Himachal Pradesh High Court

Baldev Singh @ Pawan vs State Of Himachal Pradesh on 10 September, 2024

Bench: Tarlok Singh Chauhan, Sushil Kukreja

Neutral Citation No. ( 2024:HHC:8175 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Criminal Appeal No.259 of 2021.

Reserved on: 04.09.2024.

Date of decision: 10.09.2024.

    Baldev Singh @ Pawan                                     ...Appellant.

                               Versus

    State of Himachal Pradesh                               ...Respondent.





    Coram

The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? Yes

For the Appellant : Mr. Bhupinder Singh Ahuja, Advocate.

For the Respondent: Mr. I.N. Mehta, Senior Additional

Advocate General with Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General, Mr. J.S.Guleria and Mr. Raj Negi,

Deputy Advocates General.

Tarlok Singh Chauhan, Judge

The appellant has been convicted and sentenced

by the learned Additional Sessions Judge, Ghumarwin,

District Bilaspur, H.P. vide its judgment/order dated

01.04.2021/07.04.2021 to undergo rigorous imprisonment

for 10 years and to pay a fine of Rs.20,000/- and in default

of payment of fine to further undergo rigorous

imprisonment for 2 years under Section 376(2(f) of the

Neutral Citation No. ( 2024:HHC:8175 )

Indian Penal Code (for short, 'IPC') and further sentenced to

undergo rigorous imprisonment for 10 years and to pay a

fine of Rs.20,000/- and in default of payment of fine to

undergo rigorous imprisonment for 2 years under Section

376(2)(I) of IPC. The substantive sentences aforesaid were

ordered to run concurrently and aggrieved thereby, the

appellant has filed the instant appeal.

2. Precisely, it would be necessary to understand

the relationship between the complainant party and the

appellant. Appellant's daughter was married to the brother

of the prosecutrix. Complainant (PW1) was working in a

government institution and she was not living with her

husband and was living at her parental house. Complainant

had two children i.e. prosecutrix and a son.

3. The case of the prosecution, according to the

complainant, is that on 12.07.2017, the appellant visited

the house of complainant (PW1), who left her house at

around 1.45 p.m. for her duty because her duty time was

from 2.00 p.m. to 8.00 p.m. Daughter-in-law of the

complainant and her daughter (prosecutrix) and appellant

were at the house. Complainant told to the police that

since there was no bus from the place of her work to her

Neutral Citation No. ( 2024:HHC:8175 )

village after 8.00 p.m., therefore, she went to the house of

her sister at place Patta.

4. On 13.07.2017 at around 8.00-9.00 a.m., the

complainant reached at her village, however, directly went

to the fields for work. At around 1.00 p.m., she reached at

her house. On reaching, the prosecutrix told the

complainant that on the previous day, the appellant

removed her clothes, applied oil at the place of her

urination and put his penis at the place of her urination and

the prosecutrix further told that the appellant committed

"Bura Kaam" with her and also touched her breast. The

complainant further reported to the police that prosecutrix

revealed her that she also started bleeding from the place

of urination and when prosecutrix started weeping, the

appellant intimidated her and asked her to keep quiet and

he also did not hand over her clothes to her and asked her

to take bath. When the complainant asked prosecutrix as to

where was her sister-in-law (Bhabhi), prosecutrix told that at

that time her sister-in-law (daughter of appellant) had gone

to place Berthin. Prosecutrix further revealed to the

complainant that at that time she was watching T.V. As per

the complainant, the prosecutrix after the occurrence had

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also told about the same to her sister-in-law, but the said

fact was not brought to the notice of the complainant by her

daughter-in-law. It was also reported by the complainant

that when she checked her daughter, she found that "Galat

Kaam" had really been committed with her. Complainant

requested the police for medical examination of her

daughter. It was on the basis of this information that FIR

No. 66/17 dated 13.07.2017 came to be registered.

5. During investigation, the police got the

statement of the prosecutrix recorded under Section 164

Cr.P.C. before the Judicial Magistrate 1 st Class. Upon

examination in the Department of Psychiatry, IGMC, Shimla,

prosecutrix was found to be having moderate to severe

mental retardation. Therefore, she was referred to a clinical

Psychologist and accordingly the psychological report was

obtained from Composite Regional Rehabilitation Centre for

persons with disabilities at Sundernagar in District Mandi,

H.P.

6. Medical examination of the prosecutrix was got

conducted on the date of FIR itself. In the medical

examination, redness and lacerations were found in vaginal

canal of the prosecutrix. The samples were also obtained.

Neutral Citation No. ( 2024:HHC:8175 )

In the forensic science laboratory, no blood or semen was

detected on the examined exhibits but on clinical

examination possibility of sexual intercourse was not ruled

out. After completion of the investigation, the final report

was filed by the police before the learned JMIC, Court No.2,

Ghumarwin, who, committed the case to the Court of

Sessions for trial.

7. On finding a prima facie case, charge under

Section 376(2)(f) and (I) was framed against the appellant

to which he pleaded not guilty and claimed trial.

8. The prosecution in order to prove its case

examined as many as 16 witnesses. On closure of the

prosecution evidence, the appellant was examined under

Section 313 Cr.P.C. whereby incriminating circumstances

appearing from the prosecution case were put to the

appellant. He denied all the incriminating material and

pleaded his innocence. However, the appellant opted to

lead evidence in defence and examined two witnesses

including himself.

9. After recording evidence and evaluating the

same, the learned Trial Court convicted the appellant as

aforesaid.

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10. Learned counsel for the appellant would argue

that since the findings recorded by the learned Trial Court

are totally perverse, therefore, the same deserve to be set

aside.

11. On the other hand, learned Additional Advocate

General would argue that since the findings recorded by the

learned Trial Court are based on the correct appreciation of

the oral and documentary evidence that has come on

record, therefore, the same does not warrant interference.

12. We have heard the learned counsel for the

parties and have also gone through the records of the case

carefully.

13. The mother of the prosecutrix, who is the

complainant in this case, was examined as PW1. PW1

stated that she was employed as 'Safai Karamchari' at Civil

Hospital, Ghumarwin and was residing separate from her

husband in her paternal house at Sunhani. She had two

children, a son and a daughter, who happens to be the

prosecutrix in this case. Her daughter though was 30 years

of age but was a slow learner and was of imperfect

understanding. However, she had adequate sense of

understanding regarding her good or bad. She deposed

Neutral Citation No. ( 2024:HHC:8175 )

that on on 12.07.2017, the father-in-law of her son Vinod

Kumar, namely, Baldev Singh, the appellant herein, had

come to their house at about 10.00 a.m. She further

deposed that since her duty hours were to commence from

2.00 p.m., she had left home at about 1.45 p.m. Her

daughter, daughter-in-law and the appellant were at home.

