Kishori Lal vs The State of H.P.

Bhawani Singn, J.—The Appellant, Kishori Lal, challenges his conviction by the Additional Sessions Judge (II), Kangra, in Sessions Case No. 12 of 1987, Sessions Trial No. 11 of 1987, decided on 31-8-1987. By this judgment, the Appellant has been convicted for an offence u/s 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1000/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of one year. The Appellant has been given benefit of Section 428 of the Code of Criminal Procedure. By this appeal, the Appellant challenges the conviction and sentence and assails the judgment through Shri Devinder Gupta, appearing amicus curiae.

The facts, in brief, are that the prosecutor, Kumari Madhulika (16) (P. W. 4) on 30-1-1987 left for her school as usual at about 7.30 A.M. As soon as she reached near a bridge, the accused intercepted her. He caught hold of the prosecutor by arm and threatened her to keep her mouth shut. He showed a; knife to her and threatened her to kill which it (Ex. M-l). Forcibly he took her to a place under the bridge. It is a dry rivulet. The accused forcibly raped the prosecutor. It is alleged that the accused gagged her mouth by inserting his finger in her mouth and also threatened her with the knife. The prosecutor did her best to release herself from the clutches of the accused, but he overpowered her. In the process, he struck her head on the ground number of times in the process to commit rape on her. Eventually, he succeeded and the prosecutor could not resist the accused with all her efforts and the result was that the accused was successful in committing-sexual intercourse with her by use of force and against her consent. In the process, the prosecutor sustained number of injuries on her person. There were about 25 marks of abrasions of different shape on her face and many of them, including some injuries, were found on her neck, back, knee, legs and hands. Her hymen was ruptured and she had also sustained many other injuries on her private parts. The finger of the accused, which was inserted by him in the mouth of the prosecutor, was given a tooth bite by the prosecutor in her attempt to save her. She inflicted number of other injuries to the accused in order to ward off the sustained assaults on her person by the accused. The sweater, Shirt, skirt, the, shoes and underwear, which were put on by the prosecutor, also got stained with mud and soil. The string of the underwear of the prosecutor was broken by the accused, and the underwear of the prosecutor also got stained with blood that came out as a result of injuries which the prosecutor had sustained.

The prosecutor returned home and narrated the whole occurrence to her mother Shrimati Sukanya Devi. The father of the prosecutor had gone to Mandy on the day. When he arrived in the late evening, the prosecutor and her mother narrated the entire occurrence to him. The father, eldest in the family, kept on pondering over the matter as to whether he should inform the police or not. However, finally he decided to report the matter to the police and in the morning of January 31, 1987, Shri Chander Shekhar, father of the prosecutor, took the prosecutor to police station for lodging the report. While going to do so, Station House Officer, Shri Netar Singh (P.W. 21) met them near the gate of the'' University Campus at about 11 A .M. It was here that the prosecutor described the entire occurrence to him and her statement (Ex. P. l1) was recorded u/s 154 of the Code of Criminal Procedure, 1973 and the same was sent to Police Station, Palampur, for recording the First Information Report (Ex. P. 22) and the same was done at 12.15 P.M. on January 31, 1987.

The Investigating Officer, Shri Netra Singh, proceeded to the scene of occurrence, prepared the site-plan (Ex. P. 30) at the spot and thereafter made efforts to locate the accused on the basis of the description supplied by the prosecutor. The police, on the same evening, took into possession sweater (Ex. M-2), shirt (Ex. M-3), Skirt (Ex. M-4), Blouse ( Ex. M-5), Belt (Ex. M-6), Tie (Ex. M-7), underwear (Ex. M-8), Socks (Ex. M-9) and (Ex. M-10) of Kumari Madhulika and sealed them in a parcel through memo. (Ex. P. 12). These garments have been put on by the prosecutor at the time of the occurrence. However, these articles had been washed by Smt. Sukanya Devi on January 30, 1987.

The prosecutor was taken for medical examination to Civil Hospital, Palampur, in the evening of January 31, 1987. She was examined by Dr. Sushma Kapila (P.W. 2), who found the following injuries on her private parts and other parts of the body. These are described in medico legal certificate (Ex. P.6) issued by the doctor :

External injuries :

Face (i) There were multiple abrasions about 17 in number, varying in size between pin head size to half inch size situated on both cheeks, nose and supraliminal region.

