PURAN CHAND Vs STATE OF H.P.
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: Crl.A. No.-001708-001708 / 2010
Diary number: 7102 / 2010
Advocates: R. V. KAMESHWARAN Vs
ANISH KUMAR GUPTA
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1708 OF 2010
PURAN CHAND .. APPELLANT VERSUS
STATE OF H.P. ..RESPONDENT
J U D G M E N T
GYAN SUDHA MISRA, J.
1. This appeal was going unrepresented as no one
had appeared for the appellant to contest the matter. We,
therefore, in the interest of justice, appointed an Amicus
Curiae to represent the case of the appellant and assist
the Court in reaching to a just conclusion.
2. Having heard the counsel for the parties and on
perusal of the material on record, we have noted that this
appeal is directed against the judgment and order dated
29.09.2009 passed by the High Court of Himachal Pradesh
at Shimla in Criminal Appeal No.52/2009 whereby the
appeal preferred by the appellant was dismissed by the 1
Page 2
High Court. Consequently, the conviction of the appellant
under Section 376 read with Section 506-I of the Indian
Penal Code was upheld and the sentence of seven years
imposed on the appellant/accused alongwith a fine of
Rs.5,000/- in default of which he had to undergo simple
imprisonment for a period of one year under Section 376
IPC and further to undergo simple imprisonment for three
months under Section 506-I IPC, was confirmed.
3. The case of the prosecution which led to the
conviction and sentence of the appellant emerges out of
the FIR No.186/2006 which was registered at Police
Station Nahan by the prosecutrix/the victim girl aged 17
years who suffered the offence of rape at the instance of
the appellant. She has stated in the FIR that on
20.08.2006 at about 12.30 p.m., she had taken her goats
for grazing in the forest at a distance of about ½ k.m. from
the village. She was sitting alone on a foot path, at about
2 p.m. when somebody caught hold of her from her back
and then she found out that it was the accused-appellant
who had forcibly caught hold of her. She enquired the
reason for holding her to which the accused did not
2
Page 3
respond. The appellant thereafter physically abused her
body specially the chest portion removed her clothes
made her lie on the ground and inflicted sexual assault by
committing rape on her. In panic, she raised alarm but
none came to her rescue or for help. The accused-
appellant after raping her left the place and threatened
her that in case she disclosed the incident to anyone, she
will have to pay for the consequence of disclosing the
incident. It has been stated by the victim-girl that on
account of this fear, she did not disclose this incident to
her parents for several days but she remained tense on
account of trauma that she had been suffering due to the
heinous incident. However, the tension that brewed in her
mind, increased so much that on 02.09.2006, she
attempted to commit suicide by consuming some poison
and she became unconscious after which she was
admitted into the Hospital at Dadahu and then shifted to
Nahan and finally to the PGI, Chandigarh. On regaining
her consciousness, she disclosed the incident to her
parents and brother Ramesh Chand. She was discharged
3
Page 4
from PGI, Chandigarh on 10.09.2006 and thereafter she
reported the case at Police Station Nahan.
4. The prosecutrix/victim girl was then subjected
to medical examination and the case was investigated by
PW-9 ASI Jagdish Chand. The accused was arrested on
12.09.2006 and on completion of investigation,
chargesheet was submitted in the Court of learned Chief
Judicial Magistrate, Nahan who committed the case vide
order dated 19.05.2007 for trial.
5. In support of the case of victim girl, the
prosecution examined 11 witnesses and also produced
documentary evidence. The accused was also examined
under Section 313 Cr.P.C. who denied the prosecution
case and took the plea that the witnesses have deposed
against him due to previous enmity. However, the learned
Session Judge on a scrutiny of the evidence and on
conclusion of the trial, convicted and sentenced the
accused as noted above.