According to the version of the complainant, her duty hours

ended at 8.00 p.m. on that day and since the last bus to her

home had already left, she went to stay with her sister at

village Patta. She reached in her village Sunhani at about

8.00-9.00 a.m. in the next morning i.e. 13.07.2017.

However, since the season was that of cultivation of maize

crop, she decided to go to the fields first to do some

agriculture work before going home. She thereafter reached

her house at about 1.00 p.m. and when she reached there,

her daughter(prosecutrix) told her that on the previous day

i.e. 12.07.2017, the appellant had taken off her clothes and

placed her scrotal area over her groin. Prosecutrix also told

that the appellant had applied oil to her private part. For

her understanding, we had made her understand that the

place of urinating is a spot of shame and for that they used

the expression "sung" for the same. The prosecutirx had

Neutral Citation No. ( 2024:HHC:8175 )

told her (PW1) that the appellant had placed his "sung' in

her "sung". She told that the appellant had committed

wrongful act upon her and she felt pain. Thereafter, the

prosecutrix told her that her private part had started

bleeding after the act of insertion by the appellant. She had

told the complainant that the appellant had simultaneously

grabbed her breasts. The prosecutrix also told her that

when she started crying, the appellant had asked her to first

take bath but thereafter had himself proceeded to give a

bath. PW1 got shocked on hearing all these things and

thereafter physically examined her daughter to verify the

facts told by her daughter and found evidence of the same

being true. When PW1 asked as to where her daughter-in-

law was at the relevant time, then her daughter

(prosecutrix) informed her that she had gone to Berthin at

that time. PW1 also asked her daughter-in-law about this

and she stated that she had gone to Berthin. Her daughter-

in-law did not disclose anything further to her, save and

except, that the prosecutrix told her that the appellant had

brushed his body against her body. However, the

prosecutrix told her (PW1) that her daughter-in-law had told

the entire matter to her mother over telephone. PW1

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further deposed that thereafter she called her brother Ram

Pal and sister Sunita and they accompanied her and her

daughter to Police Station, Talai, where they got recorded

FIR Ext. PW1/A. PW1 identified her signatures at point 'K'.

The police thereafter got the prosecutirx medically checked

up at CHC, Berthin. She gave her consent at point 'K' on

MLC of her daughter Mark-A. The prosecutrix was thereafter

brought by the police in the Court where her statement

under Section 164 Cr.P.C. was recorded. On 14.07.2017, the

police came to her house and clicked photographs Mark P1

to P7 of the room and other portions of the house. Their

statements were also recorded by the police. The

prosecutirx told PW1 and the police that the appellant, after

committing rape upon her, wiped her private parts with a

'Dupatta' which he had left in the room. She produced the

said 'Dupatta' before the police. The 'Dupatta' was wrapped

in a cloth parcel which was sealed and taken into

possession vide seizure memo Ext. PW1/B. PW1 also

deposed that police also took specimen of the seal on a

separate piece of cloth vide Ext. PW1/C. PW1 produced

disability certificate and identity card of her daughter

before the police vide Ext. PW1/D and Ext. PW1/E. The

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witness identified all these items and lastly deposed that

the appellant by taking undue advantage of his relationship

with their family and by taking advantage of the fact that

the prosecutrix was not mentally fit had committed

shameful act of rape for which he deserves to be sternly

dealt with.

14. On being cross-examined, PW1 admitted that

she did not have cordial relations with her husband since

long and they had been divorced quite some years ago. The

appellant was a truck driver as per her knowledge and she

did not know from where he had come to her house on

12.07.2017. PW1 deposed that she also did not know by

what means he had come and volunteered to state that she

could not have known the same. All she knew is that the

appellant had come to her house on that day. She denied

the suggestion that on 12.07.2017, the appellant was not in

District Bilaspur and had gone with the truck loaded with

cement to Dharamshala from Barmana. PW1 stated that

she had come to Ghumarwin on that day through Vineet

Bus Service. She had reached at Ghumarwin at about 2.15

p.m. On 13.07.2017, she had used the implements kept by

her in a room of her house which had been rented out but

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one room had been retained. She had not told the police

about the other house in which implements had been kept

but volunteered to state that it was never asked from her.

She admitted that her daughter used to watch television

and try to attend phone calls, however, she denied the

suggestion that prosecutrix could dial the numbers perfectly

and volunteered to state that prosecutrix juggled around

with the digits and could not dial meaningful number on her

own. PW1 admitted that she had not called at her home

during the period between 2.00 p.m. on 12.07.2017 and

1.00 p.m. on 13.07.2017 and volunteered to state that

there was no need to do so since her daughter-in-law and

her father were at home to look after her daughter. She

did not know at what time her daughter-in-law had gone to

Berthin. The exact time of the incident was not disclosed

by the prosecutrix to her. She denied the suggestion that

the prosecutrix even had not told her whether it was day or

night when the incident had occurred and volunteered to

state that prosecutrix had told her that it was during day

time when her daughter-in-law had gone to Berthin market.

PW1 admitted that the step-mother of the appellant

resided in village Sunhani, however, she denied that they

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were not having cordial relations with her and volunteered

to state that she was her niece in relation. PW1 stated that

they had gone to the Police Station at about 7.30-7.45 p.m.

and remained there for about 30-45 minutes. Thereafter,

they had gone to hospital but she did not remember the

exact time nor she had noted down the same. PW1 denied

the suggestion that since she had acquaintance with

doctors, therefore, she got a false medical certificate

prepared. PW1 admitted that when she reached home the

next day, the appellant was not present in the house. She

had asked her daughter-in-law to call for the appellant.

PW1 denied that they had planted a false case against the

appellant.