(ii) There was one elliptical abrasion horse shoe shaped consisting of about 6 small abrasions, situated on right mandibular region in its middle part

(iii) Abrasions 2 in number present on inner side of upper lower lip, about 1 inch and 1/2 ", present on the right side of scap found on all injuries No. (i) and (ii)

Neck. - Abrasion about 1/3 inches in size linear, present on right side of neck on stern mastoid border on its upper 1/3 part. Scab formed.

Back. - Contusions reddish in colour 1/4 inch x 1/4 inch present on left scapular region in its middle part.

Legs (Right leg) (ii) Right Knee:

There were abrasions four in number sizes 1/3x1/3 inch. 1/2 x 1/2", 1/3x 1/3 inch. 1/2 x 1/3'' present on lateral aspect of right knee scab formed.

(ii) Abrasions two in number 1 /2 x 1/3", 1/2 x 1/2 present on medial aspect of right knee. Scab formed.

Abrasions, ten in number situated on antero medial aspect of whole of right leg varying in size between pin head and half inch in length. They were liner scab formed.

Left Leg.

Abrasions present on anterior aspect of left thigh in number varying in size between 1/3x1/2" in length linier cap formed.

Knee. Abrasions 5 in number 1''x1/3'', 1/4"x1/8", 1 1/2 "x 1", 1/8" x 1/8", 1/3x1/3 inch, in size Scab formed.

(ii) One abrasion 1 x 1/8" present on right medial malleous Scab formed.

Hands. There were multiple abrasions varying in size between pin head and half inch in length and pin head to half inch in breadth present on all the knuckles of both hands.

P.V. Examination:

Pubic hair were not metted Labia minora and majora were normal. Hymen was ruptured. It bled on touch. There were tags of tissues present all around. Tender to touch and were swollen. There was a laceration present of about 1/8 inch in length. It was skin deep, present on postural commeasure. It bleeds on touch. Vagina could admit just one figure with difficulty. Uterus was nulliparous in size mobile, fxs tender. Cx was normal.

Two vaginal swabs and two vaginal slides were taken and sent for chemical analysis.

Clothes:

She had changed the clothes and she had taken bath. Underwear was green colored which contains stains, which was preserved and sent for chemical analysis. Other clothes were not preserved. Salwar did not contain any stains.

The probable duration of injuries was 24 to 36 hours. Kind of weapon used was blunt for injury No. 1 to 6.

In my opinion, she had been subjected to sexual assault.

Dr. Sushma Kapila (P.W. 2) referred the prosecutor to the Radiologist regarding opinion about her age to District Hospital, Dharamshala. The same was done by Dr. G.D. Khullar, who opined the age of the prosecutor between 15 to 16 years at the time of the occurrence as per report (Ex. P. 4).

Dr. Sushma Kapila(P. W. 2) further states that injury No. (ii) on the face of Madhulika could have been caused by teeth bite and abrasions found on the person of Madhulika could have been caused due to struggle or by being dragged on rough surface. In her opinion, the prosecutor could have been subjected to sexual intercourse for which she had used expression "sexual assault" in her medico legal certificate (Ex. P. 6) and by sexual assault; she meant "sexual intercourse". She denies the suggestion that hymen may be ruptured by insertion of one finger in vagina and that rupture of the hymen of the prosecutor could have been caused by insertion of two fingers into the vagina This witness has categorically stated this to be a case of sexual intercourse ruling out other possible causes for the causing of rupture of the hymen suggested by the defense.

Dr. S.C. Kapila (P. W. 3) examined the accused on 6-2-87 at 7. 30 P.M. He found the following injuries on his person. He issued medico-legal certificate (Ex. P-7) :

There was healing wound on the medial side of left ring finger on its distal phalynx. The wound was healed by secondary infection. The wound was full thick less skin deep in its centre where hard scab is formed; it had healed at the periphery. The wound was about half inch 1/4 inch including healed part of it. Wound was not infested. There was healing wound on the lateral side of left ring finger parcel to the one already described. It had the same character as of the wound on the medial side. It was about 1/4" x 1/6".

