Mahesh Chand v. State of Rajasthan — 1997 DIGILAW 1343 (RAJ)

Honble KHAN, J–This appeal u/S. 374(2) Cr.P.C. is directed against the judgement and order dated 15.2.1983 whereby the learned Addl. Sessions Judge No.6, Jaipur City Jaipur held the appellant guilty of the offence u/S. 376 IPC in Sessions case No.9 of 1982 State vs. Mahesh Chand, convicted him as such and sentenced him to R.I. for 5 years and fine of Rs. 300/-only. THE RELEVANT FACTS ARE THESE:- (2). PW.5 Km. Rekha, the victim of the alleged sexual assault, is the 8,9 years old minor daughter of PW.1 Kailashi Chand and PW.4 Smt. Kanta. At the relevant time in the year 1981 she used to live with her parents and other members of the family in House No. 607, Bordi ka Rasta, Chand Pole, Jaipur. In front of her house or close near by Mahesh Chand appellant, then a body of about 21 years of age, used to live alongwith his parents and other members of the family in portion of a building known as Chandrapani House PW.1 Kailash Chand was employed in a Bank. The appellant was also employed in that or other bank as a IVth class servant. In front of the house there is Gali. Some shops are also stated to be existing in the Gali or in the viccinity thereof. (3). It is alleged that on 15.10.81, in the evening, Km. Rekha was playing in the chowk with other children. The children and Rekha went in the gali to purchase ``Toffees. While the children and Rekha were purchasing ``Toffees the appellant is alleged to have persuaded Rekha to accompany him and he would give her toffee. The appellant took the child to the roof of his house and there committed rape on her. It is alleged that the appellant had threatened the child to kill if she narrated the incident to any body. Rekha returned to her house and slept. On the following morning Rekha is alleged to have complained to her mother, PW.4 Smt. Kanta, that she was having trouble in urination and passing stool Smt. Kanta took her to PW.10 Dr. Pramila Ladha, a registered medical practitioner carrying on her profession in the Mohalla. After talking to the child and on examination of her pri- vate parts Dr. Ladha told Smt. Kanta that her daughter had been raped. Pramila Ladha, a registered medical practitioner carrying on her profession in the Mohalla. After talking to the child and on examination of her pri- vate parts Dr. Ladha told Smt. Kanta that her daughter had been raped. Smt. Kanta returned to her house with the child and on being questioned by her Rekha narrated the story of the rape on her by the appellant during the previous evening or early hours of night of 15.10.81. Smt. Kanta then went outside to a shop whereas the appellant was sitting. Rekha allegedly pointed out at him as her rapist. Smt. Kanta brought the appellant to her house and questioned him. The appellant denied to have committed rape on Rekha. It was further alleged that Rekhas father, uncle and grand-father reached the house in the evening and on being informed of the incident by Smt. Kanta they went to the house of the appellant. The appellant is alleged to have confessed his guilt. Thereupon PW.1 Kailash reached police station, Kotwali Jaipur and presented a written FIR Ex. P5 at 12.10 A.M. to the Head Moharrir PW.7 Murlidhar PW.15 Mohd. Aquil A.S.I. conducted preliminary investigation and got Rekha examined by PW.13 Dr. (Smt.) Birbala Srivasta at 5.30 PM. on 17.10.81 who noted the following injuries on her person: ``Tear lcm.X linear, situated on right as well as left Labia Majora, situa- ted lateral to hymen. Edges of tears are round, red and bleed on touch. Labia, both sides, swelling and Hymen congested, red, torn at 3 Oclock. Position Edges of tear are raw, tender. Forechettetear present half cm. long X skin deep, raw (4). Dr. Srivastava opined that Rekha was aged between 7 and 9 and that she had been recently raped. (5). PW.15 Mohd. Aquil obtained the Frock and Chaddi of Rekha and arrested the appellant His Chaddi was recovered from a bedding on the roof of his house and seized and sealed PW.8 Hari Narain and PW.11 Om Prakash took the seized frock and Chadhi and vaginal swab of Rekha and the Chadhi of the appellant to Rajasthan State Forensic Science Laboratory Rajasthan, Jaipur (F.S.L.) but on examination the chemical examiner submitted neglect reports. After completing the usual investigation the appellant was charge-sheeted and tried by the learned Addl. Sessions Judge. He found the appellant guilty of offence u/Sec. 376 UPC, convicted and sentenced him in the manner stated above. (6). Mr. After completing the usual investigation the appellant was charge-sheeted and tried by the learned Addl. Sessions Judge. He found the appellant guilty of offence u/Sec. 376 UPC, convicted and sentenced him in the manner stated above. (6). Mr. N.K. Joshi, the learned counsel for the appellant, urged that it was a case of misunderstanding of the identity of the offender against Km. Rekha and that the conduct and behavior of the parties concerned and other witnesses do not pro- ve the appellant as to be the perpetrator of the ghastly crime against Km. Rekha. Mr. Joshi pointed out that a delayed FIR, absence of any signs of rape on the roof of the house of the appellant, of marks of blood or semen on the garments of the girl and the appellant, the conduct of the appellant in remaining present there, in his accompanying Smt. Kanta to her house and in denying that he committed any offence against her and even thereafter remaining present at his house and to rise in anger