6. The appellant preferred an appeal before the
High Court of Himachal Pradesh at Shimla against the
judgment and order of the Trial Court, wherein he
4
Page 5
reiterated his defence version that he had been falsely
implicated in the case due to previous enmity with the
victim's family and the learned Sessions Judge had not
appreciated the evidence properly and in correct
perspective. It was therefore urged that it was not a case
where conviction should have been recorded on the basis
of sole testimony of the prosecutrix so as to convict him as
there is unexplained delay in lodging the FIR. It was also
contended that the medical evidence belies the case of
the prosecution and it was sought to be explained that the
prosecutrix was suffering from the fear of compartmental
examination in which she had to appear which was to
commence in September 2006 and out of fear of
examination, the prosecutrix has consumed poison and
not for the reason that she had been allegedly raped by
the accused.
7. The learned single Judge of the High Court
however did not feel persuaded to interfere with the
judgment and order of conviction and, therefore, upheld
the conviction and sentence imposed on the appellant by
the trial Court. The appellant therefore has preferred this
5
Page 6
appeal assailing the judgment and order passed by the
concurrent judgment and order of the trial court and the
High Court.
8. The learned Amicus Curiae representing the
appellant practically repeated the submissions which had
been advanced before the trial Court and the first
appellate court and urged that the appellant has been
falsely implicated in the present case which was lodged by
the victim's family due to previous enmity. He urged that
the defence story to the effect that the girl attempted
suicide due to the alleged rape is not correct as she might
have done it on account of the examination fever which
must have led her to consume poison. It was further
submitted that there was a delay of 22 days in lodging the
FIR against the appellant as the alleged occurrence took
place on 20.08.2006 at about 2 p.m. but the FIR was
registered on 11.09.2006. It was further contended that
there is nothing in the statement of the victim girl about
the nature of injuries which she sustained on her right leg
and chest at the time when the alleged rape was forcibly
committed on her. It was further added that it is not clear
6
Page 7
from the evidence that the injuries with the prosecutrix
has stated in her cross-examination to have sustained on
her right leg and chest would in normal course come in
medical examination conducted after 21 days of the
alleged incident. Therefore, the prosecution/the victim girl
cannot be permitted to take benefit of the statement of
the prosecutrix that some injuries were caused on the
person and those injuries were not noticed by the Doctor
and reflected in the medical report.
9. It was still further contended that the Courts
should not act on the solitary evidence of the prosecutrix
and it should be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case is
improbable and unlikely to happen.
10. The counsel for the respondent-State however
supported the reasons relied upon by the High Court as
also the Sessions Court for upholding the conviction and
took us to the evidence led by the prosecution viz. PW-2
Daulat Ram-father of the victim girl who stated that when
the prosecutrix became unconscious on consuming
poison, they took her to the Hospital at Dadahu and from
7
Page 8
there she was taken to Nahan and then to PGI, Chandigarh
where she remained admitted till 10.09.2006. The victim
girl on regaining consciousness at PGI, Chandigarh was
asked by the witness PW1 - father and his son-brother of
the victim girl as to why she had consumed poison to
which the prosecutrix stated that on 20.08.2006, the
accused had committed rape on her in the Jungle and he
had threatened her not to disclose the incident to anyone
and as she could not bear the suffering and trauma of the
incident, she consumed poison as she was feeling
ashamed due to the offence committed upon her by the
accused. After discharge from PGI, Chandigarh on
10.9.2006, FIR was lodged and the witness PW2- Daulat
Ram - father of the girl was subjected to cross-
examination on this aspect at the stage of trial but he
withstood the same by stating that there was no civil
litigation with the family of the accused so as to implicate
the accused falsely. PW-3 Ramesh Chand – brother of the
girl corroborated the statement of the victim prosecutrix
and PW-2 Daulat Ram – Father as to the date and time
when the prosecutrix disclosed the fact that the accused –
8
Page 9
appellant committed rape upon her. PW-4 Prem Pal,
Panchayat Sahayak had proved the birth certificate and
stated that as per record, the date of birth of the victim
girl is 06.01.1987 indicating that she was a minor on the
date of the incident.
