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Himachal Pradesh High Court · body

2008 DIGILAW 81 (HP)

State of H. P. v. Kishan Chand

2008-03-14

SURINDER SINGH, SURJIT SINGH

body2008
JUDGMENT Surjit Singh, J. 1. State has appealed against the judgment of the Sessions Court whereby respondent Kishan Chand has been acquitted of the charge of rape, on which he was tried. 2. We may first give a summary of the prosecution version. PW-1 Bhagat Ram is the father of the prosecutrix. He has three children, one daughter and two sons. The prosecutrix, at the relevant time, i.e., in December, 1990, was 5-1/2 years old. Two-three days before the occurrence PW-1 Bhagat Ram had gone to Civil Dispensary Jamni alongwith his wife to get her operated upon for family planning. He remained with his wife for 2-3 days at the dispensary after the operation. On 31st December, 1990, when PW-1 Bhagat Ram and his wife were still at Civil Dispensary Jamni and the prosecutrix and the son, younger to the prosecutrix, of Bhagat Ram, were in the village in the care and custody of their grandmother, PW-2 Prabhi Devi, the respondent allegedly committed rape on the prosecutrix, in the afternoon, at a lonely place under a lemon plant. The prosecutrix returned home bleeding from vagina. She was crying. On enquiry by PW-2 Prabhi Devi, her grand-mother, the prosecutrix told that the respondent had committed rape on her. PW-2 Prabhi Devi bathed the prosecutrix and changed her clothes. She then called PW-4 Praveen and one Basanta (since deceased) and asked them to take the prosecutrix to her father at Civil Dispensary Jamni. The prosecutrix was taken by the abovenamed two persons to her father at Jamni. Her father was apprised of the incident. Next day, her father took her to Police Station, Sarkaghat, where a case was registered, on the basis of report made by the father of the prosecutrix. The FIR is Ex. PA. The prosecutrix was got medically examined from PW-7 Dr. Ramesh Chauhan, who noticed clotted blood over labia majora. He also noticed that the hymen was torn. Swelling of labia majora and labia minora was also noticed. Salwar, which the prosecutrix was wearing, was made into a parcel. The parcel was sealed and handed over to the police officials, who accompanied the prosecutrix to the hospital. Slides of vaginal swab were prepared and sent to the Chemical Examiner, alongwith the Salwar of the prosecutrix. Police recorded the statements of the prosecutrix, the grand-mother of the prosecutrix and other witnesses. Site of occurrence was inspected. The parcel was sealed and handed over to the police officials, who accompanied the prosecutrix to the hospital. Slides of vaginal swab were prepared and sent to the Chemical Examiner, alongwith the Salwar of the prosecutrix. Police recorded the statements of the prosecutrix, the grand-mother of the prosecutrix and other witnesses. Site of occurrence was inspected. Blood stains were noticed on the dry leaves of Gaddus plant, on the spot, which were taken into possession and made into a parcel. The clothes of the prosecutrix, which her grandmother had washed after bathing her, were also taken into possession and made into a separate parcel. The leaves and such clothes of the prosecutrix were also sent to the Chemical Examiner, who opined that the Salwar, which the prosecutrix was wearing at the time of her medical examination and the dry leaves collected from the spot were stained with human blood. Respondent was also got medically examined. The doctor found nothing suggesting that the respondent was incapable of performing sexual intercourse. 3. Trial Court charged the respondent with offence, punishable under Section 376 of the Indian Penal Code and on his pleading not guilty proceeded to try him. Prosecution examined sixteen witnesses in all to bring the charge home to the respondent. Respondent, in his statement under Section 313 of the Code of Criminal Procedure, denied having committed the offence. He stated that the case was false. When asked why the witnesses had testified against him, he stated that the witnesses were interested persons and had made false depositions. He did not explain how the witnesses were interested in his prosecution and conviction and why they had made false depositions against him. 4. Trial Court has acquitted the respondent. And the main reasons given for acquittal are as follows: (a) PW-1 Bhagat Ram was contradicted by the earliest version, which he gave to the police, vide FIR Ex. PA with regard to the place of occurrence. (b) Place of occurrence was only 3-4 metres away from the house of PW-2 Prabhi Devi, the grand-mother of the prosecutrix, and surrounded by a number of houses and it was not believable that the respondent could have committed the heinous crime at an open place in close vicinity of the houses of the prosecutrix and other persons, especially when the evidence indicated that the inmates of such houses were present. (c) The girl was supposed to have cried and