against the accusation made against him, all probabilise the defence version that it was a case of mistaken identity. Mr. Joshi further urged that the prosecution witnesses were partial and interested and the the evidence of the extrajudicial confession of the appellant was not reliable. (7). The learned Public Prosecutor however, submitted that the appellant had an opportunity to commit offence against Km. Rekha, that the injuries found on the person of the victim corroborate her version and that the evidence of extrajudicial confession of the appellant clinches the issue in favour of the prosecution. (8). In view of the fact that a heinous crime of rape was alleged to have been committed against an innocent girl of about 8-9 years old, I examined the record of the learned trial court quite minutely and critically. In my opinion, in the facts and circumstances of the case it would not be proper to hold the appellant guilty of the offence committed against Km. Rekha. (9). Law on sexual assaults on girls and women has undergone a sea-change over the years in view of the increase in cases of rape and sexual misbehavior against them. Rape does not simply harms the victim physically but causes disturbance in her very psychology and personality. Rekha. (9). Law on sexual assaults on girls and women has undergone a sea-change over the years in view of the increase in cases of rape and sexual misbehavior against them. Rape does not simply harms the victim physically but causes disturbance in her very psychology and personality. In spite of the fact that the victiom of such as assault is a person against whom an indecent behaviour of male superiority and chauvism has been exhibited, she is more often than not, looked upon some what scornfully and contemptuously in the society. Instead of arousing the feelings of sympathy for her, (which may be momentarily aroused at the time of commission of rape on her) she is looked at with hatredness. Little we realise that she is an injured person against whom a heinous wrong has been done and her testimony should be considered at par with that of any other injured person. The rule of corroboration to her testimony, given to the circumstances in which the offence is alleged to have been committed against her, is not a rule of mandatory application in such a case. The circumstances attending on the commission of rape on her may furnish the required corroboration, if wanted in a given case. However, if the facts and circumstances of the case exhibit that the conduct and behaviour of the persons involved and the theory advanced does not fit in the facts and circumstances, then it should not be forgotten that instances of false accusations, consent of the victim in the alleged sexual assault on her and wrong identity of the offender are still not lacking in many a cases. In substance, verdict on the guilt of the accused is to be recorded after taking into account all the facts and circumsta- nces relevant and the commission of the offence in a given case. (10). In the instant case PW.5 Rekha, the victim of the alleged heinous offence of rape, is a child of 8-9 years and the alleged offender is a young boy of 21 years of age. The place of occurance is a residential house in a densely populated locality. The time of commission of the offence is stated to be early hours of the night. The houses of the parties situate opposite to each other in a gali, wherein there are some shops also. The place of occurance is a residential house in a densely populated locality. The time of commission of the offence is stated to be early hours of the night. The houses of the parties situate opposite to each other in a gali, wherein there are some shops also. The victim and the offender are stated to be living with their parents and other members of their families. In their same buildings some other families are also stated to be living at that time. (11). It is in the above setting of facts that PW.5 Km. Rekha has stated that while playing in the chowk of her house with three or four other children, She went to the shop of the Baniya, opposite to her house. There at the shop the appellant induced her to go with him to another shop where he would purchase toffee for her. She accompanied the appellant who took her to the roof of his house and there he made her lie on the ground and removed her chaddi and committed rape on her. She further stated that when she started weeping the appellant threatened her to kill. She added that she experienced much pain and her private parts bled and the blood fell on the floor. She further stated that the appellant then took her to the other roof and there also she was again raped by the appellant. She added that when she said to the appellant that she would come again on the next day, the appellant forbade her from coming on the next day. Then she returned to her house, when her mother asked her as to where she was, she told her that a boy had taken her with him. She added that due to fear she did neither name the boy nor tell the incident to her mother and went to sleep with the blood-stained Chaddi stained with blood and stool on her person. She removed the same in the following morning and put that in a can to be washed. She further stated that since she experienced pain in passing urine and stool, she complained of that to her mother. Her mother PW.4 Smt. Kanta took her to a lady doctor and on being asked by the lady doctor she narrated the entire incident to her. She further stated that