Tuesday, 9 June 2015

When direct substantial oral evidence shall prevail over corroborative evidence?

 Another submission of learned defence Advocate appearing on behalf of accused that photographs placed on record clearly prove that salwar and underwear of prosecutrix thrown on floor were kept in very orderly manner and one pair of slippers of accused were also kept in orderly manner inside the room clearly prove the case of consent and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that as per Section 59 of Indian Evidence Act 1872, all facts except the contents of documents could be proved by way of direct oral evidence. In present case prosecutrix in her testimony proved beyond reasonable doubt that when accused entered into her room prosecutrix aged 20 years struggled with accused for 10-15 minutes and thereafter accused gagged the mouth of prosecutrix and threw the prosecutrix on bed. It is proved beyond reasonable doubt that thereafter accused who was married person removed the salwar of prosecutrix and underwear of prosecutrix who was aged 20 years and who was student at the time of incident and on these facts testimony of prosecutrix remained unrebutted on record. Even accused did not appear in witness box in order to rebut the above said testimony of prosecutrix. Accused did not appear in witness box as a defence witness as required under Section 315 of Code of Criminal Procedure 1973 in order to rebut testimony of prosecutrix. It is well settled law that photographs are only corroborative evidence in order to prove the facts and it is well settled law that direct oral eye evidence is substantive evidence. It is well settled law that when there is conflict between direct substantial oral evidence and corroborative evidence then direct substantial oral evidence always prevails.
Equivalent Citation: 2015CriLJ1812
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 493 of 2009
Decided On: 08.01.2015
Appellants: State of Himachal Pradesh
Vs.
Respondent: Vipan Kumar
Hon'ble Judges/Coram:Sanjay Karol and Piar Singh Rana, JJ.




1. Present appeal is filed against the judgment of acquittal passed by learned Sessions Judge-cum-Special Judge Hamirpur in Sessions trial No. 12 of 2009 titled State of H.P. vs. Vipan Kumar.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by prosecution are that on dated 25.2.2009 at about 2.30 PM at village Lohakhar accused had committed sexual intercourse with prosecutrix without her consent. It is alleged by prosecution that on the aforesaid date time and place accused criminally trespassed into the house of prosecutrix after having made preparation to wrongfully restrain the prosecutrix with a view to commit rape on prosecutrix. It is also alleged by prosecution that on the same date time and place accused criminally intimidated the prosecutrix to kill her. It is alleged by prosecution that on the same date time and place accused was not the member of Scheduled Caste or Scheduled Tribe and was member of Rajput caste and was in position to dominate the prosecutrix who belonged to Scheduled Caste and exploited her sexually without her consent. It is alleged by prosecution that at the time of incident the prosecutrix aged 20 years was student of BBA in Vallabh Government College Mandi and prosecutrix was all alone in her house. It is alleged by prosecution that accused came in the house of prosecutrix and when prosecutrix inquired from accused about his presence then accused told that he came in the search of his dog. It is alleged by prosecution that at about 2.30 PM when prosecutrix was all alone in the house and was watching the television accused again came and knocked the door and asked the prosecutrix to open the door. It is alleged by prosecution that when prosecutrix declined to open the door thereafter accused 2/3 times pulled the door from outside and thereafter entered into the room of prosecutrix. It is alleged by prosecution that thereafter accused threw the prosecutrix on bed and gagged her mouth with his hands and thereafter removed the salwar and underwear of prosecutrix. It is alleged by prosecution that when prosecutrix tried to cry the accused gagged the mouth of prosecutrix and took the prosecutrix to cowshed which was situated nearby residential room. It is alleged by prosecution that in cowshed the accused removed his pant and underwear and committed forcible sexual intercourse with prosecutrix. It is alleged by prosecution that prosecutrix suffered injuries on her feet, back and towards right side of leg and also on her private parts in the process of rape. It is alleged by prosecution that immediately mother of prosecutrix came and accused immediately fled away and in hurry left his underwear Ext. P7 in cowshed. It is alleged by prosecution that when mother of prosecutrix came and when she saw salwar Ext. P5 and underwear Ext. P6 of prosecutrix inside the residential room she got confused and puzzled and she started crying. It is alleged by prosecution that in the meanwhile PW 2 Roshani Devi saw the accused running away from cowshed and when she abused the accused the accused told her that he was not afraid of anybody. It is alleged by prosecution that in the meanwhile prosecutrix came from cowshed to her mother in the courtyard of residential house in weeping stage and narrated the entire incident to her. It is alleged by prosecution that thereafter Roshani Devi telephoned her son-in-law Rajesh Kumar and also her daughter at Hamirpur and also telephoned a member of Mahila Mandal and also collected other villagers in the house. It is alleged by prosecution that thereafter Rajesh Kumar son-in-law of Roshani Devi telephoned Shri Gulab Singh Thakur Dy. S.P. and Mr. Gulab Singh Thakur Dy. S.P. had informed the police of P.S. Sujanpur. It is alleged by prosecution that thereafter SI Anil Verma SHO P.S. Sujanpur proceeded to the spot along with other some police officials and recorded the statement of prosecutrix under Section 154 Cr.P.C. Ext. PW 1/A and thereafter FIR Ext. PW 13/A was registered. It is alleged by prosecution that thereafter PW 16 Gulab Singh Thakur Dy. S.P. went to the spot and took into possession salwar Ext. P5 and underwear Ext. P6 of prosecutrix from room of prosecutrix vide memo Ext. PW 1/C in presence of Roma Devi and Karam Chand and sealed them in a parcel with seal 'A' and seal impression was took on a piece of cloth. It is alleged by prosecution that underwear of accused Ext. P7, gunny bag Ext. P16 were took into possession from cowshed by SI Anil Verma vide memo Ext. PW 1/D. It is alleged by prosecution that Gulab Singh Thakur PW 16 took into possession V shape slippers Ext. P8 of accused from the room of prosecutrix vide recovery memo Ext. PW 1/E. It is alleged by prosecution that in the meanwhile application Ext. PW 4/A was moved to SMO R.H. Hamirpur for medical examination of prosecutrix which was conducted vide MLC Ext. PW 4/C by PW 4 Dr. Rajneesh Thakur and it was found that prosecutrix was subjected to sexual intercourse. It is alleged by prosecution that medical officer had collected vaginal swab of prosecutrix and sent to FSL Junga and also obtained FSL report Ext. PW 4/B according to which human blood and semen was found on vaginal swab of prosecutrix. It is alleged by prosecution that accused was also medically examined by medical officer CHC Sujanpur by PW 5 Dr. Rakesh Kumar Sharma who issued MLC Ext. PW 5/B and accused was found capable of performing sexual intercourse. It is alleged by prosecution that photographs were also obtained and site plan of house of prosecutrix and cowshed was also prepared by Investigating Officer. It is alleged by prosecution that caste certificate of prosecutrix was obtained and as per caste certificate prosecutrix belonged to SC caste and accused belonged to Rajput caste.
