Himachal Pradesh High Court
Sandeep Kumar @ Sanju vs Of on 22 September, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.160 of 2019.
Reserved on : 19.09.2023.
.
Date of decision: 22.09.2023.
Sandeep Kumar @ Sanju .....Appellant.
Versus
of
State of H.P. .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
rt Whether approved for reporting?1 Yes For the Appellant : Mr. Vinod Kumar Gupta, Advocate, Legal Aid Counsel.
For the Respondent : Mr. Anup Rattan, Advocate General with Mr. I.N. Mehta, Senior Additional Advocate General, Ms. Sharmila Patial, Additional Advocate General and Mr. J.S. Guleria, Deputy Advocate General.
Tarlok Singh Chauhan, Judge Appellant has been convicted and sentenced for having committed an offence punishable under Section 376 of the Indian Penal Code (for short 'IPC') and aggrieved thereby has filed the instant appeal.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes 1 ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 2
2. The prosecution case, in brief, is that the complainant/prosecutrix along with her mother Parvati Devi and father Jivan Singh, lodged a rapat No.49A with Police Station, .
Gohar, however, H.C. Bihari Lal sent the same to Police Station, Balh, for want of jurisdiction, on the basis of which a formal FIR came to be registered at Police Station, Balh, wherein it was alleged that prosecutrix was a student of IInd Year in Bassa of College, Gohar. On 25.07.2023, she had gone to the college where the appellant met her and told her that he wanted to talk rt her, but she declined to listen his words and went to attend the class. While, she was in the class, the appellant entered and threatened her and asked her not to talk with the boys of her class and also questioned as to why she had been sitting on the conductor seat. However, she told him that he had nothing to do with where she sits. On this, the appellant slapped her and went away from the class. It was further alleged that on the same day at about 2.00 p.m., she went to her home in a bus and alighted at Dangel from where her house was at a walking distance and while she was on her way and crossing 'nala' at Dangel, the appellant, who had already been hiding himself forcibly dragged her and gagged her mouth with the hands and laid down her on the ground and committed rape. Thereafter, the appellant fled away from the spot and she went to her house where only her ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 3 younger sister and brother were present. Therefore, she waited for her mother to return from her workplace. When her mother came at 5.00 p.m., she disclosed the entire incident to her.
.
3. On this information, FIR was registered and during the course of investigation, medical examination of the prosecutrix was conducted, spot map prepared and statement under Section 164 Cr.P.C. of the prosecutrix was recorded. The of appellant was also got medically examined and thereafter swabs and other material obtained during the medical examination were rt sent to RFSL, Mandi for analysis and sample for DNA profiling was also obtained and sent to FSL, Junga. After receipt of the report and recording the statements of the witnesses under section 161 Cr.P.C., the charge-sheet was filed.
4. On finding a prima facie case, the appellant was charge-sheeted for the offence punishable under Section 376 of IPC to which he pleaded not guilty and claimed trial.
5. The prosecution examined as many as 21 witnesses and closed its evidence. Thereafter, the appellant was examined under Section 313 Cr.P.C. in which he denied the prosecution story and pleaded his innocence. Then, the appellant was called upon to enter his defence, but he did not lead any evidence.
6. The learned Court below after evaluating the evidence convicted and sentenced the appellant to undergo ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 4 rigorous imprisonment for 10 years and to pay a fine of Rs.20,000/- and in default of payment of fine, he was further directed to undergo simple imprisonment for two years for the .
offence punishable under Section 376 of IPC.
7. Aggrieved by the judgment of conviction and sentence as passed by the learned Court below, the appellant has filed the instant appeal.
of
8. It is vehemently argued by Shri Vinod Gupta, Advocate, for the appellant that it was neither the case of the rt prosecution that the appellant intended to forcibly marry the prosecutrix-PW-17 without her consent or that the prosecutirx did not intend to marry the appellant and it was in this background that the entire evidence was required to be appreciated by the learned Court below, but it failed to do so. The learned Court below failed to appreciate that the appellant had been framed by the parents of the prosecutrix just to get rid of the appellant as they were not in favour of relationship of the appellant and the prosecutrix, as is evident from the testimonies of PW-3 and PW-5, father and mother of the prosecutrix, respectively. It is further argued that the learned Court below has placed undue reliance and believed the version of the prosecutrix as a gospel truth, whereas, the story projected by the prosecutrix is highly improbable. The prosecutrix has made major improvements in ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 5 her statement under Section 164 Cr.P.C. Ext. PW-17/A and her statement on oath as PW-17 from her original statement Ext.PW-4/A Rapat No. 49A and also from the statement under .
Section 154 Cr.P.C. Ext. PW-16/A as well as supplementary statements recorded under Section 161 Cr.P.C. on 27.07.2013 and 14.09.2013. Lastly, it is argued that there are major contradictions in the testimonies of the witnesses and since the of prosecution has failed to prove its case beyond reasonable doubt, the appellant ought to be acquitted.
rt
9. On the other hand, Shri I.N. Mehta, learned Senior Additional Advocate General, while supporting the judgment rendered by the learned Court below, would argue that since the same is based upon correct appreciation of the statements of the witnesses as well as documents that have come on record, no interference is called for and the judgment needs to be upheld.
