Tarvinder Kumar vs State of Himachal Pradesh

M.R. Verma, J.—This appeal is directed against the judgment dated 28.4.2000 passed by the learned Sessions Judge, Solan, whereby the appellant accused (hereafter referred to as ''the accused'') has been convicted under Section, 376 IPC and has been sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 10,000/- and in default of payment of fine to undergo further rigorous imprisonment for one month.

Case of the prosecution, in brief, is that the prosecutrix (PW-6) is the eldest child of Tufani (PW-7) and Champa (PW-8) and, at the relevant time, was aged 10 years. She used to reside with her parents in Jhuggi Jhompri Colony, Sector 4, Parwanoo and was studying in a nearby Government School within the territory of State of Haryana. On 4.11.1999 at about 2 P.M., the prosecutrix was returning home from the said school along with her brother and sister. ON the way, she stopped for urinating and her brother and sisters went ahead., At that time, accused was sitting on the roadside near a bridge. On noticing the prosecutrix, accused followed her and started talking to her. He took out his shirt and muffled his face with it. Thereafter, he forcibly dragged the prosecutrix into the Jungle where he committed rape on her. When the prosecutrix raised cries, accused immediately gagged the mouth. The accused threatened the prosecutrix not to divulge the occurrence to anyone. Because of the rape, prosecutrix became semi unconscious but somehow or the other, managed to reach her house. She disclosed the occurrence and the identity of the accused t other mother (PW-8) who could place the accused because daughter was also studying with the prosecutrix in the same school. The prosecutrix was removed to ESI Hospital, Parwanoo. On receipt of the information, ASI, Rattan Kumar (PW-14) went to the said Hospital and recorded the statement of the prosecutrix u/s 155 Cr.P.C. Ex.PW-2/A on the basis of which FOR Ex.PW-2/A on the basis of which FIR Ex.PW-2/A on the basis of which FIR Ex.PW-2/B was recorded at Police Station, Parwanoo. The prosecutrix was medically examined by Dr. Krishana Nath (PW-11) of ESI Hospital, Parwanoo, who could not carry out the vaginal examination of the prosecutrix because of bleeding. However, she took the blood stained clothes of the prosecutrix Exs. P-1 and P-2 in possession, sealed and handed them over to the police for chemical examination. The prosecutrix was referred to District Hospital, Solan for ultra sonography and to the gynecologist for further line of treatment. PW-11 issued MLC Ex.PW-11/A about the medical examination of the prosecutrix as was done by her. In District Hospital, Solan, prosecutrix was medically examined by Dr. Kamlesh Sharma (PW-10) who, on such examination, found the human of the prosecutrix raptured with irregular margins with extension of wound in the posterior vaginal wall and lateral vaginal wall. Fresh bleeding was found present and the margins of the wound were irregular. The wound from the posterior vaginal was extended down to external sphincter. It was a third degree perineal tear. The rectum was bulging out. Two vials of blood of the prosecutrix were taken, sealed and handed over to the police for chemical analysis. PW-8 issued MLR Ex.PW-10/A about the medical examination of the prosecutrix conducted by her. As per her opinion, there was recent penetration with recent sexual intercourse leading to vaginal injury and rupture of hymen and third degree perineal tear. The act of rape was committed within 24 hours preceding the examination of the prosecution by her on 5.11.1999 at 1.45 AM. Opinion Ex.PW-9/A about the skeleton age of the prosecutrix was also obtained, according to which, the skeleton age of the prosecutrix was 8 to 10 years. Her School Leaving Certificate Ex.PW-3/B was also obtained according to which, the date of birth of the prosecutrix is 10.7.1989.

The accused, after his arrest, was got medically examined. At the time of medical examination of the accused, Dr. Vinod Kapil (PW 12) took the pant Ex.P-1 and Nikkar Ex.P-4 in possession and issued MLR Ex.PW-12/A about the medical examination of the accused and opined that there was nothing to suggest that the accused was incapable of performing sexual intercourse. The wearing apparels of the prosecutrix Exs. P-1 and P-2, her blood sample and the wearing apparels of the accused Exs.P-3 and P-4 were went to the chemical analysis to the State Forensic Laboratory, Junga and as per report Ex.PW-14/A of the Assistant Director of the said Laboratory, on Salwar of the prosecutrix and Nikkar and pant of the accused, human blood of ''B'' group and human semen were found. On shirt of the prosecutrix, human blood of ''B'' group was found. The blood of the prosecutrix was also found of ''B'' group. On completion of the investigation, the officer incharge of Police Station, Parwanoo submitted a charge sheet against the accused u/s 376 and 506 IPC. The accused was tired by the learned Sessions Judge, Solan, on a charge under Sections 376 and 506 IPC, To prove the charge against the accused, prosecutrix examined 14 witnesses. The accused was examined u/s 313 Cr.P.C. wherein he denied the prosecution case. However, the accused did not lead any defence evidence.

