Himachal Pradesh High Court
Desh Raj Son Of Shri Rattan Chand vs State Of Himachal Pradesh on 24 February, 2015
Bench: Sanjay Karol, P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA, AT SHIMLA Cr.Appeal No. 148 of 2013 Judgment reserved on:25th November,2014 Date of Decision: February 24, 2015 .
__________________________________________________________________ Desh Raj son of Shri Rattan Chand .....Appellant.
Vs. State of Himachal Pradesh. ....Respondent.
Coram:
Hon'ble Mr. Justice Sanjay Karol, Judge. Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting?1 Yes.
For the Appellant:
For the respondent:
r to
Mr.Chaman Negi, Advocate
Mr. B.S. Parmar, Additional Advocate
General with Mr. Ashok Chaudhary
Additional Advocate General, Mr.
V.S.Chauhan Additional Advocate General
and Mr. Vikram Thakur, Deputy Advocate
General.
P.S.Rana Judge
Judgment:- Present appeal is filed against the judgment and
sentence passed by learned Sessions Judge Court No.1 Kangra at Dharamshala in Sessions Trial No 12-N of 2011 titled State vs. Desh Raj decided on dated 14.01.2013. Brief facts of the case as alleged by the prosecution:-
2. It is alleged that on dated 27.12.2010 at about 5.30 PM at village Har Gatla, G.P. Thehar Tehsil and Police Station 1 Whether reporters of the Local papers are allowed to see the judgment? yes ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 2 Nurpur District Kangra H.P. accused wrongfully restrained the prosecutrix from proceeding further on her way to her house while she was coming back after taking grass. It is alleged by .
prosecution that on same date time and place accused criminally assaulted prosecutrix by doing obscene act intending to outrage her modesty and it is further alleged by prosecution that on same date time and place accused forcibly committed rape upon prosecutrix without her consent by tying her hand with wild string and thereafter burnt the wild string in order to cause disappearance of the evidence with intention of screening himself from legal punishment. It is alleged by prosecution that prosecutrix cried and on hearing the cries of prosecutrix Mehar Chand came towards the spot and on seeing Mehar Chand accused put on his pent and fled away from the place of incident.
It is alleged by prosecution that thereafter Mehar Chand helped the prosecutrix in lifting the grass on her head and he also came to house of prosecutrix. It is alleged by prosecution that prosecutrix narrated the entire incident to her mother. It is alleged by prosecution that father of prosecutrix was at Banglore in connection with his service and FIR could not be lodged in the evening. It is alleged by prosecution that on dated 28.12.2010 FIR Ext.PW11/A was lodged. It is alleged by prosecution that thereafter prosecutrix was brought to Civil Hospital and was medically examined and X-ray was conducted and thereafter ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 3 PW11 ASI Ram Nath visited the spot along with prosecutrix and prepared spot map Ext.PW11/B and I.O. also recorded statements of prosecution witnesses. It is alleged by prosecution that .
prosecutrix was also medically examined and MLC Ext.PW11/E obtained after moving application Ext.PW11/D. It is alleged by prosecution that thereafter medical officer took into possession clothes of prosecutrix in parcels Ext.P3 to Ext.P7 and sealed them in sealed parcel and thereafter handed over the same to I.O. It is also alleged by prosecution that thereafter I.O. obtained school certificate of prosecutrix Ext.PW6/A from PW6 Anchla Devi Incharge Government Primary School Haar Gatla and also obtained opinion of doctor Ext.PW1/B as well as the opinion of gynecologist. It is further alleged by prosecution that PW1 Dr. Sushma medically examined the prosecutrix and issued MLC Ext.PW1/A and gave her opinion Ext.PW1/B. It is alleged by prosecution that thereafter PW4 Dr. Amod Kumar Singh Gynecologist examined the prosecutrix and submitted report Ext.PW4/A and it is further alleged by prosecution that on dated 12.1.2011 MHC Harnam Singh handed over five parcels along with docket to PW10 HC Harbans Singh who was HHC in P.S. Nurpur for depositing these parcels in RFSL Dharamshala who after depositing the same handed over the receipt to MHC PW8 Harnam Singh. It is further alleged by prosecution that PW12 Dr.Raman Sharma gave radiological age of prosecutrix and as ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 4 per his opinion Ext.PW12/B the age of prosecutrix was between 14 to 16 years. It is also alleged by prosecution that accused was also medically examined and found that accused was capable of .
performing sexual intercourse. It is further alleged by prosecution that thereafter PW5 Ajay Kumar working in SFSL Dharamshala conducted biological and serological analysis of five sealed parcels received in RFSL Dharamshala on dated 3.1.2001 through HHC Harnam Singh and gave his report Ext.PX.
3. Learned trial Court framed the charge against the accused under Sections 354, 376 and 201 of the Indian Penal Code on dated 19.1.2012. Accused did not plead guilty and claimed trial.
4. Prosecution examined as many as twelve witnesses in support of its case and accused persons examined Rattan Chand as defence witness:-
Sr.No. Name of Witness PW1 Dr. Sushma Sharma PW2 Prosecutrix PW3 Mehar Chand PW4 Dr. Amod Kumar PW5 Ajay Kumar PW6 Anchla Devi PW7 Veena Devi ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 5 PW8 Harnam Singh PW9 Dy.S.P. Rajeev Attri PW10 HHC Harbans Singh .
