V.K. Ahuja, J.@mdashThis is an appeal filed by the Appellant u/s 374 of the Code of Criminal Procedure against the judgment of the Court of learned Sessions Judge, Chamba, dated 13.11.2002, vide which the Appellant was held guilty under Sections 376, 511 and 342 of the I.P.C. and was sentenced as under:
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Section 511 read with Section 376 of the I.P.C. |
7 years simple imprisonment and fine of Rs. 10,000/-. In default of payment of fine, the convict to further undergo simple imprisonment of one year. |
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Section 342 I.P.C. |
Simple imprisonment for one year and fine of Rs. 1,000/-. In default of payment of fine, the convict to further undergo simple imprisonment of three months. Both the sentences to run concurrently. |
2. Briefly stated the facts of the case are that on 27.7.2001, the prosecutrix ''A'' (name not mentioned) alongwith her mother ''D'' came to the police station and lodged a report. In the report, she had alleged that she had gone to the house of one Karmo for leaving milk there and at about 9.00 a.m., when she was coming back, she went to the karyana shop of the Appellant to purchase a toffee. None was present there. After purchasing the toffee, when she was leaving the shop, the Appellant pulled her inside the shop from her arm and gave a threat that in case she raised an alarm, he would kill her. It was alleged that he took her to the inner room, bolted the door and attempted to forcibly open the string of her salwar. She pushed him and he took her to the bed and started making indecent assault. She raised an alarm and the Appellant stated that he would do the act forcibly. When she raised an alarm, he put his hand on her mouth. He broke the string of her Salwar, threw it on the floor and also removed his pants and underwear and forcibly put his penis inside her vagina. He did the act for 10-15 minutes. She was crying during this period and he was over her for about two hours and had been pressing the nipples of her breast. On hearing her cries, Simlo and Tripta stopped there, knocked the door and the Appellant removed one wooden plank from the floor and threw her in the other room. Thereafter, the room was opened by the Appellant and many persons had gathered there and the mother of the prosecutrix and her mother''s brother also reached there. On this report, a case was registered and after investigation, the challan was filed before the Court of the learned Sub-Divisional Judicial Magistrate, Dalhousie, who committed the case to the learned Sessions Judge, Chamba, who framed the charge under Sections 376, 342 and 506 of the IPC. The Appellant was tried by the learned trial Court leading to his conviction and sentence as detailed above.
3. I have heard the learned Counsel for the parties and have gone through the record of the case.
4. The submissions made by the learned Counsel for the Appellant were that there is no statement on oath made by the prosecutrix that she was raped or an attempt was made to rape her. It was also submitted that there is nothing on the record to show from the statement of the prosecutrix that she was wrongfully confined in the room by the Appellant or that the Appellant had given a threat to her. It was further submitted that the prosecutrix had clearly stated that the case was made out at the instance of two ladies, who had allegedly come to the shop in question. Both the witnesses had given different versions for coming to the shop of the Appellant. In regard to the abrasions present on the person of the prosecutrix, it was submitted that these may have been sustained by her while she jumped to another room on seeing the ladies entering the shop. It was further submitted that the prosecutrix may be under a fear that she may be seen in the company of a married person in his shop and, therefore, a case was made out and there is no evidence of rape, attempted rape, indecent assault or wrongful confinement committed upon the prosecutrix and as such, the offence in question had not been proved beyond any reasonable doubt.
5. On the other hand, the learned Assistant Advocate General appearing for the Respondent had supported the impugned judgment for the reasons recorded therein.
6. The first question which arises for consideration and a finding has to be given is in regard to the age of the prosecutrix at the time of commission of the offence, since that is a material question.
7. Coming to the statement of the prosecutrix, who appeared in the witness-box as PW-3, she has nowhere stated as to her age at the time of the occurrence or at the time of making of her statement in the Court. PW-9 Krishan Kumar, Headmaster, Government Middle School Banet, has stated that the prosecutrix was a student of their school at one time and studied in their school upto 8th standard. He stated that according to the admission and withdrawal register, which had been brought by him, her date of birth was 22.11.1985. He issued certificate Ext. PL to this effect and forwarding letter is Ext. PM. He issued the certificate on the request of the police vide application which is Ext.PN.
8. PW-10 Uttam Chand, Headmaster, Government Primary School, Banet, has stated that the prosecutrix studied in their school upto 7.4.1999. Her date of birth is 22.11.1985. He issued the certificate Ext.PP in this regard on the request of the police vide memo Ext. PO. He admitted that admission form is not accompanied by any Panchayat certificate regarding the date of birth of the ward.
