Himachal Pradesh High Court
Sanjeev Alias Sanju And Another vs State Of Himachal Pradesh on 2 November, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeals No.154 of 2014 Reserved on : October 27, 2015 .
Date of Decision : November 2, 2015.
Sanjeev alias Sanju and another ...Appellants.
Versus State of Himachal Pradesh ...Respondent.
Coram:
of The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice P.S. Rana, Judge. Whether approved for reporting? No. rt 1 For the Appellants : Mr. T.S. Chauhan, Amicus Curiae.
Mr. Himmat Negi, Legal Aid Counsel For the Respondent : Mr. Kush Sharma, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General.
Sanjay Karol, Judge Appellants-convicts Sanjeev alias Sanju and Rajender Singh, hereinafter referred to as the accused, have assailed the judgment dated 29.3.2014/ 31.3.2014, passed by Sessions Judge, Sirmaur District at Nahan, Himachal Pradesh, in Sessions Trial No.63-ST/7 of 2013, titled as State of Himachal Pradesh v. Sanjeev alias Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 19:16:45 :::HCHP
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Sanju & another, whereby they stand convicted and sentenced as under:
Name of accused Section Sentence .
Sanjeev @ Sanju 376(2) IPC Rigorous imprisonment for a period of ten years and pay fine of `20,000/-, and in default thereof to further undergo simple imprisonment for a period of one year.
506 IPC Rigorous imprisonment for a period of one year of and pay fine of `5,000/-, and in default thereof to further undergo simple imprisonment for a period rt of six months.
Rajender Singh 376(2) IPC Rigorous imprisonment for a period of ten years and pay fine of `20,000/-, and in default thereof to further undergo simple imprisonment for a period of one year.
506 IPC Rigorous imprisonment for a period of one year and pay fine of `5,000/-, and in default thereof to further undergo simple imprisonment for a period of six months.
Out of total amount of fine, if recovered, an amount of `40,000/- has been ordered to be paid to the prosecutrix as compensation.
2. It is the case of prosecution that on 6.12.2012, prosecutrix, a student of 10th Class, was subjected to sexual assault by both the accused ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...3...
persons. The place of incident being an open jungle, her brother Ashok Kumar (PW-2) happened to reach the spot and accused fled away from the spot. Her brother took .
the prosecutrix home, where the incident was narrated to their mother Smt. Reeta Devi (PW-12). Complaint (Ex.PW-1/A) was lodged, on the basis of which FIR No.112 dated 6.12.2012 (Ex.PW-15/A), for commission of of an offence punishable under the provisions of Sections 376(2)/506/34 of the Indian Penal Code, stood rt registered at Police Station, Rajgarh, District Sirmaur, Himachal Pradesh. Prosecutrix was got medically examined from Dr. Priyanka (PW-6), who issued MLC (Ex.PW-6/A). SI Daulat Ram (PW-15), who conducted the investigation, on the basis of disclosure statement made by the accused, collected incriminating material, including one condom and a handkerchief, so used in the crime, which were also got scientifically analyzed and report of the DNA profiling (Ex. PW-15/M) taken on record. Record pertaining to the age of the prosecutrix was taken on record, which reveals that she was born on 10.5.1995. With the completion of investigation, which prima facie revealed complicity of the accused in the ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...4...
alleged crime, challan was presented in the Court for trial.
3. Accused were charged for having committed .
offences, punishable under the provisions of Sections 376 & 506, both read with Section 34 of the Indian Penal Code, to which they did not plead guilty and claimed trial.
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4. In order to establish its case, prosecution examined as many as 17 witnesses and statements of rt the accused under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which they took defence of innocence and false implication.
5. Based on the testimonies of the witnesses and the material on record, trial Court convicted both the accused and sentenced them as aforesaid. Hence, the present appeal by the accused.
6. We have heard Mr. T.S. Chauhan, learned Amicus Curiae and Mr. Himmat Negi, learned Legal Aid Counsel, on behalf of the accused, as also Mr. Kush Sharma, learned Deputy Advocate General and Mr. J.S. Guleria, learned Assistant Advocate General, on behalf of the State. We have also minutely examined the ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...5...
testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for .
interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is of neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.
7. rt The fact that prosecutrix was born on 10.5.1995 and on the date of commission of crime, i.e. 6.12.2012, was a student of Class 10th, stands established on record, through the testimonies of Smt. Kamlesh (PW-7) and PSI Sunita Sharma (PW-10), who have proved relevant record, i.e. the birth certificate (Ex.PW-7/B) and school attendance register (Ex.PW-7/C).
Prosecutrix, as on the date of commission of crime, was below 18 years and above 16 years of age.