PW11 ASI Ram Nath
PW12 Dr.Raman Sharma
DW1 Rattan Chand
4.1 Prosecution also produced following piece of
documentary evidence in support of its case:-
Sr.No. Description.
Ext.PW1/A MLC of prosecutrix.
Ext.PW1/B Opinion on MLC
Ext.PW1/C Application for medical
examination
Ext.PW2/A Opinion of doctor
Ext.PW6/A School leaving certificate
Ext.PW11/A FIR
Ext.PW11/B Spot map.
Ext.PW11/C Statement of Mehar Chand
Ext.PW11/D Application for medical
examination
Ext.PW11/E MLC
Ext.P1 Salwar.
Ext.P2 Shirt.
Ext.P3 to Parcels
P7
Ext.PX Report of FSL
::: Downloaded on - 15/04/2017 17:38:03 :::HCHP
6
5. Learned trial Court convicted the accused under Sections 341 and 376 IPC and acquitted the accused under Section 201 IPC. Learned trial Court further held that offence .
under Section 354 IPC has merged in graver offence under Section 376 IPC. After hearing the convicted upon quantum of sentence learned trial Court sentenced the appellant as follows:-
Sr. Offence Sentence imposed No. I) 376 IPC The convicted was sentenced to rigorous imprisonment for a period of ten years and to pay fine of Rs.
50,000/- (Rupees Fifty Thousands only) and in default of payment of fine convicted person shall further r undergo simple imprisonment for a period of one year.
II) 341 IPC The convicted was sentenced to simple imprisonment for a period of one month and to pay fine of Rs.
500/-(Rupees Five hundred only) and in default of payment of fine convicted person shall under undergo simple imprisonment for a period of 15 days.
6. Feeling aggrieved against the judgment and sentence by learned trial Court appellant filed present appeal.
We have heard learned Advocate appearing on behalf of the appellant and learned Additional Advocate General appearing on behalf of the respondent-State and also perused the entire record.
::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 77. Question that arises in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned .
trial Court had committed miscarriage of justice as mentioned in memorandum of grounds of appeal.
ORAL EVIDENCE ADDUCED BY PROSECUTION:
8.1. PW1 Dr. Sushma Sharma Sr. Medical Officer Primary Health Centre Jassur has stated that on dated 28.12.2010 she was posted at PHC Jassur and lady C. Anita Kumari brought the prosecutrix aged 14 years for her medical examination. She has stated that on examination she found that gait was normal and prosecutrix was conscious cooperative well oriented to time place and person. She has stated that pulse rate was 72 per minute and B.P. was 110/80. She has stated that pubic and axillary hairs were present and breast was developed and no mark of injury was seen on any sensitive part of body like cheeks, neck, breast abdomen and inner part of thigh. She has stated that prosecutrix was eldest of three brothers and sister and she had studied upto 5th class and left the school one year back. She has stated that no menarche started when she examined the prosecutrix. She has stated that as per prosecutrix she was coming home after collecting grass and when she was on her way back on dated 27.12.2010 at about 5.30 PM accused a married man forcibly committed sexual intercourse with her. She has stated that she ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 8 did not observe any injury on external genitalia. She has stated that vagina of prosecutrix admitted one finger and no bleeding or discharge was present. She has stated that prosecutrix was .
referred to Gynecologist Civil Hospital Nurpur for expert gynecological examination and expert opinion regarding status of hymen. She has stated that anal swab and vaginal swab were collected, slides were prepared, pubic hair were collected and preserved, sealed and handed over to police and sent for chemical examination to the Analyst FSL Dharamshala. She has stated that according to victim's mother clothes which were worn by prosecutrix during criminal offence were washed by mother.
She has stated that ASI Ram Nath advised to collect the clothes and prosecutrix was referred to Radiologist for X-ray for age determination. She has stated that stains were present on front and back of salwar. She has stated that she issued MLC Ext.PW1/A and bears her signatures. She has further stated that according to radiological opinion age of prosecutrix was above 14 and below 16. She has stated that as per chemical examiner's opinion semen was detected on exhibits. She has stated that keeping in view the opinion of gynecologist and report of Chemical Analyst possibility of rape could not be ruled out and further stated that her opinion is Ext.PW1/B. She has stated that request application for medical examination is Ext.PW1/C and she has identified the prosecutrix present in Court. She has denied ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 9 suggestion that as per P/V examination the prosecutrix was found habitual to intercourse. She has stated that there was no mark of rope being tied on the wrists of prosecutrix at the time of .
examination. She has stated that even touching of penis would constitute rape. She has stated that in case of forcible intercourse there would be possibility of injury on the body.