since she experienced pain in passing urine and stool, she complained of that to her mother. Her mother PW.4 Smt. Kanta took her to a lady doctor and on being asked by the lady doctor she narrated the entire incident to her. Her mother brought her back to the house and asked her about the incident had then she narrated the incident to her. Her mother then called for her father from the bank but her did not question her. She further stated that her mother then took her and other children to the shop of the Baniya where the appellant was sitting and there other children, and not Rekha, pointed out at the appellant. In cross examination she stated that near the place on the roof where she was raped a woman and three four children were there. She also stated that when she told the incident to the lady doctor, her mothers sisters were there. The question is whether this version can be accepted as true and the appellant convicted for committing rape on Rekha. (12). PW.5 Km. Rekha is undisputedly a child witness and a victim of a very heinous offence. There is no rule of law that the testimony of a child witness can not be accepted without corroboration. The only rule applicable to the appreciation of the testimony of a child witness is that of care and caution. In many cases a child may be the sole witness to an occurance and his testimony, if found reliable, may be accepted provided that it fits in the theory advanced and the facts and circum- stances naturally attending on the commission of the alleged offence support it. It is to be kept in mind that a child is easily liable to the tutored as his own understanding is not so mature as to enable him to anticipate and understand the consequences of his testimony. Therefore, the testimony of the child witness is required to be received with great care and caution and should be accepted when it is corroborated by other independent and reliable direct or circumstantial evidence in the case. (13). Therefore, the testimony of the child witness is required to be received with great care and caution and should be accepted when it is corroborated by other independent and reliable direct or circumstantial evidence in the case. (13). PW.5, as already stated above, is though a child of about 7 or 8 years but the way in which she has stated certain facts about the commission of rape on her suggests that her testimony has been greatly influenced by others. The prosecution case as put forth in the FIR was that she had been induced by the appellant to go with him on the pretext that he would give her to fee but in court she stated that the appellant had forcibly caught hold of her by hand and shut her mount at the shop of the Baniya and then taken her to his house. On the face of it this version does not inspire confidence. At least three or four children including her own sister Priti were there and not only those children would have immediately rushed to inform PW.4 Smt. Kanta about appellants forcibly taking away Rekha with him, but also, the shopkeeper would have protested against such misbehaviour of the appellant with the child. Then the appellant could not have so taken the child on the roof of his house and committed rape on her there so early. There in the building resided not only his own parents but the members of other families also. Allegedly those were early hours of the night and the inmates of the house were awake. Then the appellant could have hardly dared to rape the child on the roof where, close by a woman and three or four children were already there. Looking to the age of the child, howsoever the appellant would have threatened her, the child was bound to raise her cries and shrieks resulting from the pains caused to her when the appellant would enter her body. He could not have continued the sex act and, at the same time, checked the rising shrieks of the child. Then even if the appellant was successful in not allowing the child to cry, Rekha would not have been succe- ssful in checking her weeping and subbing when coming down from the roof after undergone the voilent sex acts twice. He could not have continued the sex act and, at the same time, checked the rising shrieks of the child. Then even if the appellant was successful in not allowing the child to cry, Rekha would not have been succe- ssful in checking her weeping and subbing when coming down from the roof after undergone the voilent sex acts twice. The inmates would not have failed to notice the child in pain. But the statement of Rekha is that after committing rape on her on the roof, the appellant took her to another roof and there he again raped her and after the act when she said that she would come again on the next day the appellant forbade her to come. Such cannot be the independent statement of a 7 or 8 years old girl if she has been subjected to sexual intercourse by a grown up boy twice in quick succession. She has even stated that the appellant had also asked her to take his seminal discharge in her mouth. I am afraid if the child might be even knowing of the seminal discharge coming from a male organ. It is also doubtful that a young boy, overtaken by lust, would think of indulging in such an playboy activity with a girl of a 8 or 9 years. Her statement that she came back to her house and on querry from her mother she told her that a boy had taken her with him and then she went to bed with the blood-stained ``Chaddi on her person is difficult to be accepted. If she would had been twice subjected to