Desh Raj vs State of Himachal Pradesh

Sanjay Karol, J.—This jail appeal stands preferred by appellant-accused Desh Raj assailing the judgment dated 16.9.2008, passed by learned Presiding Officer/Addl. Sessions Judge, Fast Tack Court, Hamirpur, H.P., in Sessions Trial No. 3 of 2008/RBT No. 5 of 2008, titled as State of Himachal Pradesh vs. Desh Raj, whereby he stands convicted for having committed offences punishable under the provisions of Sections 376 and 506 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of 10 years and pay fine of Rs. 10,000/- for an offence punishable u/s 376 IPC and rigorous imprisonment for a period of two years and fine of Rs. 2000/- for an offence punishable u/s 506 IPC.

It is the case of prosecution that prosecutrix (PW-3) used to reside with her father, mother Santosh Kumari (PW-2), and brother in village Ladhwin, District Hamirpur, H.P. On 25.9.2007, Santosh Kumari had gone to village Balokhar. Same day at about 2.30 p.m. prosecutrix, aged 14 years, having a low Intelligent Quotient (in short I.Q.), had gone for washing clothes at the "bauri" (water body) in the village. There accused caught her from the arm, took her behind the chakki (flour mill), tore her shirt and salwar and committed rape. Thereafter he threatened her not to disclose anything, least she would be killed. He also gave her a note of Rs. 5/-. Prosecutrix returned home, washed herself as also her clothes. At about 8.00 p.m. when her mother returned she noticed prosecutrix to be in a frightened state who also complained of pain below her stomach. On query prosecutrix narrated occurrence of the incident to her mother. Father of the prosecutrix did not return home that day, hence the following morning Santosh Kumari reported the matter to Smt. Geeta Devi (PW-7), pradhan of the village, who telephonically informed the police about the incident on the basis of which report (Ext. PW-8/A) was recorded at Police Station Bhoranj. Inspector Baldev Singh (PW-19) Incharge of police station left for the spot along with police party where he recorded statement of Smt. Santosh Kumari (PW-2) under the provisions of Section 154 Cr. P.C. (Ext. PW-2/A) on the basis of which F.I.R. No. 153 of 2007, dated 26.9.2007 (Ext. PW-14/A) was registered against the accused under the provisions of Sections 376 and 506 of the Indian Penal Code. Police conducted necessary investigation on the spot. Clothes belonging to the prosecutrix i.e. shirt (Ext. P-1) and salwar (Ext. P-2) were taken into possession vide memo (Ext. PW-2/B). Dr. Monika Sharma (PW-16) medically examined the prosecutrix and issued MLC (Ext. PW-16/B). Dr. Ramesh Kumar (PW-1) examined the prosecutrix to determine her I.Q. level since police found her to be mentally retarded. As per opinion of the Doctors, prosecutrix had an IQ level of 32 and possibility of her being raped could not be ruled out. Radiological age of the prosecutrix was got determined from Dr. P.K. Soni (PW-4) who as per opinion (Ext. PW-4/G) found the age to be between 14 to 16 years. Also, Dental Surgeon Dr. Rajan Bhardwaj (PW-5) opined the age of the prosecutrix to be between 13 to 14 years as per MLC (Ext. PW-5/A). Clothes and vaginal swab of the prosecutrix were sent for examination and report of F.S.L. Junga (Ext. PW-16/E), prepared by Dr. Gian Thakur (PW-18) was taken on record by the police. With the completion of investigation, which revealed complicity of the accused in the crime, challan was presented in the Court for trial.

Accused was charged for having committed offences punishable under the provisions of Sections 376 and 506 of the Indian Penal Code to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined as many as nineteen witnesses and statement of the accused u/s 313 Cr. P.C. recorded, in which he pleaded innocence and false implication. No evidence in defence was led by the accused.

Appreciating the material on record, including the testimonies of witnesses, trial Court convicted the accused of the charged offences and sentenced as aforesaid. Hence, the present appeal.

Assailing the judgment Mr. Karan Singh Kanwar has argued that (i) Accused stands falsely implicated by the prosecutrix and her mother on the asking of Smt. Geeta Devi (PW-7) who harboured animosity against him. (ii) There is inordinate and unexplained delay in lodging the F.I.R.

(iii) Non disclosure of the incident by the prosecutrix to her brother who was home only renders her testimony to be doubtful and the version of prosecution to be highly improbable. Also brother did not promptly report the matter to the police.

We have extensively heard learned counsel appearing on both sides and perused the record.

We shall first deal with the question of age of the prosecutrix. We have ourselves minutely examined the record and find her age to be not more than 14 years. Prosecutrix has studied only up to second standard. Dr. P.K. Soni (PW-4) and Dr. Rajan Bhardwaj (PW-5) have determined her radiological and dental age (Ext. PW-4/G and Ext. PW-5/A), to be about 14 years. Smt. Ratto Devi (PW-10), Asstt. Secretary of the gram panchayat has proved the birth certificate (Ext. PW-10/A) which records the date of birth of the prosecutrix to be 15.10.1993. Hence, it can safely be held that age of the prosecutrix at the time of alleged crime was about 14 years.