On the basis of the material on record, the learned Sessions Judge convicted and sentenced the accused as aforesaid. Hence this appeal.

We have heard the learned counsel for the accused and the learned Additional Advocate General for the respondent-State and have also gone through the records.

It may be pointed out at the very outset that the learned counsel for the accused fairly conceded that in view of the material on record, it is established that the prosecutrix, at the relevant time, was about 10 years of age and that someone had subjected her to sexual intercourse. However, the contention of the learned counsel for the accused is that there is no cogent, reliable and confidence inspiring evidence eon record to prove that it was the accused who committed the rape on the prosecutrix and his identity as the rapist is not at all established and he had been falsely involved in the case after due deliberations and consultants. Therefore, the impugned conviction and sentence are unsustainable and liable to be set aside.

On the other hand, the learned Additional Advocate General has contended that the accused was known to be prosecutrix as his daughter was studying in her school, thus, there cannot be any doubt about the identification of the accused as the rapist by the prosecutrix. Therefore, he has rightly been held guilty of the commission of offence u/s 376 IPC and the impugned conviction and sentence do not call for any interference.

In view of the contention for the parties, the only question which requires determination in this appeal is "whether the identity of the accused as the rapist is established or not?"

The initial version of the prosecution about the identity of the rapist as contained in the FIR Ex. PW-2/B is that while the prosecutrix was on way to her residence, a person from Kheda Sitaram village, who had muffled his face with a white cloth met her on the path in the jungle and threatened the prosecutrix to accompany him failing which he would kill her and took her to the dense forest where he committed rape on her. It is not in the FIR that in the process the cloth with which the rapist had muffled his face was ever removed by the accused or by any other cause or that the prosecutrix had the occasion to see the face of the accused before or at the time of or after the occurrence. It is also not in the FIR that the prosecutrix during this period had recognized the rapist as the father of any of her school mates. Thus, it cannot be said on the basis of the version in Ex.PW-2/A that the prosecutrix had observed the facial features or any other identification mark(s) or particulars of the accused before lodging the FIR.

In her evidence, the prosecutrix has stated that she saw the accused sitting near a bridge. When the prosecutrix reached at that place, the accused removed his shirt and muffled his face therewith. A person who wants to keep his identity concealed will take steps to muffle his face before he is seen by a person from whom he wants to conceal his identity. A course contrary to it will be contrary to the natural human conduct in such eventuality. This version in the evidence of the prosecutrix is thus unreliable not only for the reason that it appears improbable in the ordinary course of human conduct but is also contradictory of her version as contained in Ex.PW-2/B. Had the prosecutrix seen the accused as claimed by her in her evidence, she would have made such disclosure in Ex.PW-2/A, which she did not do.

After arriving at her house, the prosecutrix, while narrating the occurrence, informed her mother that one person took her to the Jungle and subjected her to rape and when she told the identity of the accused to her mother, she could at once identify him because his daughter was studying in the same school in which the prosecutrix was studying. She has further stated that she also knew the accused for the reason that his daughter was studying in the same school in which the prosecutrix was studying. In cross-examination, the prosecutrix has stated that she knew the accused form the very beginning. It is, however, nowhere in her evidence as to what identifying features of the accused were narrated by her to her mother which led her mother Champa (PW-8) to the conclusion that the accused was the rapist. The evidence of the prosecutrix that she knew the accused also does not appear to be correct for the simple reason that had it been so, the identity of the accused as the rapist would have been stated by her while making the statement Ex.PW-2/A, on the basis of which FIR Ex.PW-2/B was recorded wherein she has not stated anything about the identity of the accused. Thus, she had made material improvements in her initial version while giving evidence.

It may be pointed out that the prosecutrix is a child witness on whose testimony, it is always dangerous to rely. It is more so in a case where the version of such witness is improved or is contradictory on material particulars. The version of the prosecutrix, vide Ex.PW-2/B, is that after the rape, when the accused threatened her not to disclose the occurrence to anybody failing which she would be killed, she was brought on her house by one "uncle". In her statement in the Court, she has contradicted this version by claiming that she walked all alone to her house after the occurrence. Her initial version vide Ex.PW-2/A is that the rapist threatened her to be done away with if she did not accompany him to the place of occurrence. Whereas her evidence is that the accused threatened her after the commission of the rape not to divulge the occurrence. In view of these variations in the version if the prosecutrix, on material particular, her statement about identity of the accused is rendered unreliable.