her cries would have attracted the inmates of those houses. (d) The Investigating Officer did not associate any person from the neighbourhood and when questioned about this aspect he came out with a false plea that the site of occurrence was at a distance of 1000 yards from the houses. (e) The prosecutrix stated that the respondent kept his male organ into her vagina for quite some time, which indicated that it was a case of complete penetration, but there was only a single tear of hymen and no injury to labia majora and labia minora or the inner side of the vagina was noticed. (f) Nobody except PW-2 Prabhi Devi, the grand-mother of the prosecutrix, stated that the prosecutrix came crying to the house after the commission of the crime. (g) Prosecutrix herself stated in the cross-examination and on Court questioning that the respondent had not committed any bad act (gand) against her. (h) Prosecutrix admitted that there was enmity between the respondent and her father's family and because of that the respondent had been falsely implicated. (i) There was delay in lodging the FIR and no explanation for such delay had been offered. (j) The place of occurrence is alleged to be hard and stony covered with pebbles but no injuries on the buttocks or the back of the prosecutrix were noticed by the doctor, even though the grandmother of the prosecutrix claimed to have noticed a 3-4 inch long injury mark on her buttocks. (k) Spermatozoa were not found in the vaginal swab of the prosecutrix, on examination by the Chemical Examiner. 5. The aforesaid reasons recorded by the trial Court in support of its judgment do not make out a case for acquittal, either collectively or individually, 6. As regards reason (a) above, PW-1 Bhagat Ram got recorded in FIR Ex. PA that the prosecutrix had gone to a Ridi (a sort of hillock) to answer the call of nature where the respondent overpowered her and committed rape. However, while in the witness box, he stated that he did not get recorded in the FIR that the prosecutrix had been taken to a hillock. He stated that the place of occurrence was at a distance of 40-50 yards from his house. Bhagat Ram himself had not visited the spot, before he lodged the FIR. However, while in the witness box, he stated that he did not get recorded in the FIR that the prosecutrix had been taken to a hillock. He stated that the place of occurrence was at a distance of 40-50 yards from his house. Bhagat Ram himself had not visited the spot, before he lodged the FIR. He was at Jamni where his wife was admitted in Government Dispensary, in connection with sterilization operation. From there he went to the Police Station. Therefore, the mention in FIR Ex. PA about the prosecutrix having gone to a hillock '(Ridi) and having been raped there by the respondent is of little significance. Another reason for not attaching any importance to this alleged contradiction is the fact that during the course of investigation the police inspected the spot, presumably at the instance of the prosecutrix herself, and spotted some dry leaves stained with blood, which were taken into possession and sent to the Chemical Examiner, who reported, vide report Ex. PO, that the stains were of human blood. 7. Coming to reason (b), trial Court has assumed the distance between the site of the crime and the house of the prosecutrix, where PW-2 Prabhi Devi was present, as 3-4 metres, on the basis of the testimony of PW-2 Prabhi Devi to the effect that the distance between the site of the crime and her house was equal to the distance between the Courtroom, she was standing at the time of making the statement, and the verandah. PW-2 Prabhi Devi is an old lady from a remote area. It is not clear from her statement as to which verandah she had been referring to. May be that the verandah, which she testified, was different from the one just outside the Courtroom. In any case, when the site of incident stands fixed by scientific evidence in the form of recovery of dry leaves, stained with human blood, the testimony of PW-2 Prabhi Devi about the distance between her house and the site of the crime becomes meaningless. 8. So far as reason (c) is concerned, it has been categorically testified by PW-1 Bhagat Ram that the place of occurrence is at a distance of 40-50 yards from his house. Site plan Ex. PN shows that the nearest house from the site of the occurrence is that of Bhagat Ram. 8. So far as reason (c) is concerned, it has been categorically testified by PW-1 Bhagat Ram that the place of occurrence is at a distance of 40-50 yards from his house. Site plan Ex. PN shows that the nearest house from the site of the occurrence is that of Bhagat Ram. No doubt, two structures are nearer to the place of occurrence compared to the house of Bhagat Ram, but those are cattle-sheds where nobody was supposed to be present in the afternoon. Also, there is no evidence that the girl raised alarm or cried very loudly and this may also be the reason for the neighbours having not been