8. That prosecutrix was got medically examined on 6.12.2012 itself stands proved not only through the testimony of the prosecutrix, the Investigating Officer, but also Dr. Priyanka. At the time of physical ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...6...
examination, the doctor found the following injuries on the body of the prosecutrix:
"1) Scratch mark present on the left breast .
outer (upper) aspect 7 cm size redness and tenderness present.
2) Redness and tenderness present on left scapular area 4 cm X 2 cm size. Mouth and finger nails normal. No external injury mark on thighs or inner aspect of both the legs."
of According to the doctor, two fingers could be easily inserted inside the vagina and there was nothing to suggest that prosecutrix was not subjected to sexual rt intercourse.
9. It is true that the doctor did not find any injury marks on the private parts of the prosecutrix, but then the injury marks found on the mouth of the prosecutrix only corroborate her version of use of force by the accused, at the time of commission of crime.
10. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...7...
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 on facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of of corroboration as understood in the context of an accomplice would do.
11. rt In Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 23.10.2014, In Re, (2014) 4 SCC 786, the Apex Court has highlighted the need for having an effective State police machinery for curbing the menace of rape, for such crime is not only in contravention of the domestic laws, but is also in direct breach of obligations under International Law, treaties whereof stand ratified by the State, which is under an obligation to protect its women from any kind of discrimination.
12. The Apex Court has highlighted the need for prompt disposal of cases of crime against women and ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...8...
children. (Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353).
13. In Shyam Narain v. State (NCT of Delhi), .
(2013) 7 SCC 77, the Apex Court held as under:
"27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only of lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical rt morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. 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. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...9...
consonance with the legislative command and the discretion vested in the court."
14. In Narender Kumar v. State (NCT of Delhi), .
(2012) 7 SCC 171, the apex Court has cautioned the Court to adopt the following approach:
"The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant of discrepancies in the evidence of the witnesses which are not of a substantial character."
15. rtThe Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle that testimony of prosecutrix is almost at par with an immediate witness and can be acted upon without corroboration.
16. Even in the absence of categorical opinion about rape, opinion of the doctor about such act not being totally ruled out is relevant. Mere absence of spermatozoa would not cast doubt on correctness of the prosecution case. (See: Datta v. State of Maharashtra, (2013) 14 SCC 588; and Prithi Chand v. State of H.P., (1989) 1 SCC 432).
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17. In Ravindra v. State of Madhya Pradesh, (2015) 4 SCC 491, the Hon'ble Supreme Court of India held that absence of semen/spermatozoa on the .
clothes/vaginal smear would not render the testimony of the prosecutrix to be doubtful.
18. The Apex Court had the occasion to deal with the case where there was a conflict between medical of evidence and ocular evidence of the prosecution. There the Court held as under:
rt "23. In any case, to establish a conflict between the medical and the ocular evidence, the law is no more res integra and stands squarely answered by the recent judgment of this Court in the case of Dayal Singh v State of Uttaranchal, (2012) 8 SCC 263 (SCC p.283, paras 35036) "35. This brings us to an ancillary issue as to how the Court would appreciate the evidence in such cases. The possibility of some variations in the exhibits, medical and ocular evidence cannot be ruled out.
But it is not that every minor variation or inconsistency would tilt the balance of justice in favour the accused. Of course, where contradictions and variations are of a serious nature, which apparently or impliedly are destructive of the substantive case sought to be proved by the prosecution, they may provide an advantage to the accused. The Courts, normally, look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory, unsustainable and are the result of a deliberate attempt to misdirect ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...11...
the prosecution. In Kamaljit Singh v. State of Punjab, (2003) 12 SCC 155, the Court, while dealing with discrepancies between ocular and medical evidence, held: (SCC p. 159, para 8) .
'8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the of eyewitnesses cannot be thrown out.'
36. Where the eyewitness account is found credible and trustworthy, medical opinion rt pointing to alternative possibilities may not be accepted as conclusive.
'34. ....The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those materials after giving due regard to the expert's opinion, because once the expert opinion is accepted, it is not the opinion of the medical officer but that of the Court.'
19. The Apex Court in Madan Gopal Makkad v.
Naval Dubey and another, (1992) 3 SCC 204, has held as under:
"34. A medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...12...
materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own .
judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court.
35. Nariman, J. in Queen v. Ahmed Ally, (1989) 11 Sutherland WR Cr 25, while expressing his view a on medical evidence has observed as follows:
of "THE evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of rt circumstances, however, confidently, he may speak, is ordinarily a matter of mere opinion."
36. Fazal Ali, J. in Pratap Misra v. State of Orissa, (1977 3 SCC 41, has stated thus:
"... [l]t is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused ... as to the exact time when the appellants may have had sexual intercourse with the prosecutrix."
