Gian Chand vs State of H.P.

R.L. Khurana, J.—The Appellant stands convicted by the Sessions Judge, Bilaspur for the offence u/s 376 Indian Penal Code for having committed forcible sexual intercourse with Kumari Seema, a girl of tender-age of about 5-1/2 years. He has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he has been sentenced to undergo rigorous imprisonment for a further period of six months. It was directed that the fine if realised shall be paid to the mother of the prosecutrix Kumari Seema.

The prosecution story, briefly stated, is this; Smt. Kalaso Devi, the mother of the prosecutrix is a resident of village Baru, Tehsil Ghumarwin, District Bilaspur. Her husband has died about eight years before the occurrence. She has three children. The eldest child is a son name Rakesh. The second child is a daughter of about 13 years of age. The prosecutrix Kumari Seema is her youngest child. Smt. Kalaso is living in a separate portion of a building in which her father-in-law and brothers of her late husband are residing.

In the morning of the relevant date, i.e. 29. 10.1991, PW.1 Smt. Kalaso Devi had gone to cut the grass alongwith her son and elder daughter, leaving the prosecutrix at home. She returned in the evening at about 7 P.M. She noticed the prosecutrix Kumari Seema lying in the room of her house with her face downward and naked from below waist. On being asked, Kumari Seema informed her that Appellant Giano had entered into the room, took, her to the upper story and after removing her salwar, he committed rape on her on the bed. PW.1 Smt. Kalaso Devi found the salwar of the prosecutrix lying under the bed. The same was smeared with blood. A white coloured Khadi bed-sheet which was laid on the bed was also found to be smeared with blood. There was an injury on the private part of the prosecutrix and the blood was oozing therefrom. PW Kalaso Devi thereupon narrated the entire occurrence to her sister''s-in-law (wife of her husband''s brother). They also saw the blood stained clothes as well as the condition of the prosecutrix. The occurrence was also narrated by Smt. Kalaso Devi to her father-in-law. She deputed her son to call the father of the Appellant, who came to her house and was informed of the entire occurrence. The father of the Appellant thereafter pleaded with her to hush-up the matter there by touching her feet.PW. Kalaso Devi, however, insisted that she would be lodging the report with the police. The father of the Appellant pleaded that she should not adopt such a course, as the prosecutrix would be subjected to social insult. Smt. Kalaso Devi, however, did not agree to the proposal of the father of the Appellant. The occurrence was also narrated to Sh. Ruldu Ram, the member of the Panchayat, who accompanied Smt. Kalaso Devi to the Police Station. A report was accordingly came to be made with the police on 31.10.1991 at 10.30 A.M. on the basis of which, a case under Sections 376 and 452 Indian Penal Code came to be registered with Police Station, Ghumarwin, vide First Information Report No. 70 of 1991.

During the course of investigation, shirt Ext.P.1 and Salwar Ext.P.2, which the prosecutrix was wearing at the time of alleged occurrence were taken into possession. The prosecutrix was got medically examined. The Appellant was arrested and also got medically examined. On the completion of the investigation, the Appellant was put to trial for the offence1 u/s 376 Indian Penal Code.

The case of the Appellant in his statement u/s 313 of the Code of Criminal Procedure is that of denial simpliciter. He has stated that PW. Kalaso Devi was having strained relations with his sister Smt. Taro Devi and due to such strained relationship, he has been falsely implicated in the present case. Be it stated that Smt. Taro Devi above-named, who is the sister of the Appellant, is the wife of the real younger brother of the husband of Smt. Kalaso Devi, It has further been stated by the Appellant that during the relevant period, he was suffering from mental ailment. The police after putting him under arrest, had obtained his signatures on various papers.

The Sessions Judge, after consideration of the material placed before him, came to the conclusion that a case u/s 376 Indian Penal Code stood proved against the Appellant beyond a reasonable doubt. He accordingly, convicted, and sentenced the Appellant as aforesaid.

We have heard Sh. M.S. Chandel, Advocate, the learned Counsel for the Appellant and Sh. C.L. Sharma, the learned Additional Advocate General for the State and have perused the records of the case.

It may be stated at the very outset that for the reasons to be recorded hereinafter the appeal is to be allowed and the,Appellant is to be acquitted of the offence charged against him.

The occurrence in the present case is alleged to have taken place on 29.10.91 at about 6.30 P.M. The report to the police came to be made only at 10.30 A.M. on 31.10.91. There is, thus, a delay of about 40 hours in making the report to the police. No explanation is forth coming on behalf of the prosecution for the delay in making the report to the police. In Thulia Kali Vs. The State of Tamil Nadu, where the occurrence was not reported for more than 20 hours, even though the Police Station was only about two miles from the place of occurrence, it was held that it was not safe to base conviction upon the evidence. While highlighting the importance of the First Information Report, it was observed by the Hon''ble Apex Court, as under:

... First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted storey as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfatorily explained....

