Andhra HC (Pre-Telangana)
Munjam Prasad vs The State Of Andhra Pradesh, ... on 11 October, 2004
JUDGMENT P.S. Narayana, J.
1. Munjam Prasad, the appellant-accused preferred this appeal by taking assistance of Legal Aid, aggrieved by the judgment dated 29.09.2003 in Sessions Case No.312 of 2003 on the file of the Assistant Sessions Judge, Karimanagar, wherein he was convicted for an offence under Section 376 IPC and sentenced to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.3,000/- in default, to undergo Simple Imprisonment for a period of three months.
2. Sri G. Prabhakar Rao, learned Counsel representing the appellant-accused made the following submissions: The learned Counsel would contend that the learned Judge erred in believing the sole testimony of P.W.2-the alleged victim girl, which is highly suspicious. The learned Counsel also would submit that the Doctor, who had issued Ex.P.8-medical certificate was not examined and the same was marked through the Investigating Officer and hence, the same was not proved in accordance with law. The learned Counsel also would contend that the learned Judge erred in holding that the accused impliedly admitted of having sexual intercourse with P.W.2 by his suggestion to P.W.2 that she had gone with him voluntarily. The learned Counsel also would contend that a suggestion of such a nature cannot be taken as implied admission. While further elaborating the submissions, the learned Counsel would maintain that Exs.P8 to P.10 were marked subject to objection and in the absence of medical evidence, it would not be safe to convict the accused on the strength of the evidence of P.W.2.
3. On the contrary, Sri Mohd. Osman Shaheed, Additional Public Prosecutor would submit that it is no doubt true that Dr. M. Swarnalatha (L.W.11), who had gone to New Zealand was not examined. But, merely, because the concerned Doctor was not examined, the evidence of P.W.2 well corroborated by the evidence of P.W.1 cannot be disbelieved. Apart from this aspect of the matter, the demeanour of P.W.2 also had been recorded by the learned Judge and certain findings also had been recorded by the learned Judge in this regard. Hence, the conviction and the sentence are to be confirmed.
4. The Circle Inspector of Police, Karimnagar town laid the charge sheet against the accused for the offences under Sections 420 and 376 IPC.
5. The case of the prosecution is that on 23.05.2001, P.W.2 after attending the work in Alphores Junior College Hostel was returning to her house at about 6.00 p.m., when she reached near '7' Hills Lodge, the accused came to her and made her to believe that her mother is in his house and from there, he took her near a neem tree at Dam Bund behind Himalaya School at Ramachandrapuram Colony in Karimnagar, and committed rape on her. While the accused left her, he made a promise to marry her. She came to her house with great pain in walking. A report was presented to the police. On 26.05.2001, the accused was arrested at 5.00 p.m. and was sent to judicial remand.
6. The learned Additional Judicial Magistrate of First Class, Karimnagar, committed the P.R.C. No.66 of 2002 to the Court of Sessions, which was made over to the Assistant Sessions Judge, Karimnagar, and the learned Judge recorded the evidence of P.Ws 1 to 9 and marked Exs.P1 to P.10, M.Os 1 to 3 and also Exs.D1 and D2-portions in the 161 Cr.P.C. statements of P.Ws 3 and 4. After recording the findings, the learned Judge found the accused not guilty for an offence under Section 420 IPC, but however, found the accused guilty for an offence under Section 376 IPC and accordingly, convicted him and sentenced him to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs.3,000/- in default, to undergo Simple Imprisonment for a period of three months, and out of the fine amount, an amount of Rs.2,000/- to be paid to the victim girl.
7. P.W.2 is the victim girl. She deposed that she knows the accused and she is working as a servant in Education College in Karimnagar. She deposed that about two years ago, while she was returning home at about 6.00 p.m., the accused met her at Tri Road junction and told her that her mother and sister are at his house, and he asked her to come with him. She deposed that she believed his version and followed the accused and that the accused had taken her to a Dam Katta near a tree and had used force against her and catching hold of her neck and had beaten on her face. She further deposed that the accused had removed her dress and had committed rape on her and later, she told her mother about this incident after going to the house and on the next day, they met one Majula (PW.3) and from there, they went to the Police Station. She deposed that police examined her and she was sent to the Hospital for treatment.
8. The learned Judge recorded that "The witness is appearing to be deaf and her voice also is not clear, she is finding it difficult to follow the questions and to answer them. The learned Additional P.P. had to repeat the questions twice or thrice to make her understand and to elicit answer."