attracted to the scene of the crime. It is quite likely that the girl might not have cried bitterly, because the respondent is her close relative, being the first cousin of her father and very well known to her. She might have cried only on seeing the blood appearing due to rupture of hymen and that is why only her grand-mother, PW-2 Prabhi Devi, testified that she was crying when she returned home. 9. Reason (d) becomes irrelevant, in view of the finding recorded hereinabove that there was no house in the close vicinity of the place of occurrence and, hence, no adverse inference can be drawn against the prosecution for non-association of the neighbours of the prosecutrix in the investigation of the case. 10. Reason (e) given by the trial Court to justify the judgment of acquittal is absolutely perverse. The victim of the crime was only aged 5-1/2 years at the time of the commission of the crime. She could not have understood the meaning of complete penetration and partial penetration. She simply stated that the respondent put his male organ into her private part and kept it inside for quite some time. It did not mean that the respondent completely thrust his male organ into the vagina. Rather from the fact that there was only a small tear and swelling of labia majora and labia minora, it appears that this was a case of partial penetration. The doctor, who conducted the medico legal examination of the prosecutrix, PW-7 Dr. Ramesh Chauhan, very categorically stated that the examination, of the private part of the prosecutrix indicated that penetration had taken place. He nowhere stated that the penetration was complete. 11. The doctor, who conducted the medico legal examination of the prosecutrix, PW-7 Dr. Ramesh Chauhan, very categorically stated that the examination, of the private part of the prosecutrix indicated that penetration had taken place. He nowhere stated that the penetration was complete. 11. Reason (f) recorded by the trial Court is totally irrelevant. As already noticed, the prosecutrix might not have cried very loudly. She, being a small child of 5-1/2 years only, was supposed to cry on the sight of the blood coming from her vagina. Therefore, there was no reason for disbelieving the testimony of PW-2 Prabhi Devi that the prosecutrix was crying when she returned home and looking for corroboration to her testimony qua the aforesaid fact. The omission in the testimony of the prosecutrix that she was crying when she returned home could not have been taken into account for disbelieving the testimony of PW-2 Prabhi Devi, because the prosecutrix, as noticed hereinabove, being a child was, in all probability, supposed to cry on seeing the blood coming from her vagina. In any case, the fact whether the girl came crying to the home or she was not crying was totally irrelevant for determining the guilt or the innocence of the respondent. 12. As far as reason (g) is concerned, the trial Court has taken into account only that part of the testimony of the prosecutrix wherein she stated that the respondent did not commit any bad act (gand) against her. May be that the prosecutrix, being a small child, did not think the rape to be a bad act. The prosecutrix very categorically stated that the respondent removed her Salwar and then put his penis into her vagina and kept it inside her vagina for quite some time, meaning thereby that he kept his male organ penetrated till ejaculation. The testimony of the prosecutrix is corroborated by the fact that on her examination by PW-7 Dr. Ramesh Chauhan tearing of hymen and swelling of labia majora and labia minora were noticed. Not only this, there was bleeding from her vagina, which continued even after she had been bathed by her grand-mother, PW-2 Prabhi Devi, because on the Sahvar, which the prosecutrix were after being bathed by her grand-mother, was found to be stained with human blood by the Chemical Examiner. 13. Not only this, there was bleeding from her vagina, which continued even after she had been bathed by her grand-mother, PW-2 Prabhi Devi, because on the Sahvar, which the prosecutrix were after being bathed by her grand-mother, was found to be stained with human blood by the Chemical Examiner. 13. In view of the aforesaid overwhelming evidence, the trial Court ought not to have disbelieved the testimony of the prosecutrix only for the reason that in the course of cross-examination and Court questioning she said that the respondent did not commit any gand (bad act) against her. 14. Reason (h) recorded by the trial Court to acquit the respondent is also baseless. A general question was put to the prosecutrix that there was enmity between the respondent and the members of her father's family. She answered the question in the affirmative. It was not suggested to the prosecutrix that the enmity had been there between her father and the respondent at the time when the accusation was made against the respondent. Another suggestion was put to her that the respondent had been