3. Accused was charged by learned Sessions Judge Hamirpur on dated 16.5.2009 under Sections 376(1), 452, 506-II of Indian Penal Code and 3(1) (xii) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989. Accused person did not plead guilty and claimed trial.
4. Prosecution examined the following witnesses in support of its case:-
4.1. Prosecution also produced following piece of documentary evidence in support of its case:-
5. Statement of the accused recorded under Section 313 Cr.P.C. Accused has stated that prosecutrix and witnesses are inimical towards him as his brother Vinay Kumar was prosecution witness against Jamna Devi elder sister of prosecutrix in a criminal case pending in the Court of JMIC Hamirpur prior to this incident. He has stated that prosecutrix and her mother have stated against him due to enmity. He has further stated that he is innocent and false case has been planted against him. No defence evidence was adduced by accused. Learned trial Court acquitted the accused of the charges framed against him.
6. Feeling aggrieved against the judgment passed by learned Trial Court State of H.P. filed present appeal under Section 378 of Code of Criminal Procedure.
7. We have heard learned Additional Advocate General appearing on behalf of the State of H.P. and learned Advocate appearing on behalf of the respondent and also perused the entire record carefully.
8. Question that arises in present appeal is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice as mentioned in memorandum of grounds of appeal.
ORAL EVIDENCE ADDUCED BY PROSECUTION:
9.1. PW 1 prosecutrix has stated that she has three elder sisters who are married. She has stated that she is the youngest daughter of her parents. She has stated that her elder sister has qualified diploma course in electronics and another elder sister has completed diploma course in civil engineering and her third sister has qualified B.Sc. course. She has stated that she was doing the course of BBA at Vallabh Government College Mandi at the time of incident. She has stated that her father is a labourer and she belonged to Scheduled Caste community known as Lohar. She has stated that on dated 20.2.2009 she came to her native village from Mandi on holidays and on the day of incident i.e. 25.2.2009 her father had gone out of village for his work and her mother had gone to Tauni Devi for exchange of CFL bulbs and she was all alone in the house. She has stated that at about 2 PM one Ishro Devi came to her house and she came to her house to see her mother. She has stated that she told Ishro Devi that her mother has gone to Tauni Devi and asked her to sit inside the residential house. She has stated that while they both were sitting in the residential house in the meanwhile accused present in Court who is residing in her village came and Smt. Ishro Devi asked accused and accused told that he was looking for his dog and further stated that thereafter accused left. Prosecutrix further stated that thereafter her mother did not return and Smt. Ishro Devi left her residential house at about 2.15/2.20 PM and thereafter she started watching television. She has stated that at about 2.30 PM present accused came and called the prosecutrix from outside. She has stated that she asked the accused to come later on when her mother would come from Tauni Devi but accused was adamant to enter into the house. She has further stated that thereafter accused pulled the door from outside due to which door was opened. Prosecutrix has stated that she tried to escape from the door but she was pushed back by accused inside. She has stated that she was wearing salwar, shirt and sweater at the time of incident. She has stated that thereafter accused caught hold her and thereafter left arm of her sweater was torn by accused and thereafter accused threw her on bed and when she tried to cry accused gagged her mouth with his hand. She has stated that thereafter accused removed her salwar and underwear and then accused caught hold her with his arm from her back side with his one hand and took her to nearby cattle shed. She has stated that thereafter accused closed the door of cattle shed. She has stated that her mother used to keep gunny bags in the cow shed to cover the grass. She has stated that thereafter accused threw her on gunny bags in the cattle shed and thereafter committed forcible sexual intercourse with her. She has further stated that while the accused was taking her from residential room to cattle shed she suffered injuries on the feet, back side and legs towards the right side. She has stated that thereafter accused inserted his penis forcibly in her vagina parts. She has stated that thereafter accused after committing rape ran away leaving behind his underwear in the cowshed. She has stated that thereafter she returned to her residential house. She has stated that V shape slippers of accused remained in her residential house. She has stated that her mother came back by that time and prosecutrix came from cowshed to courtyard where her mother was present. She has stated that she hugged her mother and started weeping and told that accused had committed forcible sexual intercourse with her. She has stated that thereafter her mother telephoned her brother-in-law and her sister. She has stated that her brother-in-law did not respond to the call. She has stated that thereafter she called her sister. She has further stated that thereafter telephone call was given to Kamla Devi member of Mahila Mandal and also asked her to inform the villagers. She has stated that thereafter some women of village came to her house. She has stated that she tried to cry but accused did not allow her to cry and caught hold her mouth. She has stated that in the meantime information was given to the police about incident and police came at her house at 3.30/4 PM. She has stated that thereafter her statement Ext. PW 1/A was recorded. She has stated that she produced her shirt, vest, brassiere, sweater, underwear and salwar to police which were sealed by police at the spot. She has stated that police also took into possession underwear and slippers of accused. She has stated that sweater Ext. P1, shirt Ext. P2, undershirt Ext. P3 and brassiere Ext. P3 took into possession by police vide memo Ext. PW 1/B. She has stated that these clothes were worn by her when accused had committed rape upon her. She has stated that her shirt and sweater were torn. She has stated that salwar Ext. P5, and underwear Ext. P6 are the same which were worn by prosecutrix at the time of incident and the same were took into possession vide seizure memo. She has stated that underwear Ext. P7 of accused is the same which was took into possession by police vide Ext. PW 1/D. She has stated that pair of slippers Ext. P8 left by accused also took into possession vide seizure memo Ext. PW 1/E. She has stated that police also took into possession the buttons of her sweater and two strings of her salwar and stated that buttons are Ext. P9 and Ext. P10 and strings are Ext. P11 and Ext. P12 and further stated that same were took into possession vide memo Ext. PW 1/F. She has stated that thereafter she was brought to Zonal Hospital Hamirpur and she was medically examined by doctor on dated 25.2.2009. She has stated that accused is married person having his wife and children and is residing with his family. She has stated that accused was known to her earlier because accused was resident of her village. She has denied suggestion that she has filed false case against the accused due to enmity. She has stated that she does not know whether Vinay Kumar brother of accused appeared as a prosecution witness against her sister. She has denied suggestion that her family members were asking Vinay Kumar not to appear as a witness. She has denied suggestion that false case filed against accused due to enmity.