10. We have heard the learned counsel for the parties and have also gone through the records of the case.
11. Since, all the contentions raised by the appellant are intrinsically inter-connected and inter-related, therefore, the same are taken up together for consideration. However, before doing so, we need to minutely scrutinize the testimony of the prosecutrix as also other statements, be it that of PW-3 Jivan Ram father of prosecutrix or for that matter mother of prosecutrix ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 6 PW-5 Parvati Devi, which are based merely on hearsay of the prosecutrix and could at best be used only for corroborative purpose.
.
12. The prosecutrix appeared in the witness box as PW-17 and stated that she was a student of B.Sc 2nd year in Govt. Degree College, Bassa Gohar, District Mandi. On 25.07.2013, she had gone to attend the classes and on the way, of the appellant met her firstly at Chail Chowk and later in the college where he asked her to stop in the college on the pretext rt that he wanted to talk her. He disclosed that because of her, he had remained in jail for 14 days. He further disclosed that his uncle had also narrated this fact to the appellant at Chail Chowk.
Appellant caught hold of her from the neck in the college, as a result of which, her locket broke. Then, appellant left the college and she went to attend the class. In five minutes, the appellant came in the class and asked her why she used to sit on the conductor seat in the bus and talk with the male class fellows.
She replied that she was free to talk with anyone or sit anywhere.
On this, the appellant slapped her and left the class room. She further stated that she had boarded the bus to reach her home and after getting down at Dangel, she started to walk towards her house. When she reached near a 'nala' at a place called Dangel, then the appellant, who had been hiding in the maize ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 7 crop field came all of a sudden and caught hold of her arm and pushed her on the ground. The appellant disclosed that he would conduct her medical and give it to the Court. Thereafter, .
the appellant committed rape with her. He shut her mouth with his hands and after doing so, he fled away from the place of occurrence. She reached her home at 3.00 p.m. and at that time, her mother was not there. Her mother came back at 5.00 of p.m. from her workplace and then she narrated the entire incident to her mother. Thereupon, her father made a telephonic call to rt the police upon which the police came to her house and she along her mother was taken to the police station. Rapat Ext.
PW-4/A was entered at Police Station, Gohar. The police at Police Station, Gohar, disclosed that since the place of occurrence was within the jurisdiction of Police Station, Balh, therefore, they need to go to Police Station, Balh. Thereafter, they visited the Police Station, Balh, where FIR Ext. PW-16/A was registered on the basis of the rapat Ext. PW-4/A. She was medically examined at CHC, Ratti vide MLC Ext. PW-1/A and her clothes i.e. shirt, salwar, sameez, under garments and Dupatta were also taken into possession. Her external and internal examinations were conducted by the doctors. Her vaginal swabs were also taken. On 27.07.2013, the police came to the spot and on her disclosure prepared 'Furd Nishandehi' Ext. PW-5/A. ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 8 Police on the basis of Ext. PW-5/A prepared the spot map. The police also took her to the Court of Judicial Magistrate, Mandi, where her statement under Section 164 Cr.P.C. was recorded.
.
PW-17 further stated that in Ext.PW-17/A, she had stated that appellant forcibly opened string of her salwar, as a result of which, the belt of her salwar was torn and put his penis in her vagina and pushed his organ for 2-3 minutes. The prosecutrix of also identified her signatures on various documents executed by her and also identified the clothes rt that had been taken into possession.
13. In cross-examination, the prosecutrix stated that she had disclosed to the police that the appellant firstly met her at Chail Chowk, whereas, it was not so recorded in FIR Ext. PW-
16/A and rapat Ext. PW-4/A. She further stated that appellant came with her from Chail Chowk to the college in the same bus and they were sitting in different seats. PW-17 further stated that she did not talk with the appellant in between Chail Chowk and Bassa college. PW-17 also stated that she did not know how many students were at Chail Chowk. At Bassa college, when the appellant came to meet her, there were 10-15 students, but she did not remember how many students were present in the class room. PW-17 admitted that she had not made any report to her class teacher or the Principal regarding the misbehaviour of the ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 9 appellant. PW-17 further stated that she had not disclosed this fact even to her friends. PW-17 stated that she attended college as a normal student on 25.07.2023 and further admitted that she .
was knowing the appellant one year prior to the incident and used to talk with him in a normal way in the bus while he was working as a conductor. PW-17 further stated that she had not met the respondent in the college and had never talked with the appellant of over telephone. She admitted that appellant had visited her house prior to the incident, but did not remember whether the rt appellant was accompanied by his uncle and had come with a marriage proposal. However, volunteered to state that one person had come to her house along with the appellant, but she did not know how long that person stayed in her house as she was not present at that time. She further admitted that at that time in case her parents were agreeable for the proposal, then she was ready to marry the appellant and further stated that she did not know whether her mother was agreeable for the proposal. She did not remember the exact period when the appellant had visited her house prior to the occurrence. She further feigned ignorance regarding her father being against the marriage proposal. However, she specifically denied the suggestion that it was due to this reason that her father had lodged the case under Section 107 and 150 Cr.P.C. against the ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 10 appellant at Police Station, Gohar. She feigned ignorance of the appellant having been set out on bail in the said case. She admitted that case under Section 354 IPC was also registered .
against the appellant on her complaint at Police Station, Gohar.