15. The prosecutrix has been examined as PW13

without oath and she stated that it was an incident of

Wednesday. On that day, her mother was on duty. Her

sister-in-law Anu (Bhabhi) was at home. Her (Anu's ) father

had come. Prosecutrix 's mother had gone to Berthin. PW13

deposed that she was at home and sitting in her room and

watching T.V. The father of my sister-in-law came to her

room and laid her on the ground and told her not to disclose

it to her mother i.e. PW1. The appellant thereafter opened

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her clothes and put his penis in her vagina. He also

applied oil. The witness was thereafter asked as to what is

meant by "sungu" and the witness clarified that it was a

place from where urine is passed. She further deposed

that when penis was put in her vagina, she felt pain. When

it caused pain, she wept, upon this father of her sister-in-

law told her not to disclose this to her mother and caught

hold of her from her breast. There was also blood due to

this. On a court question being asked regarding when she

had taken bath, PW13 stated that she took bath on the

same day and he (appellant) made her to take bath. PW13

deposed that her sister-in-law had come at around 3.00

p.m. She told her sister-in-law that her father had opened

her clothes but she did not pay any heed. Thereafter, her

mother (PW1) came on the next day and she told her

mother that her "Kudam" (father-in-law of son) had done

this. Thereafter, she slept in the lap of her mother. She did

not slap him(appellant) and had only told to her mother.

Thereafter, they went to the Police Station at Talai and

thereafter to the hospital at Berthin and later came to the

house. PW13 further deposed that the police had taken

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photographs of their house. Ext. PW5/A-7 was one such

photograph of that room where she was sitting.

16. The prosecutrix was subjected to a lengthy

cross-examination where she deposed that she could not

tell how many years had since passed from the marriage of

her sister-in-law and these were known to her mother. The

marriage of her brother and 'Bhabhi' was court marriage

which were performed in the temple. She denied the

suggestion that in that marriage the father of her 'Bhabhi'

had not come and volunteered to state that he had come in

'Milani'. She denied the suggestion that her 'Bhabhi' had

eloped with her brother and thereafter they got married.

She stated that her father was residing in Manariya but did

not come to the house. PW13 deposed that she did not

know why her father did not come to the house. PW13

denied the suggestion that she had made such type of

allegations against her father. She did not know that a

litigation had been started between her father and mother

and they had gone to the police station. The Trial Court

thereafter made following observation:

"(At this stage, I find that the witness is not

understanding the time period gap and is to be

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assisted in properly making her understand

about the time.

.

The witness had no idea of arithmetics. To both

hand fingers of Judge, which were eight, she told

five. She could only tell two fingers correctly)."

17. PW13 further deposed that her mother and

father of her sister-in-law i.e. appellant were not at talking

terms, taking food and going to each other. She denied the

suggestion that they were not at talking terms, taking food

and going to each other since the marriage of her brother

and 'Bhabhi' and volunteered to state that it stopped now.

She admitted that father of her 'Bhabhi' was not happy with

the marriage of her brother and 'Bhabhi'. She further

deposed that her 'Bhabhi' had given some medicine to her

which was a wrong medicine and she had told this fact to

the police. Police had not come in this regard. PW13

deposed that she could not make a call from telephone but

she could hear the phone. She denied the suggestion that

the day of which she had stated about the occurrence, her

mother had kept her locked, volunteered to state that she

was free and the room she lived in had a bathroom, toilet

Neutral Citation No. ( 2024:HHC:8175 )

and T.V. Her mother used to leave food items to her. She

denied the suggestion that she(PW1) did not permit her

'Bhabhi' to go to her parental house. She also denied the

suggestion that today she was deposing upon being

tutored by her mother and stated that she was giving the

statement on her own and stated that she had been told by

the police to make a statement. PW13 also deposed that

she had earlier come to the Court and at that time there

was another Judge. No police official had intimated her on

that day. She used to go to school on her own and used to

come from the school at 1.30 p.m. Her teachers were also

present there and she pointed towards special educator

Pooja Kumari. She denied the suggestion that father of her

'Bhabhi' i.e. the appellant had not committed any 'galat

kaam' with her. She also denied the suggestion that her

mother and brother had told her to tell about putting penis

and applying oil and volunteered to state that she had

already disclosed this to her mother. She admitted that her

statement had been recorded by the police when she had

gone to the Police Station. Her statement was also

recorded at Berthin when she had gone there. Her

statement had been recorded many days back but she did

Neutral Citation No. ( 2024:HHC:8175 )

not know the date of recording such statement and date of

occurrence. She denied the suggestion that she had not

told anything to her 'Bhabhi' and volunteered to state that

she told it to her 'Bhabhi' and she had abused her

(prosecutrix). She deposed that statement of her 'Bhabhi'

was not recorded in her presence and she did not know

what was taken into possession by the police. Her mother,

'mama' and 'massi' had gone with her.

r Police had taken

photographs. She also denied the suggestion that she had

made similar allegations against a taxi driver and one

'Fauji' of her village and Rs.1,00,000/- were taken from

them. She denied that her mother had been demanding

money from the appellant and volunteered to state that her

mother was doing job and then why she would ask for

money. Her mother was on temporary (Kachi) job. She

denied the suggestion that they were not having good

terms with the appellant because of the marriage of her

brother and 'Bhabhi'. She denied that because of the

marriage, parents of her 'Bhabhi' were not happy. She

admitted that 'Barat' of her brother had not gone. She

denied the suggestion that at the place of urination, she

had caused injury herself with a finger on the asking of her

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mother. Volunteered to state that it was the appellant, who

had put his finger and she had told this fact to the police.

She admitted that what had been told by her today in the

Court, that had been told for the first time and volunteered

to state that earlier there was another Judge. She denied

that the statement which she had made in the Court had

not been disclosed to the police. She denied that the

allegations made by her were false.

r She also denied the

suggestion that they did not allow the police to record the

statement of her 'Bhabhi' and volunteered to state that her

'Bhabhi' had refused to make the statement. She also

denied the suggestion that her mother had told her 'Bhabhi'

that if she would make the statement that nothing had

happened, then her mother would oust her 'Bhabhi' from

the house. She denied the suggestion that the appellant

had not come to their house. She stated that duty of her

mother had started at 2.00 p.m. and she did not get bus for

return. She denied the suggestion that the bus had come to

their house at 9.00 p.m. She denied the suggestion that

she did not remain associated with the police in the

investigation of the case.

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18. PW12 Dr. Shilpa is the Medical Officer, who

examined the prosecutrix and stated that on 13.07.2017 at

around 10.35 p.m. (night), the prosecutrix, who was present

in the Court, was brought to the hospital by the police with

the alleged history of sexual assault. She examined the

prosecutrix. A female member of her family i.e. her mother

was also along with the prosecutrix. On seeing the

prosecutrix, she found that the prosecutrix was appearing

to be mentally retarded, so, she thought it proper to take

consent of her mother and accordingly took consent of her

mother on the margin of the MLC Mark 'A'. PW12 deposed

that she took signatures of mother of the prosecutrix being

the guardian and also obtained thumb impression of the

prosecutrix as a person she was going to examine. The

mother granted the consent and then she proceeded to

examine the prosecutrix. The prosecutrix was found calm,

conscious, cooperative and oriented to time, place and

person. She was mentally retarded. PW12 further deposed

that as per the history given by the mother of the

prosecutrix, the prosecutrix had immediately taken bath

after sexual intercourse because she was asked to take bath

by that person. After clinical examination and receipt of FSL

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report, this witness i.e. PW12 gave her final opinion by

observing that the possibility of sexual intercourse could

not be ruled out though there was nothing suggestive in the

FSL report. She further stated that presence of redness and

laceration in the vaginal canal were suggestive of some

intrusion or penetration.