9.2. PW 2 Roshani Devi mother of prosecutrix has stated that she is residing in village Lohakhar along with her family and she has stated that she has four daughters. She has stated that her three daughters are married and prosecutrix aged 20 years is unmarried. She has stated that prosecutrix was doing BBA at Mandi and she came to village on dated 20.2.2009 on holidays. She has stated that on dated 25.2.2009 she had gone to Tauni Devi for collecting CFL bulbs and prosecutrix was all alone in residential house and her husband had gone out in the morning for his work. She has stated that she opened the door of her residential room and found that bolt of outer door was broken. She has stated that bolt of inner door was also disturbed due to push and has further stated that underwear and salwar of prosecutrix were lying on the floor of residential house. She has stated that she became puzzled and confused and she started calling the prosecutrix loudly. She has stated that thereafter she called her son-in-law on telephone and then she telephoned her daughter Suman. She has stated that thereafter when she came out in the courtyard of her residential house she saw accused present in Court running from her cowshed and when accused saw her accused shouted "main nee darda lohareya tere tey". (I do not afraid from you Lohareya.) She has stated that wife of accused also left the accused about 20 days prior to the incident. She has stated that thereafter prosecutrix came from the cowshed in weeping condition and told that accused had committed rape upon her. She has stated that thereafter she telephoned her son-in-law, her daughter and members of Mahila Mandal. She has stated that many villagers also came and police officials also came. She has stated that police officials collected the clothes of prosecutrix, underwear of accused from the cattle shed and slippers from the residential room. She has stated that she belonged to scheduled caste community known as Lohar and has stated that accused is Rajput by caste. She has stated that her husband also came after the arrival of police. She has stated that her cattle shed is situated at a distance of 10-15 metres from her residential house. She has denied suggestion that she is deposing falsely against the accused due to enmity.
9.3. PW 3 Ishro Devi has stated that in the month of January-February 2009 she had gone to the house of prosecutrix and prosecutrix was all alone in the residential house. She has stated that she went to the house of prosecutrix at about 1.45 PM and inquired about her mother because she was to take grass from her for her cattle. She has stated that prosecutrix told her that her mother had gone to Tauni Devi and also told her to wait for her mother. She has stated that she waited for about 10-15 minutes and in the meanwhile accused present in Court came to the residential house of prosecutrix and told that he was searching his dog. She has stated that thereafter she left residential house of prosecutrix after about 10 minutes. She has stated that when she was going back the accused was present in his verandah. She has stated that after sometime her neighbour told her that accused had committed rape upon prosecutrix. She has stated that thereafter they came to house of prosecutrix and other villagers also came. She has stated that her son Anil Kumar is a BDC member. She has stated that brother of accused is Ward Panch. She has stated that younger brother of accused namely Vinay Kumar had contested the elections for the office of Up-Pardhan of Gram Panchayat and her son campaigned against him. She has stated that brother of accused had got conducted inquiry against her son about cremation ground. She has stated that she is not in good terms with accused. She has denied suggestion that accused did not come to residential house of prosecutrix.
9.4. PW 4 Dr. Rajneesh Thakur has stated that he is posted in Regional Hospital Hamirpur since March 2007 and on application moved by police Ext. PW 4/A he had medically examined the prosecutrix aged 20 years student of BBA Mandi College resident of village Loharkhar Tehsil and District Hamirpur on dated 25.2.2009 at 11 PM. He has stated that prosecutrix was brought with alleged history of sexual assault on dated 25.2.2009 at about 2.30 PM and according to history the prosecutrix was alone at home and was in her room when accused asked her to open the door and when prosecutrix refused then accused forcibly entered into the room by breaking the door and assaulted the prosecutrix in drunken stage. He has stated that prosecutrix had already changed her clothes and according to prosecutrix her clothes worn at the time of incident including underwear were took by police officials. He has stated that secondary sex characters of prosecutrix were well developed and menstruation started at the age of 13 years. He has stated that prosecutrix was unmarried and her gait was normal. He has stated that prosecutrix was average built female and well oriented to time place and person and her pulse was found 68 per minutes and vitals were stable. He has stated that he has observed the following injuries on the person of prosecutrix. (1) A linear abrasion of the length of 2.5 cm was present on right side of back just below scapula and 8 cm from spine, reddish in colour. (2) There was a contusion of the size of 2 cm x 1.5 cm over medial side of right thigh just above knee, reddish blue in colour. (3) An abrasion of the size of 0.25 cm x 0.25 cm was present over right third toe on medial side reddish in colour. He has stated that after local examination he observed linear superficial abrasion 0.5 cm in length starting from vaginal mucosal margin to skin outside at 7 O'clock position over vaginal orifice. He has stated that hymen was intact and no injury was seen and as per Exhibit 9/B vaginal slides of prosecutrix showed human blood and human semen. He has stated that his opinion was that prosecutrix was subjected to sexual intercourse. He issued MLC Ext. PW 4/C which bears his signatures and bears the signatures of prosecutrix. He has stated that there was no history of previous sexual intercourse in this case and further stated that had the girl been exposed to sexual intercourse earlier there would have been no injury on her private parts due to incident. He has denied suggestion that injury sustained by prosecutrix could be self inflicted. He has stated that presence of semen in the vaginal and posterior fornix is indicative of sexual intercourse.
9.5. PW 5 Dr. Rajesh Kumar has stated that he is posted as Medical Officer in CHC Sunjanpur since June 2007 and further stated that application Ext. PW 5/A was moved by police for medical examination and he issued MLC Ext. PW 5/B. He has stated that at the time of medical examination the accused was conscious cooperative and well oriented to space and time and was responding to verbal commands. He has stated that genitalia organs were found well developed and testis of accused were well developed and pubic hairs were also well developed. He has stated that no semen stains were found upon penis and no abrasion was seen on the face and no laceration was seen on the face. He has stated that no blood stains were seen on the face and scrotum area of genitalia. He has further stated that there were marks of laceration on right thumb palmer aspect which was brownish in colour which showed scaring process with probable duration of more than 72 hours. He has stated that accused was capable for performing sexual intercourse. He has stated that clothes worn by accused were sent for chemical examination. He has stated that as per Chemical Analyst reports Ext. PW 7/B and Ext. PW 7/C no blood or semen were found on exhibits. He has stated that shirt Ext. P13, pant Ext. P14 and vest Ext. P15 were handed over to police. He has stated that at the time of examination of accused he was not found under the influence of alcohol.
9.6. PW 6 Shiv Dev Singh has stated that on the receipt of application Ext. PW 6/A he issued caste certificate of prosecutrix Ext. PW 6/B and that of accused Ext. PW 6/C based on the revenue record. He has stated that pedigree table of prosecutrix is Ext. PW 6/D and that of accused is Ext. PW 6/E.