11. PW-5 Dr. Nirmala Vaish who had examined the
victim girl had deposed that before examining the
prosecutrix-victim, she narrated the history which was
noted down by the Doctor. The Doctor further deposed
that there was no fresh evidence, bleeding or tear or
scratch over the vulva outside and inner mucosa. There
was slightly reddened area over outer mucosa lower side
which could be due to discharge not likely a tear or injury
to mucosa. The Doctor further recorded that hymen of the
girl was intact. There was no evidence of any forceful
action on the other parts of the body. The victim girl was
thereafter subjected to radiologist for x-ray for
ascertaining her age and was sent to ultrasonography for
pelvic problem as also dental surgeon for the
determination of her age. The Doctor further noted that
the attempt of rape could not be proved because of
9
Page 10
examination done after 21 days of the occurrence.
Extensive cross-examination was done on the question as
to whether the offence of rape could be held to have been
proved when there was no evidence regarding the offence
of rape specially when the hymen of the girl was intact.
The other evidence in regard to proof of age of the
prosecutrix was also adduced including matriculation
examination certificate of the victim girl showing her date
of birth as 06.11.1987 and other evidence relating to her
entry into the various Hospitals where she had been
admitted.
12. We have taken note of and considered all the
arguments advanced by the counsel for the appellant in
support of the plea, that the incident in fact did not
happen at all and the FIR was registered merely due to
enmity. In this respect, the most important evidence
assailing the prosecution case is the evidence of the
doctor in which serious infirmities have been pointed out
by the defence. However, on a close scrutiny of the
deposition of PW-5 Dr. Nirmala Vaish, all the courts below
have taken note of the fact with respect to non rupture of
10
Page 11
hymen that it is not clear from the statement of the doctor
PW-5 which could reveal or prove that on actual
examination, she found the hymen of the prosecutrix
intact. Thus, reliance placed on behalf of the appellant-
accused that the hymen of the victim girl was intact could
not be accepted by the High Court and in view of the time
gap between the sexual assault and the examination of
the prosecutrix, the medical report of the prosecutrix not
reflecting sexual act is not of much significance, as per the
view taken by the Courts below. The prosecutrix victim
has stood the test of cross examination as she has
specifically stated that the accused forcibly committed
sexual assault/rape on her against her wish on
20.08.2006. The defence however has tried to rely on the
medical report in order to create a doubt about the actual
assault on the victim girl.
13. While we have noted that the Doctor has not
categorically denied the rupture of hymen of the victim
girl, we also take note of the fact that the version is
supported by other attending circumstances and evidence
adduced by the prosecution through the victim girl which
11
Page 12
is supported by her father and brother. Even if we were to
doubt the prosecution version due to alleged infirmity in
the medical evidence, it cannot be overlooked that the
case of this nature will have to be examined with the aid
of the accompanying circumstantial evidence in order to
test the veracity of the prosecution case. The delay in
lodging the FIR has been clearly explained by the
prosecution relating the circumstance and the witnesses
supporting the same have stood the test of scrutiny of the
cross examination as a result of which the version of the
victim girl cannot be doubted. The delay in lodging the
FIR thus stands fully explained.