PW-17 admitted that she had taken a joint photograph with the appellant and further admitted that the joint photograph had been taken at a studio near Bassa college. She further deposed that of this photograph was taken on the request of the appellant so that while disclosing his intention to marry the prosecutrix, he could rt show the photograph to his parents. PW-17 further admitted that she had told her parents regarding this photograph and further stated that this fact was also mentioned in the earlier FIR. She also admitted that in the earlier case, her father and uncle were witnesses and even in the present case his father and uncle are witnesses. She further stated that her house was at a distance of 10-15 metres walk from the bus stop at Dangel. She admitted that there was a thoroughfare from Dangel to her house. She also admitted that there was no injury over her mouth/face.
However, PW-17 denied the suggestion that she had falsely implicated the appellant at the instance of her father and denied further suggestions that the appellant had not met her in the college and that the appellant had not slapped her or that he had not raped her. PW-17 further denied the suggestion that she was ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 11 deposing falsely and denied further suggestion that it was at the instance of her parents that she was refusing to marry the appellant. Lastly, PW-17 denied the suggestion that she had .
filed the instant case to get rid of the appellant.
14. We may now refer to the other evidence that has come on record.
15. PW-3 is Jivan Ram, father of the prosecutrix, who of stated that he was a gardener in the Forest Department and on 25.07.2013 at about 6.00 p.m., when he reached at home, his rt wife and brother disclosed to him that when his wife reached home from her MNREGA work, then her daughter disclosed that the appellant had sexually assaulted her in the forest and in the maize field also where the appellant had hidden himself and committed rape on her and then they had gone to the Police Station, Gohar to lodge the FIR, but they were asked to get the FIR registered at police Station, Balh. In cross-examination, the witness admitted that his statement was recorded on 26.07.2013 at Police Station, Balh. He disclosed to the police that his daughter told his wife that she was sexually assaulted in 'Cheer' jungle. However, when confronted with his statement, it was not so recorded. He stated that he had seen the appellant for the first time on 26.07.2013, but then qualified his statement by stating that he had come to his house in June, 2013. PW-3 ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 12 admitted that he had lodged a complaint against the appellant at Police Station, Gohar prior to this incident in which the appellant was arrested, but stated that they were scared of the appellant, .
who remained in custody for many days. He admitted that there was a path from the place of occurrence to his house, but the same was not a public path and this path was being used only by his family members and that of his brother. He admitted that of there was a primary school adjoining to his house and even the house of Chiku Ram was adjoining the road.
rt He denied the suggestion that the appellant was well-known to her daughter. He denied the suggestion that he had falsely implicated the appellant in the instant case.
16. PW-5 Parvati Devi is mother of the prosecutrix, who stated that she had three children and the prosecutrix was studying in Bassa College in B.Sc 1st year. On 25.07.2013, at about 5.15 p.m., when she reached home from MNREGA work, she found her daughter weeping and on her asking, her daughter disclosed that she had been raped by the appellant present in the Court and asked her to see her clothes. She stated that her daughter disclosed that when she was coming from college and was near to her house at a place called Dangel, the appellant had hidden himself in the fields near a 'nala'. She further stated that her daughter disclosed that the appellant had gagged her mouth ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 13 and thereafter committed rape on her. She narrated the entire incident to her husband, who contacted the police through telephone. She along with her husband, brother of her husband .
(devar), 'devrani' and prosecutrix had gone to the Police Station, Gohar, to lodge the FIR. The official of the Police Station, Gohar, had sent them to Police Station, Balh along with one police official as the matter pertained to the jurisdiction of Police of Station, Balh, where the police registered the case and 'Nishandehi' of the spot was made at the instance of her daughter rt in her presence on the basis of which memo Ext.PW-5/A was prepared and the photographs mark A-1 to A-4 of the spot were taken. When cross-examined, the witness stated that the appellant was not known to her prior to the incident. She further admitted that prior to this case, two cases were registered against the appellant i.e. one at Police Station, Gohar and the other at Police Station, Balh which were still under trial and the police had made investigation in the previous cases. She denied that the witnesses in the present case were the same as in the previous one. She admitted that 4-5 families were residing adjoining to her house and her daughter used to come from the college by bus and the police station was 20 kilometres away from her house. She denied that no spot map was prepared in her presence. She also denied that the appellant had not ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 14 sexually assaulted her daughter and the case was a manipulated one.