There was a freshly healed abrasion on the lateral side of left index finger near the nail bed. It was about 1''xl/6''.

There was abrasion on the fourth knuckle hard scab had formed, healed at the periphery. It was pinhead Size.

There were six abrasions on the dorsum of right hand, situated on the distal phalanx of index finger on its lateral side. Two abrasions on the lateral side of middle finger on its middle phalanx. One abrasion was present between knuckle of index finger and middle finger. One, abrasion was present between knuckles of middle and ring finger. Sixth abrasion was present on the proximal end and proximal plans of little finger hard scab had formed on all the abrasions. They had healed at the periphery measuring pin head size to little more than pin head size.

The hail of index finger of right hand was greenish blue colour. The skin on the ventral surface of distal phalanx of index finger had hard and interrupted blackish discoloration of the skin which was corresponding opposite to the index finger nail. It was about 1/2" x 1/3" hemisphere in shape.

There was freshly healed abrasion reddish in colour on the styled process of ulna (right). It was measuring about l/2cm x l/4cm.

There was abrasion on the right maxillary prominence; hard scab had formed over it healing had started at periphery, size about pin head.

There were two abrasion on the left shoulder pin head size, situated lateral to lateral end of clavicle, hard scab was formed over it.

There was an abrasion on the left scapular region in its middle, linear, measuring about 1 penis healed in between. Hard scab was formed to it.

The scrota were "well developed, parries were well developed. Propose was not covering the glens, smegma was not present around the corona radiata.

In my opinion, injuries No. 1 to 9 was simple. The probable duration of injuries was about 7 to 10 day and was caused by blunt weapon.

He further states that the injuries found on the person of the accused could have been caused during the course of struggle. Injuries No. 1 and 5 could be caused by teeth bite. Injuries Nos. 2, 3, 4, 6, 7 and 8 on the person of the accused could be caused by nails and injury No. 9 could be caused in a struggle or by thorn scratches. He further states that he recorded the sizes of the injuries according to his observation at the time of examination and having regard to the healed up portions of the injuries. He: further states that in his opinion, the accused was fit to do sexual intercourse.

Kumari Madhulika (P.W. 4), the prosecutor, states that - she is a student of Central School, Palampur, and in January, 1987 she was a student of Saint Paul''s School, Palampur, and was studying in 10th class. On 30-1-1987, at about 7. 45 A.M. she was going to the house of Shri Ashwani Sharma for tuition. Her father, Shri Chander Shekhar, is posted as Deputy Registrar in Agriculture University, Palampur. She was wearing school uniform consisting of white blouse and green skirt, green tie and school belt of maroon colour having white stripes and underwear. As soon as she reached the bridge near the Housing Board Colony, the accused caught her. He was putting on an orange colored Shawl, grey colored jeans trousers. He was having a knife in his hand. The accused gagged her mouth by putting one hand. In fact, he inserted his fingers in her mouth to gag her and with the other hand he dragged her to the place under the bridge. He threatened her to kill in case she cried. He asked her to put off her clothes. He struck her head 10 to 15 times on the ground and caused injuries on her face. He broke the string of her-underwear and put it off partly and thereafter committed sexual intercourse with her. She resisted it with all her might but could not avert. Blood started coming out from her injuries which the accused had caused on her cheeks near the lips. Blood also came out slightly from her private part. She tried to rescue herself with her arms and legs but the accused overpowered her. She also gave bite on the finger of the accused which he had put in her month. When the accused released a bite, she cried but nobody came there. At that time the accused had threatened her not to narrate the incident to anybody. She came to her house and narrated the whole incident to her mother. Her father care home at about 10 P.M. on that day as he was out of station. She and her mother narrated the whole incident to the father and on the next day at about 11.30 A. M. report was lodged with the police station. She and her father had met the Station House Officer near the University Gate on that day and she made statement (Ex. P. 11) to the S. H. O. which is signed by her. She produced her garments before the police. They were packed by the police in a parcel and were duly sealed and taken into possession through memo. (Ex. P. 12) and the memo bears her signatures. These clothes were put off by her at her house on 30-1-1987 and the same were washed by her mother on the same day. She was medically examined at Civil Hospital, Palampur, on 31-1-1987.