That prosecutrix has low I.Q. stands established through the testimony of Dr. Ramesh Kumar (PW-1), according to whom, based on the opinion so furnished by the Department of Psychiatry, PGIMER Chandigarh, I.Q. level of the prosecutrix is 32. Her mother has also deposed that prosecutrix sustained injury on her head as a result of which her mental faculty stood impaired to a certain extent. However this does not mean that she is not in a position to depose in Court.

In Court, Dr. Monika Sharma (PW-16) who examined the prosecutrix on 26.9.2007 has proved her report containing the following observations:-

An abrasion of size 3 X 1 cm was present on the right side of the neck. Colour redish brown.

A contusion of size 1 X 1 cm was present over the inner side of lower lip on the right side. Colour redish."

... ... ... ...

... ... ... ...

"No sign of external injury.

Lavia majora soft, fleshy and not completely covering the viganial forifice.

Lavia minora--soft and not covered by lavia majora completely.

Hymen--old torn, fimbriagted. No fresh injury visible.

Vagina--Admit two fingers.

Clitoris--Slightly enlarged.

Based on report of F.S.L. Junga (Ext. PW-16/E) she opined that "possibility of sexual intercourse with the patient cannot be ruled out as the hymen was not intact at the time of the examination and its margines are healthy". The Doctor also opined that two fingers, twice, could be inserted without any obstruction.

We now proceed to examine the testimonies of the prosecutrix (PW-3) and other witnesses.

Trial Court, after observing the mental and physical condition of the prosecutrix (PW-3) examined her after recording her demeanor. Court found that her statement could be recorded, on oath. Prosecutrix categorically states that the day her mother had gone to village Balokhar, during noon time she had gone to the bauri for washing clothes. Patloo-bala (accused) came, caught her from the arm and took her behind the machine (here she means flour mill). Thereafter accused tore her salwar (Ext. P-2) and after opening his pant raped her twice. Once in a standing position and second time by laying her on the ground. Accused gave her five rupees and asked her not to disclose the incident to anybody lest she would be killed.

In our considered view she has withstood the test of cross examination. Veracity of her statement cannot be said to be shattered in any manner and it cannot be said that the witness has not deposed truthfully or that she has deposed on the asking of other witnesses. She understands the meaning of rape. She explains that accused first placed the towel on the ground and then made her lie down. She states that though her private parts did not bleed but there was "some water like thing". She clarifies that after returning home, she washed her clothes. Though she does not remember the time when her brother returned from school but clarifies that on that day her father had not come back home from duty and on return of her mother she reported the incident to her. She does not state that she narrated the incident to her brother.

This version of PW-3 stands materially corroborated by her mother Smt. Santosh Kumari (PW-2). We find that even she has withstood the test of cross examination. There is no contradiction in her testimony. Significantly it is not suggested to this witness that accused was got falsely implicated on the asking of Pradhan Smt. Geeta Devi (PW-7). In fact, from the cross examination, alleged false implication is on account of non payment of Rs. 2000/-, which accused had demanded from her. This was for payment of leaf plates and bamboo baskets which he had supplied. Now there is nothing on record to show that accused either prepares, is a supplier or in fact supplied the same. Accused wants the court to believe that for mere Rs. 2000/- this witness put honour of her daughter and family at stake.

Smt. Geeta Devi (PW-7) has also corroborated the version of prosecutrix (PW-3) and her mother (PW-2). We do not find any of these witnesses to have deposed falsely. It also cannot be said that witnesses are unreliable or not trustworthy, rendering their testimonies to be doubtful. Simply because PW-7 admits the accused to have opposed her in the panchayat elections, would not render the veracity of her testimony to be doubtful or the witness to be untrustworthy.

We find the delay, if any, to have been sufficiently explained both by PW-2 and PW-7. No doubt, PW-2 admits that house of her brother-in-law is adjoining to her house. She is also silent why the matter was not reported to him. But then even this fact cannot be held against her as she clarifies that she did not narrate the incident to anybody at night as it was a matter of honour of her daughter. She explains that following day i.e. 26.9.2007, early morning, she went to the Pradhan and reported the matter. Pradhan (PW-7) also corroborates this version by deposing that PW-2 had approached her at 7.30 a.m. when the matter was immediately reported to the police by the Pradhan. She admits that when she returned from village Balokhar her son was at home who was watching Television. But clarifies that during night she was alone at home. It has nowhere come on record that brother of the prosecutrix was aware of the incident or that he slept at home during that night. Since mother (PW-2) was alone at night there was no occasion for her to disclose the incident to her son who could have taken any action in the matter. Thus we find non-disclosure of the incident to a close relative stands sufficiently explained and also there is no delay in lodging the F.I.R.

Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that accused committed the charged offences.

For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings of conviction cannot be said to be illegal, erroneous or perverse. Hence, the appeal is dismissed.

Records of the Court below be immediately sent back.