sexual inter- course for the first time and that too on rough roofs of a pucca house (where no blood was found lying) her physical condition would not have gone un-noticed by her mother. She would have naturally asked the name of the boy with whom she had gone. If the child had changed her ``Chaddi in the morning, as stated by her, her mother or sister would have not failed to notice the blood stains on the Chaddi and asked her the reasons of such stains and examined her privates. That all was not done. (14). To sum up, the testimony of Km. If the child had changed her ``Chaddi in the morning, as stated by her, her mother or sister would have not failed to notice the blood stains on the Chaddi and asked her the reasons of such stains and examined her privates. That all was not done. (14). To sum up, the testimony of Km. Rekha is seen to be wholly tutored, unnatural and not in accord with the normal conduct and behaviour of 7-9 years old female child who is subjected to sexual inter-course twice by a young boy of 21-22 years in quick succession. It cannot be relied upon and search for independent corroboration from other evidence-direct or circumstantial-shall have to be made. (15). PW.4 Smt. Kanta is the 29 years aged mother of Km. Rekha. She stated that at about 10.00 or 11.00 AM. on 16.10.96 Rekha complained to her that she was not passing urine and stool and thereupon she took her to the lady doctor PW.10 Dr. (Mrs.) Parmilla Ladha. Dr. Ladha after questioning Rekha and noting down her temperature, told the witness that Rekha had been raped that it was a medico legal case. She did neither apply any medicine on her privates nor prescribe any tablets. According to the lady doctor she had questioned Rekha presence of her mother and two or three other ladies. PW.4 Smt. Kanta then went to the Bank and informed her husband PW.1 Kailash Chand and he came to the house but again went back to the bank. Here, it may be pointed out that PW.1 Kailash has stated in cross examination that at about 2.00 PM his wife Smt. Kamla had informed him in his office that Km. Rekha was not feeling well and thereupon he had advised her to take the child to the doctor. Anyway, Smt. Kanta further stated that on her coming back to the house she questioned Rekha and then the child named the appellant as her rapist and thereupon she took the child with her and went to the shop outside where the appellant was sitting. Rekha allegedly pointed out at the appellant and thereupon Smt. Kanta caught old of the appellant and brought him to her house and questioned him about his committing rape on Rekha but the appellant denied to have committed any such crime against the child. (16). Rekha allegedly pointed out at the appellant and thereupon Smt. Kanta caught old of the appellant and brought him to her house and questioned him about his committing rape on Rekha but the appellant denied to have committed any such crime against the child. (16). It may be noted that the way, in which PW.4 Kanta and her husband PW.1 Kailash are stated to have behaved, does not exhibit the conduct of such aggrieved parents whose eight years old daughter is raped. Between the husband and the wife there is material contradiction about the knowledge of the commission of rape on Rekha. According to PW.1 Kailash Chand he was informed in the Bank at about 2.00 PM. by his wife about Rekha as not feeling well and he had advised her to take Rekha to a doctor. By the time neither Smt. Kanta nor Kailash Chand was knowing the fact that Rekha had been raped. Had Kailash been having such information he would not have, in all probability, stayed at the bank and would have naturally rushed to the house. Even if Smt. Kanta be believed in her version that her husband had come to the house and again went back to his office, that too would indicate that by that time neither of them were having any knowledge of the fact that Rekha had been raped. In this respect it may be pointed out that Kailash stated in examination-in-chief that when he had reached his house in the evening his wife told him that Rekha had been raped but she did not tell the name of the rapist. It was only when he himself questioned the child that it was known that she had been raped by the appellant. If this statement of Kailash is believed then the entire version of his wife that on coming back from the clinic of Dr. Ladha she had questioned Rekha and then the child took her to Baniyas shop and pointed out at the appellant there and she brought the appellant to her house and questioned him is rendered false. It is difficult to reconcile the totally different and conflicting ver- sions given by the husband and the wife in the present case. (17). To sum up, it is held that PW.4 Smt. Kanta, the mother of Km. It is difficult to reconcile the totally different and conflicting ver- sions given by the husband and the wife in the present case. (17). To sum up, it is held that PW.4 Smt. Kanta, the mother of Km. Rekha and PW1 Kailash, the aggrieved father exhibit some what unnatural and abnormal conduct and behaviour in respect to the commission of alleged offence against their daughter. They are not reliable witnesses. They are highly interested and par- tisan witnesses and their testimonies provide no corroboration to the testimony of Km. Rekha. (18). Much reliance appears to have been made by the learned trial Judge on the medical evidence. PW.13 Dr. Birbala Srivastva had examined Km. Rekha at 5.30 PM on 17.10.81 in presence of her father PW.1 