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2003 DIGILAW 854 (PNJ)

State of Haryana v. Bihari Lal

2003-05-30

AMAR DUTT, K.S.GAREWAL

body2003
JUDGMENT Amar Dutt, J. - State of Haryana is aggrieved by the judgment dated 25.3.1994 passed by the Sessions Judge, Sirsa acquitting Bihari Lal respondent of charges under Sections 376 and 452 Indian Penal Code 2. On the night intervening 8/9-10-1991 Girdawari PW6, who was married to Ram Narain son of Harji Ram resident of village Jhuthi Khera for the last bout 14 years, was sleeping along with her children in the courtyard of her house. Her daughter Suman, who was aged 5 years, was sleeping by her side on a separate cot. Her mother-in-law Meeran Devi and sister-in-law Rajo were sleeping inside a kotha. At that time, her husband was away to Dabwali where he was employed and her father-in-law was sleeping in a kotha where the cattle were tethered. At about 12/12.30 a.m., on hearing a sound, she woke up and saw a person going outside from the room which had no shutter. She also heard the sobbing voice of Suman PW7. She had switched on the light in the court-yard of her house and found that the clothes of Suman were stained with blood and blood was coming out of her vagina also and there were marks of teeth bites on her cheeks. Suman was sobbing while in an unconscious condition. She had woken up her mother-in-law named Moeran Devi, who had woken up her own husband and on hearing their alarm a number of neighbourers had also assembled. She did not move Suman to the hospital because her husband was not in the house and as also on account of the fact that there was no conveyance available. Ram Narain came back in the morning from Dabwali and to him she narrated the entire incident. After arranging for a conveyance, the husband and wife removed Suman to the Hospital. On receipt of memo, from the General Hospital, Sirsa, Siri Bhagwan ASI PW11 along with other police officials reached the General Hospital, Sirsa. On 10.10.1991 at 12.30 A.M. he moved an application Ex.PB, on which, the doctor opined that Suman is unfit to make a statement. Thereafter, at 11.00 A.M. the doctor again opined that Suman is unfit to make a statement. At 12.15 P.M. on 10.10.1991 the A.S.I. recorded the statement Ex.PG/1 of Girdawari who had thumb marked the same after it was read over to her. Thereafter, at 11.00 A.M. the doctor again opined that Suman is unfit to make a statement. At 12.15 P.M. on 10.10.1991 the A.S.I. recorded the statement Ex.PG/1 of Girdawari who had thumb marked the same after it was read over to her. On the basis of the statement, formal FIR Ex.PG was recorded by M.H.C. Om Parkash. On 15.10.1991 the doctor gave a opinion that Suman is fit to make a statement and thereupon the Investigating Officer had recorded the same without any addition or omission. Siri Bhagwan A.S.I. searched of the respondent, who was arrested on 19.10.1991 and interrogated by the police. During investigation, he made a statement that he had kept concealed pyjama, shirt and one gudra in his residential house and could get the same recovered. The statement was reduced into writing and after it had been signed by the respondent and Bhanwar Singh H.C., the respondent had got recovered one shirt, one pyjama and one gudra in pursuance of his disclosure statement. These articles were taken into possession and separately sealed as per memo Ex.PL/1, which was attested by Bhanwar Singh HC and Shiv Kumar. He also prepared rough site plan Ex.PL/2 of the place of recovery and on return to the police station, deposited the case property with the M.H.C. On 10.10.1991, he had inspected the spot, prepared the rough site plan Ex./PM of the place of occurrence and got possession of a sealed parcel containing the clothes and vaginal swabs of Suman for being examined as per memo Ex.PN. On 9.10.1991, Suman was got examined by Dr. Shakuntla Chaudhary PW2, who had found the following injuries on her person :- "1. Abraised contused oval shaped with multiple mark on left cheek. Multiple as if teeth mark on the right cheek. Multiple abrasions present on the cheeks, which are reddish blue in colour. Patient examined under general anaesthea. 2. On external examination, there was complete laceration extending from posterior part of external opening of vagina to the right lateral end of the anus. Tear was extending lateral vaginal wall right side leading to the lateral fornix, leading to peritoneal cavity. The perineal muscles torn and ragged. Swollen bluish red colouration, fresh bleeding present on cleaning. The laceration covering hymen, forchette and parineal region, including external fibres of anal sphiceture. Further examination was to be done during laprotomy." 3. Tear was extending lateral vaginal wall right side leading to the lateral fornix, leading to peritoneal cavity. The perineal muscles torn and ragged. Swollen bluish red colouration, fresh bleeding present on cleaning. The laceration covering hymen, forchette and parineal region, including external fibres of anal sphiceture. Further examination was to be done during laprotomy." 