falsely implicated because of the enmity. She admitted this suggestion also. She, being a child even at the time when she made the statement in the Court, was not supposed to be fully understanding the meaning of false implication. Whether there was any enmity between the father of the prosecutrix and the respondent was supposed to be known not to the prosecutrix, who was a child of only 7 years at the time of her making the statement in the Court, but to the father of the prosecutrix. The father of the prosecutrix was not asked that there was any enmity between him and the respondent. The only suggestion put to him was that there were strained relations between him and the respondent to which he replied that initially there were strained relations but thereafter the relations normalized and they became again strained when the respondent committed the crime, in question. No specific cause of alleged strained relations, prior to the occurrence, was suggested to the father of the prosecutrix, PW-1 Bhagat Ram. The respondent, in his examination under Section 313 of the Code of Criminal Procedure, did not say that there was any enmity between him and the father of the prosecutrix and because of that he had been falsely implicated. The respondent, in his examination under Section 313 of the Code of Criminal Procedure, did not say that there was any enmity between him and the father of the prosecutrix and because of that he had been falsely implicated. Under these circumstances, the trial Court should not have held, on the basis of the testimony of the prosecutrix, a child of 7 years, that the respondent had been falsely implicated, because of enmity. 15. Reason (i) is also imaginary. In the FIR itself the delay in lodging the FIR stands explained. Incident had taken place on 31st December, 1990 in the afternoon. Sun sets in this part of the globe around 5.20 p.m. in the last week of December. The parents of the prosecutrix, who was a child of 5-1/2 years only, at the time of the occurrence, were at a different place on that day. The prosecutrix was first bathed by her grand-mother and her clothes were changed, then she was sent to her parents in the company of PW-4 Praveen Kumar and one Basanta. It can legitimately be presumed that the sun had already set when the prosecutrix was taken to her parents. Her father was attending to her mother, who was admitted to the Civil Dispensary at Jamni, in connection with post-operation care. Therefore, he could not be expected to go to the Police Station, which is situated at Sarkaghat, on that very evening, leaving his wife unattended during night. He went to the Police Station on the very next day and lodged the report at 1.30 p.m. The abovestated position apart, delay in lodging the FIR, by itself, is no ground for acquitting an accused in a case of heinous crime of rape of a child. Law is very well settled on the point. 16. Reason (j) given by the trial Court is also not enough for acquitting the respondent. PW-2 Prabhi Devi stated that she had noticed a mark of injury, which was 3-4 inches long, on her (prosecutrix's) buttocks. She did not say that it was a wound or abrasion. May be that what she noticed was just an impact of some stone or some other object, which disappeared by the time the prosecutrix was medically examined by PW-7 Dr. Ramesh Chauhan and that is why no injury mark was noticed on her buttocks. 17. She did not say that it was a wound or abrasion. May be that what she noticed was just an impact of some stone or some other object, which disappeared by the time the prosecutrix was medically examined by PW-7 Dr. Ramesh Chauhan and that is why no injury mark was noticed on her buttocks. 17. Reason (k) given by the trial Court is contrary to the judicial precedents. There is catena of rulings by various High Courts as also the Apex Court that absence of spermatozoa in the vaginal swab is not indicative that the rape had not been committed. 18. Thus, none of the reasons recorded by the trial Court for acquitting the respondent is well founded. We have already noticed hereinabove that not only that the testimony of the prosecutrix, her grand-mother PW-2 Prabhi Devi and PW-1 Bhagat Ram, her father, inspires confidence, but the same is also corroborated by medical evidence and the fact that at the site of the commission of the crime dry leaves stained with human blood were found. Therefore, we accept the appeal, set aside the judgment of acquittal passed by the trial Court and hold the respondent guilty and convict him of the offence of rape, punishable under Section 376 of the Indian Penal Code. He be produced in person on 27th March, 2008, for being heard on the question of quantum of sentence. 19. Learned Counsel representing the respondent says that he has written 2-3 letters to the respondent but there has not been any response. We, therefore, direct the Registry to issue non-bailable warrant of arrest against the respondent for his production in the Court on the aforesaid date.