The accused was noticed by her for about 10 or 11 days before this occurrence. He was sometimes visible at the tea stall of Lalman at the University Gate and sometimes he used to board the bus by which she used to go to her school. After the incident, the accused was identified by her at District Jail, Dharamshala, from amongst 9 or 10 persons in the presence of a Magistrate. She had also identified the clothes which the accused was wearing at the time of the incident.

In cross-examination, she states that she did not complain to her parents about the accused as he did not do anything to her before the day of the occurrence, though he used to stare at her. She denies the suggestion that the accused was standing? Alone and 5 or 6 persons were made to stand there later when she had gone to identify him. She states that the accused was amongst 9 or 10 persons when she had gone there and she had gone for identification straightaway instead of waiting in the office of the Superintendent of Jail. Firstly, she had pointed out towards the accused and later she had pointed out towards him by touching his hand and she also denies the suggestion that it was disclosed to her before the identification parade that the accused could be identified by the fact that he was wearing a turban on his head.

The perusal of the statement of the prosecutor discloses I that she has given absolutely an accurate account of what had happened with her. She has described the facts and circumstances in minute details. There is no indication of any (exaggeration in her statement. She has given an exact account relating to the identification of the accused. She knew him before the incident as he was seen by her either in the University Campus in the shop of Lalman (P W. 9) and Atma Ram (PW. 16) near the main Gate of the University Campus at Palampur. Further, she has also stated that the accused had been boarding the bus by which she used to travel to her school. Coming to the stage of the occurrence, she had quite enough time to be with the accused; right from the stage he met her above the bridge. He threatened her, gags her mouth, shows her knife and forcibly takes her underneath the bridge. There is straggle between the prosecutor and the accused. She does her best to repel his assault by biting his fingers and causing injuries on his person by her nails. She pushes him away by arms and legs and even during the course of his committing rape on her. She had been resisting it all along. She has recognized the clothes the accused was wearing at the time of occurrence. Finally, the accused is identified by her during the identification parade which has been conducted absolutely in a flawless manner and then she identifies him in the Court. There is, therefore, no question of any fault in her identifying the accused who had committed rape on her. The prosecutor is a school going girl belonging to a good family. She had no reason to involve the accused and to state anything over and above the facts which had actually happened with her. Her statement is thoroughly truthful and straight forward and is entitled to great weight. It is appropriate to quote the observations of the Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, wherein the Court said in para-11 of the judgment as under :

In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore, of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the ''probabilities-factor'' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising, position and there is a likelihood of her having leveled such an accusation on account of the instinct of self-preservation. Or when the ''probabilities-factor'' is found to be out of tune.

In this case, the Court also approves the principles enunciated by the Court in Rameshwar Vs. The State of Rajasthan, and further observed as under :

........Corroboration is not the sine qua-non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.........

In light of the aforesaid principles of law, it is clear that the evidence of the procedure has to be attached great weight and in case the Court is convinced that the statement is truthful, it need not, at all, require further corroboration and convict the accused simply on the testimony of the prosecutor.

Examining the case in hand in the light of the aforesaid I principles, in my opinion, there is no requirement of corroboration of the statement of the prosecutor from any other evidence. However, besides concluding the matter on the solitary statement of the prosecutor, I deal with the other evidence on the record as well to cast away every possible doubt as to the commission of the offence on her by the accused. The evidence of Doctor Sushma Kapila (PW. 2) and Doctor S.C. Kapila (PW. 3) has already been examined. It also establishes the factum of rape on the prosecutor, large number of injuries on her person and injuries on the person of the accused which fit into the description given by the prosecutor in her statement.

