Himachal Pradesh High Court
Sunil Kumar vs State Of Himachal Pradesh on 24 December, 2021
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 24th DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No.461 of 2019
Between:-
SUNIL KUMAR,
S/O SH. HUKAM CHAND,
RESIDENT OF VILLAGE AND P.O.
KEHARWIN, TEHSIL BHORANJ,
DISTRICT HAMIRPUR, H.P.
AGE ABOUT 41 YEARS. ......APPELLANT
(BY MR. VISHWA BHUSHAN, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH ......RESPONDENT
(BY MR. KUNAL THAKUR,
DEPUTY ADVOCATE GENERAL)
________________________________________________________
This appeal coming on for admission this day, Hon'ble
Ms. Justice Sabina, delivered the following:
JUDGMENT
Appellant has filed the appeal, challenging the judgment/ order dated 2.3.2017 and 7.3.2017 respectively, whereby he was convicted qua offence punishable under Section 376 (2) (I) of the Indian Penal ::: Downloaded on - 31/01/2022 23:29:24 :::CIS 2 Code (hereinafter referred to as "IPC") and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/-
and in default of payment of fine, it was ordered that he shall further .
undergo simple imprisonment for one year. Out of the fine amount of Rs.25,000/-, it was ordered that Rs.20,000/- shall be paid to the prosecutrix as compensation.
2. FIR No.88 dated 13.6.2014, was registered at Police Station, Bhoranj, District Hamirpur under Section 376 IPC on the basis of the statement of complainant, Nirmala Devi. As per the complainant, on 13.6.2014, the appellant had raped the prosecutrix at about 8:15 a.m. Prosecutrix was a mentally retarded girl aged 24 years. It was the case of the complainant that prosecutrix is her niece (daughter of her brother-in-law) and was residing with her after the death of her mother (mother of prosecutrix). The complainant had gone to get her medicines and when she returned home at about 5:15 p.m., the incident was narrated to her by the prosecutrix with the help of signs and speech.
3. After completion of investigation and necessary formalities, Challan was presented against the appellant.
4. Charge was framed against the appellant under Section 376 (2) (I) IPC by the trial Court vide order dated 29.12.2014. The appellant did not plead guilty to the charge framed against him and claimed trial.
::: Downloaded on - 31/01/2022 23:29:24 :::CIS 35. In order to prove its case, prosecution examined 22 witnesses during trial. Appellant when examined under Section 313 of the Code of Criminal Procedure, after closure of the prosecution evidence, .
prayed that all the witnesses were the family members of prosecutrix and they had falsely involved him in the case due to enmity. He was innocent. Appellant examined one witness in his defence.
6. Learned trial Court ordered the conviction and sentence of the appellant as mentioned in Paragraph-1 of the judgment. Hence, the present appeal by the appellant.
7. Learned counsel for the appellant has submitted that appellant had been falsely involved in the case due to enmity. Medical evidence did not corroborate the version of the prosecutrix with regard to commission of offence of rape. As per the report of Forensic Science Laboratory, blood and semen could not be deducted on Salwar, vaginal slides, pubic hair and vaginal swabs of the prosecutrix and pubic hair of the appellant. Hence, the appellant was liable to be acquitted of the charge framed against him under Section 376 (2) (I) IPC. In case, this Court comes to the conclusion that the statement of the prosecutrix inspires confidence, then at the most, it could be said to be a case falling under Section 354 IPC.
8. Learned Deputy Advocate General, on the other hand, has submitted that prosecutrix in the present case, is a mentally retarded girl, whose mental age was between 6 to 9 years. From the testimony ::: Downloaded on - 31/01/2022 23:29:24 :::CIS 4 of the prosecutrix, it was evident that the case falls within the definition of Section 375 IPC and the appellant has been rightly convicted and sentenced qua offence punishable under Section 376 (2) (I) IPC.
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9. Present case relates to commission of offence of rape by the appellant. Prosecutrix is aged about 24 years. It is the case of prosecution that the prosecutrix is a mentally retarded girl and her mental age is between 6 to 9 years.
10. In order to establish that the prosecutrix was mentally retarded, prosecution has examined PW-20 Dr. (Major) Sukhjit Singh. The said witness deposed that on 18.6.2014, he had examined the prosecutrix aged about 24 years, on an application moved by the Police. The patient had been examined by him as well as Clinical Psychologist, Mr. Binod Pandey. IQ (Intelligence Quotient) level of the prosecutrix was 40 indicating Moderate Mental Retardation. The mental age of the prosecutrix was 6 to under 9 years. He proved the opinion in this regard as Ex.PW-20/B. Thus, it stands established that the mental age of the prosecutrix was between 6 to 9 years.
11. The star witness of the prosecution with regard to the incident is the prosecutrix herself who had appeared in the witness box as PW-18.
Prosecutrix has deposed in her statement that when she was returning from the milk shop and had reached near the fields, appellant got caught hold of her and gagged her mouth. Appellant opened her Salwar and kissed her on her face and also pressed her breast.
::: Downloaded on - 31/01/2022 23:29:24 :::CIS 5Appellant opened his pant and lay over her and raped her. She returned home. Appellant also left from the spot. On reaching home, she disclosed the incident to her aunt, Nirmala Devi. Appellant after .
opening the pant had touched inside her private part (prosecutrix had pointed her hand towards her genital part). Appellant had slightly touched the same.
12. The complainant (Smt. Nirmala Devi), while appearing in the witness box as PW-1 has deposed as per the contents of the FIR.
13. PW-2, Manorma Kumari (sister of the prosecutrix) has corroborated the statement of PW-1.
14. PW-3 Rita Devi deposed that on 13.6.2014, the prosecutrix had gone to collect milk from her shop at about 8/8:15 a.m. and had left for her residence.
15. PW-4 Tilak Raj deposed that he was the Pradhan of Gram Panchayat since 2011. On 13.6.2014, Nirmala Devi had informed him telephonically that appellant had raped the prosecutrix. Thereafter, he had given the information to the Police regarding the incident. He further deposed that on the next date, prosecutrix had identified the place of incident in his presence to the Police. After 2-3 days, appellant had also identified the place of incident and had led the Police party to the place of incident.
16. PW-5 Karam Dutt, had deposed that he had been informed about the incident by his wife, Nirmala Devi.
::: Downloaded on - 31/01/2022 23:29:24 :::CIS 617. PW-7 Dr. Rajnish Thakur, deposed that on 14.6.2014 at about 00.30 a.m., he had medico legally examined the prosecutrix and found that there was no mark of injury present anywhere on her body. There .
was no dried stains (i.e. seminal and blood) present on the external genitalia, thigh, abdominal and buttocks. Labia majora and minora were normal and well developed. No mark of injury was seen. Hymen was intact. Patient was referred to Psychiatrist for opinion regarding low Intelligence Quotient (IQ). On physical examination, the possibility of sexual assault could not be ruled out. As per report of the Forensic Science Laboratory, blood and semen could not be detected on the Salwar, vaginal slides, pubic hair and vaginal swabs of the prosecutrix.
18. PW-8 Dr. Rajesh Bhardwaj deposed that on 14.6.2014, at about 11.37 a.m. he had medico legally examined the appellant. On examination, it was found that there were scratch marks over right side and the same were five in number. He also deposed that in his opinion there was nothing to suggest that the appellant could not perform sexual intercourse. The other witnesses examined by the prosecution are with regard to investigation conducted in the case.
19. DW-1 Surinder Kumar deposed that he was a Driver by profession. He knew the appellant as well as the prosecutrix.
Appellant had been falsely involved in this case by Nirmala Devi and Karam Dutt due to enmity. There was land dispute between Nirmala Devi and the appellant.
::: Downloaded on - 31/01/2022 23:29:24 :::CIS 720. Section 375 IPC reads as under:-
"375. Rape.--A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the .
vagina, mouth, urethra or anus of a woman
or makes her to do so with him or any other
person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- (First) -- Against her will.
(Secondly) --Without her consent.
(Thirdly) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
(Fourthly) --With her consent, when the man knows that he is not her husband, and that her ::: Downloaded on - 31/01/2022 23:29:24 :::CIS 8 consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
.
(Fifthly) -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe- fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) -- With or without her consent, when she is under years of age.
Seventhly.- When she is unable to communicate consent."
21. Let us examine the facts of the present case in order to come to a conclusion as to whether an offence alleged to have been committed by the appellant would come within the definition of Section 375 IPC or not.
22. Prosecutrix in the present case is aged 24 years, but her mental aged is between 6 to 9 years. The prosecutrix has categorically stated that the appellant had opened her Salwar and had opened his pant and had thereafter raped her. However, the said part of the testimony of the prosecutrix to the effect that the appellant had raped her is not fully corroborated by medical evidence. As per medical examination of the prosecutrix, her hymen was found intact and there was no mark of ::: Downloaded on - 31/01/2022 23:29:24 :::CIS 9 injury on her vaginal area or any other part of the body. Moreover, the vaginal slides and swabs as well as the clothes of the prosecutrix did not show presence of semen. However, the prosecutrix had also stated .
that the appellant after opening his pant had touched inside her private part and she had pointed her hand towards her genital part. As per Section 375(b), a man is said to commit rape if he inserts, to any extent, any object, or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman.
23. From the testimony of the prosecutrix as well as from reading of the medical evidence available on record, we are of the opinion that the statement of the prosecutrix to the effect that the appellant had touched inside her private part inspires confidence. Since the appellant had touched inside the private part of the prosecutrix, apparently the hymen of the prosecutrix remained intact and no semen was deducted in her vaginal slides/swabs and her clothes.
24. Learned counsel has tried to draw benefit from the cross-
examination of the prosecutrix wherein she had stated that accused had left after opening her Salwar and she had made statement at the instance of her aunt who had enmity with the appellant.
25. However, from a complete reading of the statement of the prosecutrix, we are of the opinion that the prosecutrix, who is mentally retarded may not have correctly understood the questions put to her in her cross-examination. In her examination-in-chief, prosecutrix has ::: Downloaded on - 31/01/2022 23:29:24 :::CIS 10 categorically deposed that the accused had touched inside her private part. The testimony of the prosecutrix is natural and inspires confidence with regard to the involvement of the appellant in the crime.
.
26. So far as DW-1 Surinder Kumar is concerned, the statement of the said witness fails to advance the plea taken by the appellant to the effect that there was some land dispute between the appellant and Nirmala Devi as the said witness admitted in his cross-examination that no case was pending between the appellant and Nirmala Devi in any Court with regard to land dispute.
27. In order to substantiate his plea that the appellant had been falsely involved in this case due to enmity, PW-1 Smt. Nirmala Devi and PW-5 Karam Dutt were questioned during their cross-examination that there had been a quarrel between them about 10-15 days prior to the incident. However, the said fact had been denied by PW-1 and PW-5 in their cross-examination. In order to substantiate his plea that there had been any dispute between the appellant and the complainant party, appellant has failed to bring on record any such material to show that in fact some dispute had occurred about 10/15 days prior to the incident.
28. Hence, the argument put forth by the learned counsel for the appellant that the appellant had been falsely involved in this case by Nirmala Devi due to enmity is not established on record, whereas on ::: Downloaded on - 31/01/2022 23:29:24 :::CIS 11 the other hand, statement of the prosecutrix being natural inspires confidence with regard to the involvement of the accused in the crime.
29. In the facts and circumstances of the present case, learned trial .
Court had, thus, rightly convicted and sentenced the appellant for an offence punishable under Section 376 (2) (I) of the IPC. Hence, no ground for interference is made out. The appeal is accordingly dismissed.
Pending miscellaneous application(s), if any, also stand disposed of.
( Sabina ) Judge ( Satyen Vaidya) Judge December 24, 2021 (ks) ::: Downloaded on - 31/01/2022 23:29:24 :::CIS