19. On being cross-examined, PW12 stated that she

had not specifically mentioned that she had taken consent

of the mother because the prosecutrix was mentally

retarded and volunteered to state that prosecutrix appeared

to be mentally retarded, therefore, she thought it necessary

to obtain consent of mother. She admitted that there was

no bleeding at the time when she examined the prosecutrix.

She also admitted that redness and laceration could be

possible because of insertion of fingers. She also admitted

that there could be many reasons for rupture of hymen.

She further deposed that no external injury was noticed by

her on the private parts of the prosecutrix but denied that

there were no signs of rape. PW12 stated that she could

not conclusively say that rape was committed but

volunteered to state that the injuries noticed by her were

indicated in the MLC making probability of offence. She

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also stated that there was no injury on labia majora and

labia minora. PW12 denied the suggestion that she had

prepared a false MLC in connivance with the police.

20. As regards the psychiatric evaluation, the

prosecution has examined PW2 Dr. Shatrugan Singh, a

Clinical Psychologist, who stated that on 19.07.2017, the

prosecutrix was brought before him for assessing the level

of mental retardation and mental age, IQ, as referred by Dr.

Dinesh Sharma (PW3), Associate Professor, Department of

Psychiatry, IGMC, Shimla. He clinically examined the

prosecutrix and filled up the forms of clinical history/method

on the basis of clinical history and mental status

examination. The index patient i.e. prosecutrix seemed to

be a case of mental retardation, however, after that

psychological testing was selected or assessment of

intellectual functioning. The prosecutrix was less

cooperative for psychological assessment. Her attention

could be aroused but could not be sustained for a

considerable period. He deposed that on the basis of

"Gessel Drawing Test", the prosecutrix's calculated mental

age was found to be 4 years and obtain IQ 25 indicative of

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"severe mental retardation". He issued psychological report

of the prosecutrix, Ext. PW2/C.

21. On being cross-examined, PW2 denied the

suggestion that a patient of mental retardation of such

degree would be totally dependent upon others for his/her

daily routine activities. Volunteered to state that though

they may require the assistance of others in some of the

activities, but they may not be self-dependent where the

activities involve judgmental faculties to be examined. He

admitted that such patients are susceptible to be easily

tutored by the persons on whom they repose faith and are

looked after by any such persons. Such patient can express

his/her feeling by gestures and can also express if anything

wrong has happened with his or her, although through

gestures and signs which are matter of interpretation by

someone, who understands such gestures. In his opinion,

the patient i.e. prosecutrix was capable of competently

deposing before the Court regarding facts relating to her,

though not verbally, but through gestures and sign

language, if they are properly understood and interpreted

by somebody, who can competently do so.

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22. PW3 Dr. Dinesh Dutt Sharma is a Psychiatrist and

stated that on 18.07.2017, the prosecutrix was referred to

him by the Senior Medical Superintendent, IGMC, Shimla

and thereafter he examined the prosecutrix. Her history

was suggestive of delayed mile stones, decreased

understanding and difficulty in performing day to day

activities. On mental status examination, she could

understand simple r questions but had difficulty in

understanding complex statements. Her attention could be

aroused but concentration was ill sustained. He deposed

that on the basis of the history obtained from her mother,

mental status examination and clinical assessment of

intellectual and adaptive functioning, the prosecutrix

appeared to be moderate to severe mental retardation.

However, for assessing the level of mental retardation and

mental age, IQ assessment needed to be done for which

she was referred to PW2. After receiving the psychological

report issued by PW2, he (PW3) issued final opinion about

psychiatric assessment of the prosecutrix, Ext. PW3/B. The

opinion was based on clinical evaluation and perusal of

psychologist report from CRC, Sundernagar (IQ=25; mental

age=4 years). He opined that the prosecutrix was suffering

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from severe mental retardation. The prosecutrix was found

to be capable of communicating basic things such as the

parts of her body affected by distress or any external

stimulus given to her. He further deposed that the

prosecutrix was further found capable of making good

communication through her mother when the latter gave

her suggestions through sign language and gestures which

were well deciphered by her mother. The prosecutrix could

reasonably indicate her body parts which had been

tampered with by way of gestures and other indications.

23. On being cross-examined, he denied the

suggestion that the prosecutrix was susceptible to easy

tutoring by the mother and she would invariably say what

she was tutored to say by her mother.

24. The other witness examined in this case is PW5

Ajay Kumar, who has proved on record the photographs Ext.

PW5/A1 to Ext. PW5/A7. He was stated to have been

captured by the I.O. during investigation of the case.

25. PW6 Ram Pal is the maternal uncle of the

prosecutrix, who had accompanied the mother (PW1) of the

prosecutrix Kashmiri Devi to the Police Station and has

deposed exactly on the same lines as PW1. But, his

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statement being primarily based on hearsay with regard to

alleged incident cannot be relied upon and can be relied

upon for the limited purpose of articles that were taken into

possession vide seizure memo Ext. PW1/B.

26. PW7 Constable Vivek Singh has proved on record

the FIR Ext. PW1/A and the certificates given by him under

Section 65-B of the Indian Evidence Act with regard to FIR

and DDR vide Exts. PW7/A, PW7/B and Ext. PW7/C.

27. PW8 Constable Raj Kumar is CCTNS writer and

has proved on record DDR Ext. PW8/A entered by him in he

official computer of Police Station and certificate given by

him under Section 65-B of the Indian Evidence Act vide Ext.

PW8/B.

28. PW9 HHC Mangal Singh took the case property

from MHC Ramesh Chand on 17.07.2017 vide RC No.

101/21 dated 17.07.2017 Ext. PW9/A and deposited the

same at RFSL, Mandi and stated that the case property

remained safe and intact with him till that was deposited

with RFSL, Mandi.