Kailash. Apart from noticing the tears of hymen, left labia, Majora and fouchetta the witness had noted the blue discoloration of the genitals of the child due to application of some medicine on 16.10.81, as reported by her father, PW.10 Dr. Ladha denied to have applied any medicine to the privates of the child. That means that the parents of the child had applied blue coloured medicine to the privates of the child. If they had come to know of the fact that Km. Rekha had been raped than certainly they would rush to the doctor and the police and would not by themselves apply medicine on her privates. But these parents did neither of the two for a considerable period of time. The report was lodged as late as about 28 hours after the incident and the child was taken to the doctor about 16 of 17 hours thereafter. If PW.10 lady Doctor Radha had told on 16.10.81 at 1.00 PM. that Rekha had been raped the witnesses would not normally taken such a long time to report the incident to the police and taking the child to the doctor. (19). The above facts and attending circumstances and conduct and behaviour of the nears and dears of Rekha clearly show that the possibility of Rekhas ha- ving sustained injuries to her private parts otherwise than by a male organ cannot be ruled out. In this respect it would be pertinent to take note of the following views expressed on the subject by the renowned author, Modi in his Medical jurisprudence: ``False Charges of rape are not uncommon in India. In this respect it would be pertinent to take note of the following views expressed on the subject by the renowned author, Modi in his Medical jurisprudence: ``False Charges of rape are not uncommon in India. Occasionally parents may introduce chillies into the vagina of their female child to cause irritation and inflammation, may injure her genitals for the purpose of substantiating a false charge of rape brought against an individual with a view to taking revenge or extorting money from him, and may tutor their child to tell a circumstantial story of a rape. (20). To sum up, it is held that the medical evidence on record does not rule out the possibility that injuries found on the private parts of Kum. Rekha, particularly her Forchetta and left Labia-Majra only, could have been caused to her otherwise than by male organ. The medical evidence, therefore, fails to furnish the required corroboration to the version of rape alleged to have been committed on Rekha. (21). The other piece of evidence relied upon by the learned trial Judge is that of the extrajudicial confessions, alleged to have been made by the appellant to PW.2 Praveen Chand, PW.3 Gain Chand, PW.9 Sardar Mal and PW.14 Prem Chand Godha. It is well settled in law that the evidence of extra-judicial confession is a weak type of evidence. Such evidence should not be quite convincing and reliable but the extrajudicial confession should be shown to have been made by the accused voluntarily and without any external force or compulsion having been exercised upon him. In fact the feeling of guilt must compel the accused to confess his guilt. This manner feelings of guilt and repentance should be translated into words. In the instant case it can hardly be disputed that all the witnesses to whom or before whom the appellant is stated to have made the extra-judicial confession are very closely related to the victim. PW.2 Praveen Chand is the grand father PW.3 Gyan Chand is stated to be the next door neighbour, PW.9 Sardar Mal is brother-in-law to Kailash Chand, and PW.14 Prem Chand is the father-in-law of Kailash Chand. PW.2 Praveen Chand is the grand father PW.3 Gyan Chand is stated to be the next door neighbour, PW.9 Sardar Mal is brother-in-law to Kailash Chand, and PW.14 Prem Chand is the father-in-law of Kailash Chand. Their version is that in the night all of them had assembled in the chowk of the house of Kailash chand and there the appellant was brought from his house and the appellant confessed his guilt and apologised for his misdeed and fell down on the feet of PW.2 Praveen Chand. In their police statements they appear to have stated that all that had happened in the house of the appellant. No other person from the Mohalla has entered the witness box either to support the prosecution version either regarding the alleged commission of rape by the appellant on Rekha or the extra judicial confession allegedly made by him. Even the Baniya at whose shop Rekha and other children had gone to purchase the toffee or any of the children who were present at that shop when Rekha was allegedly forcibly taken by the appellant was produced. It is really surprising that none from that locality save the very close relations of Kailash Chandra, the father of Rekha, come forward to support the prosecution version, under such circumstances the evidence of the so called extra-judicial confesion inspires no confidence in me and is accordingly liable to be rejected. (22). In the totality of the facts and circumstances of this case it is held that not only the prosecution evidence is un reliable and un-trustworthy being against natural and normal human conduct and behaviour but also the vers commission of sexual intercourse with Kum. Rekha by a male is highly doubtful. That being so the appellant is entitled to acquittal. (23). In the result, the judgement and order under appeal are set aside and the appellant is acquitted of the offence u/S. 376 IPC. He is on bail. His bail bonds are cancelled. The appeal stands allowed.