9.7. PW 7 Rattan Chand has stated that he was associated in investigation of case and he was Ward Member of Panchayat. He has stated that two buttons were collected by police from spot between the house of prosecutrix and cowshed. He has stated that buttons are Ext. P9 and Ext. P10 and two strings were also collected which are Ext. P11 and Ext. P12. He has denied suggestion that he has signed the seizure memo at the instance of police without any recovery.
9.8. PW 8 MHC Ranjit Singh has stated that he is posted as MHC in P.S. Sujanpur since 2006 and has stated that Investigating Officer Dy. S.P. Gulab Singh Thakur deposited with him four sealed parcels on dated 25.2.2009 duly sealed with seal 'A' and seal impressions. He has stated that on dated 26.2.2009 C. Suresh Kumar deposited with him one sealed parcel with seal MO and further stated that Lady C. Himani deposited with him one sealed parcel duly sealed with seal DHH on dated 25.2.2009. He has stated that on dated 27.2.2009 Dy. S.P. G.S. Thakur again deposited with him one parcel duly sealed with seal H with seal impressions and all these parcels were entered by him in the Malkhana register which he had brought. He has stated that abstract is Ext. PW 8/A and he has brought original RC Ext. PW 8/B. He has stated that later on chemical report Ext. PW 8/C was received from FSL Junga. He has stated that as long as case property remained in his custody it was not tampered with. He has denied suggestion that sample parcels were tampered with in police station.
9.9. PW 9 C. Malkiat Singh has stated that he is posted as Constable in P.S. Sujanpur for the last one year and further stated that MHC Ranjit Singh on dated 2.3.2009 handed over to him seven parcels duly sealed for depositing the same with FSL Junga and he had taken the same on same day to FSL Junga vide RC No. 26 of 2009 and deposited the same and obtained receipt on RC. He has further stated that on his return he handed over the RC duly received to MHC in P.S. and so long as the parcels remained in his custody these were not tampered with.
9.10. PW 10 C. Suresh Kumar has stated that he is posted as Constable in P.S. Sujanpur since 2008 and on dated 25.2.2009 he was deputed by SHO for getting the accused medically examined at CHC Sujanpur. He has stated that he took the accused along with application Ext. PW 5/A and got the accused medically examined vide MLC Ext. PW 5/B. He has stated that medical officer handed over to him one parcel containing clothes of accused and he deposited the same along with MHC and handed over the MLC to Investigating Officer. He has denied suggestion that he did not take the accused to CHC Sujanpur for his medical examination. He has also denied suggestion that nothing was handed over to him by medical officer.
9.11. PW 11 LC Himani has stated that PW 11 is posted in P.S. Sujanpur since 2006 and as per direction of SHO PW 11 took prosecutrix to SMO, Regional Hospital Hamirpur for getting her medically examined vide application Ext. PW 4/A. PW 11 has stated that PW 11 got her medically examined from the doctor vide MLC Ext. PW 4/C and obtained MLC. PW 11 has stated that doctor had handed over to him one parcel containing wooden stick and cotton swab and PW 11 deposited the same with MHC and handed over the MLC to I.O. PW 11 has denied suggestion that no sample was handed over to PW 11 by medical officer.
9.12. PW 12 Suresh Kumar has stated that he is posted in P.S. Sujanpur since 2007 and he has brought original roznamcha register and DD No. 11-A Ext. PW 12/A and DD No. 26-A Ext. PW 12/B are true copies of original.
9.13. PW 13 Braham Dass has stated that he remained posted as I.O. in P.S. Sujanpur from 2001 to April 2009 and on dated 25.2.2009 he was working as SHO P.S. Sujanpur. He has stated that ruka Ext. PW 1/A was received through C. Bhupinder Singh on dated 25.2.2009 and on basis of same FIR Ext. PW 13/A was registered against the accused. He has stated that endorsement on ruka is Ext. PW 13/B and FIR bears his signatures.
9.14. PW 14 Meena Kumari Patwari has stated that she is posted as Patwari in Patwar Circle Lohakhar since September 2007 and on application which was forwarded by Tehsildar to her she prepared caste certificate of accused Ext. PW 6/C, sajra of prosecutrix Ext. PW 6/D and sajra of accused Ext. PW 6/E as per revenue record which she has brought in Court. She has stated that certificates bear her signatures.
9.15. PW 15 SI Anil Verma SHO P.S. Nadaun has stated that during the year 2009 he remained posted as SHO P.S. Sujanpur and on dated 25.2.2009 he along with ASI Karam Singh, C. Suresh Kumar, Lady C. Himani was in the area of Uhal in connection with investigation of case FIR No. 22 of 2009. He has stated that at about 4.20 PM he had received information regarding the commission of offence at Lohakhar and he proceeded to spot along with other police officials. He has stated that on reaching the spot prosecutrix made statement under Section 154 Cr.P.C. Ext. PW 1/A which was recorded by him. He has stated that thereafter he sent the same along with endorsement to P.S. Sujanpur through C. Bhupinder Singh and has stated that he also informed SDPO Barsar for investigation. He has stated that since the case was under Section 3 of Scheduled Caste and Scheduled Tribe Act and under Sections 452, 376(1) and 506 IPC he handed over the file to SDPO Barsar for investigation. He has stated that later on he prepared challan after completion of investigation and presented the same in Court. He has stated that after receipt of reports of Chemical Examiner Ext. PW 8/C and Ext. PW 4/B he prepared supplementary challan and sent the same to Hon'ble Court. He has stated that he also prepared letter Ext. PW 15/B to Director, FSL Junga for chemical analysis and he also clicked photographs Ext. PW 15/A-1 to Ext. PW 15/A-13 and negatives of which are Ext. PW 15/A-14 to Ext. PW 15/A-26. He has stated that Supervisory officer of P.S. Sujanpur was Dy. S.P. Headquarters who was on foreign tour at Italy during those days and therefore SDPO was having additional charge of police station. He has stated that he reached on spot at about 5/5.15 PM and later on he had summoned other police officials from police station namely ASI Manjit, HC Sher Singh, HC Ranjit Singh to the spot and he stayed on spot till midnight. He has stated that SDPO Gulab Singh Thakur had reached on spot at 8.15 PM and after that he handed over the investigation to him. He has stated that again on dated 26.2.2009 he had gone to spot along with SDPO and he recorded statements of prosecution witnesses and also took the photographs. He has denied suggestion that statement of prosecutrix was not recorded as per her version.