29. PW10 LC Seema Devi stated that on 13.07.2017,

she took the prosecutrix for medical examination to CHC

Berthin vide docket Mark X-1 wherein the prosecutrix was

Neutral Citation No. ( 2024:HHC:8175 )

medically examined by the doctor. She deposed that the

doctor handed over to her one parcel containing two vaginal

slides and UPT kit, another parcel containing pubic hair and

vaginal swab of the prosecutrix and another parcel

containing blood sample of the prosecutrix which she

deposited with the MHC and the case property remained

safe and intact so long it was in her custody.

30. PW11 HC Sanjeev Chandel was holding r the

charge of MHC in absence of MHC Ramesh Kumar and

stated that on 14.07.2017 LC Seema Devi deposited with

him one parcel stated to be containing clothes of the

prosecutrix, another parcel stated to be containing vaginal

swab and pubic hair of the prosecutrix, another parcel

containing vaginal slides and UPT Kit of the prosecutrix and

yet another parcel containing blood sample of the

prosecutrix, two envelopes addressed to FSL which he

entered them in the entry No. 62/17 of the Malkhana

Singh deposited with him one parcel which he entered vide

entry No. 64/17 of the Malkhana register. He also deposed

that on 15.07.2017, SI/SHO Karam Singh again deposited

with him the property of 'jamatalashi' of the appellant which

Neutral Citation No. ( 2024:HHC:8175 )

he entered at entry No. 66/17. On the same day, SI/SHO

Karam Singh deposited with him four parcels and one

envelope which he entered at entry No. 68/17 of the

Malkhana register. He produced the original Malkhana

PW11/A-5 which, according to him, were correct as per the

original register brought by him. On return of MHC Ramesh

Kumar, he handed over the case property to him and till the

case property remained in his possession, it remained safe

and intact.

31. PW14 SI Karam Singh was posted as SHO/IO at

Police Station, Talai and in his examination-in-chief set out

the prosecution case in detail.

32. On being cross-examined, PW14 stated that

complainant at around 8.00-8.15 p.m. had come to the

Police Station, Talai which is at a distance of 20 kilometres

from village Sunhani. He had associated Sunita Kumari but

did not remember whether her statement had been

recorded by the police. He deposed that he had associated

Anu Kumari in the investigation and recorded her

statement and had given reference of the same in the case

diary. He denied the suggestion that this was not so

Neutral Citation No. ( 2024:HHC:8175 )

recorded in the case diary. He stated that statement of Anu

was not recorded under Section 161 Cr.P.C. and

volunteered to state that she was interrogated. She had

also revealed about her father coming to her house and also

revealed about the offence. He denied the suggestion that

Anu did not state anything and this was the reason why he

had not recorded her statement under Section 161 Cr.P.C.

He also denied the suggestion that it had come r during

investigation that complainant Kashmiri Devi and appellant

had not in good terms. He further deposed that during

investigation it had not come that earlier also prosecutrix

and her mother had made allegations upon a 'Fauji' and a

school vehicle driver. He stated that he had gone to the

spot on 14.07.2017 and the house there was consisting of

three rooms and a verandah. There was attached kitchen

and a bathroom. The bathroom was in the backside. He

could not state whether injuries were there on the body of

the prosecutrix and stated that there was a lady constable

accompanying him. She told him about the matter and

then he wrote to the Medical Officer. Perhaps, she was

lady constable Aruna. He also stated that the narration of

incident was jointly given by the prosecutrix and her

Neutral Citation No. ( 2024:HHC:8175 )

mother. He did not know that the lady doctor Shilpa, who

had examined the prosecutrix was not a gynecologist. He

could not say that gynecologist sits at Regional Hospital,

Bilaspur. He did not ask for referring the prosecutrix for

medical examination by a gynecologist. He did not take any

record about the duty time of the complainant Kashmiri

Devi. He did not verify whether complainant came from the

hospital and directly went to the fields. PW14 stated that

he did not confirm whether from duty, the complainant had

gone to her sister's house. He further denied the

suggestion that no rape had been committed upon the

prosecutrix and further that his investigation was not fair

and impartial. He denied the suggestion that there was a

dispute between the family of the prosecutrix and the

appellant because the son of the complainant had married

the daughter of the appellant without his consent.

33. PW15 HASI Kirpal Singh was posted as HHC at

Police Station, Talai, at the relevant time and stated that on

16.09.2017, he had gone to RFSL, Mandi, from where he

had brought the case property of this case along with result

Ext. PW4/C and deposited the case property safely with

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MHC Ramesh Chand. He deposed that the case property

remained safe and intact till it was in his possession.

34. PW16 Inspector Shyam Parshad stated that he

was posted as SHO at the Police Station, Talai. On

05.10.2017, he took over the case file and on perusing the

same, he found that the result Ext. PW4/C had been

received. He recorded the statements of HC Sanjeev

Chandel, HC Ramesh Chand, HHC Mangal Singh, LC Seema

Devi, Ajay Kumar and HHC Kirpal Singh as per their

versions. During investigation, he imposed Section

376(2)(f) of IPC and after completion of the investigation,

prepared the charge sheet and presented the same before

the Court.

35. On being cross-examined, PW16 stated that he

had recorded the statement of Sanjeev Chandel on

05.10.2017. PW16 further deposed that he did not

remember whether this statement was recorded before

lunch or after lunch and further stated that he had not

associated prosecutrix during investigation. He feigned

ignorance regarding Dr. Shilpa not being a gynecologist. He

further feigned ignorance regarding there being no post of

gynecologist at Berthin hospital. He also feigned ignorance

Neutral Citation No. ( 2024:HHC:8175 )

as to whether a Medical Officer could not work as a

gynecologist. He denied the suggestion that he had

recorded the statements of the witnesses on his own. He

stated that he did not know that both the families were

having inimical relations with each other. He denied the

suggestion that a wrong charge sheet had been prepared

against the appellant.

This in entirety is the evidence led by the

prosecution.

36. Thereafter, the appellant was examined under

Section 313 Cr.P.C. wherein he denied the prosecution case

and his defence was that he was not having cordial

relations with the complainant party because the brother of

the prosecutrix had taken his daughter without his consent

and lateron had married with her and due to this reason,

the complainant party had strained relations with him. He

(appellant), his wife and relatives had gone to the house of

the complainant party but they threatened them to lodge a

report against them at the Police Station and now the

mother of the prosecutrix was demanding money from his

wife to compromise the matter.

Neutral Citation No. ( 2024:HHC:8175 )

37. The appellant thereafter led evidence in his

defence by examining his wife Lata Devi as DW1 and

himself as DW2.

38. DW1 Lata Devi stated that her daughter had

married as per her will at Sunhani with the son of Smt.