3. Injuries No. 1 and 2 were kept under observation. The kind of weapon used for both the injuries was blunt. The probable duration was within 24 hours. A sealed parcel bearing six seals containing sealed vial bearing one seal containing 2 vaginal swabs and two smear slides was handed over to the police. Another sealed envelope bearing four seals containing forwarding letter, copy of MLR and sample of attested seal and yet another sealed packet bearing four seals with one attested sample seal containing pyjama were handed over to the police. The patient was examined with the consent of her father. On the application of the police Ex.PC dated 13.10.1991, an opinion was given by the doctor that the patient was fit to make statement. The patient was discharged on 28.10.1991. On seeing the injuries to the entire body and particularly on the perineal region, it was suggested that it was an act of rape. On completion of the investigation, the challan was put in Court. 4. On going through the papers sent up for trial, the Illaqa Magistrate committed the case to the Court of Sessions. 5. On going through the challan, the Sessions Judge, Sirsa had framed the charges against the accused under Sections 363, 366, 376 and 452 Indian Penal Code and since the accused pleaded not guilty to the charges, the prosecution was called upon to lead its evidence. 6. To bring home the charge, prosecution examined Dr. G.S. Somani PW1, Dr (Mrs.) Shakuntla Chaudhary PW2, Dr. R.C. Chaudhary PW3, ASI Ishwar Singh PW4, Constable Krishan Kumar PW5, Ms. Girdawari PW6, Suman PW7, Draftsman Inderjeet PW8, MHC Om Parkash PW9, Constable Mohinder Singh PW10 and ASI Siri Bhagwan PW11. 7. When examined under Section 313 Criminal Procedure Code, the respondent denied all the allegations of the prosecution. The respondent chose not to lead any evidence in support of his defence. 8. Girdawari PW6, Suman PW7, Draftsman Inderjeet PW8, MHC Om Parkash PW9, Constable Mohinder Singh PW10 and ASI Siri Bhagwan PW11. 7. When examined under Section 313 Criminal Procedure Code, the respondent denied all the allegations of the prosecution. The respondent chose not to lead any evidence in support of his defence. 8. The fact that initially the case of the complainant was that the person of Suman had been violated by an unidentified person and the fact that the prosecutrix while appearing as PW7 had in cross-examination admitted that identity of the person had been told by the Investigating Officer as Rawan-Ka-Bihari, had implied the trial Court to come to a conclusion that the case against the respondent had not been proved beyond reasonable doubt and, therefore, he was entitled to be acquitted of the charges framed against him. Hence, the appeal. 9. We have heard Mr. Sanjay Vashisht, Deputy Advocate General, Haryana, appearing on behalf of the State and Mr. Ravi Sodhi, appearing on behalf of the respondent. 10. On behalf of the State, it has been submitted that the trial Court while appreciating the circumstance in which the F.I.R. had been lodged lost sight of the fact that Girdawari PW6 was alone in the house with her minor child, her husband being away to Mandi Dabwali, where he used to work. In view of the that when at about mid night she found that her minor daughter had been abducted and raped, she had no option but to wake up her parents-in-laws who too must be equally shattered by the impact of the incident. Although some persons from the neighbour-hood had collected yet the 29 years old housewife could not muster enough courage herself when none of the neighbours volunteered to accompany her to take the minor child to the hospital. In these circumstances, both the removal of Suman to the hospital as well as the delay in lodging the F.I.R. are reasonably explained. The learned counsel for the State further submits that the trial Court has placed too much emphasis on the fact that the statement made by Suman PW7 before the police under Section 161 of the Code of Criminal Procedure was thumb marked by her. The learned counsel for the State further submits that the trial Court has placed too much emphasis on the fact that the statement made by Suman PW7 before the police under Section 161 of the Code of Criminal Procedure was thumb marked by her. There being Section 162 of the Code of Criminal Procedure, which would render such a statement inadmissible although it may put the Court on guard against the pressure, which the witness may come under to support what he has stated before the police merely on account of the fact that he or she had appended her thumb impression on such a statement, the testimony of Suman, according to the learned counsel for the State clearly implicate the respondent and the trial Court has wrongly ruled that the case against the respondent had not been proved beyond reasonable doubt. 11. On behalf of the respondent, it was submitted that the inference drawn by the Court below from the evidence brought on the record cannot be faulted with and as the view taken by the trial Court can by no stretch of imagination be held to be perverse, there was no ground for this Court to interfere in appeal. 