37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369 which reads thus:
"THUS to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...13...
or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the 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 such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the of medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. "
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38. In Parikh 's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
"SEXUAL intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
39. In Encyclopedia of Crime and Justice (Vol. 4 at page 1356, it is stated:
"... [E]ven slight penetration is sufficient and emission is unnecessary."
40. In Halsbury's Statutes of England and Wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse within the meaning of S. 44 of the Sexual Offences Act, 1956. Vide (1) R. v. Hughes, (1841) 9 C&P 752, (2) R. v. Lines and R. v. Nicholls, (1844) 1 Car & Kir 393.
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41. See also Harris's Criminal Law, (Twenty- second Edition) at page 465.
42. In American Jurisprudence, it is stated that slight penetration is sufficient to complete the .
crime of rape. Code 263 of Penal Code of Califomia reads thus:
"RAPE; essentials Penetration sufficient. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime."
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43. The First Explanation to S. 375 of Indian Penal Code which defines 'Rape' reads thus:
"EXPLANATION.PENETRATION is sufficient rt to constitute the sexual intercourse necessary to the offence of rape."
44. In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High courts have taken a consistent view that even the slightest penetration is sufficient to make out an offence of rape and the depth of penetration is immaterial. Reference may be made to (1) Natha v. Emperor, (1925) 26 CrLJ 1185, (2) Abdul Majid v. Emperor, AIR 1927 Lah 735(2), (3) Mst. Jantan v. Emperor, (1934) 36 Punj LR 35, (4) Ghanashyam Misra v. State, 1957 CriLJ 469, (5) Das Bernard v. State, 1974 CriLJ 1098. In re Anthony, AIR 1960 Mad 308 it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary. In Gour's The Penal Law of India, 6th Edn. 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape." "
20. Also, it is a settled principle of law that absence of injuries on the external or internal parts of ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...15...
the victim by itself cannot be a reason to disbelieve the testimony of the prosecutrix. (See: Mukesh v. State of Chhattisgarh, (2014) 10 SC 327); State of Haryana v.
.
Basti Ram, (2013) 4 SCC 200; O.M. Baby (Dead) by Legal Representative v. State of Keral, (2012) 11 SCC 362; and State of U.P. v. Chhotey Lal, (2011) 2 SCC
550).
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21. Reiterating its earlier view in Mohd. Iqbal v.
State of Jharkhand, (2013) 14 SCC 481; Narender Kumar rt v. State (NCT of Delh), (2012) 7 SCC 171, the Apex Court in Mukesh v. State of Chhattisgarh, (2014) 10 SC 327, has held that sole testimony of prosecutrix is sufficient to establish commission of rape, even in the absence of any corroborative evidence.
22. In Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688, the apex Court held as under:
"33. It will be useful to refer to the judgment of this Court in the case of O.M. Baby v. State of Kerala, (2012) 11 SCC 362, where the Court held as follows:-
"17. ..... '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...16...
corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The .
same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and of feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to rt Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
18. We would further like to observe that while appreciating the evidence of the prosecutrix, the court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...17...
sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and has found reiteration in a recent judgment in .
Rajinder @ Raju v. State of H.P., (2009) 16 SCC 69, para 19 whereof may be usefully extracted:
'19. In the context of Indian culture, a woman - victim of sexual aggression -
would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex of crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self- rt respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.' "
23. In Satwantin Bai v. Sunil Kumar and another, (2015) 8 SCC 478, it is held that if the testimony of the prosecutrix is found to be cogent and that she rightly identifies the accused in the Court, prosecution case cannot be faulted for not holding the Test Identification Parade, for it not being a rule of law but that of prudence.
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24. The Hon'ble Supreme Court of India in State of Madhya Pradesh v. Madanlal, (2015) 7 SCC 681, reiterated the principles laid down in K. Anbazhagan v.
.
State of Karnataka, (2015) 6 SCC 158, to the following effect:
"The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence of brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The rt said responsibility cannot be abdicated or abandoned or ostracized, even remotely, solely because there might not have been proper assistance by the counsel appearing for the parties. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasonings in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test."
25. In Mohd. Ali alias Guddu v. State of Uttar Pradesh, (2015) 7 SCC 272, the Court, while dealing with ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...19...
the unamended provisions of Section 376 of the Indian Penal Code, has held that consent for sexual intercourse of a victim, who is minor (less than 16 years of age) was .
irrelevant, for if consent of minor is treated as a mitigating circumstance, it will lead to disastrous circumstances. Sexual assault on a minor is a heinous crime, which needs to be abhorred.