8.2 PW2 prosecutrix has stated that they are three brothers and sisters and she had studied upto 5th class. She has stated that on dated 27.12.2010 at about 5.30 PM she had gone to the house of Rattan Chand for collecting grass and at about 5.45 PM she was returning with grass then accused met in her way. She has stated that accused caught hold her hands and took her towards mango garden and grass fell on the ground. She has stated that accused tied her hands with wild creeper and then put his hand on her mouth and fell her on the ground. She has further stated that accused committed rape with her. She has stated that she was crying and accused again put his hand on her mouth and pressed her throat and she again cried. She has stated that on hearing her cries Mehar Chand came towards her and on seeing Mehar Chand accused put his pant and fled away. She has stated that thereafter Mehar Chand put grass on her head and came to her house and on reaching at home she narrated the incident to her mother. She has stated that her father used to serve at Banglore and she could not lodge the ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 10 report in the evening. She has also stated that on dated 28.12.2010 she went to police station along with her mother to report the matter. She has stated that FIR is Mark A. She has .
further stated that thereafter police officials took her to nearby hospital and medically examined her and her x-ray was also conducted. She has further stated that thereafter police went to spot and she located the place of incident to Investigating Agency. She has stated that accused is from her village and house of accused is situated at some distance from her house.
She has admitted that her mother had died and her father had married for second time. She has stated that her father is working at Banglore and her father and accused used to live together at Banglore. She has further stated that whatever accused used to earn at Banglore he used to give it to her father.
Self stated that said money was given by her father on his return at home. She has admitted that her father had asked the accused to take money from her mother. Self stated that her mother had paid said amount to accused. She has admitted that her mother had not given the money to accused directly as parents of accused had asked not to give the money to accused directly as accused would spend the money on liquor and thereafter the said money was given to parents of accused. She has denied suggestion that whenever accused used to visit her mother for taking money her mother threatened him to implicate ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 11 him in false case. She has denied suggestion that she used to abide all commands of her mother. Self stated that she does not follow the wrong commands of her mother. She has denied .
suggestion that accused Desh Raj had not caught hold the prosecutrix from her arms. She had denied suggestion that she has deposed in the Court as per directions given by her mother.
She has denied suggestion that accused Desh Raj did not commit any rape with her. She has denied suggestion that it was dark around 5.45 PM at the place of incident. She has denied suggestion that she is deposing falsely against the accused.
8.3 PW3 Mehar Chand has stated that his house is at Thehar and accused is from his village. He has stated that prosecutrix is also known to him as she is residing in his village.
He has stated that on dated 27.12.2010 panchayat elections were held and at about 5.30 PM he was returning to his home after doing his labour work. He has stated that prosecutrix was standing on the side of park and grass was lying by her side. He has stated that he helped the prosecutrix in lifting the grass on her head and thereafter prosecutrix went away. He has stated that he did not see any person on the spot. He has admitted that he is having good relations with father of accused. He has denied suggestion that he had done wooden work in the house of accused. He has admitted that accused is a married man and is having one son. He has denied suggestion that parents and wife ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 12 of accused came to him and requested him to depose in favour of accused. He has denied suggestion that when he was crossing from the spot then he heard some noise from orchard. He has .
denied suggestion that he saw the accused Desh Raj putting his pant and running away from the place of incident. He has denied suggestion that he advised the prosecutrix to narrate the entire incident to her mother. He has denied suggestion that he is deposing falsely to save the accused. He has denied suggestion that when he inquired from prosecutrix then prosecutrix told that she was raped by accused at the place of incident. He has admitted that accused belongs to different caste and he belongs to different caste and further stated that house of accused is situated at 2 K.m. away from his house. He has stated that there is rivulet between Suiyali and Thehar.
8.4 PW4 Dr. Amod Kumar Singh has stated that he is posted as Gynecologist Civil Hospital Nurpur since September 2009 and he had examined the prosecutrix aged 14 years at 4 PM on dated 28.12.2010 on the recommendation of Dr. Sushma Sharma regarding hymen status. He has stated that on examination he observed as under. He has stated that prosecutrix was unmarried and not attended her menarche till now. He has stated that axillary hairs and pubic hairs were grown and breast was developed. He has stated that no fresh external injury was seen on the genital area. He has stated that hymen ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 13 was not torn. He has stated that hymen admitted tip of fingers.
He has stated that he did not observe any bruise or abrasion on hymen or posterior forchette. He has stated that mild discharge .
was present. He has stated that urine for pregnancy test was negative. He has stated that no hymen injuries were seen. He has stated that he has given his opinion Ext.PW5/A which is in his hands and bears his signatures. He has stated that sexual intercourse upon hymen could not be ruled out. He has stated that his report is suggestive that penis was not crossed the hymen. He has stated that mere touching of penis on the body could not left any print mark so he had not seen any such mark.
8.5 PW5 Ajay Kumar Sehgal has stated that he is working at RFSL Dharamshala since October 2010 and he had examined more than thousand cases and given his opinion. He has stated that on dated 3.1.2011 five sealed parcels were received at RFSL Dharamshala through HHC Harbans Singh sealed with seal impression 'M'. He has stated that seals were intact and on comparison with specimen seal found to be same. He has stated that on the basis of biological and serological analysis he submitted the report. He has stated that human blood was detected on Ext.1(a) (salwar of prosecutrix) and semen was not detected on the exhibit. He has further stated that blood and semen were not detected on exhibit 1b (shirt of prosecutrix), Ext.2(a) (pubic hair of prosecutrix), Ext.2b (vaginal slides of ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 14 prosecutrix), Ext.3a (Anal swab of prosecutrix), Ext.3b (vaginal swab of prosecutrix), Ext.4 (underwear of accused) and Ext.5 (pubic hair of accused). He has stated that he has prepared the .
report Ext.PX which was signed by him. He has stated that on performing Benzedrine test blood was detected in the crotch area of exhibit and human blood was detected but he could not say that whose blood it was.
