Vinod Kumar vs State of Himachal Pradesh

Rajiv Sharma, J.

This appeal is instituted against the judgment, dated 27.11.2012, rendered by the learned Additional Sessions Judge, Shimla, H.P. in Sessions Trial No. 18-S/7 of 2010, whereby the appellant along with accused Vijay Singh, Amarjit and Dinesh was charged with and tried for offence punishable under Section 376 of the Indian Penal Code and in addition to that offence, accused Dinesh was also charged with and tried for offence punishable under Section 354 of the Indian Penal Code. Accused Vijay Singh, Amarjit and Dinesh were acquitted, however, appellant Vinod Kumar was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 25,000/- and in default of payment of fine, he was further ordered to undergo one year''s rigorous imprisonment under Section 376 of the Indian Penal Code.

Case of the prosecution, in a nut-shell, is that Prerna Welfare Association/Institute, situated near New Totu Power House Shimla, was engaged in imparting education to physically/mentally challenged boys and girls. The accused were teachers in the School. On 18.03.2009, at about 5:30 p.m., Puran Chand, SHO, Police Station West, Shimla was on patrol duty near Tavi Moad, Totu with ASI Gian Chand and other Police officials. He received a secret information that the teachers of Prerna Welfare Association/Institute were involved in the physical abuse of the girl students studying in the said Institute. On getting this information, he went there alongwith other police officials and recorded the statement of the prosecutrix under Section 154 of the Criminal Procedure Code.

According to the averments contained in the statement recorded under Section 154 of Cr. P.C., she had taken admission in the said Institute in the year 2008. Other girl students were also inmates of the institution. The institute also had a hostel and in one of its room, the girls used to stay together during night. The boys studying in the Institute and its teachers used to reside in the rooms adjoining to the room of the girls in the hostel. The prosecutrix told SHO Puran Chand that after few days of her taking admission in the said Institute, she was asked by accused Vinod Kumar to come to his room with a bucket of water as the same was to be heated. As such, when the complainant went to the room of Vinod Kumar with a bucket of water, he opened the pant of the complainant and thereafter committed rape on her. He asked her not to narrate the incident to anyone, otherwise he would beat her. He also suggested the complainant at that time to go to wash room and wash the clothes which she was wearing at the time of incident and dry them. Thereafter, it was routine for Vinod Kumar either to go to the room of the complainant or call her to his own room and commit sexual intercourse with her. The prosecutrix also told Puran Chand, SHO, Police Station West Shimla at the time of recording of her statement that the other teachers were also doing similar acts with other girls students. The FIR was registered on the basis of the statement recorded under Section 154 of the Criminal Procedure Code. The Investigating Officer prepared the site plan and went to the room of the victims, from where cotton mattresses, bed sheets, quilt covers and blankets were lifted and taken into possession alongwith one photo album. The victims were sent to IGMC hospital Shimla for examination. The medical board comprising of Dr. Sangeet Dhillon, Dr. Rohini Rao and Dr. Soma Negi examined them. The medical board took different samples of the victims as well as the clothes which they were wearing at the relevant time for further examination in the FSL at Junga, H.P. The victims were examined with the help of interpreter. Accused Vinod Kumar was arrested on 19.03.2009. He was also got examined at IGMC hospital, Shimla. The birth certificates of the victims were also obtained. After receipt of FSL reports, the final opinion from the medical board was taken by the Investigating Officer. The investigation was completed and after completion of all the codal formalities, challan was put up against the accused.

The prosecution examined a number of witnesses and the accused were also examined under Section 313 of the Criminal Procedure Code. According to accused Vinod Kumar, the complainant was mentally retarded. In order to discipline the students, sometimes, he had to be strict. The students sometimes like or dislike teachers. He met with an accident in December, 2008. He was hospitalized in IGMC, Shimla. Thereafter, he went to his native village. He also examined DW-1, H.C. Harish Garg to prove the copy of FIR, Ex. DW1/A and DW-2, Sh. Madan Singh Chauhan, Record keeper IGMC hospital Shimla to prove medical record Ex. DW2/A. The accused was convicted and sentenced, as noticed hereinabove. Hence, this appeal.

Mr. Sunil Chauhan, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant.

Mr. P.M. Negi, learned Deputy Advocate General, has supported the judgment, dated 27.11.2012.