Shrimati Sukanya Devi (P.W. 5) is the mother of the prosecutrix. She states that on 30-1-1987 the prosecutor left the house for the school and tuition at about 7.45 A.M. The prosecutrix came back after about an hour. The face of the prosecutrix was swollen; head and clothes were smudged with soil. The prosecutrix was wearing school uniform. The prosecutor was in bad shape. There were injuries on her face, cheeks, lips and legs. The prosecutrix narrated the whole occurrence to her. She was told that the accused dragged her underneath the bridge, threatened her with a knife, gagged her mouth, committed sexual intercourse with her by use of force, put his fingers inside her mouth and struck her head on the ground He she tried to rescue herself. Her husband had gone to Mandy on that day in the morning and came back at about 9 or 10 P.M. The prosecutrix also told her that the accused was seen by her at the tea-stall 5/6 days prior to the occurrence and was putting on an orange shawl and grey jeans. The prosecutrix was wearing garments Ex. M-2 to Ex. M-10 on the day of occurrence. These clothes were put off by her and out of frustration the witness had washed the clothes on the same day. The whole occurrence was narrated to her husband. The next day the matter was reported to the police. After the occurrence the prosecutrix was quite scared and terrified and was apprehending that the accused may kill her. The police came to her house on 31-1-1987 and took clothes Ex. M-2 to Ex. M-10 into possession. They were sealed by the police in a parcel. She has studied up to MA and was working as a Teacher in Government High School, Awairi. The prosecutrix took more than two months to gain confidence after this occurrence when they gave her much moral support and encouragement.

Shri Chander Shekhar (PW. 11) is the father of the prosecutrix. He is working as Deputy Registrar in the Agriculture University. He states that on 30-1-1987, he had gone to Mandy for repairs of his scooter. He went at about 6.45 A.M. in the morning. The prosecutrix used to go for tuition at about 7.30 A.M. On 30-1-1987 when he came back at about 10 P.M., he found his daughter to be in quite shabby condition and he became non-pulsed after seeing her. She was having quite visible and multiple injuries on her face. Her lips were swollen. The prosecutrix and his wife narrated him the whole occurrence. He was told that when the prosecutrix was going to school/tuition in the morning at about 7.30 A.M., as usual, the accused caught her on the road near the bridge and he dragged her to a place underneath a bridge under threat. He was also told that the accused gagged her mouth with his hand and prevented her from crying and inspire of all her resistance and struggle, the accused committed sexual inter course with her forcibly. It was also stated that the accused caused many injuries on her face, lips and she could not save herself from the clutches of the accused. He inserted his fingers into her mouth and the garments she was wearing became smeared with blood, particularly her underwear, and the string of her underwear was found to be broken. Ex. M-2 to Ex. M-10 was the same clothes which the prosecutrix was wearing on the day of occurrence. They pertain to her school uniform. These clothes were washed by his wife on 30-1-1987 still he could notice the blood stains on the underwear. His wife told him that the hymen of the prosecutrix had been ruptured and she had sustained various injuries on her private part. This all made him absolutely puzzled because his honor had been badly damaged. He could not sleep for the whole night on that day. There was a big turmoil in his mind. Three, ideas came to his mind. Firstly, he thought of concealing the incident to save the honor of the family. Secondly, he also thought of an inquiry at his own level with the assistance of his own people. Thirdly, he thought to take recourse to legal procedure. In the morning of 31-1-1987 he finally decided to take recourse to legal procedure and decided to lodge the report to the police because both the other ideas thought by him were not in the interest of the society. At about 11 A.M. he along with the prosecution went to police station, Palampur, and met the S.H.O. Palampur, near the University Gate and the prosecutrix made the statement (Ex. P-ll) to the police. The same day the police visited his house at about 4 P.M. and took clothes Ex. M-2 to Ex. M-10 into possession. The prosecutrix was not medically examined at Civil Hospital, Palampur, with his, consent. The prosecution stated to him that she had been seeing the person who raped her for the last 7 or 8 days at the shop of Lalman and often coming from Communication Centre of Agriculture University. She also stated that the accused had boarded her bus of 5 or 6 times earlier to the incident and from this he could guess that the accused should be an employee in the Communication Centre. The police kept on searching for the accused but he was not traceable in the University Campus or anywhere else but he was finally arrested on 6-2-1987 and the police informed him about the arrest of the accused on 10th or 11th February, 1987 because he was on leave from 6th February, 1987 to 10th February, 1987. He did not go to the police station after the lodging of the report and, therefore, did not see the accused in police custody.