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26. In Court, prosecutrix states that on 6.12.2012, at about 4 p.m., she went to the Bus Stand at rt Rajgarh and at about 5 p.m. boarded a bus for her house. At about 6.20 p.m., she got down at Swana Curve. Finding her to be alone, the accused, who were also travelling in the same bus, got down and started walking ahead of her. The sun was just setting down.
Accused Sanju, who is also a resident of her village, told her that he was also going to the village, to which she did not respond. When she reached at a place known as Kunni Nala, accused Sanju came from behind and carried her in his lap. The other accused Rajender gagged her mouth. She was carried uphill and near a Nashpati tree, was subjected to sexual intercourse.
Accused took turns in assaulting her and at that time ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...20...
her mouth was gagged and her hands caught. Accused Sanju threatened her not to narrate the incident to anyone, lest she be killed. In the meanwhile, her .
brother Ashok Kumar arrived on the spot and seeing him both the accused ran away. Her mother was called, to whom the entire incident was narrated. Thereafter, complaint (Ex.PW-1/A) was lodged with the police. She of is categorical that the accused subjected her to sexual intercourse, against her wishes, without her consent and rt by use of force. She explains that since she was held tightly by the accused, she could not raise any alarm or resist their acts. She clarifies that during the entire process she was helpless. She clearly identifies the accused to be the persons who subjected her to rape.
27. Her version stands corroborated by her brother Ashok Kumar and mother Smt. Reeta Devi. We do not find any contradiction, discrepancy, exaggeration, embellishment or variation in the testimony of these witnesses. Presence of brother on the spot stands explained by him. He had gone there to pick his sister from the Bus Stand at Swana. The ::: Downloaded on - 15/04/2017 19:16:45 :::HCHP ...21...
witnesses have denied the prosecutrix being involved with another person.
28. Amar Singh (PW-3) is the second brother of .
the prosecutrix, who has also supported the version of Ashok Kumar. He is categorical that on the asking of the prosecutrix, he informed Ashok Kumar to fetch her from the Bus Stand.
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29. Prosecutrix is categorical that she was subjected to rape by both the accused persons. We find rt her version to be absolutely clear, consistent, cogent and her testimony to be fully inspiring in confidence.
She is a trustworthy witness and her credit cannot be said to have been impeached in any manner.
30. Even by way of link evidence, prosecution case stands proved on record. While in police custody, accused Rajender Singh made a disclosure statement (Ex.PW-13/B) that he could get recovered the handkerchief, used for cleaning the semen. Condom (PW-14) used by accused Sanju, while committing the act, was recovered by the police in the presence of Satpal (PW-4) and Ranjeet Singh (PW-5), so also handkerchief was recovered in their presence.
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31. We find witnesses Sat Pal and Ranjeet Singh not to have supported the prosecution. Both these witnesses state that the incriminating articles already .
stood recovered by the police and they only signed the documents.
32. Be that as it may, disclosure statements (Ex.PW-13/A & 13/B) and recovery of the incriminating of articles stands proved on record by Constable Jai Parkash (PW-13) and Dr. Jitender (PW-14).
33. rt Noticeably, DNA profiling conducted by the Forensic Science Laboratory establishes presence of semen of accused Rajender Singh on the handkerchief and that of accused Sanjeev alias Sanju on the condom.
The DNA of the vaginal swab matched with that of the prosecutrix. Accused have not explained presence of their semen on the handkerchief and the condom, which they were required to do so, in view of the otherwise inspiring testimony of the prosecutrix, according to whom while committing sexual assault accused Sanju used condom.
34. It may also be observed that at the place of incident, there is no habitation. It is an isolated place.
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The incident took place when it was twilight and also none could have been present on the spot. Prosecutrix was lifted and carried uphill and laid near the Nashpati .
tree, which was 30-40 feet above the pedestrian path.
Her mouth was gagged and the overt acts could not be resisted, more so when the assailants were two in number. Prosecutrix knew accused Sanju from before of and the other one was in his relation.
35. In view of the aforesaid discussion, we do not rt find favour with the submission made by learned Amicus Curiae that it was a case of consent and as such reliance upon Kaini Rajan v. State of Kerala, (2013) 9 SCC 113, is misconceived.
36. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, not only ocular but also corroborative in the shape of recovery of the incriminating articles, that the accused persons in furtherance of their common intention forcibly committed rape on the prosecutrix, without her consent and also criminally intimidated her.
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37. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully .
appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is of dismissed.
Appeal stands disposed of, so also pending rt application(s), if any.
( Sanjay Karol ), Judge.
( P.S. Rana ),
November 2, 2015(sd) Judge.
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