The learned Additional Advocate General by placing a reliance on the ratio laid down by the Hon''ble apex Court in Harpal Singh and Another Vs. State of Himachal Pradesh, wherein the delay of ten days was held to have been reasonably explained, has contended that as the honour of the family is involved in the case of a rape, its members had to decide whether to take the matter to court or not. The ratio relied upon by the learned Additional Advocate General is not applicable in the present case, inasmuch as there is evidence to the effect that PW.1 Smt. Kalaso Devi has made up her mind to report the matter to the police on the morning of 30.10.91. It is in the statemet of PW.1 Kalaso Devi that she did not agree to the pleadings of the father of the Appellant for hushing up the matter, since, she had decided to report the matter to the police. It is also in the evidence of PW.1 Smt. Kalaso Devi that on the morning of 30.10.91, she had gone to Ghumarwin Hospital and had procured an ointment for being applied to the injuries on the private parts of her daughter, namely, the prosecutrix. At that time, she neither took the prosecutrix with her for being examined by the doctor, nor she made any complaint to the doctor, from whom she got the medicine. The delay in the present case having ramained un-explained, is fatal to the prosecution case.

11.. Another significant circumstance appearing against the truthfulness of the prosecution story is the shifting of the scene of crime. According to the first version coming in the First Information Report Ext.PA, the occurrence of rape took place in the room on the first floor of the building. However, while appearing as PW.1, Smt. Kalaso Devi has stated that the rape was committed by the Appellant in the open on the lintel of the house. To the similar effect has been stated by the prosecutrix herself as PW.7. The Investigation Officer, PW.10 ASI Kishan Chand, during the course of cross-examination, has categorically admitted in the following terms:

... It is correct that at the time of lodging the report, the complainant did state that the occurrence took place inside the room on the first floor but lateron the scene of occurrence was pointed out on the lintel over the ground floor just out side the room on the first floor.

No explanation is forth coming with regard to such shifting of the scene of the crime. This material contradiction in the scene of the crime destroys the truthfulness of the prosecution story.

The prosecutrix, as stated above, was about 5-1/2 years -of age at the time of occurrence. She has stepped into the witness box as PW.7 on 12.10.93. In other words, the prosecutrix was of about 7-1/2 years of age as on the date of her examination as PW.7. She has deposed that on the relevant date after returning from the school, since her mother, brother and sister were not at home, she started playing on the lintel of the house alongwith her three friends, namely, Kumari Sanju, Sfipu and Gayatri. The Appellant came there. He untied the string of her Salwar as also the string of his underwear and thereafter committed rape on her in the presence of the abovesaid three girls. She has gone to the extent of stating that Kumari Sapu had tried to scare away the Appellant by hitting him with the help of Broom, repeatedly for four to five times. It is also in her statement that the said three girls remained present at the spot throughout during the period she was being raped by the Appellants Surprisingly none of these three girls, who, admittedly were the eyewitnesses of the occurrence, has been examined in the present case. The prosecution, has thus, suppressed, the best evidence available and on their failure to examine such eye witnesses, an adverse inference will have to be drawn against the prosecution. On this point, we draw support from the ratio laid down by the Hon''ble Apex Court in Thulia Kali Vs. The State of Tamil Nadu, .

The learned Additional Advocate General has contended that under the law corroboration of the testimony of the prosecutrix is not a sine qua non in a rape case, and in support of his contention, he has relied upon the decisions of the Hon''ble apex court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, and Krishan Lal v. State of Haryana (1980) 3 Supreme Court Cases 159.

It is significant to note that the prosecutrix is a child witness. In State of M.P. v. Gujra and Ors. 1993 (1) Cri 826, while dealing with the question of value to be attached to the evidence of a child witness, it has been held by the High Court of Madhya Pradesh that a child witness should normally be not believed without proper corroboration. Again a Division Bench of Kerala High Court in Kesavan v. State of Kerala 1993 (3) Cri 19 , has held that though there cannot be a legal principle that the testimony of a child witness cannot be acted upon. It is a sound rule in practice not to act on the uncorroborated evidence of a child witness. A similar caution was sounded by the Hon''ble apex court in Suresh Vs. State of U.P., . In view of such settled principle with regard to the child witness, we are of the opinion that in the present case also, it would not be safe to act upon the sole testimony of the prosecutrix Kumari Seema (PW.7) without looking for further corroboration.