Shri H.B. Singh (P.W. 6) is Seed Production Scientist H.P. Agricultural University, Palampur. He was associated by the police during the course of investigation in this case. He proves the taking into possession of the clothes of the prosecutrix. He further states that the accused led the party to a place near the bridge and got recovered the knife (Ex. M-l) from a place where it was lying concealed under the earth (between the grass and bushes). The accused had also pointed out the place underneath the bridge where the occurrence had taken place. The knife was taken into possession through memo (Ex. P-13) which was signed by him and one Jeewan Bandhu, The police took into possession through memo (Ex. P-14) some earth from the scene of occurrence which was sealed into two containers (Ex. M-17 and Ex. M-18). Memo (Ex. P-14) is also signed by him and Jeewan Bandhu. He denies the suggestion that the knife was recovered from the open and an accessible place and also that nothing was recovered in his presence.

Shri Balwant Singh (P.W. 7) is the President of Municipal Committee, Palampur. He was also associated by the police during the investigation of this case, fie is a witness to the recovery of Shawl (Ex. M-12), Jacket (Ex. M-13), Pant (Ex. M-14) and shoes (Ex. M-15 and Ex. M-16) which were seized by the police and then sealed through memo (Ex. P. 15) which is signed by him. Underwear Ex. M-19 was also produced by the accused before the police at the same time. This was also sealed into a separate parcel and taken into possession through memo (Ex. P-16). Memos Ex. P-15 and Ex. P. 16 are also signed by the accused and witnessed by Amar Dass and Surinder Kumar who were present there. On 12-2-1987, he was again associated by the police during the investigation of this case. The accused was in police custody on that day. The accused made a disclosure statement that he could point out the place of commission of the offence and that he could get recovered the knife which he had kept concealed near the place of occurrence in the nauah. This statement was recorded in memo Ex. P. 17, which is signed by the accused and witnessed by him and Hukam Singh, who was also present. The clothes were produced by the accused at Police Station, Palampur, at about 4 or 5 P.M. The disclosure statement was made by the accused on 13-2-1987 at the Police station before 3 P.M.

Shri Suresh Kumar Pathania (P.W. 8) is a Deputy Welfare Officer (Student) H.P. Agricultural University, Palampur. He states that he was the Drawing and Disbursing Officer for the student welfare institutions such as Mess, Canteens etc. He states that as per the entries available in the register, the accused had worked as Helper in the Veterinary Hostel Mess with effect from 17th December, 1986 to 31st January, 1987. Further, after 31-1-1987, the accused was absent from the said Mess. He identified the accused because he had seen him working in the Mess.

Shri Lal Man (P;W. 9) states that he is carrying on a small shop of tea, cigarettes and beedis near the gate of the H.P. Agriculture University, Palampur. Communication Centre of the H.P. Agriculture University is situating near his shop and so also the Veterinary Hostel. He states that he knew the accused as he used to work as a servant in the mess of Veterinary Hostel. Sometimes he used to clean the utensils in the mess and sometimes to cook in the absence of regular cook. He had been seeing the accused in that mess for about 2 or 21 month before 31-1-1987. He identified Shawl (Ex. M-12), Jacket (Ex. M-13) and Jeans (Ex. M-14) which were put on by the accused at that time. The accused used to visit his shop two or three times a day. Sometimes he used to take tea and sometimes Beedis and cigarettes from his shop. The accused did not come to his shop after the morning of 30-1-1987.

Shri Budhi Ram (P.W. 10) is running a Canteen in the H.P. Agriculture University, Palampur, on contract basis in partnership with Shri Gian Chand. He states that he knew the accused who was working as a servant in his Canteen for about 2 1/2 months up to 16-12-1986. After 16-12-1986, the accused left his service and went to the Veterinary Hostel and worked there as a Cook/Helper. The accused came to him on 31-1-1987 in the noon as he owed him Rs. 35/- towards his previous wages. On that day, he was putting on Shawl (Ex. M-12) and Jeans W (Ex. M-14). He gave him money on 31-1-1987 and went to his village. He did not notice the accused at Palampur after 31-1-1987.