According to Tufani (PW-7) while disclosing the occurrence to him, the prosecutrix informed him that she did not know the name of the rapist but could identify him and that in the hospital, the prosecutrix disclosed that the person who raped her was the father of one Nisha studying in the school where the prosecutrix was also studying. Contrary to it, statement of Champa, mother of the prosecutrix (PW-8) is that prosecutrix disclosed to her that she was subject to rape by father of Nisha studying in her school. In case this identity of the accused was disclosed by the prosecutrix to her mother, there is no reason as to why such identity of the accused could not be disclosed in the statement Ex.PW-2/A. Moreover, there is not even an iota of evidence on record to prove that any girl named Nisha was studying in the school where the prosecutrix was studying and accused is the father of said Nisha.

It is initial version of the prosecutrix in EX.PW-2/A that after the occurrence, the accused threatened the prosecutrix not to divulge the occurrence to anybody and bolted away towards Khera Sita Ram. It is also her version therein that she was brought home by one "uncle". The prosecution has not made any attempt to trace out the person who had brought the prosecutrix to her house and whom the prosecutrix has referred to as "uncle". However, it is admitted by the mother of the prosecutrix (PW-8) that the accused had accompanied the prosecutrix t other Jhuggi and that she had disclosed this fact to her husband (PW-7). If the rapist had run away from the spot after the occurrence towards village Khera Sitaram and the prosecutrix was brought home by one "uncle" to her Jhuggi, then in view of the statement of PW-8, it is clearly established that the prosecutrix was brought home by the accused. Had the accused been the rapist, the prosecutrix could have simply stated that the "uncle" who had brought her to her Jhuggi was the rapist. But it is not the case of prosecutrix, her parents or the prosecution. It appears that the accused came with the prosecutrix upto her Jhuggi, therefore, he was suspected to be the rapist whereas it clearly emerges from the evidence of PW-6 and PW-8 that the rapist had run away to Khera Sitaram after the commission of rape and the accused was the person who had brought the prosecutrix to her Jhuggi.

In the facts and circumstances of the case, it cannot be said that the case has been registered against the accused without any deliberations and consultations and the investigating agency has played its part in the matter fairly and as required under the law which also renders the identity of the accused as the rapist highly doubtful.

Rattan Kumar, ASI (PW-14), who investigated the case, has stated that the information regarding commission of the offence by the accused was received in the police station from ESI Hospital, Parwanoo and on receipt of such information, he rushed to the said hospital with a constable and recorded the statement of the prosecutrix Ex. PW-2/A u/s 154 of the code of Criminal Procedure. He has clarified in his cross examination that the information received from the hospital was recorded in the Daily Diary but copy of such a report has not been annexed with the challan because of inadvertence. He has specifically denied the suggestion that the father of the prosecutrix had disclosed the name of the rapist who is a person other than the accused. He has further denied the suggestion that the report as made by the father of the prosecutrix was not intentionally recorded. He has admitted that as per the FIR, some person other than the rapist had brought the prosecutrix to her Jhuggi after the commission of the rape. However, on all material particulars, this version of PW-14 is contradicted by PW-7 and PW-8, parents of the prosecutrix. PW-7 has stated that on receipt of the information that his daughter was unwell and bleeding profusely, he reached home, made inquiries from the prosecutrix and took her immediately to ESI Hospital, Parwanoo. The doctor, however, refused to treat the prosecutrix because of rape having been committed on her, therefore, they went to the police station and lodged the report there by way of recording the statement of the prosecutrix Ex.PW-2/A. In cross examination, he has stated that entire details of the commission of the offence by the accused were disclosed at the police station. Similarly, mother of the prosecutrix (PW-8) has stated that along with her husband and the prosecutrix, she also went to the police. Thus, what emerges from the statements of the PW-7 and PW-8 is that the prosecutrix was removed to the hospital but her treatment in the hospital was refuted because of the commission of rape on her and thereafter, the prosecutrix and her parents went to the police station and narrated the entire occurrence there,. This belies the statement of PW-14 that on receipt of information of the commission of the offence, he had gone to the hospital and recorded the statement of the prosecutrix there. It is evident from the contents of MLC Ex.PW-10/ A that the prosecutrix was taken to the hospital for medical examination vide docket SPL-1 by LC Pushpender Singh. It lends corroboration to the statement of PW-7 and PW-8 that before medical examination the prosecutrix, along with her parents had gone to the police station and reported the occurrence there. It is clearly and unambiguously stated by PW-7 that when they narrated the occurrence, it was recorded at the police station in the form of a statement. However, such statement ha neither been produced nor is the basis of the FIR. The FIR is based on the statement of the prosecutrix shown to have been recorded in the Hospital as stated by PW-14. Thus Ex.PW-2/A having been recorded in the hospital at a stage later than the time of narration of the occurrence to the police at Police Station which was reduced into writing is in fact a substitute for the real FIR which was the statement recorded in the police station. Thus, the irresistible conclusion is that Ex.PW-2/A is the outcome of deliberations and consultations. It is the case of the prosecution and is so stated by PW-14 that the place of occurrence was got identified by the prosecutrix whereas the prosecutrix herself has denied showing of the place of occurrence to the police. In fact her version is that after the occurrence on the same day during night she was taken to the jungle to print point the place of occurrence but she could not do so. It also emerges from the prosecution evidence that from the alleged place of occurrence, not only the Jhuggi of the parents of the prosecutrix but the houses of the village are visible. If the houses are visible from the place of occurrence, the place of occurrence itself must be visible from the houses in the village. If so, the rapist would not have bothered to accompany the prosecutrix to her Jhuggi after the commission of rape in a place visible from the village and thereby take the risk of disclosing his identity as the rapist.