Even otherwise, '' it has come in the statement of PW.7, the prosecutrix, that she was told by her mother about what she had to state in the court. She has further stated that, she had narrated the facts in the court as were given to her by her mother. This statement of PW.7 clearly shows that her statement was not free and it was as-a result of tutoring by her mother, therefore, the statement of PW.7, the prosecutrix, cannot be relied ''upon, for the purpose of maintaining the conviction of the Appellant.

16 In the First Information Report Ex.PA, it has been stated by PW.1 Smt. Kalaso Devi that when she returned home on the relevant date at about 8 P.M. or. finding the prosecutrix lying naked from below the waist with injuries on her private parts, she had inquired from the prosecutrix about as to what had happened. The prosecutrix is stated to have narrated the occurrence to her there and then. However, while appearing in the court, PW.1 Kalaso Devi has come up with a new story to the effect that when she reached home, she found the prosecutrix lying unconscious and that the prosecutrix regained consciousness at about 3 A.M., when she was told about the occurrence. This introduction of a new story regarding the unconsciousness of the prosecutrix appears to have been made as an attempt to explain the delay in making the report to the police.

According to PW.1 Smt. Kalaso Devi/ she had narrated the occurrence to her mother-in-law Smt. Jasoda Devi, fathei-in-law Sh. Ghurkan and sister-in-law Smt. Premi Devi, and that, all of them had seen the condition of the prosecutrix as well as the blood stains on her clothes. Neither the father-in-law nor the mother-in-law of PW.1 Smt. Kalaso Devi, has stepped into the witness box. Only Smt. Premi Devi has been examined as PW.8. She has not supported the prosecution story. Though, she was declared hostile, nothing could be brought out during her cross-examination to point out that either PW.8 was suppressing the truth or was telling a lie.

PW.5 Dr. Mudita Gupta had carried out the medical examination of the prosecutrix. She had observed as under:

Patient was fully conscious and alert. No external injury was present on any part of the body.

Local examination: No external injury. Hymen was torned with irregular edges. Posterior vaginal wall tear was about 0.5 cm in length. No blood clot was seen. There was no evidence of healing. No pus seen. There was foul smell and tenderness. Smear from posterior. Vaginal fornix taken. No sperms seen.

Vide medico legal certificate Ext.PE, the duration of the injuries found on the person of the prosecutrix was opined to be between two hours to five days. This medical evidence also goes against the prosecution story, inasmuch as, the injury found on the person of the prosecutrix has not been related to the time of occurrence. As per PW.5, there was no evidence of healing of the injury. The prosecutrix was medically examined by PW.5 on 31.10.91 at about 12.15 P.M. i.e. after about 42 hours of the occurrence. It cannot be accepted that the process of healing of the injury had not started even after the lapse of 42 hours. Since, there was no evidence of healing of the injury, the same could be said to be of recent origin, as at the time of the medical examination of the prosecutrix. Therefore, it cannot be said that the prosecutrix sustained the injury while she was subjected to rape by the Appellant.

Admittedly, no injuries were found on the private part of the Appellant when he was examined by P.W.6 Dr. Jagdish Gupta. The prosecutrix at the relevant time was of tender age of 5-1/2 years. PW.6 Dr. Jagdish Gupta has admitted, that if a person of the stature of the Appellant having a penis of the size of that of the Appellant, happen to insert his penis into the vagina of a girl of six years of age, there is a probability of the injuries being sustained on the penis. It has been contended by the learned Additional Advocate General that such injuries are not possible, in case of only a partial penetration of the penis into the vagina. Be it may be so, in the present case reading the statement of the prosecutrix as PW.7, the only conclusion which can be drawn is that there.was a complete act of sexual intercourse. It was not a case of partial penetration. Therefore, in view of the fact that there was a complete sexual, intercourse, the Appellant would have sustained some injuries on his private part. The absence of such injuries on the private part of the Appellant also belies the prosecution story. It is also significant to note that no traces of semen were found on the underwear of the Appellant. PW.6 Dr. Jagdish" Gupta had taken the underwear of the Appellant in possession at the time of the medical examination. He has stated that the Appellant had not taken bath for the last five days. In view of the fact that the Appellant had not taken the bath for the last five days, there must have been some traces of semen on the underwear, if he had committed sexual intercourse with the prosecutrix.

