancies are likely to occur for variety of reasons, namely, social status of the parties, education, time within which the witnesses had witnessed the occurrence and when their deposition is recorded by the Court etc. etc. These minor variations cannot always be termed to be embellishment, concoction and padding. It is not the case of the appellant that the prosecutrix and the other witnesses were inimically disposed towards him.
23. In AIR 1983 SC 753 :(1983 Cri LJ 1096), Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, it has been held in paras 6, 7 and 11 that:-
6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses.
7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar v. State of Rajasthan, (1952) 3 SCR 377 at p. 386 : AIR 1952 SC 54 at p. 57 : (1952 Cri LJ 547), has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court --
The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, .... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.
11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye-witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim docs not suffer from any basic infirmity, and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities-factors' is found to be of tune.
24. The result of the aforesaid examination is that the prosecution evidence is cogent, reliable and trust worthy. It seems to me that the learned Additional Sessions Judge is right in holding that the appellant committed rape with the prosecutrix against her will.
25. On appraisal of evidence discussed above, in my considered opinion, no other inference is reasonably possible. The conviction of the appellant by the trial Court is quite justified. It is, therefore, confirmed.
26. The last contention of the learned counsel for the appellant that there was a delay of about four days in lodging the report with the police. The matter was reported to the police by the prosecutrix and PW-Megh Nath on April 21, 1992 vide daily diary report (Ex. PW- l/A) at about 4 p.m. The counsel contended that the delay report was lodged with due deliberation and consultation to involve the appellant in the present case. This contention of the learned counsel is also without substance. However, as noticed above, the appellant has no reason to say so because it was not his case that prosecutrix and PW-Megh Nath, her brother-in-law had enmity with him or motive for involving him in a false case. Admittedly, his case was that he had sexual intercourse with the prosecutrix with her will and consent. If the prosecutrix had voluntarily agreed to the same, there was no need for her to have reported the matter to the police and in that situation, she would have remained silent and could have carried on her affairs with the appellant. Besides, the delay in lodging the report late with the police has been reasonably explained by the prosecutrix. She has specifically stated that her brother-in-law PW-Megh Nath at that time was working at H.P. State Electricity Board in Kasol in Tehsil Kullu. Her sister Smt. Roshani and brother-in-law and gone in the morning of April 17, 1992 to Kasol and she kept on waiting for her sister for three days but when she did not return, the prosecutrix herself went to Kasol in the evening of April 20, 1992 and narrated the incident to her sister who in turn disclosed it to her husband PW-Megh Nath. On the next day in the morning, the prosecutrix and PW-Megh Nath immediately went to police post Manikaran and lodged the report. The trial Court is right in his reasoning that the prosecutrix is a unmarried girl. She had been sexually assaulted by the appellant. In Indian society, the victim of such crime would ordinarily consult relatives and rather hesitate to approach the police since it involves the question of morality and chastity of the victim apart from bringing a bad name to the family. The reasoning of the trial Court is supported by judgment of the apex Court (See : State of Rajasthan v. Narayan, (1992) 3 SCC 615 : (1992 Cri LJ 3655). The prosecutrix herein was residing in the house of her sister and brother-in-law far away from her parents. It has come in the evidence that her parents belong to a remote area of tehsil Anni in district Kullu. In such a situation, it was but natural for the prosecutrix to appraise her brother-in-law and sister about the incident before approaching the police.
27. In the facts and circumstances of the case, the delay has been explained by the prosecution and cannot be held to be fatal to the prosecution case. The version of the defence witnesses is not reliable and cannot be accepted. The statements of the defence witnesses are not clear. They have made a sweeping statement that they saw the prosecutrix in the company of the appellant on many occasions prior to the incident without telling the day or month. It appears that the defence witnesses were procured by the appellant later on as there was no suggestion put to the prosecutrix by the appellant in her cross-examination that she used to company the appellant prior to the date of occurrence. It was not the case of the appellant in his statement recorded under Section 313, Cr.P.C. that the appellant and the prosecutrix were seen by the defence witnesses together.
28. For the reasons stated above, the appeal fails and is accordingly dismissed.
29. I record my appreciation of assistance rendered by Shri Anup Chitkara, Advocate, who was appointed to defend the appellant on his request under the High Court of Himachal Pradesh (Legal Aid to Accused) Rules, 1981 and argued the case very forcefully.