17. PW-1 is doctor Garima, who stated that she had .
medically examined the prosecutrix, who was wearing yellow and gray coloured suit with a duppatta and claimed to have been worn by the prosecutrix at the time of assault. She further admitted that the prosecutrix had informed her that she had not taken bath of after the said act. Thereafter, the clothes were packed and sealed. PW-1 stated that she conducted general as well as rt genital examination and prepared various slides and sent them for examination. On 20.09.2013, the report was received and on the basis of the medical examination and the reports of RFSL, she opined that the incident was suggestive of recent sexual assault. However, more confirmation would depend on DNA profiling.
18. PW-2 doctor S.K. Fotedar, Medical Officer, had examined appellant and found certain injuries on his person, however, none of such injuries was of recent times and he found that the genitals of the appellant were healthy and showed no injury marks, smegma marks were present. He took into possession underwear and shorts (Bermuda) worn by the appellant at the time of the alleged incident which were sealed and preserved. Blood samples (5 ml) and blood for FTA card ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 15 was taken. Sealed packets were handed over to the police and he issued MLC Ext. PW-2/A and identified the appellant in the Court.
.
19. PW-2 was thereafter examined on 19.05.2015 and identified the underwear and Bermuda that were taken into possession. PW-2 deposed that he had taken blood sample of the appellant on FTA card for the purpose of DNA test and had of filed identification form of the appellant. His photograph was also taken and was attested by him vide Ext. PW-2/B. On 14.09.2013, rt he had also taken the blood sample of prosecutrix on FTA card for the purpose of DNA test and identification form Ext. PW-2/C and her photograph were also attested by him. On the basis of the DNA report mark-S, he gave his opinion Ext. PW-2/D. Similarly, on the basis of the DNA report mark-S, he had given his final opinion Ext. PW-2/E on the MLC of the prosecutrix. He further stated that doctor Garima Thakur had left the government job and thereafter I.O. had moved an application before him and he had given such reference on the application Ext. PW-2/E. As per the DNA report, the DNA of appellant matched with the DNA profile obtained with the underwear of prosecutrix. In cross-
examination, the witness denied the suggestion that he had not taken the blood samples of the appellant as well as prosecutrix over FTA cards. PW-2 further denied that he had not taken into ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 16 possession the underwear and Bermuda of the appellant at the time of his medical examination. He further denied the suggestion that he had not medically examined the appellant and rather .
identified the appellant from identification mark mentioned in the MLC. He further denied the suggestion that the DNA report had not been produced before him.
20. PW-21 is doctor Vivek Sahajpal, Assistant Director, of DNA Division, State Forensic Science Laboratory, Junga, Himachal Pradesh, who stated that he had done DNA profiling rt approximately in 400 cases. On 27.09.2013, the DNA Division had received six sealed parcels through constable Subhash Chand No. 284. All seals were intact and tallied with the specimen seals sent along with the docket. The parcels were signed and cut opened and on the basis of analysis, it was quoted as follows:
"i) The DNA profile obtained from Exhibit-1b (Bermuda, Sandeep Kumar) matches completely with the DNA profile obtained from Exhibit-5(blood on FTA card, Sandeep Kumar).
ii) The DNA profile obtained from Exhibit-3d (underwear, prosecutrix) matches completely with DNA profile obtained from Exhibit-5 (blood on FTA card, Sandeep Kumar)
iii) Exhibit 4a (nail scrapings, prosecutrix) yielded highly degraded DNA that did not show ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 17 amplification with AmtF/STR identifier plus PCR Amplification Kit, hence no DNA profile could be generated."
.
PW-21 further deposed that he had given his report Ext.
PW-21/A and retained one copy thereof in his office and had read the office copy which completely matched with Ext.
PW-21/A of court record. The witness in his cross-examination of denied the suggestion that DNA profiling is not a complete science. He further denied the suggestion that no FTA card of rt appellant and undergarments of prosecutrix were ever received in his Division for the purpose of DNA profiling. PW-21 also deposed that he was not competent to conduct DNA profiling and lastly denied the suggestion that he was falsely deposing against the appellant.
21. PW-4 SI/SHO Naveen Jhalta stated that on 25.07.2013, the prosecutrix along with her parents had come to Police Station, Gohar, where the prosecutrix stated that the appellant had committed rape on her. According to the statement, daily station diary G.D. No. 49A Ext. PW-4/A was entered by constable Ajeet Singh and the same was attested by him. In his cross-examination, he feigned ignorance as to whether father of the prosecutrix had registered three other cases against the appellant. He denied the suggestion that a ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 18 false case had been made against the appellant in the Police Station.
