STATE OF GUJARAT v. LAVARAM RAMCHANDRA — 1979 DIGILAW 145 (GUJ)

A. M. AHMADI, D. H. SHUKLA, J. ( 1 ) * * * * ( 2 ) THE learned trial Judge has taken a very strong objection to the conduct of the police in tutoring Minakshi and in reading over the police statements to the witnesses. He has sought support from two decisions Kathi Moti Lakha and two others v. The State of Gujarat Criminal Appeal No. 543 of 1962 decided on November 21/22 1963 and Zahi ruddin v. King Emperor 49 B. L. R. 521 (PC) in coming to the conclusion that the witnesses can no more be relied upon if their statements have been read over to them by the police before the recording of the evidence commenced. The learned trial Judge has observed that the conclusion is inevitable that no value whatever could be attached to the testimony of the prosecutrix Minakshi Sukhlal. It appears that the attention of the learned trial Judge was not drawn to the Full Bench decision reported in the case of Nathu Manchhu v. State of Gujarat 18 G. L. R. 1041. The entire question is fully considered in the judgment by D. P. Desai J. speaking for the Full Bench and he has examined the question in the light of the different eventualities. It was held in the judgment that the evidence of a witness to whom his statement recorded in the course of the investigation under Chapter XII of the Criminal Procedure Code is read over before be steps into the witness box does not become inadmissible. Its probative value has to be judged in the circumstances of each case. No hard and fast rule can be laid down that in all such cases the evidence of such witness will be of no value whatsoever. This clear observation is a reply to the observation of the learned trial Judge that inevitable conclusion which could be reached in Minakshis case was that her testimony was of no value at all. It is further observed that reading over the statement recorded in the course of the investigation to a witness before he enters the witness box does not amount to its use being made contrary to sec. 162 (1) of the Criminal Procedure Code. It is further observed that reading over the statement recorded in the course of the investigation to a witness before he enters the witness box does not amount to its use being made contrary to sec. 162 (1) of the Criminal Procedure Code. We do not propose to refer at length the different aspects of this question discussed in this ruling but suffice it for us to observe that if this ruling was brought to the notice of the learned trial Judge he might have probably weighed and appreciated the evidence on the record of the present case in a different way. ( 3 ) EVEN when we take a different view in appreciating the oral evidence of Minakshi and other three witnesses we do strongly feel that the tutoring of witnesses by police must be condemned. It may be that the evidence of the witnesses who are read over their earlier statement is not inadmissible and may be even relied upon but that legal position does not detract the blemish of doing social disservice on the part of the investigation which indulges in such a practice. The function of the police is to maintain law and order and to investigate the crime to bring the offender to face a legal trial. The police function is no more than this so far as the investigation is concerned. Honest and efficient investigation of crime is its own reward irrespective of the result in the trial. An endeavour to bring about successful result by manipulating evidence or indulging in a malpractice of tutoring a witness and the like must be condemned. It is high time that the investigating authority and the officer in charge of the prosecution realise that such an endeavour does not enhance social image of the investigation even when it is successful in bringing about a conviction but it is an act of social disservice. It is no credit to them to obtain a conviction of an accused who is likely to have the benefit of a reasonable doubt or who is or is known to be an innocent person by such and other dubious methods. An efficient and clean investigation shall command public and judicial esteem. It is no credit to them to obtain a conviction of an accused who is likely to have the benefit of a reasonable doubt or who is or is known to be an innocent person by such and other dubious methods. An efficient and clean investigation shall command public and judicial esteem. It is this malpractice which has come to light in this case which led the learned Additional Sessions Judge to discard the evidence of the prosecution witnesses out right and acquit the accused. This is obvious social disservice which the investigating agency did in this case by resorting to a malpractice. This practice resorted to by the investigators put us on guard and we looked for the convincing corroborative evidence before accepting any part of the evidence of the prosecution witnesses. . . . . . . . . . . . ( 4 ) THE second charge against the accused was under sec. 450 of the Indian Penal Code which relates to the committing of a house trespass in order to commit any offence punishable with imprisonment for life. The learned trial Judge acquitted the accused of this charge on the ground that the prosecution had failed to prove the offence with intent to which the accused is alleged to has committed house trespass. It has become necessary for us to consider the charge in greater details as we have found the accused guilty of the offence of rape. The first and the basic question which we must therefore consider is as to whether the accused committed a criminal trespass as in would defend on the finding of that inquiry as to whether he could be held guilty under sec. 450 of the Indian Penal Code. Under sec. 441 of the Indian Penal Code whoever enters into or upon property in possession of another with intent to commit an offence or to intimidate insult or annoy any person in possession of such property or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate insult or annoy any such person or with intent to commit an offence is said to have committed criminal trespass. So far as the facts of the present case are concerned