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1999 Supreme(HP) 284
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
R.I. Khurana, J.
Prem Chand - Appellant
Versus
State Of Himachal Pradesh - Respondent
Criminal Appeal No. 404 of 1998
Decided On : 08-04-1999
For the Appellant : Rama Mehta.
For the Respondent: Ashok Sharma and Vivek Thakur, Asstt. A.G.s.
Headnote:
Indian Penal Code, 1860 – Sections 366, 376, 506 – Criminal Procedure Code, 1973 – Section 313 – Criminal Appeal – Compensation – Commit rape – Kidnapping – Punishment for rape – Punishment for criminal intimidation – Power to examine accused – Appellant, stands convicted by learned Sessions Judge, in Sessions Case No. 39 of 1997 for offence under Sections 376 and 506, Indian Penal Code – Held, Though ordinarily unless there are compelling reasons necessitating corrobo-ration, testimony of prosecutrix alone is sufficient to convict accused where her testimony inspires confidence and is found to be reliable, in present case it would not be safe to convict accused solely on statement of prosecutrix – Keeping in view medical evidence which shows that prosecutrix had been used to sexual intercourse, in order to accept her statement that she was compelled, threatened or otherwise induced for sexual intercourse, some corroboration from some independent source is required in present case – Accused, who is in jail undergoing sentence as imposed upon him by learned trial Court, shall be set at liberty forthwith, if not required in any other case – Amount of fine, if already deposited, shall also be refunded to him – Case property be dealt with as per directions of learned trial Court – Appeal allowed.
JUDGMENT :
R.I. Khurana, J.—
1. The appellant, hereinafter referred to as the accused, stands convicted by the learned Sessions Judge, Chamba, in Sessions Case No. 39 of 1997 for the offence under Sections 376 and 506, Indian Penal Code. He has been sentenced to rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- for the offence u/s 376, Indian Penal Code. Insofar as the offence u/s 506, Indian Penal Code, is concerned, the accused has been sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-. It was directed that out of the amounts of fine, if realised, a sum of Rs. 4,000/- shall be paid as compensation to the prosecutrix Kumari Seema. The two substantive sentences of imprisonment was ordered to run concurrently.
2. Briefly stated, the prosecution story is this. In the year 1997, the prosecutrix Kumari Seema was working as a maid servant in the house of one Shri Dhani Ram of village Chamuhi. At that time, the accused was also working as a servant in the house of said Dhani Ram. During the period 10-4-1997 to 4-6-1997 whenever the accused used to go to the jungle to graze the cattle, he used to take the prosecutrix with him and there in the jungle he used to commit rape on her. The accused used to threaten the prosecutrix that in case she dared to tell anyone about the sexual acts, she would be killed.
3. The prosecutrix one day told Smt. Suno wife of Shri Dhani Ram about the sexual assaults being committed by the accused. Smt. Suno after rebuking the prosecutrix, sent her to the house of Smt. Taro, maternal grandmother of the prosecutrix. The accused escorted the prosecutrix to the house of her grantmother. The prosecutrix on reaching the house of her grandmother, narrated the incidents of rape to Smt. Taro, her grandmother, and Munshi, her maternal uncle. Smt. Taro then on 11-6-1997 took the prosecutrix to the police station and on the basis of the report made, a case under Sections 376 and 506, Indian Penal Code, came to be registered vide FIR No. 42/97 (Ex. PH).
4. The prosecutrix, during the course of investigation was subjected to medical examination. Such medical examination was carried out by PW-8 Dr. Brij Bala Sharma, at District Hospital, Chamba, on 12-6-1997 at about 12.15 p.m. It was observed by PW-8 as under:--
Menstrual History:
Menarche not started.
General Physical Examination:
1. Mentally alert, sound and fully conscious.
2. Seemed to be very intelligent and active.
Systematic Examination:
1. Heart, Lungs, Per abdomen and CNS -NAD.
2. Moderate built, weight 27 Kgs. Height 132 cms.
3. Breasts -- Small undeveloped, nipples surrounded by an undeveloped pink areola.
4. Axillary hairs-Scanty, brownish black smoothy.
5. No marks of violence and injury (No scratches, abrasions, bruises over her person).
Local examination of genitals and per vaginal examination:
1. No seminal stains and blood found on thighs and genitals.
2. Pubic hairs not matted.
3. Labia Majora thick, firm and well rounded. No bruising, no redness, no inflammation or laceration.
4. Vestibules normal.
5. Forchette and posterior commissure intact.
6. Hymen was semilunar in shape with interior opening, its free margins had numerous tears looking like old granular tissues. These did not bleed on touch and were not tender, swollen and not inflamed.
7. Vaginal orifice was easily dispensible and admitted two fingers easily.
8. Vaginal swab taken from the posterior fornix had been duly preserved, packed and sealed for chemical examination.
9. Victim had taken bath several times after returning from village Lahal and had changed her clothes.
10. For age verification, referred to Dr. V. K. Pathak, Radiologist and Dr. L. Badotra, Dental Surgeon.
5. PW-8 opined that the prosecutrix was subjected to sexual intercourse frequently.
6. PW-6, Dr. L. Badotra, Dental Surgeon on 16-6-1997, carried out dental examination of the prosecutrix and opined that she was of about 13 years of age. The ossification test was carried out by PW-7, Dr. V. K. Path