22. Shri Tek Chand, Assistant Director (Biology and .
Serology) Regional Forensic Science Lab., C.R. Mandi, appeared in the witness box as PW-6 and stated that he was possessed of over 18 years scientific work experience and so far had reported and supervised 565 cases and examined 3643 exhibits. He of had also attended 27 numbers of scene of occurrence. PW-6 further stated that he had received four sealed parcels in the rt instant case for examination on 31.07.2013. The seals were intact and tallied with the specimen seals sent with the docket.
The parcels were signed and cut opened. After analysis, he submitted his detailed report Ext.PW-6/A. The witness was called for further examination on 19.05.2015 on which date the witness identified the parcel along with its contents including male underwear grey in colour Ext. P-8 and Bermuda Ext. P-9 from parcel No.1 and identified all the parcels that had been sent to the RFSL, Mandi and stated that during test human semen was found on the underwear Ext. P-5 of the prosecutrix. Similarly, human semen was also found on the underwear Ext. P-8 and Bermuda Ext. P-9 on the basis of which he had given a detailed report Ext. PW-6/A. On being cross-examined, he denied the suggestion that no samples in proper condition were received in ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 19 the lab for the purpose of test. He denied the suggestion that report Ext. PW-6/A was not based on proper analysis. He further denied the suggestion that he had not used proper technology .
and performed latest test. Lastly, he denied the suggestion that he had given a false report.
23. Now, we may also refer to the statements of other witnesses, who are formal in nature.
of
24. PW-7 Tara Devi is a Ward Member of Gram Panchayat, Rajgarh/Kehar. PW-7 stated that on 27.07.2013, she rt along with prosecutrix and her mother Parvati Devi remained associated with the police. The prosecutrix had shown the spot to the police and identified the spot where sexual assault had been committed by the appellant. She also identified the appellant in the Court. She further deposed that the police had taken photographs of the spot and conducted videography. Furd Nishandehi of the spot Ext. PW-5/A was prepared in her presence by the police which bore her signatures and signatures of Parvati Devi as well as prosecutrix. She proved on record photographs Mark A-1 to A-4. In cross-examination, she admitted that prosecutrix and her father belonged to Gram Panchayat Rajgarh/Kehar. She admitted that father of the prosecutrix was supporter in Gram Panchayat elections. She stated that spot was 250 metres below the road. She further ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 20 deposed that at the place of occurrence, there was a short-cut path which led to the house of the prosecutrix and in that house her uncle's family members were also residing. She denied the .
suggestion that no spot map was prepared in her presence or that she had been deposing falsely.
25. PW-8 is Panchayat Secretary, Gram Panchayat, Kehar, who issued the birth certificate Ext. PW-8/A of prosecutrix of on the request of the police wherein date of birth of prosecutrix was recorded 08.01.1995.
rt In cross-examination, she admitted that the entry made in the birth register was not in her hand.
26. PW-9 is Constable Ajeet Singh, who entered daily diary 49A Ext. PW-4/A at Police Station, Gohar. In cross-
examination, he admitted that PW-4/A did not bear his signatures.
27. PW-10 HHC Lalit Kumar No.352 proved on record photographs Exts. PW-10/A-1 to A-4 taken with digital camera.
In cross-examination, he admitted that there were no negatives of the photographs. Volunteered to state that the photographs were developed from memory card. PW-10 admitted that he had not given the memory card to the I.O., but denied the suggestion that he was deposing falsely.
28. PW-11 Constable Subhash Kumar stated that on 27.09.2013, HHC Raj Kumar, Incharge, Police Station, Balh had handed over four parcels sealed with one seal of RFSL, Mandi, ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 21 sample seal of RFSL and two sealed envelopes which had 3 and 2 seals respectively of Police Station, Balh to be deposited in RFSL, Junga and he had deposited the same on the same day .
and handed over the receipt to HHC Raj Kumar, Malkhana Incharge. In cross-examination, the witness stated that all the parcels were handed over to him at 5.00 p.m. by HHC Raj Kumar. He further denied the suggestion that samples had been of tampered with or that he was deposing falsely.
29. PW-12 HC Bhag Singh stated that on 31.07.2013 rt HHC Raj Kumar, Incharge Malkhana, Police Station, Balh, had handed over four sealed parcels in which two parcels were sealed with eight seals of CHC Ratti and other two parcels were sealed with 6 and 5 seals of CHC, Ratti along with sample seals of CHC, Ratti to be deposited at RFSL, Mandi. He deposited the same on the same day and handed over the receipt to HHC Raj Kumar, Malkhana Incharge. In cross-examination, PW-12 denied the suggestion that parcels had been tampered with or that he had been deposing falsely.
30. PW-13 Lady Constable Sarita stated that on 26.07.2013, she accompanied prosecutrix for medical examination at CHC, Ratti. After medical examination, the Medical Officer, CHC, Ratti, had handed over to her two sealed parcels which had two seals of CHC, Ratti, one envelope which ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 22 was sealed with seal of CHC, Ratti along with MLC of prosecutrix.
She handed over the MLC to Inspector Kamla Ghai and deposited the two sealed parcels before HHC Raj Kumar No. .