We have heard the learned counsel for the parties and gone through the judgment and records, carefully.

PW-1, prosecutrix deposed that she was student of 8th class in Prerna Welfare Association Center at Totu during the year 2009. According to her, Saroj Veena and Bhawana were her classmates. They were residing in the hostel situated in the third floor of the same building. Accused Vinod, Dinesh, Amarjeet and Vijay were teachers in the said School. The boy students were residing separately. The teachers were also residing separately in the hostel. She was called by accused Vinod to his room with a bucket of water, which was to be heated. She went with water bucket to his room. The accused was wearing pant and shirt. The accused put off his trouser and then he also put of her pant. Accused Vinod was alone in the room. He caught her from the arm and then inserted his penis in her vagina. Accused had intercourse with her and her vagina started bleeding. Accused told her to wash her pant and dry it. Accused committed rape on her in the year, 2009. She did not remember date of the incident. Accused Vinod thereafter continued to commit intercourse with her. Accused asked her not to disclose incident to any person, otherwise he threatened to beat her. According to her, Saroj, Meena, Bhawana, Veena and Poonam were also living in the hostel. She also told about the commission of rape with her by accused to Shikha, who was also the student in the Association. She further deposed that Shikha told her mother that accused Vinod had committed rape with her. Rest of the girls were deaf and dumb and they understand only sign language. Accused Vinod used to commit rape with her regularly after five-six days, whenever he got opportunity. She gave her statement under Section 154, Cr. P.C. vide Ex. PA. They also produced their clothes to the Police. In her cross-examination by Sh. Sunil Chauhan, Advocate, appearing on behalf of the accused Vinod, she deposed that she suffered from brain fever and remained ill for 165 days. She was never troubled by the boys during tournaments. She was weak in memory. She admitted that if she is briefed about happenings of the past, then, she can narrate the same in the Court. She was quite intimate with her mother. She used to tell some of the happenings to her mother. However, she has not narrated this incident to her mother. She has denied the suggestion that she was tutored by Vinay Madam. She denied the suggestion that she was not called with the bucket of water by the accused and she did not went with a bucket of water. She denied the suggestion that the accused did not put off his and her pants. She denied that the accused did not commit any sexual intercourse with her and she did not bleed. She also denied that in School, teachers used to beat her for not doing studies properly. However, she admitted that accused Vinod used to scold her for not being serious in studies and due to this, she also have disliking for him.

PW-5, Kumari Shikha, deposed that Sarita was also the student of that School, i.e., Prerna Welfare Association/Institute. She told her that Vinod committed sexual intercourse with her many times. Police took into possession the clothes of six girl inmates vide memo Ex. PB in the presence of PW 6 Onkar Chander. He signed seizure memo Ex. PB. PW-11 Jeet Thakur has deposed that the police took into possession the quilt covers in his presence vide memo Ex. PW11/A. He signed the same.

PW-12, Ajay Garg, deposed that the police took into possession the record of teachers and students vide Ex. PW12/A. He also signed memo Ex. PW 12/A. The attendance register was also taken into possession vide memo Ex. PW12/B. The record pertaining to the prosecutrix Ex. PW12/C-3 was also taken into possession by the police. PW-15, HC Nikka Ram has sent the case property pertaining to FIR 48/09 of Police Station West through Constable Parvez to FSL, Junga for examination. PW-16, Constable Parvez Akhtar took the case property to FSL, Junga. PW-17, HC Surat Singh, has videographed the Institute.

PW-18, HC Nand Lal, deposed that on 18.03.2009, SHO, Puran Chand deposited five parcels, two of which were sealed with seal "A" and three with seal "R" with him pertaining to FIR No. 48/09 alongwith sample seals and recovery memos. On 19.03.2009, SHO, Puran Chand again deposited sealed parcels with him. On 28.04.2009, he sent two sealed parcels sealed with seal "B" for examination to GEQD through Constable Kuldeep. PW-19, Constable Kuldeep Singh took the case property to GEQD, Railway Board Building, Shimla. PW-20, Dr. Sangeet Dhilon, deposed that on 18.03.2009, the prosecutrix and other girls were examined by Dr. Soma Negi and Dr. Rohini Rao. They issued M.L. Cs. in respect of them. The final opinion regarding Sarita is Ex. PW-20/G. With regard to Sarita, they were of the opinion that there was no evidence of recent sexual intercourse, however, the possibility of sexual intercourse in the past cannot be ruled out. To the similar effect is the statement of PW-23, Dr. Rohini Rao.