8.6 PW6 Anchla Devi has stated that she is posted in Government Primary School Haar Gatla as JBT teacher since 19.4.2010 and she has brought the original school admission and withdrawal register. She has stated that she has seen certificate Ext.PW6/A which is true according to the original and as per this certificate date of birth of prosecutrix is dated 11.3.1996.She has stated that prosecutrix was admitted in third class on the basis of transfer certificate issued by Government Primary School Manali District Kullu.
8.7 PW7 Veena Devi has stated that prosecutrix is her daughter and her husband is working at Banglore. She has stated that prosecutrix had studied upto 5th class. She has stated that on dated 27.12.2010 at about 5.30 PM she sent the prosecutrix to the house of Rattan Chand to bring grass. She has stated that prosecutrix returned with grass at around 6 PM. She has stated that at that time prosecutrix was nervous and was weeping. She has stated that she asked her daughter as to why she was ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 15 weeping. She has stated that thereafter minor prosecutrix told her that accused caught hold from her hands and took her towards orchard. She has stated that prosecutrix also told that .
accused tied her hands with wild crippler and pressed her throat and put his hands on mouth of prosecutrix. She has stated that prosecutrix further told that accused opened her salwar and he put his penis in her vagina. She has stated that prosecutrix told that prosecutrix cried and at that time one Mehar Chand was crossing the path. She has stated that when accused saw Mehar Chand accused put his pant and left the place of incident. She has stated that report was not lodged on the same day as her husband was not there. She has stated that she lodged the report on next day on dated 28.11.2010 at P.S. Nurupur. She has stated that her sister and prosecutrix accompanied her to police station. She has stated that thereafter prosecutrix was medically examined. She has further stated that thereafter prosecutrix located the place of incident and handed over the salwar and shirt to Investigating Agency which were sealed. She has stated that salwar Ext.P1 and shirt Ext.P2 are the same which were worn by prosecutrix at the time of incident. She has stated that at that time there was blood stain on salwar. She has stated that age of her daughter was 14 years at the time of incident. She has stated that Lakinder Singh is father of prosecutrix and he is performing labour work at Banglore for the last 2/3 years. She has stated ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 16 that accused Desh Raj is also known to her. She has stated that accused also used to do labour work at Banglore. Self stated that parents of accused requested her husband to take him to .
Banglore as accused used to take drink. She has stated that accused used to reside with her husband at Banglore. She has admitted that accused used to give money to her husband to be kept by her husband. She has admitted that her husband handed over the money of Desh Raj accused which was around `12,000/-
(Rupees twelve thousand only). She has denied suggestion that amount was around ` 30,000/- (Rupees thirty thousand only). She has denied suggestion that accused came to her house to collect the money but she did not pay the amount. She has denied suggestion that she is still in possession of money owned by accused. Self stated that she had given the money to father of accused. She has denied suggestion that when accused came to her house to demand the money accused told her that he would move the application before Panchayat and also denied suggestion that thereafter she told the accused that she would file false report at police station against the accused. She has admitted that minor prosecutrix is her step daughter and prosecutrix was seven years of age at the time of her marriage with her father. She has stated that at that time prosecutrix was studying in 5th class. She has stated that she was married in the year 2000. She has denied suggestion that age of prosecutrix is ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 17 about 18 years as of today. She has admitted that she conducted Court marriage. She has stated that from present marriage she has one son who studying in 5th class. She has denied suggestion .
that no incident took place. She has denied suggestion that false case has been filed against the accused.
8.8 PW8 HC Harnam Singh has stated that he remained posted as MHC P.S. Nurpur since June 2009 to June 2011 and he has brought the original malkhana register No. 19. He has stated that on dated 31.12.2010 I.O. ASI Ram Nath deposited one parcel containing clothes of prosecutrix, another parcel containing underwear of accused, another parcel containing pubic hair and vaginal swab of prosecutrix, one small bottle containing pubic hair of accused. He has stated that I.O. also deposited one envelope which was addressed to RFSL and on dated 2.1.2011 above said samples were sent to RFSL Dharamshala along with docket and sample seal vide RC No. 1/2011 through HHC Harbans Singh. He has stated that case property remained intact during his custody and further stated that on return HHC deposited the receipt with him and he has brought the original RC. He has stated that parcels are Ext.P3 to Ext.P7. He has stated that parcels were deposited with him on dated 28.10.2010. He has denied suggestion that I.O. had deposited the parcels with him on dated 28.12.2010. He has denied suggestion that I.O. had ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 18 recorded statements on the same day when parcels were deposited with him.
8.9 PW9 Dy.S.P. Rajeev Attri has stated that he remained .
as SHO in P.S. Nurpur in the year 2010-2011 and after investigation of this case he has prepared the challan which was signed by him.
8.10 PW10 HHC Harbans Singh has stated that he remained posted as HHC P.S. Nurpur since 2006 to 2011 on general duty and on dated 2.1.2011 MHC Harnam Singh vide RC No. 1/2011 handed over five parcels along with docket and sample seal for depositing in RFSL Dharamshala which he deposited on the same day there. He has stated that on return he deposited the receipt with MHC and case property remained intact in his custody.