Though traces of semen were found on the Sal war of the prosecutrix, no traces either of blood or semen were found on the shirt of the prosecutrix. It is in the evidence of PW.1 Smt. Kalaso Devi that the shirt Ext.P.1 and Salwar Ext.P.2 of the prosecutrix had been washed by her before the same were handed over to the police. If such clothes had been washed, traces of semen could not have been found on the Salwar Ext.P.2 belonging to the prosecutrix. The clothes of the prosecutrix were handed over to the police by PW.1 Smt. Kalaso Devi on 31.10.91. According to PW.1 Smt. Kalaso Devi, such clothes were carried to the police station in a bag in an open condition. The same were sealed at the police station. Though there is nothing on record to show as to when the clothes were sealed, the recovery memo Ext.PB records that the same were taken into possession and sealed on 1.11.91. It is also recorded in Ext.PB that stains of semen were present on the front and back of the shirt and that there were stains of blood and semen on the back and front of the Salwar Ext.P.2. Surprisingly, though, according to the prosecution, the stains of semen and blood were visible on the clothes of Ext.P.1 and Ext.P.2 of the prosecutrix, no stains, either of blood or semen were found on the shirt Ext.P.1 by the Chemical Examiner. Only stains of semen were found on the Salwar Ext.P.2. The clothes of the prosecutrix, i.e. shirt Ext.P.1 and Salwar Ext.P.2, though, were taken into possession, as per prosecution case on 1.11.91, the same were sent to the office of Chemical Examiner, Patiala only on 29,11.1991. There has been a delay of 28 days in sending such clothes for chemical examination. A Division Bench of this Court in Criminal Appeal No. 100 of 1994 Deep Singh v. State of Himachal Pradesh decided on 12.4.1995 ILR 1995 (1) HP 1127, has held that the delay in sending the parcel to the Chemical Examiner raises a serious doubt about its safe custody, and that there was every likelihood of the parcel having been tampered with. Even otherwise, in the present case, the chain of link evidence is broken. There is no evidence on record to show that the parcel containing the clothes of the prosecutrix from the time of its taking till it reached the hands of the Chemical Examiner was not tampered with. PW.3 HC Gopal Dass has stated that the sealed parcel was sent by him to the office of the Chemical Examiner, Patiala on 26.11.91 through constable Lachhmi Singh. The same were returned to him on 28.11.91 with some objection. Thereafter, he was transferred from Police Station, Ghu''marwin and had handed over the charge to his successor HC Onkar Chand. This witness has not deposed as to when and by whom the sealed packet containing the clothes of the prosecutrix was deposited with him. PW.4 Lachhmi Singh on 26.11.91 had carried the sealed parcel containing the clothes of the prosecutrix to Chemical Examiner, Patiala. On some objection having been raised, the same were returned by him to PW.3. He had again carried the said sealed packet on 3.12.91 for delivery to the office of Chemical Examiner at the instance of HC Onkar Chand. This HC Onkar Chand has not been examined in the present case'' to prove that the sealed packet containing the clothes was not tampered with during the period it remained in his custody. PW.10 Kishan Chand (ASI) the investigation officer has not stated even a single word as to who and when the sealed packet containing the clothes of the prosecutrix were deposited with PW.3 Gopal Dass. Besides, nothing has been brought on record to show as to why the Chemical Examiner, Patiala refused to accept the sealed parcel when it was firstly taken to him by PW.4, or that what were the objections raised by him.

Evidence has been led on behalf of the Appellant to show that he was suffering from some mental disorder at the relevant time. Though no specific plea as to insanity of the Appellant has been raised. Dw.2 Dr. R.S. Datwalia, Psychietrist, District Hospital, Mandi had treated the Appellant for Schizophrenia during the month of July, 1991, i.e. before the present occurrence. There is evidence to show that the Appellant while in custody was also examined by Dw.2 on 9.11.91 for similar mental disorder. During the course of the trial before the Sessions Judge, an inquiry was also held by him u/s 329 of the Code of Criminal Procedure in order to find out, if the Appellant was fit and capable to defend himself. Vide order dated 24.6.93, the Sessions Judge came to the conclusion after necessary inquiry that the Appellant was fit to make his defence, and, accordingly, he had proceeded with the trial. The evidence thus coming on the record shows that before and after the alleged occurrence the Appellant was, in fact, suffering from Schizophrenia. The Hon''ble Apex Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat 1964 (2) CriL.J. 472, while dealing with the plea of insanity, has held as under:

The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code; the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the (. to)sic of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.

Relying upon the said principle and in view of the evidence as to the mental condition of the Appellant before and after the occurrence, there is a reasonable doubt as regards one or more of the ingredients of the offence, and, as such, the Appellant is entitled to be acquitted of the offence charged against him.

For the foregoing ieasons, the appeal is accepted. The conviction and sentence imposed upon the Appellant by the Sessions Judge, Bilaspur vide his Judgment dated 29.5.95 is set-aside and the Appellant is acquitted of the offence u/s 376 Indian Penal Code The Appellant, who is in custody, shall be released forthwith, if not required in any other case. The case property be dealt with in accordance with the directions given by the Sessions Judge. The amount of fine, if already deposited and paid to PW.1 Smt. Kalaso Devi, shall not, however, be recovered from her and refunded to the Appellant. In case the amount is still lying deposited with the court below, the same shall be refunded to the Appellant forthwith.