688, Incharge Malkhana and further stated that so long as the case property remained with her, it was not tampered with. In cross-examination, she denied the suggestion that no case property had been deposited or that she had not handed over of the MLC to Inspector Kamla Ghai or that she had been deposing falsely. rt
31. PW-14 Head constable Nand Lal stated that on 26.07.2013, Inspector Kamla Ghai had sent him to CHC, Ratti for conducting medical examination of appellant. Medical examination was conducted on the same day. He further deposed that after preservation of the clothes, the Medical Officer handed over the blood samples and slides of the appellant to him. The clothes, blood sample and slides were sealed in two cloth parcels which were sealed with seal impression "CHC" at six and eight places on Pullinda. Two envelopes sealed with seal impression "CHC" Ratti and MLC of appellant was handed over to him and PW-14, in turn, handed over the cloth parcels and envelopes to HHC Raj Kumar, Malkhana Muharar on the same day and MLC was handed over to Inspector Kamla Ghai. He further deposed that the case property, cloth parcels and ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 23 envelopes remained in his safe custody and were not tampered with. On being cross-examined, he stated that one underwear and 'Nikkar' were preserved and remaining clothes were not .
preserved by the Medical Officer. He denied the suggestion that medical examination of appellant had not been done in his presence. He further denied the suggestion that Medical Officer had not handed over the cloth parcels, blood sample and slides of to him. He also denied the suggestion that the appellant had not handed over his underwear and 'Nikkar' (Bermuda) and further rt denied the suggestion that he was deposing falsely.
32. PW-15 HHC Raj Kumar is the Malkhana Incharge, Police Station, Balh, in whose possession the case property was deposited, who later on entered the same in the Malkhana register No. 19 at Sr. Nos. 842/13, 843/13 and 877/13 and sent the case property i.e. 4 Pullindas, 2 FTA Cards and sample seal RFSL, Mandi through constable Subhash Chand No. 286 vide RC No. 188/13 to deposit the same at SFSL, Junga. In cross-
examination, he denied that no case property had been deposited with him.
33. PW-16 Inspector Om Raj proved on record rapat Ext.
PW-4/A on the basis of which FIR Ext. PW-16/A was registered.
34. PW-18 is SI Yog Raj, who partly investigated the case. He obtained birth certificate from PW-8 and recorded her ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 24 statement and supplementary statement of prosecutrix and also recorded the statements of LHC Sarita Devi, HC Nand Lal, HC Raj Kumar, HC Bhag Singh, Constable Subhash Chand, HHC .
Raj Kumar and HHC Lalit Kumar and also obtained blood sample of prosecutrix for the purpose of DNA profiling and deposited the aforesaid sample with MHC Raj Kumar and further stated that no tampering had taken place with the samples and after completion of of the investigation, he handed over the case file to SHO Madan Dhiman, who prepared the challan in this case.
rt In cross-
examination, the witness denied the suggestion that he had wrongly recorded the statement of the prosecutrix. He further denied the suggestion that no case was made out against the appellant in his investigation. He further denied the suggestion that it had come in the investigation that the appellant wanted to marry with the prosecutrix and it was father of the prosecutrix, who had not agreed to such proposal. Lastly, he denied the suggestion that the appellant had been falsely implicated at the instance of prosecutrix's father.
35. PW-19 Inspector Chet Singh Bhangalla, prepared supplementary challan after receipt of the DNA report.
36. PW-20 is Kamla Ghai, who also investigated the case. According to her, she had interrogated the appellant and arrested him vide memo Ext. PW-20/A and preferred an ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 25 application to M.O., CHC, Ratti, for conducting medical examination of the appellant vide Ext. PW-20/B. She visited the spot along with HC Nirmala and other police officials and .
prepared the spot map Ext. PW-20/C and on the demarcation of the prosecutrix, she prepared Fard Nishandehi in the presence of witnesses Parvati Devi and Tara Devi. Thereafter, she produced the prosecutrix before JMIC, Mandi for recording her statement of under Section 164 Cr.P.C. Supplementary statements of Parvati Devi and Tara Devi as also prosecutrix were recorded as per rt their versions. Statement of Jivan Ram was also recorded by her and the photographs Exts.PW-10/A-1 to A-4 were clicked at the spot with the government camera by HHC Lalit and videography was also done. Thereafter, 'missal' was handed over to SHO, Balh. In cross-examination, the witness denied the suggestion that she had not recorded the statements of the witnesses as per their versions. PW-20 further denied the suggestion that she had falsely implicated the appellant in the present case. She also denied the suggestion that during investigation it had come that the appellant used to visit the house of the prosecutrix. She also denied the suggestion that the prosecutrix visited various places, took joint photograph and that the parents of the prosecutrix were not interested to solemnize marriage of prosecutrix with the appellant and it was with a view ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 26 to get rid of the appellant that they compelled the prosecutrix to lodge a false case against the appellant. She further denied the suggestion that prior to this case, the parents of the prosecutrix .
had got a criminal case under Section 354 IPC registered and one 'Kalandra' under Sections 107 and 150 Cr.P.C. against the appellant. She further denied the suggestion that the prosecutrix was in love with the appellant and it is only the parents of the of prosecutrix, who were not agreed to the proposal. Lastly, she denied the suggestion that she was deposing falsely against the rt appellant.