9.16. PW 16 Gulab Singh Thakur SDPO has stated that he is posted as SDPO Barsar since the year May 2007 and in February 2009 he was holding the additional charge of Dy. S.P. Headquarters who was supervisory officer of P.S. Sujanpur. He has stated that he was informed regarding registration of case under Section 3(1)(xii) of SC & ST Act along with one under Sections 376(1), 452 and 506 IPC and he went to spot and reached there at about 8.15 PM. He has stated that SHO P.S. Sujanpur along with other police officials was already present at spot and he took over the investigation of case from SHO. He has stated that he prepared site plan Ext. PW 16/A and took into possession sweater Ext. P1, shirt Ext. P2, underwear Ext. P3, bra Ext. P4 vide memo Ext. PW 1/B in presence of witnesses handed over by prosecutrix. He has stated that salwar Ext. P5, underwear Ext. P5 were also took into possession vide seizure memo Ext. PW 1/C from room in presence of witnesses and seizure memo was signed by prosecutrix also. He has stated that underwear Ext. P7 and gunny bag Ext. P16 were also took into possession from cowshed vide memo Ext. PW 1/D in presence of witnesses and identified by prosecutrix. He has also stated that V-shape slippers Ext. P8 of accused also took into possession vide memo Ext. PW 1/E in presence of witnesses and further stated that SHO present at spot also clicked the photographs. He has stated that two buttons Ext. P9 and Ext. P10 along with strings Ext. P11 and Ext. P12 were also took into possession from spot which were lying between the house and cowshed vide memo Ext. PW 1/F in presence of witnesses. He has stated that he moved application Ext. PW 6/A to Tehsildar for obtaining caste certificates of prosecutrix and of accused. He has stated that on completion of investigation the file was handed over to SHO. He has stated that son-in-law of mother of prosecutrix had telephoned him about incident. He has stated that Anil Verma also informed him at about 7 PM about incident. He has stated that S.P. was on leave and he was present in the Headquarter. He has stated that he also got the appointment letter of investigation in this case. He has stated that site plan was prepared by him at about 8/8.30 PM. He has stated that cowshed of father of prosecutrix was situated at a distance of 10 metres away from residential house. He has stated that when he reached at the spot Pardhan of Gram Panchayat was also present and 15-20 people were also present. He has stated that house of accused was about 50-60 metres away from house of complainant on the lower side. He has denied suggestion that present case has been filed due to enmity of complainant, her mother and Ishro Devi against the accused and his family members.
10. Statement of accused recorded under Section 313 Cr.P.C. Accused has stated that prosecutrix and witnesses are inimical towards him as his brother Vinay Kumar was prosecution witness against Jamna Devi elder sister of prosecutrix in criminal case pending in Court of JMIC Hamirpur which was instituted prior to alleged incident. He has stated that his brother had appeared as prosecution witness against Jamna Devi on dated 3.10.2008.
11. Submission of learned Additional Advocate General appearing on behalf of the State that prosecution proved its case beyond reasonable doubt against the accused under Section 376(1) of Indian Penal Code is rejected being devoid of any force. We have carefully perused the oral as well as documentary evidence adduced by prosecution. PW 4 medical officer has specifically stated in positive manner that hymen of prosecutrix was intact. We have carefully perused the medical certificate placed on record. As per medical certificate placed on record, hymen of prosecutrix was intact. In view of the fact that hymen of prosecutrix was intact we are of the opinion that no criminal offence of rape is proved against the accused beyond reasonable doubt in present case. Even prosecution did not obtain the report of some other medical officer in order to prove that hymen of prosecutrix was not intact. Fact that hymen of prosecutrix remained intact we are of the opinion that offence punishable under Section 376 IPC is not proved against the accused beyond reasonable doubt.
12. Submission of learned Additional Advocate General appearing on behalf of State that offence under Section 511 IPC read with Section 376 IPC is proved on record is accepted for the reasons hereinafter mentioned. As per testimony of prosecutrix it is proved on record beyond reasonable doubt that accused dragged the prosecutrix from her residential room and took the prosecutrix in the cattle shed and thereafter forcibly tried to commit rape upon the prosecutrix in the cattle shed. As per testimony of PW 4 medical officer there was linear abrasion of the length of 2.5 cm on the right side of back just below scapula 8 cm from spine reddish in colour. It is proved on record that prosecutrix had sustained contusion of the size of 2 cm x 1.5 cm over medial side of right thigh just above knee reddish blue in colour. It is also proved on record beyond reasonable doubt that prosecutrix had also sustained abrasion of the size of 0.25 cm x 0.25 cm over right third toe on medial side reddish in colour. Prosecutrix has specifically stated in positive manner that accused caught hold and sweater of prosecutrix was torn. Prosecutrix has specifically stated in positive manner that thereafter accused threw the prosecutrix on bed and when she tried to cry the accused gagged her mouth with his hand and then removed her salwar and underwear. Prosecutrix has further stated in positive manner that thereafter accused took the prosecutrix to adjoining cattle shed. Prosecutrix has specifically stated in positive manner that thereafter accused threw the prosecutrix on gunny bags which were kept in cattle shed and thereafter accused committed sexual assault. Above stated testimony of prosecutrix is trustworthy reliable and inspires confidence of Court. It is proved on record that immediately after the incident mother of prosecutrix came and prosecutrix narrated the entire incident to her mother in weeping stage and thereafter matter was reported to members of Panchayat and members of Panchayat also came at the spot and thereafter matter was also reported to the police. It is also proved that thereafter underwear of accused and underwear and salwar of prosecutrix were took into possession by Investigating Officer vide seizure memos. It is also proved on record that prosecutrix had also sustained injuries as mentioned supra. Prosecutrix was student of BBA and age of prosecutrix at the time of alleged incident was 20 years and accused was a married person having children and age of accused was 29 years at the time of incident. It is also proved on record that accused belongs to Rajput caste at the time of incident and prosecutrix was belonging to scheduled caste at the time of incident. It is also proved on record that residential house of prosecutrix and residential house of accused are situated nearby. It is also proved on record that accused also came in residential house of prosecutrix in presence of Ishro Devi PW 3 on the pretext that he came in residential house of prosecutrix in search of his dog. It is well settled law that attempt of committing criminal offence comprises four stages. (1) Forming an intention to commit crime. (2) Making preparation for the commission. (3) Attempting to commit the crime. (4) Actual commission of crime. (See MANU/SC/0124/1961 : AIR 1961 SC 1698 titled Abhayanand Mishra vs. State of Bihar, MANU/AP/0062/1955 : AIR 1955 AP 118 titled In re T. Munirathnam Reddi and another (accused-petitioners) In the present case it is proved on record as per testimony of PW 3 Ishro Devi that accused came in residential house of prosecutrix with criminal intention to commit the criminal offence. It is also proved on record that accused also made preparation for commission of offence and it is also proved on record that accused attempted to commit crime when accused dragged the prosecutrix from her residential room to nearby cattle shed. It is also proved on record that accused also actually attempted to commit the crime by way of opening his pant and underwear and by way of opening the underwear of prosecutrix forcibly. We are of the opinion that sexual assault upon the unmarried girls are increasing in the society day by day. It is well settled law that in rape cases testimony of prosecutrix must be appreciated in the back ground of entire case. It is well settled law that trial Court should be sensitive while dealing with cases involving sexual molestation. (See MANU/SC/0366/1996 : (1996)2 SCC 384, titled State of Punjab vs. Gurmit Singh and others Also see MANU/SC/0218/2000 : (2000)5 SCC 30, titled State of Rajasthan vs. N.K. the accused. Also see MANU/SC/0714/1999 : (2000)1 SCC 247, titled State vs. Lekh Raj and another, MANU/SC/0509/1992 : (1992)3 SCC 204, titled Madan Gopal Kakkad versus Naval Dubey and another) It is well settled law that facts can be proved by way of testimonies of oral witnesses. Testimony of prosecutrix inspires confidence of Court qua attempt to commit rape. There is no reason to disbelieve the testimony of prosecutrix qua attempt to commit rape. Testimony of prosecutrix is further corroborated by medical evidence placed on record and is also corroborated by testimony of PW 3 Ishro Devi who proved the factum of presence of accused in sehan of residential house of prosecutrix and presence of accused is also proved as per testimony of PW 2 Roshani Devi who saw the accused running from cattle shed. Even as per Chemical Analyst report Ext. PW 4/B placed on record human semen was found on shirt and underwear of prosecutrix and human blood and semen was found in vaginal swab of prosecutrix aged 20 years. Hence we are of the opinion that offence punishable under Section 511 read with Section 376 IPC is proved on record against the accused beyond reasonable doubt.