Kashmiri (PW1). The marriage had been solemnized about

8-9 years ago. Her husband and her family was not happy

with this marriage r because the marriage had been

solemnized by her by eloping with the son of PW1. She

further deposed that they never visited the house of

Kashmiri alone, however, they had visited the house of

Kashmiri before registration of this case along with

panchayat members and some other relatives. DW1 also

deposed that in her house, PW1 had threatened them that if

they would come to her house, then she would implicate

them in a false case. She further deposed that till now from

the date of marriage they were not having any relations

with PW1 and the present case had been falsely registered

by Kashmiri.

39. On being cross-examined, DW1 stated that she

had studied upto 8th standard, but, did not know when her

daughter and son of PW1 performed court marriage. Then,

Neutral Citation No. ( 2024:HHC:8175 )

PW1 stated that she wanted to give 'Dham' (Local Feast) at

her house, however, DW1 volunteered to state that they

were not told. DW1 denied the suggestion that PW1 told

them that she wanted to perform 'Milini' ceremony with the

parents of daughter i.e. DW1 and appellant. She denied the

suggestion that PW1 thereafter kept 'Dham' in her house

and she along with her husband and relatives were invited

by Kashmiri to her house for performance of 'Milini'. DW1

further denied the suggestion that thereafter she, her

husband along with relatives had visited the house of PW1

for performance of 'Milini'. She denied the suggestion that

when 'Milini' ceremony was performed, photographs had

also been clicked. DW1 admitted that photograph Ext. PX-1

was of 'Milini' ceremony in which she and Kashmiri

appeared to be hugging each other. She also denied the

suggestion that photograph Ext. PX-2 was of 'Milini'. She

admitted that in photograph Ext. PX-2, she and PW1 could

be seen exchanging gifts. DW1 admitted that in photograph

Ext. PX-3, she could be seen in circle 'A'. She admitted that

in photograph Ext. PX-4, the appellant could be seen along

with his daughter, who was in attire of bride and

volunteered to state that this was not a photograph of

Neutral Citation No. ( 2024:HHC:8175 )

marriage. She admitted that in photographs Exts. PX-5 and

PX-6, her husband i.e. appellant could be seen in red circle

'A'. She denied the suggestion that all these photographs

were of the house of Kashmiri Devi. She denied that when

they came for 'Milini', they were welcomed by PW1 with

pomp and show. She denied that during the 'Milini', video

film was also made.

40. The Public Prosecutor then sought permission of

the Court to play the C.D. Mark PX-6 received by him from

the mother of the prosecutrix which was objected to by the

appellant, however, the question was left open. After the

C.D. was played, DW1 stated that the C.D. was not of

'Milini'. She admitted that in the C.D. film, there were

pictures where she, her husband and other relatives could

be seen and volunteered to state that it was of some other

function but did not know of which function. She denied

that the C.D. was of 'Milini'. DW1 further denied that she

was deposing falsely to save her husband. DW1 also

denied that she and her husband were happy with the

marriage between her daughter and son of PW1. She

denied the suggestion that they were at visiting terms after

the marriage. She denied the suggestion that on

Neutral Citation No. ( 2024:HHC:8175 )

12.07.2017 her husband visited the house of PW1 and

committed rape on the prosecutrix i.e. daughter of Kashmiri

Devi. She admitted that they and PW1 belonged to same

caste and were having common relations.

41. DW2 is the appellant, who appeared in the

witness box and stated that on 12.07.2017, he had not gone

to village Sunhani. PW1 was related to him being mother-

in-law of his daughter. He deposed that marriage of his

daughter with the son of PW1 was against his wish.

Relatives of Kashmiri Devi used to reside in his village. PW1

used to visit their village. He deposed that false case had

been made against him because their relations were not

cordial with Kashmiri Devi because son of PW1 had eloped

with his daughter and married with her against his wish.

DW2 further deposed that he along with his relatives had

visited the house of Kashmiri Devi once or twice and they

used to quarrel with them and would ask them not to come

to their house and also used to threaten them to implicate

in a false case. He also deposed that the photographs

were not of 'Milini' but of some other function and the C.D.

was also not of 'Milini', but some other function. He

deposed that earlier also Kashmiri Devi had made false

Neutral Citation No. ( 2024:HHC:8175 )

allegations on some 'Fauji' of that place and also on some

driver. Kashmiri Devi was now asking for Rs.1,00,000/- for

withdrawal of the case. He also deposed that PW1 had also

taken money from 'Fauji' and driver and further deposed

that he used to address prosecutrix as 'Beta' and treated

her like her daughter and this was a false case.

42. On being cross-examined, DW2 denied the entire

allegations of the prosecution and even feigned ignorance

regarding prosecutrix being mentally retarded. He denied

the suggestion that at the time when his daughter and son

of PW1 had solemnized marriage, then PW1 had kept

'Dham' in her house at village Sunhani. He further denied

the suggestion that in that 'Dham', PW1 had invited them

and their relatives and also for 'Milini' ceremony. He denied

that he was happy with this marriage. He also denied that

photography and videography were also made in the

'Milini'. He admitted that in photograph Ext. PX-4, he was

visible in red circle 'A' and his daughter was visible in red

circle 'B' in the attire of a bride, but, volunteered to state

that this photo is not of 'Milini' but was of some other

function. He admitted that in the photographs Exts. PX-1 to

PX-3 his wife was visible in red circle 'A'. He also admitted

Neutral Citation No. ( 2024:HHC:8175 )

that in photograph Ext. PX-1, his wife could be seen hugging

Kashmiri Devi. DW2 admitted that in the photographs Exts.

PX-5 and PX-6, he was visible in red circle 'A'. He denied

the suggestion that photographs Ext. PX-5 and Ext.PX-6

were of the house of Kashmiri Devi and volunteered to state

that these photographs were not of 'Milini' and were of

some other function. DW2 then stated that it was

retirement function of r their common relative and that of

Kashmiri Devi. He deposed that he did not know the name

of that person whose retirement function he was referring

to. He was shown album and then he stated that it did not

have photograph of said common relative. He further

stated that Kashmiri Devi had demanded money from his

family members 15-20 days ago. He denied the suggestion

that Kashmiri Devi had not demanded any money from his

family members. DW2 further denied the suggestion that

he was deposing falsely about lodging of allegation against

some 'Fauji' and driver by PW1.