9. PW-11 Deepak Sharma, Gram Panchayat Vikas Adhikari, has stated that on the request of the police, he had issued birth certificate of the prosecutrix Ext. PQ, which is in his hand and bears his signatures. It was issued in accordance with the entries in the family register and he had brought the family register according to which the date of birth is 22.11.1985.
10. The first certificate qua date of birth proved in evidence is Ext. PL. This has been issued on the basis of the admission register. However, there is no mention in the register that at the time of admission, any certificate of Panchayat or birth register was accompanying and the same was attached with the admission register.
11. The second certificate proved is Ext.PP, which is also on the basis of the copy of the admission register and it also does not make reference to any birth entry from the register of births maintained by the Panchayat.
12. The third certificate is Ext.PQ and it also shows that the date of birth of the prosecutrix recorded is 22.11.1985, as in both the earlier documents. It also does not make any reference to the birth certificate attached in the register from which this date of birth was given.
13. All these documents are not on the basis of entry in the Panchayat register in regard to the births maintained by it and it only makes a reference as to what had been recorded at the time of admission of the ward. These documents cannot be said to be showing the date of birth on the basis of primary evidence so that it could be accepted by the Court. All these documents show the date of birth as 22.11.1985, which may be correct, but until and unless the same is accompanied by the copy of the birth certificate attached in original of these documents or the original from the Panchayat record is proved, it cannot be said that the date of birth of the prosecutrix was 22.11.1985. In the absence of the primary evidence, no findings can be given that the date of birth of the prosecutrix was 22.11.1985. However, the occurrence in question had taken place on 22.7.2001 i.e. when the prosecutrix had not crossed the age of 16 years but for that there has to be a proof that the prosecutrix was of the age of less than 16 years. On the basis of the evidence produced, it can be concluded that the prosecutrix may be of the age of about 16 years or so, but that evidence is not conclusive. However, no such plea has been taken by the Appellant that the sexual intercourse was done with the consent of the prosecutrix or she was a party to the same and, therefore, that question does not arise in regard to the exact date of birth of the prosecutrix and the evidence led in that regard has to be considered whether any such act was committed against the will of the prosecutrix.
14. Firstly, a reference may be made to the statement of PW-1 Dr. S. Sharad, who examined the prosecutrix. He has stated in his statement as under:
On examination, I observed that Asha Kumari was conscious, co-operative and of normal intelligence. Systemic examination was normal. On local examination, (i) one bruise on left iliac fossa, size approximately 1 cm. x 0.5 cm. was found. (2) One abrasion on right leg in the middle of shaft of tibia, covered with blood clot of black brown colour and size approximately 0.3 mm. x 15 mm. (3) No any other injury mark on the body, neither any scratch, bruise, cut nor any abrasion. Breast was normal and no any scratch or nail mark found on breast. Nor any tooth mark was found on the breast. On right thigh, some stained area of approximately 1 cm. x 3 cm. size was present on the right thigh near the valva. The stained area was cleaned with a wet cotton swab and a slide prepared by this swab. The slide and swab were preserved for chemical examination. Vulva--there was no any scratch or abrasion on the vulva. There was no broken hair dissimilar to the vulval/female public hair. Vulva cleaned by a dry cotton swab and the swab was preserved. Hymen- There was no laceration or tear in hymen. Vagina - There was no blood stained or hair in the vagina. There was no any excess secretion in the vagina. There was no discharge in excess from the vagina. Vagina cleaned by a dry cotton swab and slides were prepared and preserved.
PW-1 Dr. S. Sharad further stated as under:
I have also preserved the bra, kameej, salwar of the prosecutrix. The bra and kameej were having no visible stains. The salwar was having stains on left gluteal region and anterior parts near vulva. The preserved material were handed over to the police after proper seal with a letter to Director, Chemical Examination, FSL Junga for chemical analysis.
On receipt of the report of the Chemical Examiner Ext. PB, which was shown to me by the police, I have recorded my opinion as demanded in police docket on 16.10.2001 as under:
1. This was beyond my jurisdiction to say that whether rape has been committed or not.
2. There was no any injury in or around vulva of the victim. There were some stained area on the thigh of the victim. Swab taken from the stains and sent for Chemical Analysis to the FSL, Junga, Shimla.