13. Submission of learned Additional Advocate General appearing on behalf of the State that offence under Section 452 IPC house trespass is proved against the accused beyond reasonable doubt is accepted for the reasons hereinafter mentioned. In order to prove the offence under Section 452 IPC the prosecution is under legal obligation to prove (1) House trespass with intention to cause hurt or to cause any assault or with intention to wrongfully restrain any person or putting the person in any fear of hurt or assault. In present case it is proved on record beyond reasonable doubt as per testimony of prosecutrix that accused entered into the residential house of prosecutrix aged 20 years with criminal intention to commit the offence of sexual assault. It is proved on record that accused put the prosecutrix in fear of hurt in her residential house and thereafter accused dragged the prosecutrix in cattle shed and attempted to commit rape upon the prosecutrix. We are of the opinion that offence under Section 452 IPC is proved against the accused beyond reasonable doubt.
14. Submission of learned Additional Advocate General appearing on behalf of State that prosecution proved beyond reasonable doubt that accused had committed the offence punishable under Section 506(1) IPC is rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the testimony of prosecutrix. Prosecutrix did not state in her testimony in positive manner that accused criminally intimidated her or threatened her to kill her or threatened her to cause hurt. In absence of the fact that accused did not threat the prosecutrix in any manner we are of the opinion that it is not expedient in the ends of justice to convict the accused under Section 506 IPC. We are of the opinion that learned trial Court has rightly acquitted the accused for offence under Section 506 IPC.
15. Another submission of learned Additional Advocate General that prosecutrix proved beyond reasonable doubt the offence under Section 3(1)(xii) of SC and ST (Prevention of Atrocities) Act 1989 is accepted for the reasons hereinafter mentioned. It is proved on record beyond reasonable doubt that in present case prosecutrix belonged to scheduled caste. As per certificate issued by competent authority Ext. PW 6/C prosecutrix belonged to Lohar caste which falls under scheduled caste category and accused belonged to Rajput caste which falls under non-scheduled caste category. Certificate Ext. PW 6/C issued by competent authority remained unrebutted on record. It is also proved on record that residential houses of prosecutrix and accused are situated nearby and it is also proved on record beyond reasonable doubt that accused belonging to Rajput caste was in position to dominate the prosecutrix who belonged to scheduled caste and it is also proved on record that accused used that position to exploit the prosecutrix sexually to which she would not have otherwise agreed. It is proved on record that prosecutrix was student of BBA and age of prosecutrix at the time of incident was 20 years and age of accused at the time of incident was 29 years and accused was also a married person. Even accused did not put any question to prosecutrix or any prosecution witness that present case was consent case of prosecutrix. It is well settled law that Courts are under legal obligation to frame the opinion as per facts proved on record and it is well settled law that trial Court cannot frame opinion as per assumption and presumption in criminal case.
16. Submission of learned defence Advocate appearing on behalf of accused that there were two doors in the residential room of prosecutrix. One door was of iron wire and other was of wooden and prosecutrix voluntarily opened the wire door as well as wooden door and present case is a case of consent and on this ground appeal filed by State be dismissed is rejected being devoid of any force. Accused did not put any suggestion to prosecutrix when she appeared in witness box that prosecutrix had opened the outer wire door and inner wooden door voluntarily in order to permit the accused to enter into her residential house. It is not the case of accused that prosecutrix voluntarily opened outer wire door and inner wooden door. We are of the opinion that forcible entry of accused in room of prosecutrix is proved as per testimony of prosecutrix and testimony of prosecutrix that accused forcibly entered into her residential house is also trustworthy reliable and inspire confidence of Court. There is no reason to disbelieve the testimony of prosecutrix to this effect.
17. Another submission of learned defence Advocate appearing on behalf of accused that photographs placed on record clearly prove that salwar and underwear of prosecutrix thrown on floor were kept in very orderly manner and one pair of slippers of accused were also kept in orderly manner inside the room clearly prove the case of consent and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that as per Section 59 of Indian Evidence Act 1872, all facts except the contents of documents could be proved by way of direct oral evidence. In present case prosecutrix in her testimony proved beyond reasonable doubt that when accused entered into her room prosecutrix aged 20 years struggled with accused for 10-15 minutes and thereafter accused gagged the mouth of prosecutrix and threw the prosecutrix on bed. It is proved beyond reasonable doubt that thereafter accused who was married person removed the salwar of prosecutrix and underwear of prosecutrix who was aged 20 years and who was student at the time of incident and on these facts testimony of prosecutrix remained unrebutted on record. Even accused did not appear in witness box in order to rebut the above said testimony of prosecutrix. Accused did not appear in witness box as a defence witness as required under Section 315 of Code of Criminal Procedure 1973 in order to rebut testimony of prosecutrix. It is well settled law that photographs are only corroborative evidence in order to prove the facts and it is well settled law that direct oral eye evidence is substantive evidence. It is well settled law that when there is conflict between direct substantial oral evidence and corroborative evidence then direct substantial oral evidence always prevails.