14. In fact, in an incident of this nature where a
doubt is sought to be created by the defence relying upon
the lacuna in the medical evidence which could not
establish the incident in view of non-committal statement
of the doctor regarding the hymen being intact, the
prosecution version cannot be brushed aside totally and
will have to be judged by the other attending
circumstances brought on record. The defence no doubt
has taken the plea that the girl had attempted suicide due
12
Page 13
to the examination fear and not on account of the rape
alleged to have been committed on her but the same does
not stand the test of scrutiny. This defence version, in our
view, is not worth placing reliance for the victim girl
immediately on regaining consciousness had narrated the
story to the Doctor, father and her brohter at which stage
it was not possible to indulge in concoction of the story of
this nature in such a mental state. It is equally not
possible to overlook or ignore the trauma that the victim
girl must have suffered for 22 days after the sexual
assault/rape committed on her specially when she could
not divulge the incident to anyone. We find the defence of
the appellant extremely unworthy of reliance so as to
demolish the version of the prosecutrix supported by
circumstantial evidence. The version of the victim girl
who was suffering the trauma of rape and was provoked
to take the extreme step of consuming poison, cannot be
doubted ignoring even the fact that a girl would put
herself to disrepute and go to the extent of supporting her
parents to lodge a false case merely due to some enmity
with the family of the accused putting her honour at stake
13
Page 14
in a precarious mental state. In fact, we are prone to infer
with reason that if the prosecution had an intention of
really planting a false story of rape, it is highly improbable
that they would have created a story having a huge time
gap between the date of incident and the date of
lodgement of the FIR leaving the scope of weakening the
prosecution case. If it were a well thought out concocted
story so as to lodge a false case, obviously the prosecution
would not have taken the risk of giving a time gap of more
than 20 days between the incident and the lodgement of
the FIR. This clinching circumstantial evidence demolishes
the defence version and inspires much confidence in what
has been stated by the victim girl.
15. In fact, at this stage, the amendment introduced
in the Indian Evidence Act, 1872 in Section 114-A laying
down as follows is worthwhile to be referred to:-
“Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub- section (2) of section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before
14
Page 15
the Court that she did not consent, the Court shall presume that she did not consent.”
Section 114-A no doubt addresses on the consent part of
the woman only when the offence of rape is proved but it
also impliedly would be applicable in a matter of this
nature where the victim girl had gone to the extent of
committing suicide due to the trauma of rape and yet is
sought to be disbelieved at the instance of the defence
that she weaved out a concocted story even though she
suffered the risk of death after consuming poison. If this
were to be accepted, we fail to understand and lament as
to what is the need of incorporating an amendment into
the Indian Evidence Act by incorporating Section 114A
which clearly has been added to add weight and credence
to the statement of the victim woman who suffers the
offence of rape and a claustrophobic interpretation of this
amended provision cannot be made to infer that the
version of the victim should be believed relating merely to
consent in a case where the offence of rape is proved by
other evidence on record. If this view of the matter is
taken into account relying upon the amended Section 114-
15
Page 16
A of the Indian Evidence Act which we clearly do, then
even if there had been a doubt about the medical
evidence regarding non rupture of hymen the same would
be of no consequence as it is well settled by now that the
offence of rape would be held to have been proved even if
there is an attempt of rape on the woman and not the
actual commission of rape. Thus, if the version of the
victim girl is fit to be believed due to the attending
circumstances that she was subjected to sexual assault of
rape and the trauma of this offence on her mind was so
acute which led her to the extent of committing suicide
which she miraculously escaped, it would be a travesty of
justice if we were to disbelieve her version which would
render the amendment and incorporation of Section 114A
into the Indian Evidence Act as a futile exercise on the
part of the Legislature which in its wisdom has
incorporated the amendment in the Indian Evidence Act
clearly implying and expecting the Court to give utmost
weightage to the version of the victim of the offence of
rape which definition includes also the attempt to rape.
16
Page 17
16. In the instant matter, in view of the evidence led
by the witnesses, supported by the circumstantial
evidence, the prosecution version is fit to be relied upon
brushing aside the theory of improbability of the offence
and holding the prosecution case proved beyond
reasonable doubt, leading to the conclusion that the
incident in fact did happen in the manner in which it has
been described by the victim girl who was only 17 years
and hence a minor at the time of the incident supported
by the medical evidence which although might be
somewhat weak, gains strength from other attending
circumstantial evidence wherein there is no missing link in
the chain of events.
17. In view of the aforesaid scrutiny and analysis of
the evidence on record, we find no substance in this
appeal and hence uphold the conviction and sentence
imposed on the appellant. Accordingly the appeal is
dismissed.
……………………… J. (T.S. Thakur)
………………………J. (Gyan Sudha Misra)
17
Page 18
New Delhi April 23, 2014
18