8.11 PW11 ASI Ram Nath has stated that he remained posted as ASI/I.O. P.S. Nurpur since 2009 to February 2012 and on dated 28.12.2010 prosecutrix came to police station along with her mother and aunt. He has stated that statement of prosecutrix under Section 154 Cr.P.C. was recorded. He has stated that statement is Ext.PW11/A. He has stated that prosecutrix was got medically examined. He has stated that they visited the spot and prosecutrix has shown the place of incident and he has prepared spot map Ext.PW11/B and further stated that marginal notes are signed by him. He has stated that he ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 19 recorded statements of witnesses. He has stated that statement of Mehar Chand was recorded as per his version and he did not add or deleted from his own side. He has stated that accused was .
arrested and associated in investigation. He has stated that accused was also medically examined and he moved application and obtained MLC of accused Ext.PW11/D. He has stated that he also moved application Ext.PW11/C for medical examination of prosecutrix. He has stated that medical officer took into possession clothes of prosecutrix and sealed the same in parcel and handed over to him. He has stated that parcels Ext.P3 to Ext.P7 are the same. He has stated that due to clerical mistake date of depositing the parcels has been mentioned as 31.12.2010 instead of 28.12.2010. He has stated that school certificate of prosecutrix Ext.PW6/A was obtained. He has stated that after receipt of chemical report Ext.PX opinion of medical officer was obtained. He has stated that he also obtained the opinion of gynecologist and after completion of investigation file was handed over to SHO Rajeev Attri. He has denied suggestion that clothes Ext.P1 and Ext.P2 were not worn by prosecutrix at the time of medical examination. He has denied suggestion that school leaving certificate Ext.PW6/A did not pertain to prosecutrix. He has denied suggestion that he had handed over the parcels to MHC on dated 28.12.2010. He has denied suggestion that he has recorded statements of prosecution ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 20 witnesses as per his own version. He has denied suggestion that he has prepared false case against the accused at the instance of mother of prosecutrix. He has denied suggestion that accused is .
innocent.
8.12 PW12 Dr.Raman Sharma Radiologist has stated that he is posted as Radiologist in Civil Hospital Nurpur since 2001. He has stated that X-ray form Ext.PW12/A was received from Dr. Sushma Sharma for X-ray of prosecutrix of shoulder, elbow, wrist, pelvis, knee and ankle A.P. and further stated that X-ray films Ext.X-1 to Ext.X-6 were taken under his supervision and opined that in X-ray right shoulder joint-AP view, head of humerus was not fused to the shaft. He has stated that in X-ray right elbow joint-AP and lateral views, lateral epicondyle was fused to the capitulum, medial epicondyle was fused to the shaft. He has stated that in X-ray right wrist join AP-lateral views, head of radius was fused to the shaft and distal end of radius was not fused to the shaft. He has further stated that in X-ray pelvis-AP vies of distal end of femur was partially fused to shaft and greater trochanter was partially fused. He has stated that in X-
ray right knee joint-AP and lateral views, distal end of femur was not fused to the shaft and proximal end of tibia was not fused to the shaft and proximal end of fibula was not fused to the shaft.
He has stated that in x-ray right ankle joint AP and lateral views distal end of tibia was not fused to the shaft and distal end of ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 21 fibula was not fused to the shaft. He has stated that in his opinion that radiological age of prosecutrix was about 14 years and below 16 years and his opinion is Ext.PW12/B. He has stated that .
he also examined the accused present in Court. He has stated that accused was well conscious and oriented and his pulse was 82 per minute and B.P. was 124/80 mm of Hg. He has stated that accused was well built and had got secondary sexual characters and further stated that accused was a married person for the last five years and had a male child. He has stated that pubic hairs were present and penis was well developed and pubic hair were preserved and sent for chemical examination. He has further stated that there were no stains present in pubic hairs, penis and scrotum and there was no smegma present on penis. He has stated that no stains were present on underwear and no injuries were seen on genital region or on the body of accused. He has stated that accused was capable for performing sexual intercourse. He has denied suggestion that no intercourse was done as there was no injury on penis or genital region of the body. He has admitted that if there is forcible sexual intercourse then there is possibility of injury on body of accused as well as prosecutrix. He has stated that as per MLC there was no injury on penis or genital region of accused. He has denied suggestion that he had assessed the age of prosecutrix on the basis of wrong theory.
::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 229. Statement of accused recorded under Section 313 Cr.P.C. He has stated that he and father of prosecutrix had worked together at Banglore and he paid ` 30,000/- (Rupees .
thirty thousand only) to father of prosecutrix. He has stated that when he demanded the money then father of prosecutrix refused to pay. He has stated that in order to get rid of payment of money a false criminal case has been filed against him. He has stated that he is innocent and he has been falsely implicated in present case. Accused has produced one witness in his defence.
Defence evidence adduced by the accused persons
10. DW1 Rattan Chand has stated that he is working as labourer and accused is his son. He has stated that his both sons are married and accused is also working as labourer. He has stated that accused present in Court had gone to Banglore in connection with his employment with Lokinder father of prosecutrix in the year 2009. He has stated that his son worked as labourer at Banglore for about six months and earned about ` 30,000/- (Rupees thirty thousand only). He has stated that his son had given the said amount to Lokinder for keeping the same in his safe custody and both of them came back to their village.