18. Submission of learned Advocate appearing on behalf of accused that as per prosecution story there was struggle between accused and prosecutrix for 10-15 minutes in the room and prosecutrix did not sustain any injury and accused also did not sustain any injury and on this ground appeal filed by State be dismissed is rejected being devoid of any force. It is not the case of prosecution that prosecutrix was in possession of some sharp edged weapon. It is not the case of prosecution that accused was also holding any sharp edged weapon in his hand. In present case it is proved on record that prosecutrix had sustained linear abrasion of the length of 2.5 cm on the right side of back just below scapula 8 cm from spine reddish in colour. It is proved on record that prosecutrix had sustained contusion of the size of 2 cm x 1.5 cm over medial side of right thigh just above knee reddish blue in colour. It is also proved on record beyond reasonable doubt that prosecutrix had also sustained abrasion of the size of 0.25 cm x 0.25 cm over right third toe on medial side reddish in colour. Age of prosecutrix at the time of incident was 20 years and prosecutrix was student of BBA in Mandi College and age of accused was 29 years at the time of incident. We are of the opinion that abrasions and contusions sustained by prosecutrix at the time of incident clearly prove that prosecutrix had struggled with accused as alleged by prosecution to save her dignity.
19. Another submission of learned defence Advocate appearing on behalf of accused that if the intention of accused was to commit the rape he would commit the rape inside the room itself and he would not drag the prosecutrix to cowshed and on this ground appeal filed by State be dismissed is rejected being devoid of any force. We are of the opinion that accused had dragged the prosecutrix to cattle shed because entry of any other person in cattle shed at the time of committing rape was not possible and we are of the opinion that entry of any third person in residential house of prosecutrix at any point of time was possible. We are of the opinion that accused had dragged the prosecutrix in cattle shed just to avoid intervention of any third person during the period of commission of rape.
20. Another submission of learned Advocate appearing on behalf of accused that there was no occasion that buttons of sweater of prosecutrix and laces of shirt of prosecutrix would broken on the way to cowshed from residential house of prosecutrix and on this ground appeal filed by State be dismissed is rejected being devoid of any force. Prosecutrix has specifically stated in her testimony that when accused dragged prosecutrix forcibly from residential room to cattle shed which was situated nearby then buttons of sweater of prosecutrix and laces of her shirt were broken. Even as per seizure memo broken buttons of sweater and laces of shirt were took into possession and on this fact testimony of prosecutrix inspires confidence of Court. There is no reason to disbelieve the testimony of prosecutrix. Prosecution has proved the facts of broken buttons of sweater and laces of shirt of prosecutrix by way of oral testimony of prosecutrix and other recovery witnesses. There is no evidence on record that buttons of sweater and laces of shirt were planted by any other person in order to falsely implicate the accused in present case because immediately after incident many villagers assembled in the residential house of prosecutrix and police officials also reached at the spot on the same day of incident after short interval.
21. Another submission of learned Advocate appearing on behalf of accused that there are about 20 houses at a distance of 100 metres from the residential house of prosecutrix and it was broad day light and time was 2.30/3 PM and it was not possible that accused would remove the salwar and underwear of prosecutrix and then would take her to a cowshed at a distance of 10 metres in naked position is rejected being devoid of any force for the reasons hereinafter mentioned. There is no evidence on record that some other person was also available at the spot or nearby the spot when accused removed the salwar and underwear of prosecutrix in room and dragged the prosecutrix to cowshed which was situated at a distance of 10 metres in naked position. We are of the opinion that findings cannot be given by criminal Court on the basis of assumption and presumption in criminal case but findings should be given on basis of proved facts only.
22. Another submission of learned Advocate appearing on behalf of accused that prosecutrix did not raise alarm when she dragged from her residential house to cattle shed to attract the villagers or neighbours and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. Prosecutrix has specifically stated in positive manner that she raised cries but her mouth was gagged by accused. Distance between residential room and cowshed is merely of 10 metres and a person can cover the distance of 10 metres within 3-4 minutes and there is no evidence on record in order to prove that within those 3/4 minutes when prosecutrix was dragged from her residential house to cattle shed some other person was also present in the path or nearby her residential house.
23. Another submission of learned Advocate appearing on behalf of accused that there were no bite marks on face and breast and prosecutrix did not resist in cowshed and no injury is caused on face, breast or other part of body of prosecutrix and there was no disturbance of gunny bags and grass kept in cowshed and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. Accused did not cross examine the prosecutrix on the theory of consent and no cross examination has been conducted by accused upon prosecution witnesses that present case was a case of consent and even under Section 313 Cr.P.C. accused did not state that present case was a case of consent. We are of the opinion that criminal Courts are under legal obligation to take out grain from the chaff. We are of the opinion that in absence of any suggestion to prosecution witnesses that case was of consent case it is not expedient in the ends of justice to automatically hold that present case was a case of consent case. On the contrary accused had given the suggestion that present case was a case of enmity because brother of accused namely Vinay Kumar had given statement in criminal case against Jamna Devi who is elder sister of prosecutrix. Accused has given suggestion of enmity in his defence and defence of accused is not that present case is a case of consent.
24. Another submission of learned Advocate appearing on behalf of accused that underwear of accused and slippers of accused were planted against the accused and on this ground appeal filed by State be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that simple suggestion of plantation is not sufficient as plantation against the accused qua underwear and slippers should be proved in positive cogent and reliable manner. There is no positive cogent and reliable evidence on record that underwear and slippers of accused were planted just to falsely implicate the accused in present case.
25. Another submission of learned Advocate appearing on behalf of accused that mother of prosecutrix came from Tauni Devi and accused immediately ran away from cowshed and thereafter as per prosecution story prosecutrix came to courtyard in naked condition and narrated the incident to her mother which was highly improbable in view of age of prosecutrix is rejected being devoid of any force for the reasons hereinafter mentioned. We are of the opinion that prosecutrix aged 20 years was so much horrified due to criminal act of accused that she immediately came to her mother and narrated the incident. We are of the opinion that prosecutrix was of high reputed character because hymen of prosecutrix was intact. Hence integrity of prosecutrix could not be doubted by Court. It is proved on record that prosecutrix was not a girl of easy virtue but it is proved on record that prosecutrix was a girl of high moral character keeping in view the proved facts that hymen of prosecutrix even at the age of 20 years was intact.