37. 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 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.
38. 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 ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 27 physical harm to the victim, leaving upon her indelible marks.
Gang rape is all the more a serious and heinous offence.
39. 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 of visible are more difficult to treat.
40. Rape is a crime not against an individual but a crime rt 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 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.
41. In State of Punjab vs. Ramdev Singh, AIR 2004 SC 1290, the Hon'ble Supreme Court held as under:-
::: Downloaded on - 23/09/2023 20:33:59 :::CIS 28This 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 of victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only rt 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 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."
42. In Jugendra Singh Vs. State of UP, (2012) 6 SCC 297, the Hon'ble Supreme Court has held:-
"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 ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 29 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 of 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 rt the sentence as per law."
43. In Shyam Narian Vs. The State of NCT 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, AIR 1996 SC 530 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."::: Downloaded on - 23/09/2023 20:33:59 :::CIS 30
44. 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 of settled principle of law that corroboration as a condition for judicial reliance on the testimony of the victim is not a requirement of law but rt a guidance to prudence under the given circumstances.
45. 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."
46. 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. In Md. Ali Vs. State of UP, 2015 (3) SCALE 274, the Hon'ble Supreme Court has held that "Be it noted, there ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 31 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 v. 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 of that her statement be corroborated by the statements of other witnesses. rt
47. 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.
48. Judged in light of the aforesaid exposition of law, we, on a careful analysis of the testimony of the prosecutrix, do not find any such contradictions, inconsistencies, concealments, improvements ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 32 and exaggerations, which cast a doubt, much less serious doubt, so as to lead us in any difficulty to rely upon her statement. Her .
statement is absolutely clear, categorical and crisp, be it, under Sections 154, 164 Cr.P.C. or before the Court.
49. The instant case is where not only ocular but even the of medical evidence conclusively establishes the charge as framed against the appellant and the same is duly proved by the prosecutrix rt in her statement while appearing as PW-17 in the witness box and thereafter fully corroborated by oral evidence of her mother PW-5 and her father PW-3.
50. As regards the medical evidence, the testimony of the prosecutrix is duly corroborated by PW-1 doctor Garima, PW-2 doctor S.K. Fotedar, PW-6 Tek Chand and lastly by PW-21 doctor Vivek Sahajpal.
51. Learned counsel for the appellant has vehemently argued that as regards prosecutrix, she has clearly and unequivocally stated that she had no objection in marrying with the appellant and it is only account of such marriage being opposed by the father and mother of the prosecutrix that a false case has been fastened. We, however, find no merit in such contention. No doubt, ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 33 the prosecutrix at one stage in her cross-examination has admitted that at the time when the appellant came to her house with his uncle .
with the proposal of marriage by the appellant with her, she had stated to her parents that she was agreeable and ready to marry the appellant at that point of time. Thereafter, it would be noticed that three cases were filed against the appellant, one under Sections of 107, 150 Cr.P.C., another under Section 354 IPC and instant one being under Section 376 IPC.
rt Whereas, first case was filed by father of the prosecutrix, however, later two cases were filed by the prosecutrix herself which go to indicate that the relationship which was once sweet between the appellant and the prosecutrix had over a period of time turned sour.
52. Be it stated that the appellant in the instant case was convicted in a case that had been filed against him under Section 354-D read with Section 506 IPC, as is evident from an application filed for condonation of delay in filing of the instant appeal.
53. Learned counsel for the appellant would then argue that taking the prosecution case at its best, even then, it is difficult to imagine that the prosecutrix was subjected to forcible sexual intercourse, more particularly, when no injuries were found on her person.
::: Downloaded on - 23/09/2023 20:33:59 :::CIS 3454. However, we find no merit in such contention as it is more than settled that "injury" is not a sine-qua-non for deciding .
whether rape has been committed, but it has to be decided on the factual matrix of each case. It is equally settled that absence of an injury on the private part of the victim will not by itself falsifies the case of rape, now construed as evidence of consent. What is of required to be seen is whether the version put-forth by the victim is credible and once it is found so, then the same even does not rt require any corroboration, but here medical evidence also supports the allegations of the prosecutrix.
55. In every case, there are bound to be certain elaborations, improvements, details in the statement recorded under Section 164 Cr.P.C. or for that matter statement recorded in the Court and from those found in the statement of the complainant/prosecutrix recorded under Section 154 Cr.P.C. which would make the prosecution case brittle or cause any serious doubt of its correctness and veracity. After all, the same are not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 35 broad facts of the prosecution case alone appear. Reference in this regard can conveniently be made to the Hon'ble three Judge .