Shri P.C. Sharma (P.W. 19) is the Sub-Divisional Judicial Magistrate. He had conducted the identification parade and submitted report (Ex. P. 17). He states that he conducted the identification parade on an application by Station House Officer, Palampur. He conducted the same on 12-2-1987 and before that he had sent a wireless message to Superintendent, District Jail, Dharamshala, not to permit any person to visit the accused before A 12-2-1987 without the permission of the court to ensure that the witnesses or any other person may not have any chance to see the accused. On 12-2-1987 he reached the Jail premises. It was also ensured that the prosecutrix also did not see the person to be identified by her. She was kept in the office room of Jail Superintendent and was called only after the parade had been formed in one of the room inside the jail barracks, which was at a distance from the office of Superintendent Jail, and was separated by main gate of the jail which remained closed. On reaching the jail premises, the Jail Superintendent was directed to arrange for persons for forming the parade with the accused. 11 persons were arranged from amongst the jail inmates, of the stature of the accused and having almost near resemblance with the accused in respect of built up and complexion etc. They were made to assemble in one of the rooms in the jail barracks. Inside the room, 12 persons, including the accused, had assembled. A list of these persons was prepared which is (Ex. P 25) the accused identified to him by the Jail Superintendent. He had asked the accused if he was ready to take part in the parade as he was not bound to take part in the parade if he declined to do so. The accused expressed his willingness to take part in the parade and his statement to this effect was recorded which is Ex. P-26. Before the prosecutrix was called into the room to identify the accused, the accused, who was standing at Sr. No. 5, was made to change his place with Kumi Chand, standing at Sr. No. 8, as he was of the same height as that of the accused and was wearing the similar scarf around his head as was worn by the accused. The complexion of both the accused and Kumi Chand was alike. After the parade was formed, the prosecutrix was called to identify the person who had criminally assaulted her. The prosetcurix looked at every person and she pointed towards the accused and thereafter identified him rightly and correctly as the person who had criminally assaulted her. He prepared the report (Ex. P. 27) after the completion of the parade and the same is duly certified and signed by him. The report was then sent to the District and Sessions Judge, Dharamshala, under a sealed cover, through letter (Ex. P-28).

Shri Vinod Rai (P.W. 20) is carrying on a Chat shop at Kotwali Bazar, Dharamshala. He states that the accused had come to his shop on 1-2-1987 and asked for a job. On inquiry, the accused told him that he was earlier working at Palampur and as the Mess at Palampur was closed, he was in need of a job. He employed him at his chat shop for cleaning utensils. On 6-2-1987, the police came and arrested the accused from his shop.

Shri Netar Singh (P. W. 21) is the Station House Officer who has conducted the investigation. He has given a detailed account of the steps taken by him from time to time relating to the investigation of this case till the filing of the challan in the Court.

The accused has admitted that in the year 1986 he had worked in a Canteen run by Shri Gian Chand in the University Campus, Palampur, for a period of about 2 or 2 1/2 months and that he left the same on 16-12-1986. He has also admitted that with effect from 17-12-1986 to 31-1-1987, he had worked as a Mess Helper/Cook in the Canteen of the Veterinary Doctor''s Hostel in the University Campus and that his attendance was being recorded. He has also admitted that on 31-1-1987, he had gone to Shri Budhi Singh, a partner in the Canteen of Gian Chand and asked for his previous wages amounting to Rs. 25/-. He has also admitted that the Canteen of the Veterinary Doctor''s Hostel is situate near the Communication Centre and Gate of the University Campus. He has denied that he had gone to Dharamshala on 1-2-1987 and had started working at the Chat Shop of Shri Vinod Rai (P.W. 20). He has admitted his arrest by the police on 6-2-1987. He has also admitted that the tea stalls of Lai Man (P.W. 9) and Atma Ram (P.W. 16) are located near the University Gate, Palampur, and he used to go to the stall for purchasing Beedis etc. He has denied the ownership of Shawl (Ex. M-12), Jacket (Ex. M-l 3), trousers (Ex.M-14 Jeans and shoes (Ex. M-l5 and M. 16) and also their recovery and taking into possession by the police. He admits his medical examination by Dr. S.C. Kapila (P.W. 3) at the Civil Hospital, Palampur. He has denied all other facts including the Commission of rape. He has denied the injuries on his person as well as the commission of offence by him besides all other facts. Relating to identification parade, he asserts that the same was conducted but the jail authorities had put on a turban on his head for distinguishing him from other persons and that the police had shown his photograph to the prosecutrix.