43. At this stage, on the request of the Public

Prosecutor the C.D. was played and after seeing the same,

DW2 denied that C.D. related to the 'Milini' function, but

admitted that he could be seen in the C.D. standing with his

Neutral Citation No. ( 2024:HHC:8175 )

daughter and volunteered to state that it was of some other

function. He admitted that his daughter was in bridal dress

in the C.D. standing with him and again volunteered to state

that such dress was worn in every function. He admitted

that in the C.D., his wife and PW1 could be seen exchanging

gifts. He volunteered to state that the function was

pertaining to some other retirement qua which he had

spoken in the contexts of photographs in the album.

r He

admitted that in the C.D., his daughter and son-in-law could

be seen in the attire of bride and bridegroom and

volunteered to state that these could be of some other

function. He could not tell the name and village of 'Fauji'

and the driver qua whom he stated that Kashmiri Devi had

made similar allegations and volunteered to state that they

were of village Berthin. He denied that he was deposing

falsely.

44. At the outset, it needs to be observed that rape

is the most morally and physically reprehensible crime in a

society, as it is an assault on the body, mind and privacy of

the victim. While a murderer destroys the physical frame of

the victim, a rapist degrades and defiles the soul of a

helpless female. Rape reduces a woman to an animal, as it

Neutral Citation No. ( 2024:HHC:8175 )

shakes the very core of her life. By no means can a rape

victim be called an accomplice. Rape leaves a permanent

scar on the life of the victim, and therefore a rape victim is

placed on a higher pedestal than an injured witness.

45. Rape is the most hated crime, which

tantamounts to a serious blow to the supreme honour of a

woman, and offends both, her esteem and dignity. It causes

psychological and physical harm to the victim, leaving upon

her indelible marks.

46. The committal of rape is a beastly act and takes

out the life from the life of victim. The scars of rape always

remain engraved in her mind and she cannot overcome

throughout her life. Rape leaves physical as well as mental

scars on the victim. Physical wounds may heal up, but the

mental scars, though less visible are more difficult to treat.

47. Rape is a crime not against an individual but a

crime which destroys the basic equilibrium of the social

atmosphere. "Rape" not only lowers the dignity of a woman

but also mars her reputation. The plight of the woman and

shock suffered by the victim can be well visualized. The

victim of rape grows with traumatic experience and an

Neutral Citation No. ( 2024:HHC:8175 )

unforgettable shame haunted by the memory of the

disaster forcing her to a state of terrifying melancholia. The

torment on the victim has the potentiality to corrode the

poise and equanimity of any civilized society. It has been

rightly said that whereas a murderer destroys the physical

frame of a victim, a rapist degrades and defiles the soul of a

helpless female. The offence of "Rape" is grave by its

nature, which warrants a strong deterrent by judicial hand.

48. In State of Punjab vs. Ramdev Singh, AIR

2004 SC 1290, the Hon'ble Supreme Court held as under:-

"This Court dealt with the issue and held that

rape is violative of victim's fundamental right under Article 21 of the Constitution. So, the

courts should deal with such cases sternly and severely. Sexual violence, apart from being a

dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It

is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity. Rape is not only an

Neutral Citation No. ( 2024:HHC:8175 )

offence against the person of a woman, rather a crime against the entire society. It is a crime

.

against basic human rights and also violates

the most cherished fundamental right guaranteed under Article 21 of the

Constitution."

49. In Jugendra Singh vs. State of UP, (2012) 6

SCC 297, the Hon'ble Supreme Court has held:-

r to "Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social

atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers

her dignity and mars her reputation. It is said that one's physical frame is his or her temple.

No one has any right of encroachment. An attempt for the momentary pleasure of the

accused has caused the death of a child and had a devastating effect on her family and, in

the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu. The cry of the collective has to be answered and respected and that is what exactly the High Court has done by converting the decision of acquittal to that of conviction and imposed the sentence as per law."

Neutral Citation No. ( 2024:HHC:8175 )

50. In Shyam Narian Vs. State (NCT of Delhi)

(2013) 7 SCC 77, the Hon'ble Supreme Court has

elaborately dealt with the issue as discussed in Madan

Gopal Kaakar Vs. Naval Dubey and Anr., (1992) 3 SCC

204, State of Andhra Pradesh Vs. Bodem Sundra Rao,

(1995) 6 SCC 230 and State of Karnataka Vs.

Krishnappa, (2000) 4 SCC 75 and has held that :

"It is an assault on the individuality and

inherent dignity of a woman with the mindset

that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of

a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed."

51. Equally settled is the proposition of law that

conviction can be based on the sole testimony of the victim

of sexual assault without corroboration from any other

evidence. The statement of the victim is more reliable than

any other witness. Where the testimony of victim of sexual

assault instills the confidence in court, the same can be

relied upon for conviction of the accused. It is also a well

settled principle of law that corroboration as a condition for

Neutral Citation No. ( 2024:HHC:8175 )

judicial reliance on the testimony of the victim is not a

requirement of law but a guidance to prudence under the

given circumstances.

52. In Vijay @ Chinee vs. State of Madhya

Pradesh, (2010) 8 SCC 191, the Hon'ble Supreme Court

has dealt with the issue and held that :

"Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix

if found to be worthy of credence and reliable,

requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix."

53. There are catena of judgments passed by the

Hon'ble Supreme Court wherein it has been held that only

the deposition of the prosecutrix by itself is also sufficient to

record conviction for the offence of rape if that testimony

inspires confidence and has complete link of truth.

54. In Md. Ali vs. State of UP, 2015 (3) SCALE

274, the Hon'ble Supreme Court has held that "be it noted,

there can be no iota of doubt that on the basis of the sole

testimony of the victim, if it is unimpeachable and beyond

reproach, a conviction can be based" and in Mohd. Iqbal

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vs. State of Jharkhand reported in (2013) 14 SCC

481, the Hon'ble Supreme Court has held that "there is no

prohibition in law to convict the accused of rape on the

basis of sole testimony of the victim and the law does not

require that her statement be corroborated by the

statements of other witnesses".

55. Minor contradictions or insignificant

discrepancies should not be a ground for throwing out an

otherwise reliable prosecution case. A victim complaining of

having been a victim of the offence of rape is not an

accomplice after the crime. Her testimony has to be

appreciated on the principle of probabilities just as the

testimony of any other witness; a high degree of probability

having been shown to exist in view of the subject matter

being a criminal charge. However, if the court finds it

difficult to accept the version of the victim on its face value,

it may search for evidence, direct or substantial, which may

lend assurance to her testimony.

56. After all, the Court cannot overlook where the

victim or a girl is subjected to sexual assault, she is not

accomplice to the crime, but is victim of another's lust.