Bench decision of the Hon'ble Supreme Court in Mukesh and another vs. State (NCT of Delhi) and others (2017) 6 SCC 1, commonly known as 'Nirbhaya's case, wherein it was observed as under:
of "55. Judged on the anvil of the aforesaid decisions, we have no hesitation in arriving at the conclusion that there was no rt delay in lodging of the FIR.
Non-mentioning of assailants in the FIR
56. An argument was advanced assailing the FIR to the effect that the FIR does not contain: (i) the names of the assailants either in the MLC, Ex.PW- 51/A, or in the complaint, Ex.PW-1/A, (ii) the description of the bus and (iii) the use of iron rods.
57. As far as the argument that the FIR does not contain the names of all the accused persons is concerned, it has to be kept in mind that it is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear. If any overt act is attributed to a particular accused among the assailants, it must be given ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 36 greater assurance. In this context, reference to certain authorities would be fruitful.
.
58. In Rattan Singh v. State of H.P. (1997) 4 SCC 161, the Court, while repelling the submission for accepting the view of the trial court took note of the fact that there had been omission of the details and observed that the criminal courts should not be fastidious with mere omissions in the first of information statement since such statements can neither be expected to be a chronicle of every detail of what happened nor expected to contain an exhaustive catalogue of the rt events which took place. The person who furnishes the first information to the authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often, the police officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is voluntary narrative of the informant without interrogation which usually goes into such statement and hence, any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all. The Court also referred to the principles stated in Pedda Narayana v. State of A.P., (1975) 4 SCC 153; Sone Lal v. State of U.P. (1978) 4 SCC 302; Gurnam Kaur v. Bakshish Singh 1980 Supp SCC 567.
59. In State of Uttar Pradesh v. Naresh and others (2011) 4 SCC 324, reiterating the principle, the Court opined that it is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the ::: Downloaded on - 23/09/2023 20:33:59 :::CIS 37 details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to .
doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has been falsely implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of of the entire incident without anything missing from the same. Some people may miss even the most important details in narration. Therefore, in case the informant fails to rt name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused.
For the aforesaid purpose reliance was placed upon Rotash v. State of Rajasthan ((2006) 12 SCC 64 and Ranjit Singh v. State of M.P.,(2011) 4 SCC 336.
60. In Rotash (supra) this Court while dealing with the omission of naming an accused in the FIR opined that:
(SCC p.68, para 14) "14. .... We, however, although did not intend to ignore the importance of naming of an accused in the first information report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that PW 1 did not name him in the first information report, we do not find any reason to disbelieve the statement of Mooli Devi, PW 6. The question is as to whether a person was implicated by way of an afterthought or not must be judged having regard to the entire factual scenario obtaining in the case. PW 6 received as many as four injuries."
61. While dealing with a similar issue in Animireddy Venkata Ramana v. Public Prosecutor (2008) 5 SCC 368, the Court held as under:
::: Downloaded on - 23/09/2023 20:33:59 :::CIS 38"13. ... While considering the effect of some omissions in the first information report on the part of the informant, a court cannot fail to take into consideration the probable .
physical and mental condition of the first informant. One of the important factors which may weigh with the court is as to whether there was a possibility of false implication of the appellants. Only with a view to test the veracity of the correctness of the contents of the report, the court applies certain well-known principles of caution."
of Thus, apart from other aspects what is required to be scrutinized is that there is no attempt for false implication, application of principle of caution and evaluation of the testimonies of the witnesses as regards rt their trustworthiness.
62. In view of the aforesaid settled position of law, we are not disposed to accept the contention that omission in the first statement of the informant is fatal to the case. We are disposed to think so, for the omission has to be considered in the backdrop of the entire factual scenario, the materials brought on record and objective weighing of the circumstances. The impact of the omission, as is discernible from the authorities, has to be adjudged in the totality of the circumstances and the veracity of the evidence. The involvement of the accused persons cannot be determined solely on the basis of what has been mentioned in the FIR."
56. Learned counsel for the appellant would further argue that the appellant had all intentions of marrying the prosecutrix and the prosecutrix herself was ready to marry the appellant and that is why they had joint photograph mark D-1.
::: Downloaded on - 23/09/2023 20:33:59 :::CIS 3957. Assuming for a moment that the prosecutrix and the appellant wanted to marry each other, but the same essentially .
does not in any way mean that the prosecutrix was ready for pre-marital sex and had consented to the same. In case, that would have been so, then there was no occasion for the prosecutrix, being a consenting party, to have lodged the FIR, more particularly, of when there is no eye-witness to the incident.
58. rt In view of the aforesaid discussion and for the reasons stated, we find no infirmity in the judgment passed by the learned Court below. Consequently, the appeal is dismissed, so also the pending application, if any.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) Judge 22nd September, 2023.
(krt) ::: Downloaded on - 23/09/2023 20:33:59 :::CIS