this second alternative is out of consideration. So far as the facts of the present case are concerned this second alternative is out of consideration. It is not the case against the accused that by had entered into the house lawfully and had remained there unlawfully to intimidate insult or annoy any person in the house or with intend to commit an offence. We have before us the only first alternative as to whether he committed criminal trespass by entering into the property with intent to commit the offence or intimidate insult or annoy such person in possession of such property. It must first be pointed out that the charge which is levelled against the accused under this section is absolutely vague and leads nowhere. It is not clarified at all as to what are the circumstances relied upon by the prosecution to base this charge of criminal trespass against the accused and as to what the accused was called upon to meet with. It appears to us that there is no case against the accused for having entered the property with intent to intimidate insult or annoy any person in possession of the property. The precise question which we under the circumstances of the case are called upon to consider is as to whether the accused can be held liable under this section for having entered the property with intent to commit an offence. It must at the out set be remembered that the accused is guilty of rape as Minakshi was a girl proved to be under 16 years of age at the time of the incident. Under sec. 375 of the Indian Penal Code the mens rea of the accused is ruled out if the girl is below 16 years of age Sexual inter course with a girl under 16 years of age is prescribed to be an absolute offence irrespective of the consent of the girl. If a girl is over 16 years of age and if she is a consenting party it is no offence to have sexual intercourse with her. We have therefore to consider as to whether the accused can be held guilty of criminal trespass because of the act which he did which proved to be an offence a statutory offence. His liability for the offence of rape is de hors his own intention or the intention of the girl. We have therefore to consider as to whether the accused can be held guilty of criminal trespass because of the act which he did which proved to be an offence a statutory offence. His liability for the offence of rape is de hors his own intention or the intention of the girl. Under these circumstances can it be said that he must also be held guilty of having entertained an intention to commit an offence when he entered the house? It is to be borne in mind clearly that while in a case of an intercourse with a girl under 16 years the liability is absolute and the presence of mens rea is not a necessary condition for commission of the offence that is not so in the definition of criminal trespass. On the contrary the emphasis is on the intention to commit an offence and it must be with that intent that the accused must have entered the property of another. If the accused in the present case had entered upon the property to have sexual intercourse with Minakshi without her consent there is no room for doubt that he would have been guilty of criminal trespass as well as rape. We have considered carefully the evidence on the record of this case and it appears to us that the sexual inter course with Minakshi was not against her consent and wish. ( 5 ) IT may further be considered that Minakshi was aged about 13 years 7 months or so. She was therefore on the border line of 16years as far as her appearance would go. There is no prosecution evidence that the accused knew that Minakshi was under 16 years of age. It is obvious from what we have considered above that if Minakshi had completed 16 years of age the accused would have committed no offence by having had sexual intercourse with her as we have shown how there are circumstances to infer her consent. In that case the accused would not have been guilty of a criminal trespass as it cannot be said that he had committed an offence and therefore much less can it be said that he had entered the house with an intention to commit an offence. In that case the accused would not have been guilty of a criminal trespass as it cannot be said that he had committed an offence and therefore much less can it be said that he had entered the house with an intention to commit an offence. If the accused did not know and had no reason to believe Minakshi under 16 years of age and if there are circumstances to show that Minakshi was a willing party it cannot as well be said that the accused had entered the house with an intention to commit an offence. In other words there was no mens rea present. Mens rea must be present in the mind of the accused when he entered the property as it is a necessary ingredient to constitute an offence of a criminal trespass. We are supported in the view we are taking by a ruling reported in the case of Abdul Majid v. Emperor 39 Criminal Law Journal 756 The facts are not identical but the view taken affirm the line of reasoning adopted by us. It is found observed therein that it must depend on the facts of each case whether the intent to annoy the person in possession of the property entered upon can in the circumstances be reasonably inferred. Where at night an accused enters upon invitation the house of the complainant with an intent to have sexual intercourse with the daughter who is suit juries the accused cannot be said to have the primary or even the subsidiary or secondary intent to annoy the person in possession from whom he had taken all possible precautions to keep his entry secret. We have considered that so far as the consideration under this section is concerned it makes no difference that Minakshi was under 16 years of age as the accused did not know that fact and as there was no reason for him to believe that she was under age. The medical evidence of Dr. Miss Hasumati R. Patel shows that she was fairly well developed. The accused therefore is acquitted of the charge levelled against him under sec. 450 of the Indian Penal Code. Conviction under sec. 376 I. P. C. Appeal partly allowed. .