He has stated that thereafter father of prosecutrix did not return the amount to his son and Lokinder father of prosecutrix again went to Banglore and told that money should be taken from his wife who was residing in village. He has stated that he sent his ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 23 son to the house of Lokinder at village Gatla. He has stated that wife of Lokinder told that he should not visit her house time and again otherwise false case would be filed against the accused. He .
has stated that till now Lokinder and his wife have not returned ` 30,000/- (Rupees thirty thousand only) to accused and further stated that due to above said reasons complainant party filed false case against his son. He has admitted that on dated 27.12.2010 his son was present in village Gatla. He has stated that he could not produce any documentary evidence in order to prove that he earned ` 30,000/- (Rupees thirty thousand only) at Banglore. He has stated that he could not produce any document in order to prove that he handed over the money to Lokinder Singh. He has denied suggestion that after incident his son disappeared. He has stated that he did not file any complaint in writing. He has stated that he informed Dev Singh Panchayat member of Panchayat Thehar. He has stated that his son has not filed any complaint with police and has also not filed in Panchayat for recovery of ` 30,000/- (Rupees thirty thousand only). He has denied suggestion that he has deposed falsely in order to save his son. He has stated that PW3 Mehar Chand is from his Panchayat.
11. Submission of learned Advocate appearing on behalf of the appellant that offence under Section 376 IPC is not proved on record against the accused is accepted for the reasons ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 24 hereinafter mentioned. As per testimony of PW4 Dr. Amod Kumar no external injury was found on genital area of prosecutrix and hymen was not torn and hymen admits tip of finger. PW4 has .
further stated in positive manner that no bruise or abrasion was seen over hymen. Even as per testimony of PW1 Dr. Sushma Sharma no external injury was seen on the genital of prosecutrix.
She has stated in positive manner that no bleeding or discharge was present. PW1 has specifically stated that no semen was found upon vagina of prosecutrix. It is true that definition of rape as defined under Section 375 IPC was changed w.e.f. 3rd February 2013. We are of the opinion that amendment in definition of rape w.e.f. 3rd February 2013 is prospective in nature and not retrospective in nature. As per prosecution story offence took place on dated 27.12.2010 at 5.30 PM in village Gatla, G.P. Thehar, Tehsil and P.S. Nurpur District Kangra H.P. We are of the opinion that latest definition of rape is not applicable in present case because incident took place prior to amendment in definition of rape in the Indian Penal Code. As per opinion of medical officer no injury was found on labia majora and labia minora and no spermatozoa was found in vagina of prosecutrix.
In view of above stated facts we acquit the accused under Section 376 IPC by way of giving him benefit of doubt.
12. Submission of learned Advocate appearing on behalf of the appellant that offence under Section 511 read with Section ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 25 376 IPC is also not proved against the accused beyond reasonable doubt in present case is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on .
record that prosecutrix went to the house of father of accused to bring grass and when she was on the way at about 5.45 PM with grass then accused Desh Raj met the prosecutrix on way and accused caught hold the hands of prosecutrix and took the prosecutrix towards mango orchard. It is proved on record that grass of prosecutrix fell down on ground. It is also proved on record that thereafter accused tied the hands of prosecutrix with wild cripple and thereafter placed his hand upon the mouth of prosecutrix and thereafter fell the prosecutrix on ground. It is proved on record that thereafter accused opened the salwar of prosecutrix but accused could not commit the offence of rape upon prosecutrix because Mehar Chand came. It is well settled law that commission of offence comprises four stages. (1) Forming an intention to commit the crime. (2) Making preparation for commission of crime. (3) Attempting to commit the crime. (4) Actual commission of crime. (See AIR 1961 SC 1698 titled Abhayanand Mishra vs. State of Bihar and also see: 2007 Criminal Law Journal 2302 titled Ramkripal vs. State of Madhya Pradesh). It is well settled law that attempt implies intention. Even it is proved on record that immediately thereafter minor prosecutrix narrated the incident to her step mother and due to night period and due to the fact that father of minor prosecutrix was at Banglore FIR ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 26 was lodged on next day. Even as per Chemical Analyst report Ext.PX submitted by RFSL Dharamshala human blood was detected on salwar of minor prosecutrix. Testimony of .
prosecutrix qua attempt of rape is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of prosecutrix. Testimony of prosecutrix is further corroborated by her step mother PW7 Smt. Veena Devi. PW7 Smt. Veena Devi has specifically stated in positive manner that when minor prosecutrix came she was nervous and was weeping and she inquired from minor prosecutrix as to why she was weeping then minor prosecutrix told that accused Desh Raj present in Court had caught hold her from her hands and took her forcibly towards the orchard. PW7 has specifically stated in positive manner that prosecutrix told that hands of minor prosecutrix were tied with wild cripples and accused also placed his hand upon mouth of prosecutrix. PW7 Veena Devi has specifically stated that prosecutrix told that accused opened her salwar. Testimony of PW7 to this effect is trustworthy reliable and inspires confidence of Court and there is no reason to disbelieve the testimony of PW7. Even PW7 Mehar Chand has also partly supported the case of prosecution. He has stated that grass of prosecutrix was lying by her side and he helped her for lifting the grass on her head. It was held in case reported in (1996)2 SCC 384, titled State of Punjab vs. Gurmit Singh and others that testimony ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 27 of prosecutrix must be appreciated in the background of entire case and trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual .
molestations.(Also see (2000)5 SCC 30, titled State of Rajasthan vs. N.K. the accused. Also see (2000)1 SCC 247, titled State vs. Lekh Raj and another, (1992)3 SCC 204, titled Madan Gopal Kakkad versus Naval Dubey and another). In view of above stated facts we hold that prosecution proved beyond reasonable doubt that accused had attempted to commit rape upon prosecutrix and it is held that offence under Section 511 read with Section 376 IPC is proved beyond reasonable doubt against the accused.
13. Submission of learned Advocate appearing on behalf of the appellant that offence under Section 341 IPC is also not proved against the accused is rejected being devoid of any force for the reasons hereinafter mentioned. Minor prosecutrix has specifically stated that she was wrongfully restrained by accused when she was coming back from house of accused after bringing grass from father of accused. We have carefully perused site plan Ext.PW11/B. It is proved on record beyond reasonable doubt that accused wrongfully restrained the minor prosecutrix at the place mentioned in site plan Ext.PW11/B. It is proved on record that grass was lying by the side and it is also proved on record that salwar of prosecutrix was stained with blood as per chemical analyst report. It is also proved on record that Mehar Chand lifted the grass on head of minor prosecutrix and thereafter ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 28 immediately minor prosecutrix came to her residential house and she was nervous and she was weeping and she narrated the entire incident of sexual assault to her step mother. Testimony of .
minor prosecutrix to this effect is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of minor prosecutrix.
14. Another submission of learned Advocate appearing on behalf of the appellant that age of minor prosecutrix was more than 16 years at the time of incident and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the school leaving certificate Ext.PW6/A placed on record. As per certificate Ext.PW6/A placed on record date of birth of minor prosecutrix is dated 11.3.1996. Incident took place on dated 27.12.2010. We are of the opinion that school leaving certificate has been prepared by public official in discharge of his official duty and is relevant under Section 35 of Indian Evidence Act.
Accused did not rebut the date of birth mentioned in certificate Ext.PW6/A. Even PW12 Dr. Raman Sharma Radiologist has stated that age of minor prosecutrix was about 14 years and below 16 years. PW12 Dr.Raman Sharma has conducted the X-rays of prosecutrix of shoulder, elbow, wrist, pelvis, knee and ankle and stated that X-ray films Ext.X-1 to Ext.X-6 were taken under his supervision and opined that in X-ray right shoulder joint-AP view, ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 29 head of humerus was not fused to the shaft. He has stated that in X-ray right elbow joint-AP and lateral views, lateral epicondyle was fused to the capitulum, medial epicondyle was fused to the .
shaft. He has stated that in X-ray right wrist join AP-lateral views, head of radius was fused to the shaft and distal end of radius was not fused to the shaft. He has further stated that in X-ray pelvis-
AP vies of distal end of femur was partially fused to shaft and greater trochanter was partially fused. He has stated that in X-
ray right knee joint-AP and lateral views, distal end of femur was not fused to the shaft and proximal end of tibia was not fused to the shaft and proximal end of fibula was not fused to the shaft.
He has stated that in x-ray right ankle joint AP and lateral views distal end of tibia was not fused to the shaft and distal end of fibula was not fused to the shaft. In view of above sated facts testimony of PW12 is also trustworthy reliable and inspires confidence of Court.
15. Another submission of learned Advocate appearing on behalf of the appellant that no injury was found by medical officer at the time of medical examination of minor prosecutrix and on this ground accused be acquitted is also rejected being devoid of any force for the reasons hereinafter mentioned. It was held in case reported in AIR 1983 SC 753 titled Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat that law does not require corroboration if evidence of prosecutrix is trustworthy then accused could be ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 30 convicted on testimony of prosecutrix. It is well settled law that in rape cases corroboration of testimony of prosecutrix is not sine qua non for conviction.
.
16. Another submission of learned Advocate appearing on behalf of the appellant that medical evidence belies whole of prosecution story and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that opinion of medical officer is advisory in nature and medical officer is not an eye witness of incident i.e. attempt to rape upon minor prosecutrix.
17. Another submission of learned Advocate appearing on behalf of the appellant that prosecutrix did not resist did not give tooth bite and did not give scratch on face of accused and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that accused threw grass which was on the head of minor prosecutrix on ground and thereafter accused tied the hands of prosecutrix with wild cripples and thereafter accused placed his hands upon mouth of minor prosecutrix and fell the minor prosecutrix on ground and opened the salwar of minor prosecutrix. There was no opportunity to minor prosecutrix to give tooth bite and scratches on the face of accused with her nails.
::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 3118. Another submission of learned Advocate appearing on behalf of the appellant that there were major contradictions in evidence of prosecution witnesses which goes to the root of case .
in present case and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the entire record. We are of the opinion that there is no major contradiction in testimonies of prosecution witnesses which goes to the root of case. It is well settled law that minor contradictions are bound to come when statements of prosecution witnesses are recorded after a gape of sufficient time. In present case incident took place on dated 27.12.2010 and statements of prosecution witnesses were recorded on dated 7.5.2012, 8.5.2012, 9.5.2012 and 10.5.2012 after a gape of sufficient time.