3. Vaginal swab and slides of the vaginal secretions preserved and sent to FSL, Junga, Shimla through police.
4. There were one bruise on left iliac fossa and one abrasion on right leg and no other injury in the vagina or whole body of the victim.
5. Clothes preserved and sealed and sent to FSL Junga Shimla through police.
6. The stains on the cloth were marked before seal.
7. There were no evidence suggesting that she has been done sexual intercourse earlier.
15. PW-1 Dr. S. Sharad also stated that on 28.7.2001, the police moved another application, Ext.PE, for the medical examination of the Appellant. He examined the Appellant medically and thereafter issued the MLC Ext.PF. He stated that there was no evidence suggesting that the Appellant was not able to do intercourse.
16. Coming to the other evidence in question, a perusal of the statement of PW-3, the prosecutrix, shows that she has not at all stated that the Appellant broke the string of her salwar, removed her salwar and also removed his pants and underwear. She did not state that the Appellant inserted his penis inside her vagina and committed sexual intercourse with her against her will. In her statement, she simply stated that the accused started scuffling with her. She further stated that "thereafter what was done with me, I do not know". This clearly suggests that may be she is not aware of the term ''rape'', but at least she could have stated that her salwar was removed, the string of the same was broken and the Appellant removed his pants and underwear and inserted penis inside her vagina. In case she was so young or illiterate so as to understand as to what was done with her by the Appellant, it can be clearly assumed as to how she was able to lodge the report in this regard, which is Ext.PK, lodged by her with the police. In the said report, how she could state that the Appellant removed the string of her salwar, threw it on the bed, removed his pants and underwear, inserted his penis inside her vagina and continued doing the act for 10-15 minutes by putting his penis inside her vagina and thereafter also kept lying over her for two hours. In case this report Ext.PK was lodged by her and she was aware as to what had been done by the Appellant with her, what prevented her from giving the necessary details from which an interference of rape or attempt to rape or of indecent assault could be made out. She was never declared as hostile and never confronted with the report lodged by her and asked to explain as to what had been alleged therein and what had not been stated now by her in the Court.
17. Coming to the further testimony of PW-3 prosecutrix, she stated that the accused committed rape on her in his residential room, but when she was cross-examined, she stated that she did not know the meaning of rape. Apart from this, she clearly stated that this case had been made out by Simlo Devi and Tripta Devi with a view to defame her. She further stated that when she reached at the police station at 4.00 p.m., her statement had already been recorded by the police, meaning thereby that this version was given to the police by some other person and not by the prosecutrix. She stated that she was asked to sign and she signed the statement. In reply to a specific question, she stated that the accused had not committed anything with her. She further stated that the accused had not taken her to the room by holding her from her arm. She also stated that she was made to give the statement as per the direction of the police.
18. A perusal of the above statement clearly shows that the prosecutrix did not give the necessary details from which an inference of rape or attempt to rape could be drawn. The prosecutrix did not state anything that the sexual intercourse was done with her against her consent by the accused. She was aware of the details of the incident and accordingly the same had been recorded in her report Ext.PK, but when she appeared in the Court, she omitted to state any of the details from which an inference of rape or attempt to rape or even of indecent assault could be drawn. She is emphatic that nothing was done by the accused and that this case has been made out by two witnesses with a view to defame her. She even stated that the accused had not taken her to the room by holding her from her arm, meaning thereby that she was not wrongfully confined in the room in question.
19. The statement made by this witness was sought to be substantiated by the testimonies of PW-4 Tripta and PW-6 Simlo Devi. PW-4 Tripta Devi has stated that they sat down in front of the shop of the accused and after some time, Maheshra also came there. Sound of whispering came from inside the room near the shop of the accused. She thought that the accused, who was newly married, might be talking to his wife. Thereafter, Simlo Devi heard the voice of the prosecutrix inside the room. It was further stated by this witness that she asked the accused to open the door but the accused did not open the same. Thereafter, Simlo told that she would break open the door in case the same was not opened and thereafter the accused opened the door. However, when the door was opened, the prosecutrix was not present inside the room and they saw a wooden plank on the floor of the room lying separately and the prosecutrix was present in a room situated beneath the room of the accused.
20. PW-6 Simlo Devi also stated similarly that she and Tripta Devi asked the accused to open his shop and give her box which was lying with him. She stated that the shop of the accused is on their way and they used to keep their belongings in his shop. However, the accused replied that he would not open the door and give the box on the next day. Thereafter, they threatened him and she heard the noise of removing the plank and then the accused opened the shop. Tripta Devi asked the accused as to where he had kept the girl and they took out the wooden plank and found that the girl was sitting in the room in the lower storey. It was the prosecutrix whom they knew earlier. Then they took out the girl and came in the open. On asking by her and Tripta, the prosecutrix told that she was forcibly taken inside and detained by the accused in his shop. The girl did not disclose anything before the gathering and thereafter they left for their house and the prosecutrix etc. left for the police station.