Neutral Citation No. ( 2024:HHC:8175 )

57. Bearing in mind the aforesaid exposition of law,

it would be noticed that the prosecutrix (PW13), even

though, is suffering from mental retardation, but, has duly

proved on record that she had been subjected to rape by

the appellant.

58. Though, a faint attempt is made by Mr. Ahuja,

learned counsel for the appellant, to contend that the

prosecutrix had been tutored. But, we find that such

contention loses its sheen, particularly, when the

prosecutrix has been subjected to lengthy cross-

examination, but, nothing could be extracted from her, out

of which the appellant could take an advantage. Her

statement is clear, categorical, cogent and consistent and

has successfully withstood the cross-examination. The

prosecutrix can conveniently be termed to be a sterling

witness of a very high quality and calibre whose version is

unassailable. The burden put forth by the prosecution can

be accepted at its face value without any hesitation. The

prosecutrix appears to be absolutely truthful and, as

observed above, consistent right from the starting point till

the end. Her statement is natural, consistent with the case

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of the prosecution qua the appellant. There is no

prevarication in the version of the prosecutrix and she has

withstood lengthy cross-examination which is not difficult to

comprehend must have been extremely strenuous upon the

prosecutrix given the fact that she is mentally retarded.

59. Mr. Ahuja, learned counsel for the appellant,

would then contend that medical evidence in the instant

case does not support the case of the prosecution and,

therefore, the appellant deserves to be acquitted. He would

strenuously argue that no semen or blood was found on

'Dupatta' which as per the prosecution had been used for

cleaning after the commission of offence.

60. However, we find no merit in such contention. A

perusal of the FSL report would go to indicate that RFSL had

conducted tests for detecting blood in semen and no other

test and it was not the case of the prosecution that the

appellant had ejaculated so that there could be semen

found on the 'Dupatta'. The appellant is only assuming

such allegation, whereas, this is not the case of the

prosecution. Therefore, in such circumstances, obviously,

there would be no traces of semen on the 'Dupatta'.

Neutral Citation No. ( 2024:HHC:8175 )

61. Mr. Ahuja would then argue that going by the

statement of Dr. Shilpa, no case of rape is made out as she

has specifically stated in her cross-examination that "I

cannot say conclusively the rape was committed".

62. However, we again find no merit in such

submission as the statement of PW12 Dr. Shilpa cannot be

read in isolation as she has specifically deposed that the

presence of redness and laceration in vaginal canal were

suggestive of some intrusion or penetration. No doubt, in

her cross-examination, she did state that redness and

laceration could be there because of insertion of fingers.

But, then it has come in the statement of prosecutrix herself

that it was the appellant, who inserted the finger.

Furthermore, the witness (PW12) after stating that she

cannot say conclusively that rape was committed, but,

volunteered to state that the injuries noticed by her were

indicated in the MLC that make the probability of offence.

63. For the purpose of satisfaction of the ingredients

of rape, it is more than settled that it is not necessary that

there should be complete penetration (See: Aman Kumar

vs. State of Haryana(2004) 4 SCC 379).

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64. Here, it shall be apt to refer to Modi's Medical

Jurisprudence, 23rd Edition, at P.P. 897 and 928, wherein it is

stated:

"To constitute the offence of rape, it is not

necessary that there would be complete penetration of the penis with emission of semen and the rupture of hymen. Partial penetration of

the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite

sufficient for the purpose of law. It is, therefore,

quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.

* * *

In small children, the hymen is not usually

ruptured, but may become red and congested along with the inflammation and bruising of the

labia. If considerable violence is used, there is often laceration of the fourchette and

perineum."

65. Apart from the above, it is more than settled that

even if medical evidence vis-a-vis ocular evidence is

contrary, then in those cases the eye witness account and

in the instant case the victim's account, if found, credible

and trustworthy would have to be accepted, rather than,

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accepting the alternative possibility of the medical opinion.

Where, there is contradiction between the medical and

ocular evidence, the ocular testimony of the witness and in

this case the victim has greater evidentiary value vis-a-vis

the medical evidence. It is only when medical evidence

makes the ocular evidence improbable, then that becomes

a relevant factor in the process of the evaluation of

evidence or where the medical evidence goes so far that it

completely rules out all possibility of the ocular evidence

being true, then the ocular evidence may have to be

disbelieved.

66. Mr. Ahuja would then contend that the

prosecutrix is not so mentally retarded as is sought to be

pointed out by the prosecution and in support of such

contention has referred to the medical certificate to show

the physical handicap disability of the prosecutrix, but, the

same is of no avail to the appellant as the medical

certificate of the prosecutrix dated 20.02.1998 Ext. PW1/D

clearly shows that she was suffering from 50% permanent

disability.

Neutral Citation No. ( 2024:HHC:8175 )

67. In addition, Mr. Ahuja would also refer to

Appendix III appended along with Schedule in the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Rules,

1995, where definition of Mental Retardation and its

categories have been set out. But, we find no merit in such

contention and, therefore, need not to reproduce the

definition and categories of Mental Retardation as the

prosecutrix in the instant case has already been clinically

examined and evaluated as is evident from the testimonies

of PW3 and PW12.

68. As a last ditch effort, learned counsel for the

appellant would argue that the appellant could not have

been convicted for the offence under Section 376(2)(f) of

IPC. However, we find no merit in the aforesaid contention.

69. Section 376 of IPC reads as under:

"376. Punishment for rape.--(1)Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]

(2) Whoever,--

Neutral Citation No. ( 2024:HHC:8175 )

(a) being a police officer, commits rape--

(i) within the limits of the police station to

which such police officer is appointed; or

(ii)in the premises of any station house; or

(iii)on a woman in such police officer's custody

or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to

such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a

jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of

such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority

towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

Neutral Citation No. ( 2024:HHC:8175 )

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily

harm or maims or disfigures or endangers the

life of a woman; or

(n) commits rape repeatedly on the same woman,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to

fine.

Explanation.--For the purposes of this sub-section,

(a) "armed forces" means the naval, military r and air forces and includes any member

of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the

State Government;

(b) "hospital" means the precincts of the hospital and includes the precincts of

any institution for the reception and treatment of persons during convalescence or of persons requiring

medical attention or rehabilitation;

meaning as assigned to the expression "police" under the Police Act, 1861 (5 of 1861);

(d) "women's or children's institution"

means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

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[(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous

.

imprisonment for a term which shall not be less

than twenty years, but which may extend to imprisonment for life, which shall mean

imprisonment for the remainder of that person's natural life, and shall also be liable to fine: