w w w . L a w y e r S e r v i c e s . i n



Alam Chand v/s State of H.P.


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    Cr. Appeal No. 572 of 2015

    Decided On, 05 July 2016

    At, High Court of Himachal Pradesh

    By, THE HONOURABLE MR. JUSTICE SANJAY KAROL & THE HONOURABLE MR. JUSTICE AJAY MOHAN GOEL

    For the Appellant: Nimish Gupta, Advocate. For the Respondent: Vikram Thakur, Deputy Advocate General, J.S. Guleria, Assistant Advocate General.



Judgment Text

Sanjay Karol, J.

1. In this appeal filed under Section 374 Cr.P.C., convict Alam Chand has assailed judgment dated 14.08.2014, passed by Special Judge, Kullu, H.P., in Sessions Trial No.140 of 2013 (2903 of 2013), titled as State Versus Alam Chand, whereby he stands convicted for having committed offences punishable under the provisions of Section 4 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and Section 506 of the Indian Penal Code and sentenced to serve rigorous imprisonment for a period of ten years and to pay fine of Rs. 25,000/- and in default thereof, further to undergo rigorous imprisonment for a period of one year for commission of offence punishable under the provisions of Section 4 of the POCSO Act. Also he was sentenced to undergo rigorous imprisonment for one year for the commission of offence punishable under the provisions of Section 506 of the Indian Penal Code.

2. On the basis of statement of the prosecutrix (Ex.PW.1/B), FIR No. 85/2013, dated 08.07.2013 (Ex.PW.1/A), came to be registered at Police Station, Manali, H.P., under the provisions of Sections 376 (1), 506 of IPC and Section 4 of the POCSO Act, against the accused. Statements of the prosecutrix (Ex.PW.1/D & Ex.PW.1/E) came to be recorded before the Judicial Magistrate, Manali. Allegedly, sometime in the month of April, 2013, prosecutrix was subjected to sexual intercourse by her uncle, Alam Chand, in Village Diyar. She was threatened and criminally intimidated not to reveal such fact and out of fear of her life, she did not reveal the incident to anyone. On 06.07.2013, accused visited the prosecutrix at her house, at village Prini, where he molested her and when she raised hue and cry, accused again threatened to kill her. Eventually prosecutrix narrated the incident to her grandparents, who got the matter reported to the police. During investigation, prosecutrix was medically examined from Dr.Usha Sharma (PW.8), who issued MLC (Ex.PW.8/A). Investigating Officer, SI Rajesh Kumar (PW.9), also took into possession incriminating material in the shape of bed sheet etc. and clo thes of the prosecutrix as also the accused, which were sent for chemical examination, report whereof Ex.PW.1/E obtained and taken on record. Investigation revealed that prosecutrix was born on 18.04.2000 and birth certificate (Ex.PW.5/B) taken on record. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

3. The accused was charged for having committed offences punishable under the provisions of Sections 376(1), 506 of the Indian Penal Code and Section 4 of POCSO Act, to which he did not plead guilty and claimed trial.

4. In order to establish its case, in all, prosecution examined as many as nine witnesses and statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took the plea of innocence and false implication. In his defence accused examined Ram Krishan (DW.1).

5. Appreciating the testimonies of the prosecution witnesses, Trial Court convicted the accused for having committed offences punishable under the provisions of Section 4 of the POCSO Act and Section 506 of IPC and sentenced as aforesaid. Hence the present appeal by the convict.

6. We have heard Mr. Nimish Gupta, learned counsel, on behalf of the convict-appellant as also Mr.Vikram Thakur, learned Deputy Advocate General, assisted by Mr.J.S. Guleria, learned Assistant Advocate General, on behalf of the State. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find the findings returned by the trial Court to be based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. Prosecution has been able to prove its case, beyond reasonable doubt against the convict.

7. At this juncture we deem it appropriate to deal with the statement of law on the point.

8. In Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 23.10.2014, In Re, (2014) 4 SCC 786, the Apex Court has highlighted the need for having an effective State police machinery for curbing the menace of rape, for such crime is not only in contravention of the domestic laws, but is also in direct breach of obligations under International Law, treaties whereof stand ratified by the State, which is under an obligation to protect its women from any kind of discrimination.

9. The Apex Court has highlighted the need for prompt disposal of cases of crime against women and children. (Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353).

10. In Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77, the Apex Court held as under:

'27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., 'physical morality'. In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. 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. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of 'Spring of Life' and might be psychologically compelled to remain in the 'Torment of Winter'. When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court.'

11. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, the apex Court has cautioned the Court to adopt the following approach:

'The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character.'

12. The Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle that testimony of prosecutrix is almost at par with an immediate witness and can be acted upon without corroboration.

13. Also, it is a settled principle of law that absence of injuries on the external or internal parts of the victim by itself cannot be a reason to disbelieve the testimony of the prosecutrix. (See: Mukesh v. State of Chhattisgarh, (2014) 10 SC 327); State of Haryana v. Basti Ram, (2013) 4 SCC 200; O.M. Baby (Dead) by Legal Representative v. State of Keral, (2012) 11 SCC 362; and State of U.P. v. Chhotey Lal, (2011) 2 SCC 550).

14. Reiterating its earlier view in Mohd. Iqbal v. State of Jharkhand, (2013) 14 SCC 481; Narender Kumar v. State (NCT of Delh), (2012) 7 SCC 171, the Apex Court in Mukesh v. State of Chhattisgarh, (2014) 10 SC 327, has held that sole testimony of prosecutrix is sufficient to establish commission of rape, even in the absence of any corroborative evidence.

15. In Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688, the apex Court held as under:

'33. It will be useful to refer to the judgment of this Court in the case of O.M. Baby v. State of Kerala, (2012) 11 SCC 362, where the Court held as follows:-

"17. ….. ‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.’

18. We would further like to observe that while appreciating the evidence of the prosecutrix, the court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and has found reiteration in a recent judgment in Rajinder @ Raju v. State of H.P., (2009) 16 SCC 69, para 19 whereof may be usefully extracted:

‘19. In the context of Indian culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.’''

16. In Rameshwar v. The State of Rajasthan, AIR 1952 SC 54, the Supreme Court has held that previous statement of the raped girl to her mother, immediately after the occurrence, is not only admissible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of section 157 of the Evidence Act. In order to come to the aforesaid conclusions, illustration (j) to section 8 of the Evidence Act was relied upon. In that case, the victim, named Purni, was 7/8 years old. She was not administered oath, but was held to be competent witness and, therefore, duly examined and believed.

17. In State of Punjab versus Jagir Singh (1974) 3 SCC 277 the apex Court held that:-

"A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures." (Emphasis supplied)

18. The Apex Court in State of Rajasthan versus N. K. THE ACCUSED (2000) 5 SCC 30 has held that:-

'… …It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal Courts which gives rise to the demand for death sentence to the rapists. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.' (Emphasis supplied)

19. It is also a settled position of law that victim of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. If for some reason Court is hesitant to place implicit reliance on the testimony of the victim it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the victim must necessarily depend on the facts and circumstances of each case. If the totality of the circumstances appearing on the record of the case disclose that victim does not have a strong motive to falsely involve the person charged, Court should ordinarily have no hesitation in accepting her evidence. [State of Maharashtra versus Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 and O. M. Baby (dead) by Legal Representative vs. State of Kerala , 2012 (11) SCC 362].

20. The Apex Court in State of Punjab versus Gurmit Singh and others, (1996) 2 SCC 384 has held that:-

'… …The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion?

---- --- ---

'21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.' … … (Emphasis supplied)

The Court again reiterated its view in Siriya @ Shri Lal vs. State of Madhya Pradesh, (2008) 8 SCC 72.

21. In State of M.P. v. Dharkole alias Govind Singh and others, (2004) 13 SCC 308 the Apex Court has held that:-

'9. … Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.'

'10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an exercise particular to each case?

"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."

'11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.' [Emphasis supplied]

22. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it held that:

'5. …..A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored'. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.'

23. Law with regard to testimony of a child witness is now well established. In Golla Yelugu Govindu vs. State of Andhra Pradesh (2008) 16 SCC 769, while reiterating its earlier view the Apex Court held that:-

'11. 6.Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer J. in Wheeler v. United States [159 U.S. 523 (1895)]. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001) 9 SCC 129].

24. In State of Himachal Pradesh vs. Suresh Kumar (2009) 16 SCC 697, the Apex Court was dealing with a case where victim was ravished by the accused on 15.3.2000 which incident was narrated by the victim to her sister later during the day. She also narrated the incident to her parents the following day and later on to the Doctors. Court accepted the statement of the sister, parents and the doctors while holding the accused guilty. Importantly, Apex Court reversed the finding recorded by the High Court wherein it was held that statement of the victim being minor was not worthy of credence.

25. The apex Court in Radhakrishna Nagesh Versus State of Andhra Pradesh, (2013) 11 SCC 688 had an occasion to deal with a case of a child victim. After considering its earlier decisions, the Court held that Court must examine the evidence of the prosecution in its entirely and then see its cumulative effect to determine whether offence of rape stands committed or not.

26. The apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 has held as under:

'9. 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 chau vinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabil ities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as:-

(1) The female may be a 'gold digger' and may well have an economic motive - to extract money by holding out the gun of prosecution or public exposure.

(2) She may be suffering from psychological neurosis and may see an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.

(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.

(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.

(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.

(6) She may do so on account of jealousy.

(7) She may do so to win sympathy of others.

(8) She may do so upon being repulsed.

10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :- (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred, (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours, (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands' family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocent. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and therisk of being disbelieved, act as a deterrent.

11. 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 Court's 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 levelled such an accusation on account of the instinct of self preservation. Or when the 'probabilities-factor' is found to be out of tune.'

[Also: State of H.P. v. Asha Ram, (2005) 13 SCC 766]

27. We shall now discuss the evidence in view of the aforesaid settled proposition of law.

28. Through the testimony of Ram Krishan (DW.1), defence of animosity cannot be said to have been probablized. His testimony is more to impeach the credit of the prosecutrix than to establish such defence. But we find even such fact not to have been established on record.

29. Dr. Usha Sharma (PW.8), who issued MLC (Ex.PW.8/A), is clearly of the view that the prosecutrix was exposed to sexual assault for more than one week. Again to discredit the prosecutrix, our attention is invited to the cross-examination part of the testimony of the doctor, who states that the victim was not giving the correct history, but then it stands explained that it was on account of anxiousness. In any event, factum of sexual assault has not been ruled out by the doctor. Absence of any marks of injury, so found by the doctor, are explained, for the prosecutrix did not resist any such overt acts.

30. At the time of commission of offence, prosecutrix was 12 years and 11 months of age, which fact is evident from the birth certificate (Ex.PW.5/B) issued under the provisions of Section 12/17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the Himachal Pradesh Registration of Births and Deaths Rules, 2003. There is no challenge with regard to date of birth of the prosecutrix.

31. At this juncture, it be only observed that link evidence in no manner establishes the prosecution case. Report of the Scientific Officer (Ex.PW.9/E) is of not much use to the prosecution.

32. This takes us to the ocular version of the prosecutrix (PW.1) and her grandmother Smt.Tikami Devi (PW.2), who hail from rural background and live in the remotest corner of the State and generally men in the home take all decisions.

33. That accused is husband of daughter of Tikami Devi is not in dispute. Accused has tried to establish animosity, the root cause for false implication and genesis of the prosecution case to be false. To establish such fact, our attention is invited to that part of the statements, wherein they admit that there was a dispute with regard to payment of money on account of construction work carried out by the accused. But then animosity is a double edged sword. There is nothing on record to establish that solely on account of nonpayment of certain dues, relations between the accused, his wife, parents of the prosecutrix or her grandmother had become hostile or that they were not on visiting/speaking terms. No litigation was pending. In any event the accused could have examined his wife to establish such fact. In fact, from the cross-examination part of the testimony of these witnesses, it emerges that in the month of April, 2013, wife of the accused was not home, as she had gone to the forest to collect herbs. Their cross-examination is also suggestive of the fact that in fact prosecutrix had in fact visited the house of her aunt (wife of the accused) in village Diyar, where she had stayed with her cousin i.e. children of the accused.

34. Now when we examine the testimony of the prosecutrix, we find her to have unequivocally and clearly deposed that sometime in the month of April, 2013, she had gone to spend some time in the house of her aunt in village Diyar, when accused, whom she called as Mama forcibly committed sexual intercourse in his house. She was threatened not to reveal such fact to anyone, else she would be killed. As such, out of fear, she kept quiet. Significantly her aunt was not at home at that time. Thereafter, she returned to her house at Prini. On 06.07.2013, when accused came to Prini, he started molesting her and when she raised alarm, he again threatened to kill her. At this stage, she narrated the incident to her grandparents and matter came to be reported to the police. She has explained that the accused has four daughters with the eldest being of 11 years. Hence it was easy for the accused to have committed the crime. She has also explained that accused has got one more room in his house. She has identified the place, where she was subjected to sexual assault. Her admission of her family having strained relations with accused Alam Chand would not mean that she was not on visiting terms with her a

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unt. There is difference between animosity/hostility and the relations being strained. 35. That prosecutrix had narrated the incident to her grandmother also stands corroborated by her grandmother Smt. Tikami Devi (PW.2) and fulfills the principle of law laid down in Rameshwar (supra). 36. Version of prosecutrix of having been subjected to sexual assault is fully inspiring in confidence. Accused subjected her to sexual assault in his own house. He also attempted to do so at Prini. 37. It is not the suggestive case of the accused that the prosecutrix was tutored by her parents/grandparents to falsely depose against him, who in fact is none but a close relative. There is no delay in lodging the FIR. Though out of threat, fear and intimidation, prosecutrix , who is a minor, did not disclose the incident to anyone, but after the second attempt, she mustered courage and disclosed the incident to her grandparents. The version of the prosecutrix throughout has been clear, cogent, consistent and convincing. There is no contradiction, in her previous statement so disclosed to the police, Magistrate or the one made in the Court. The prosecutrix cannot be said to be unreliable witness and her testimony to be wholly unbelievable. 38. Testimonies of the prosecution witnesses, more so that of minor cannot be said to be unbelievable. Witnesses are trustworthy and in the opinion of the Court have deposed truthfully. Safely it can be held that prosecution has discharged the initial burden of establishing its case and the statutory burden, so required by the accused under Section 30 of the POCSO Act, cannot be said to have been discharged. Ocular evidence stands materially corroborated by other evidence on record. 39. Why would PW.2 falsely implicate his own son-in-law in the crime. None would put the honour of girl child and that too for an amount of Rs. 40,000/- towards payment of dues, at stake. Woman mustered courage and brought the matter to the notice of the authorities, which eventually is commendable and appreciable. 40. The ocular version as also the documentary evidence clearly establishes complicity of the convict in the alleged crime. The testimonies of prosecution witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable. 41. From the material placed on record, it stands clearly established by the prosecution witnesses, beyond reasonable doubt, that the convict is guilty of having committed the offences charged for. There is sufficient, clear, convincing, cogent and reliable piece of evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the convict stands proved beyond reasonable doubt to the hilt. It cannot be said that convict is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 42. Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that convict committed rape on the prosecutrix a minor girl and criminally intimidated by threatening her with injury to her person and cause alarm as also threatened her to do away with her life. 43. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings cannot be said to be erroneous in any manner. Hence, the appeal is dismissed. Records of the Court below be immediately sent back.
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