26. Another submission of learned Advocate appearing on behalf of accused that as per prosecution story PW 2 Roshani Devi mother of prosecutrix saw the accused running from cowshed and thereafter verbal altercation took place between the two but Investigating Officer did not say about it when he appeared in witness box and on this ground appeal filed by State be dismissed is rejected being devoid of any force. We are of the opinion that Investigating Officer is not eye witness of incident. Investigating Officer came at the place of incident when the offence was completed by accused. On the contrary Roshani Devi was eye witness of incident and she saw the accused running from cattle shed. Testimony of PW 2 Roshani Devi is trustworthy reliable and inspire confidence of Court.
27. Another submission of learned Advocate appearing on behalf of accused that as per prosecution story when mother of prosecutrix came then house was opened and when she entered the room she saw underwear and salwar of prosecutrix and she got confused disturbed and puzzled and thereafter she called her daughter proved case of consent on the part of prosecutrix is rejected being devoid of any force for the reasons hereinafter mentioned. No suggestion of consent of prosecutrix was given to prosecutrix or any other prosecution witness by accused. No reason has been assigned by accused as to why he did not plead the case of consent theory before learned trial Court. On the contrary accused has simply pleaded the case of false implication and enmity.
28. Another submission of learned Advocate appearing on behalf of accused that location of wire door and wooden door showed that room was voluntarily opened by prosecutrix and present case is consent case on part of prosecutrix and on this ground appeal filed by State be dismissed is rejected being devoid of any force for reasons hereinafter mentioned. No suggestion has been given by accused to prosecutrix when prosecutrix appeared in witness box that present case was of consensual sexual intercourse. Even no suggestion has been given to any other prosecution witness that present case was a case of consensual sexual intercourse between prosecutrix and accused. It is not defence of accused that present case was of consensual intercourse. There is no positive cogent and reliable evidence on record in order to prove that present case is of consensual sexual intercourse between accused and prosecutrix. We are of the opinion that findings of learned trial Court qua consensual sexual intercourse are contrary to proved facts placed on record and are based upon assumption and presumption. We are of the opinion that learned trial Court has given wrong findings that present case is a case of consensual sexual intercourse between prosecutrix and accused.
29. Another submission of learned Advocate appearing on behalf of accused that there are material contradictions between testimonies of prosecution witnesses which go to the root of case and on this ground appeal filed by State be dismissed is rejected being devoid of any force. We are of the opinion that minor contradictions are bound to come in criminal case when testimony of witness is recorded after a gap of time. In present case incident took place on dated 25.2.2009 and testimonies of prosecution witnesses were recorded in the month of June 2009 after a gap of four months. Proved recovery of sweater, salwar and proved recovery of underwear of prosecutrix and underwear and V shape slippers of accused proved on record beyond reasonable doubt that accused attempted to commit rape upon prosecutrix. Recovery of buttons of sweater and strings of shirt of prosecutrix also proved beyond reasonable doubt that accused attempted to rape upon prosecutrix. Even as per Forensic Science Laboratory Himachal Pradesh Junga human semen was found upon shirt of prosecutrix and human blood and semen was also found upon vaginal swab of prosecutrix and blood was also deducted in the vaginal slides of prosecutrix. Even as per Forensic Science Laboratory report Ext. PW 8/C placed on record broken buttons and laces matches with buttons and laces of sweater of prosecutrix. Even as per site plan Ext. PW 16/A placed on record residential house of prosecutrix and cattle shed and house of accused are situated nearby.
30. Another submission of learned Advocate appearing on behalf of accused that testimonies of prosecutrix and other witnesses are not sufficient to convict the accused in present case is rejected being devoid of any force. It was held in case reported in AIR 1973 SCC 944 (Full Bench) titled Jose vs. State of Kerala that conviction could be based upon sole testimony of witness if it inspires confidence of Court and if testimony of witness is reliable and trustworthy. Attempt is direct movement towards commission of offence after preparations are made. It is an intentional preparatory action which fails in its object which fails through circumstances independent of the person who seeks its accomplishment. Concept 'Acta exteriora indicant interiora secreta' applies in criminal cases. The fact that prosecutrix aged 20 years was virgin intracta upon date of incident is very strong proof against consent. Finding of learned trial Court that present case is based upon consent on part of prosecutrix in para No. 30 of judgment is illegal and is not based upon proved facts because defence of accused is not based upon consent theory and accused did not cross examine the prosecutrix and other prosecution witnesses on the consent theory on the part of prosecutrix in present case. On the contrary defence of accused is that false case filed on the ground of enmity is not proved on record.
31. In view of above stated facts and case law cited supra appeal is partly allowed. We affirmed the acquittal of accused under Section 376 and 506 IPC and set aside the acquittal of accused under Sections 452 IPC and Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989. In addition we convict the accused qua offence punishable under Section 511 read with Section 376 IPC and we also convict the accused under Section 452 IPC and under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989. We modify the judgment passed by learned trial Court to this extent only. Now convict be heard on quantum of sentence qua offences punishable under Sections 511 read with Section 376 IPC and 452 IPC and under Section 3(1)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989. Bailable warrants be issued against convict Vipan Kumar in the sum of ` 50,000/- with two sureties in the like amount and he be produced before us on ____________ for hearing on quantum of sentence.
32. We have heard learned Additional Advocate General appearing on behalf of the State and learned defence counsel appearing on behalf of the convicted person upon quantum of sentence.
33. Learned Additional Advocate General appearing on behalf of the State submitted before us that convicted person has committed heinous offence under Sections 511 read with Section 376 IPC and 452 IPC and under Section 3(1) (xii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 and deterrent punishment be awarded to the convicted person in order to maintain majesty of law in the society. On the contrary learned defence counsel appearing on behalf of convicted person submitted before us that convicted person is first offender and further submitted that he has two minor children to support and lenient view be adopted in present case.
34. We have considered the submissions of learned Additional Advocate General appearing for the State and learned defence counsel appearing on behalf of convicted person carefully upon quantum of sentence.
35. We are of the opinion that sexual offences are increasing in the society day by day. It is well settled law that murder destroys the body of victim but rapist degrades the soul of female. It was held in case reported in MANU/SC/1030/2014 : AIR 2015 SC 398 titled State of M.P. vs. Surendra Singh that sentence should commensurate with gravity of offence. Keeping in view the fact that convicted is first offence and keeping in view the fact that convicted has two minor children to support and keeping in view the offence committed by convicted person and in order to maintain majesty of law in the society we sentence the convicted person as follow:-
36. All sentences shall run concurrently. Period of custody during investigation, inquiry and trial will be set off. Certified copy of this judgment and sentence be also supplied to convicted person forthwith free of cost by learned Registrar (Judicial). Convicted person shall surrender before learned trial Court within one month from today. Case property will be confiscated to State of H.P. after the expiry of period of filing further legal proceedings before the competent Court of law. Appeal stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.

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