PW-22, the father of the prosecutrix, Amba Dutt, has deposed that the prosecutrix was admitted in Government School, Fagli in 6th class. She was not able to learn and cope up with her studies. He admitted her in Prerna Welfare Association School at Totu. He went to Prerna School. His daughter was present in the School. He asked his daughter as to what was done with her and she told that Vinod Sir used to come to their room and he had raped her also. She also told him that accused Vinod was not in the institute on that date as his leg had fractured. He further deposed that his daughter along with other inmates were taken by the police to IGMC, Shimla for examination. After medical examination, he took his daughter to his house. She also disclosed these facts to her mother. In his cross-examination, he deposed that his daughter was of weak intellect and he clarified it by stating that she was not able to retain things for long and her memory was short.

PW-26, Puran Chand, testified that he recorded the statement of prosecutrix under Section 154 Cr. P.C. vide Ex. PA. FIR was registered vide Ex. PW24/B. The case property was taken into possession and sent to FSA and GEQD. The girls were got medically examined. He admitted in his cross-examination that the prosecutrix has not leveled any allegation of sexual intercourse against accused Amarjeet, Dinesh and Vijay. The statements of other witnesses were also recorded. Accused Vinod was arrested on the intervening night around 1:30 a.m. He was called from Sarkaghat. When accused Vinod was arrested, he was on crutches. PW-27, Inspector Shakuntla, has recorded the supplementary statement of prosecutrix vide Ex. PW27/A.

PW-28, Dr. H.R. Rahi, has examined the accused and issued M.L. Cs. qua all the accused vide Ex. PW28/A to Ex. PW28/D. The accused were capable of performing sexual intercourse.

DW-1, H.C. Harish Garg, has proved the copy of FIR Ex. DW1/A and DW-2, Madan Singh Chauhan, has proved medical examination record Ex. DW2/A.

What emerges from the analysis of the statements discussed hereinabove, is that the prosecutrix was student of Prerna Welfare Association Center at Totu during the year 2009. She was called by the accused to his own room. He raped her. He also made her to wash her clothes. He was raping her regularly. Statement of the prosecutrix was recorded under Section 154 of the Criminal Procedure Code vide Ex. PA. There is no variance in the contents of Ex. PA and her statement recorded in the Court. She has also narrated the incident to PW-5, Shikha. PW-5, Shikha, has admitted that PW-1 has told her about the misdeeds of the teachers, including accused Vinod Kumar. PW-22, Amba Dutt, is father of the prosecutrix. According to him, his daughter has told him that Vinod Sir used to come to their room and has raped her also. It has come in the medical evidence that though there is no evidence of recent sexual activity, however, the possibility of sexual intercourse in the past cannot be ruled out as per Ex. PW 20/G.

The prosecutrix has no enmity with the accused. Merely that the prosecutrix was studying as deaf and dumb would not mean that she was mentally retarded. She has studied up to 7th standard. Moreover, PW-27 Shakuntla has denied that the prosecutrix was not fit to answer the questions when she examined her. The Court has recorded the demeanor of the girl at the time of recording of her statement and has not found anything abnormal. The accused has taken the plea of albi on the basis of statements of DW-1, HC Harish Garg and DW-2, Sh. Madan Singh. However, the fact of the matter is that it has come in the statement of the doctor who has examined the prosecutrix that she has told them that the accused was raping her regularly even before the accident which has taken place in the month of December, 2008. The date of birth of the prosecutrix was 21.12.1990.

Mr. Sunil Chauhan, learned counsel for the appellant has strenuously argued that according to the medical evidence, there was no intercourse in the recent past. However, the fact of the matter is that the accused had been raping her and thereafter he met with an accident. It has come in the MLCs. that though there was no history of recent sexual intercourse, but there was history of sexual intercourse in the past. The prosecution has proved the guilt of the accused. Consequently, there is no occasion for us to interfere with the well reasoned judgment of the trial Court.

Accordingly, there is no merit in this appeal and the same is dismissed.