19. Another submission of learned Advocate appearing on behalf of the appellant that there is delay in lodging the FIR and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that incident took place on dated 27.12.2010 and father of minor prosecutrix was not in his residential house and was at Banglore and due to night period minor prosecutrix could not go to police station which was situated at a distance of 14 K.m. On the next day immediately FIR was registered and we ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 32 are of the opinion that delay in lodging the FIR is satisfactorily explained by prosecution.
20. Another submission of learned Advocate appearing .
on behalf of the appellant that prosecution witnesses are highly interested and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reasons mentioned hereinafter. We are of the opinion that in sexual assault cases generally the prosecutrix used to narrate the incident to her mother and relatives. It was held in case reported in AIR 1981 SC 1390 titled State of Rajasthan vs. Smt. Kalki and another that relative witness is not equivalent to interested witness. It is well settled law that conviction could be based on honest and trustworthy evidence even of a single witness in criminal case. (See AIR 1973 SC 944 titled Jose vs. The State of Kerala See AIR 1957 SC 614 titled Vadivelu Thevar vs. The State of Madras .
See AIR 1965 SC 202 titled Masalti and others vs. State of Uttar Pradesh). It is also well settled law that concept of falsus in uno falsus in omnibus is not applicable in criminal cases. (See AIR 1980 SC 957 titled Bhee Ram vs. State of Haryana. See AIR 1971 SC 2505 titled Rai singh vs. State of Haryana.) It is well settled law that criminal Courts are under legal obligation to take out grain from the chaff and not to take out chaff from the grain.
21. Another submission of learned Advocate appearing on behalf of the appellant that FSL report has not been tendered as per provision of law and same is inadmissible is rejected being ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 33 devoid of any force for the reasons hereinafter mentioned.
Report submitted by RFSL Dharamshala is admissible under Section 293 Cr.P.C. Even Mr.Ajay Kumar has appeared in witness .
box as PW5 and proved report by stating that human blood was detected on salwar of prosecutrix.
22. Another submission of learned Advocate appearing on behalf of appellant that questions were not put to appellant under Section 313 Cr.P.C. and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the statement of accused recorded under Section 313 Cr.P.C by learned trial Court. We are of the opinion that all incriminating questions have been put to accused by learned trial Court and we are of the opinion that no miscarriage of justice has been caused to appellant when statement of appellant was recorded under Section 313 Cr.P.C. because learned trial Court directed the appellant to explain all relevant incriminating evidence against accused.
23. Another submission of learned Advocate appearing on behalf of the appellant that there was enmity between the accused and parents of minor prosecutrix because parents of minor prosecutrix were liable to pay an amount to the tune of ` 30,000/- (Rupees thirty thousand only) and present case has been filed on the concept of enmity is rejected being devoid of ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 34 any force for the reasons hereinafter mentioned. We are of the opinion that accused did not file any complaint qua recovery of money before Panchayat or did not file any civil suit for recovery.
.
It is proved on record that father of accused had given grass to minor prosecutrix on the day of incident. We are of the opinion that when there was enmity then there was no occasion for the father of accused to give grass to minor prosecutrix which was bringing from house of accused.
24. Another submission of learned Advocate appearing on behalf of appellant that prosecutrix was major and present appeal be admitted on the consent theory is rejected being devoid of any force for the reasons hereinafter mentioned.
Appellant did not adduce any positive cogent and reliable evidence on record in order to prove that prosecutrix was major at the time of incident and even no suggestion was given to minor prosecutrix and other prosecution witnesses about consent theory. We are of the opinion that accused cannot be allowed to set up a new case at the appellate stage. On the contrary appellant set up the plea of alibi and stated that he was not present at the place of incident and plea of alibi is also not proved in accordance with law in present case.
25. Submission of learned Additional Advocate General appearing on behalf of State that prosecution proved beyond reasonable doubt offence under Section 376 IPC is rejected being ::: Downloaded on - 15/04/2017 17:38:03 :::HCHP 35 devoid of any force for the reasons hereinafter mentioned because hymen of prosecutrix was intact and there was no abrasion or injury upon the labia minora and labia majora of .
prosecutrix and spermatozoa was not found and no contents of semen found upon clothes of prosecutrix as per chemical analyst report and hymen of minor prosecutrix admits tip of finger.
26. In view of above stated findings, appeal is partly allowed. We set aside the judgment and sentence of appellant under Section 376 IPC. However we affirm the sentence passed by learned trial Court under Section 341 IPC and in addition to this we convict the appellant under Section 511 IPC read with Section 376 IPC and we sentence the appellant to five years rigorous imprisonment and to pay fine of ` 50,000/- (Rupees fifty thousand only). We further direct that in default of payment of fine the appellant shall further undergo simple imprisonment for one year. Judgment and sentence passed by learned trial Court are modified to this extent only. File of learned trial Court along with certified copy of judgment be sent back forthwith. Appeal stands disposed of. All pending miscellaneous application(s) if any also stand disposed of.
(Sanjay Karol),
Judge
February 24,2015 (P.S. Rana)
(ms). Judge
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