As per the admitted version in Ex.PW-2/A, a person other than the rapist took the prosecutrix to her Jhuggi and as per the version of the mother of the prosecutrix (PW-8) it was the accused who had accompanied the prosecutrix to her Jhuggi. This clearly shows that the rapist was a person other than the accused.

To connect the accused with the commission of the offence, the prosecution has also relied on the circumstance that half pants and pants of the accused, taken in possession by the medical officer Dr. Vinod Kapil (PW-I2) at the time of the medical examination of the accused, were stained with blood and on analysis, the blood was found of group ''B'', which is the blood group of the prosecutrix. Therefore, according to the prosecution, in the absence of any explanation by the accused as to who the blood was found on the aforesaid wearing apparels of the accused, the only reason for finding of the blood and semen can be his having raped the prosecutrix whereby his said wearing apparels got blood stained with the blood of the prosecutrix. Even this circumstance sought to be used against the accused is not established. PW-12 has stated that the accused, at the time of his medical examination, was wearing white Nikkar and white pant having fresh blood stains and he sealed such pant and Nikkar. He has, however, not stated as to which seal he had sued for sealing such clothes. The Nikkar and pant which were sent to the State Forensic Science Laboratory vide report Ex.PW-14/A, were both of grey colour. It cannot be presumed that a medical officer and an Assistant Director of a Forensic Science Laboratory could not distinguish between white and grey colours which even an ordinary human being is capable of. There is no explanation to reconcile this difference of colour in the clothes sealed and the clothes chemically analysed in the laboratory.

During the course of recording the evidence of P.W.-12, a parcel bearing several seals of ESI, Parwanoo was produced before the Court, seals whereof were intact and when, after permission of the Court the parcel as opened, pant Ex.P-3 and Nikkar Ex.P-4 bearing signatures of P. W.-12, were found therein and he identified these exhibits as the clothes the accused was wearing at the time of his medical examination and which were taken in possession by P.W.12. However, these clothes were found in a parcel sealed with seal of ESI, Parwanoo and such seals were intact. Such parcel cannot be said to have ever reached the laboratory for the purposes of analysis. Had this parcel reached at the laboratory, its seals of ESI, Parwanoo could not remain intact because it would have been opened in the laboratory for the purpose of analysis of the clothes resulting in the breakage of the seals. At the time of repacking, the laboratory would have used its own seal as it is not expected to keep the seal of ESI Hospital, Parwanoo. Thus, it is not at all established that the wearing apparels of the accused taken in possession at the time of his medical examination were ever sent to the laboratory for chemical analysis and the clothes analysed in the laboratory were of the accused. Thus, this circumstance is not established and is of no help to the prosecution.

It may also be pointed out that a charge sheet is forwarded to the concerned Court by the officer incharge of the police station. It is primarily his duty to ensure that such report is substantiated by the material collected by the investigating officer and no more probe to arrive at the truth is required. He is not expected to act like a post office to sent every report prepared by his subordinate to the Court without application of mind, at least to the material placed on the file. In the case in hand, the concerned officer incharge of the police station, inspector D.D. Sharma (PW-13) as per his own admission had not verified the final report prepared by P W-12.

We are aware that acquittal of an accused on flimsy grounds is detrimental to the interest of the administration of criminal justice. However, it is equally true that unwarranted convictions are more detrimental to the interest of administration of justice. No doubt, a very heinous offence against a child has been committed by someone who deserved severe and deterrent punishment, but, unfortunately, the identity of the accused is not established as the rapist, therefore, the impugned conviction and sentence awarded to him cannot be sustained.

As a result, this appeal is allowed and the impugned conviction and sentence are aside and the accused is acquitted of the charge against him. The account is presently in jail undergoing the imprisonment awarded to him, therefor, to be set at liberty forthwith, if not required to be detained under any other process of law. Fine if recovered, be refunded to him.