21. A careful perusal of the statement of both these witnesses clearly shows that they did not state anything in their statements that the prosecutrix was not wearing any salwar or the string of her salwar was broken or that they put the salwar on the prosecutrix and made her leave the place. It is also clear that both these witnesses did not state, at any time, that the prosecutrix told them that she had been raped by the Appellant or sexual intercourse was done with her against her consent by the accused and such evidence was relevant as res gestae and could have been considered if these witnesses had stated that the prosecutrix told them about these facts immediately when she was found inside the room by them.
22. Even the mother of the prosecutrix examined as PW-5, namely, Darshana Devi has not stated anything in this regard that the prosecutrix had told her this fact and, therefore, her evidence may have been relevant and could be considered as evidence.
23. Thus, from the above discussion, this is very much clear that the prosecutrix, when examined in the Court, did not state the details from which an inference of sexual intercourse against her will or attempt of rape on her could be drawn. She did not state as to whether she was wrongfully confined against her will by the Appellant or told the witnesses whom the prosecutrix met immediately after the occurrence, including the above two ladies and her mother, she did not state that she was raped by the accused just sometime ago from which an inference could be drawn and their statements could be considered relevant to support her statement. She was not declared as hostile and confronted with the report lodged by her and the report lodged by her, Ext.PK, cannot be taken as substantive evidence until and unless she was confronted with the same and in the absence of any statement made on oath in the Court, no inference of rape or attempted rape or even of wrongful confinement or the threat given to her could be drawn. In regard to the threat, there is no evidence of the prosecutrix since she did not state any such threat having been given to her at the relevant time.
24. The additional factor which makes the prosecution story doubtful is that she admits that this case was made out at the instance of two ladies just to defame her and this gives credence to the plea raised by the learned Counsel for the Appellant, during the course of arguments, that since the prosecutrix was an unmarried girl and may have been found present in the shop, this case was falsely made out to defame her. The reason given for coming to the shop by PW-4 Tripta was not that they had to take the box from the shop, which has been so stated by PW-6 Simlo Devi. PW-4 Tripta is silent about the box or the demand made to give them the box and she simply stated that they had stopped there to have some rest. Therefore, the reason given by both the witnesses does not corroborate each other as to the purpose of their sitting in front of the shop of the accused. PW-6 Simlo Devi admitted that her husband had filed a complaint against the Appellant which might be pending before the SDJM, Dalhousie. This clearly suggests that this witness had some score to settle with the Appellant and that may be the reason for her deposing against him. However, she denied the suggestion that she was deposing because of the enmity, but the possibility cannot be ruled out.
25. From the above discussion of the evidence, it is very much clear that there is no evidence of rape or attempted rape or wrongful confinement or the threat allegedly given by the Appellant to the prosecutrix. In regard to the abrasions found on the person of the prosecutrix by PW-1 Dr. S. Sharad, which were in the nature of bruises and abrasions, it may be caused by the removal of the plank by the Appellant or by the prosecutrix and jumping to the room below the shop of the Appellant.
26. In regard to the stains on the salwar of the prosecutrix, it was rightly pointed out by the learned Counsel for the Appellant that it may be due to the menses and no definite opinion has been given by the Medical Officer in this regard. The hymen of the prosecutrix was found intact. The Medical Officer PW-1 Dr. S. Sharad also admitted the suggestion that in case rape is committed violently, the hymen is supposed to torn out. He also stated that in case of rape, the victim is supposed to put resistance and she can give tooth bite, scratch on the face with her nails and make use of kicks, which were not there. He also admitted that she can even tear the clothes of the assailant or of herself and all these things were missing as having not been stated by the Medical Officer. The statements of the other witnesses are not very material.
27. Thus, the prosecution had miserably failed to prove their case beyond any reasonable doubt and as such, the findings recorded by the learned trial Court holding the Appellant guilty and sentencing him are liable to be set aside and the same are set aside. The appeal filed by the Appellant is accordingly allowed and the conviction and sentence imposed upon the Appellant is set aside. The fine, if realized, shall be refunded back to the Appellant forthwith.
Appeal allowed.