12. We have carefully considered the submissions made by the learned counsel for the parties and with their help perused the record. 13. Before proceeding to examine the merits of the rival contentions, it may be appropriate to indicate that the settled law regarding appreciation of evidence in appeals against acquittal restricts the scope of interference as per dictum laid down in Dwarka Das & others v. State of Haryana, 2002(4) RCR(Crl.) 794, as under :- "While there cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence; one supporting the acquittal and the other indicating conviction, then and in that event, the High Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial Court, would have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should gave proper weight and consideration to the views of the trial Judge. While reappreciating the evidence, the rule of prudence requires that the High Court should gave proper weight and consideration to the views of the trial Judge. But if the judgment of the Session Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Session Judge, as otherwise, there would be gross miscarriage of justice - so said Patanaik, J. in Hariram & ors. v. State of Rajasthan, [2000(9) SCC 136]." 14. Adverting to the facts of the present case, we find that at the time when the investigation was initiated the mother of the prosecutrix Suman PW7 had no clue about the identity of the person, who was responsible for the horrendous act of committing rape on a five year old child. Girdawari PW6 in her statement, has, both in examination-in-chief as well as in cross-examination candidly admitted this position. At the initial stages of the investigation, it appears that the investigating agency had been able to fix the identity. There is a mention in the testimony of Girdawari that 15/16 boys were, at different times, shown to the child for fixing the identity but the police had no answer in the affirmative from Suman. All of a sudden from some where the name of Bihari Lal cropped up and in her testimony, Suman fixes the identity of her violator as Rawan Ka Bihari and points to the accused present in Court as the person who had sexually assaulted her on the night of the occurrence. During the cross-examination the child initially breaks down and when her cross-examination is resumed after some time, she candidly indicates that the name of the accused was told to her by the Investigating Officer, who had also explained to her before the statement was recorded in Court what all she was required to say. During the cross-examination the child initially breaks down and when her cross-examination is resumed after some time, she candidly indicates that the name of the accused was told to her by the Investigating Officer, who had also explained to her before the statement was recorded in Court what all she was required to say. Ordinarily, we would have been inclined to accept the testimony of the child witness if the respondent had been identified by her in an identification parade that may have been conducted during the investigation but this is not what has been done in the present case and though the witness has identified the accused in Court, the possibility of the witness having been required by the Investigating Officer to identify the accused as her assailant cannot be ruled out in view of what has been brought out in the cross-examination to the effect that the name of the accused was given to her by the Investigating Officer. The trial Court has also relied upon this circumstance for acquitting the accused. In the absence of the Investigating Officer explaining how and when Suman had, for the first time, fixed the name and identity of the person, who had raped her, the position, which has been brought out in cross-examination about the identity of the accused having been fixed by the Investigating Officer, leaves much to be desired in the investigation as well as in the prosecution evidence. The prosecution has not produced before the Court any other evidence to fix the identity of the rapist, whose name even at the time of trial, was not known to the mother of the prosecutrix. The prosecution has not produced before the Court any other evidence to fix the identity of the rapist, whose name even at the time of trial, was not known to the mother of the prosecutrix. The Investigating Officer has also not taken the Court into confidence about the manner in which the identity of the accused and the place of his residence was fixed and in these circumstances though we may not be able to agree with the conclusion of the trial Court that the testimony of Suman had to be rejected also on account of the fact that her statement under Section 161 of the Code of Criminal Procedure, had been got thumb marked from her as while doing so he is apperantly oblivious of the law laid down way back in Zahiruddin v. Emperor, AIR 1947 Privy Council 75 and reitered in State of U.P. v. M.K. Anthony, AIR 1985 Supreme Court 48, we find ourselves unable to hold that the view taken by the Court below in perverse so as to warrant interference in this appeal. For the reasons recorded above, this appeal fails and is dismissed. Appeal dismissed.