The versions of various us witnesses may now be analyzed. The statement of the prosecutrix has been corroborated by her mother and father. The statement of the witnesses further established the identity of the accused and in my opinion there is no doubt as to this aspect of the matter and the only conclusion which can be drawn in face of the evidence, as aforesaid, is that it was the accused who had committed rape on the prosecutrix.

Shri Devinder Gupta, learned Counsel appearing in defence of the accused has submitted that there are certain variations in the statements of the prosecutrix, her mother and father. I do not see any material contradictions in their statements. Minor variations are bound to occur in such like cases. These contradictions are not at all material. Such like variations are normal and do not in any way affect the prosecution case against the accused. Similar view was taken by this Court in Criminal Appeal No. 4 of 1986 (Jito alias Ajit Kumar v. State of Himachal Pradesh (ILR 1989 H.P. 494 ) decided on 31-5-1989. The view taken by the Kerala High Court in Sidhan and Others Vs. State of Kerala and Another, is also to the same effect. The Court in this case held as under:

Of course, there are minor discrepancies in their evidence regarding minute details of the incident including the sequence of events and overt acts. Such discrepancies are possible even in the versions of truthful witnesses. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truth fullness of their evidence. If on the other hand these witnesses have given evidence with mechanical accuracy that much have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the courts if the evidence of the witnesses is found acceptable on broad probabilities.

In view of the aforesaid discussion, the submission of Shri Devinder Ctapta is absolutely untenable, hence liable to be rejected;

Shri Devinder Gupta further contended that there is delay in the lodging of the First Information Report which is fatal to the prosecution case in the absence of satisfactory explanation. I am equally dissatisfied with this submission of the learned Counsel. It is in evidence that Shri Chandef Shekhaf (P.W. 11), the father of the prosecutrix, had left his residence for Mandy on this day at about 6.45 AM and came back at about 10 P.M. It was a shocking incident to the family. The family was passing through a strange situation. They appeared to be completely puzzled and perplexed. They passed a sleepless night. The father of the prosecutrix goes on thinking as to what to do. He thinks of options before him. It was finally that be decided to lodge the report with the police and the same was done in the next morning. To report in such like matters, where the future career of a young girl is at a stake; is not easy for anyone. Such situation have been very succinctly discussed and decided by the apex court in Bharwada Bhoginbhai Hirjibha v. case (Supra). Therefore, I am of considered opinion that there is no delay in lodging the First Information Report in this case as the circumstances for the lodging of the same on the next day have been satisfactorily explained by the prosecution.

The examination of the case threadbare in the light of the evidence on record, I am of the opinion that the case has been clearly established against the accused by the prosecution and the conclusions and the conviction recorded by the trial court are absolutely correct and the same are confirmed.

Now, coming to the sentence part of the case. During the course of the hearing of this case, on evidence, it was found that despite the conclusive findings recorded by the trial court as to the manner in which the offence was committed by the accused on the prosecutrix a young helpless school student-the punishment awarded was not adequate and justifiable. A notice, as to why the punishment for imprisonment for life be not awarded to the accused, was issued and in defense Shri Devinder Gupta made a compassionate plea that although the offence committed is quite serious and condemnable, but the accused may not be awarded higher punishment as he belongs to a poor strata of society. After hearing Shri Devinder Gupta at great length on this aspect of the matter, I feel absolutely constrained and justified in modifying the sentence awarded to the accused by the trial Court and enhance the same to ten years rigorous imprisonment and a fine of Rs. 2000/-. In default of payment of fine, the accused is further directed to undergo rigorous imprisonment for two years. Looking to the gross savage act of the accused in committing the offence of rape on the prosecutrix, the act is thoroughly condemnable and no punishment less than can be awarded to the accused in these circumstances.

The result is, the appeal is dismissed, being without any merit, with the aforesaid modification as to sentence. The accused is. Entitled to set-off u/s 428 of the Code of Criminal Procedure, as already allowed by the trial court.