9. In the cross-examination P.W.2 deposed that the accused and herself went walking and there are no houses nearby the neem tree, where the incident occurred. She deposed that she raised cries but no body came there. (This answer was given after the question "whether you raised cries" is repeated five times). This witness also deposed that it is not true to suggest that she had voluntarily gone with the accused and that now she was deposing falsehood and falsely implicating the accused.
The demeanour of this witness was recorded by the learned Judge as hereunder:-
"The witness is appearing to be innocent and not very worldly wise."
10. P.W.1 is the mother of the victim girl. She had deposed in detail about the incident and she being informed about the incident. P.W.1 also deposed that her daughter explained to her by weeping about the acts done by the accused. She deposed that on the next day morning she went to their caste woman by name Manjula and informed to Manjula about the incident, and thereafter, Manjula had taken her (P.W.1) and P.W.2 to the police station and they presented Ex.P.1-complaint and it contains her(P.W.1) thumb impression. This witness was cross-examined but nothing serious had been elicited in the cross-examination of P.W.1.
11. P.W.3-Manjula, deposed about what was informed to her and on receipt of the information, this witness taking of P.Ws 1and 2 to the Police Station and presenting Ex.P.1-complaint. P.Ws 1 and 2 also informed Kamala about this incident.P.W.4-Kamala also had deposed about this aspect.
12. P.W.5 was examined in relation to Ex.P2, who was declared hostile. P.W.6 was also examined in relation to Ex.P3. This witness was also declared hostile.
13. P.W.7-Doctor, issued the potency certificate. P.W.8-Sub-Inspector of Police received Ex.P.1-complaint from P.W.1 and had registered the same as a case in Crime No.90 of 2001 for the offences punishable under Sections 420 and 376 IPC. Ex.P.5 is the First Information Report issued by him.
14. P.W.9-Circle Inspector of Police had deposed about the details of the investigation. Exs.D1 and D2-relevant portions in the 161 Cr.P.C. statements of P.Ws 3 and 4 were marked and these contradictions were no doubt proved through the Investigating Officer, but these are not serious contradictions. The Investigating Officer deposed that Dr. M. Swarnalatha (L.W.11) had gone to New Zealand and her presence could not be secured and he had received the medical certificate and final opinion from the Doctor. Ex.P.8 is the Medical Certificate, Ex.P.9 is the Forensic Science Laboratory report and Ex.P.10 is the Final opinion of the Doctor. Exs.P8 to P.10 were marked subject to objection. This is the aspect which had been seriously canvassed by the learned Counsel representing the appellant-accused that in the absence of the medical evidence, on the strength of the evidence of P.W.2, no doubt, corroborated up to some extent by the evidence of P.Ws 1 and 3, the conviction cannot be sustained.
15. The victim girl-P.W.2 at the relevant point of time was working in Alphores Junior College Hostel, Karimnagar, as a servant and P.W.1 is the mother of the victim girl. The accused is also a distant relative to P.Ws 1and 2. Hence, there is no serious dispute about the identity of the appellant-accused. The version of the defacto-complainant (P.W.1)-the mother of the victim girl is that the accused had taken away P.W.2 and committed rape on her by removing her dress and her daughter explained to her by weeping about the acts done by the accused. The entire incident was explained by P.W.2 and the learned Judge observed that:
"There are some important aspects that are to be noted from the evidence of P.W.2. In fact, P.W.2 is an innocent girl aged about 17 years. It is also to be noted that this victim is not very worldly wise. I have clearly observed her while she was giving evidence in the Court. I have noted this fact in the deposition of P.W.2. This victim is not able to understand the questions clearly and after taking some time she was giving answers, that is the mental and physical condition of P.W.2. This particular situation has to be kept in mind while considering the evidence of P.W.2".
16. Section 280 of the Code of Criminal Procedure, 1973 dealing with remarks respecting demeanour of witness corresponds to Section 363 of 1898 Code.
Section 280 Cr.P.C. reads as hereunder:-
"280. Remarks respecting demeanour of witness:- When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination."
The object of the provision is to give the Appellate Court some aid in estimating the value of evidence.
17. In Ganeshbhai Shankarbhai v. State of Gujarat, at paragraph 6, the Apex Court observed that:
"No doubt the omission to record remarks respecting the demeanour of the witness as provided in S. 363 Cr. P. C. by the trial Judge either during or at the close of the examination of the witness does not mean that the recording of the remarks about the demeanour by him later in the judgment is not to be taken into consideration. The remarks made in the judgment will be given due weight by the Appellate Court in the appraisal of the witness."
18. A Division Bench of Gujarat High Court in Koli Nana Bhana v. State of Gujarat, 1986 Crl.L.J.571 while dealing with remarks as regard demeanour of witness held that:
"The trial Court while recording the evidence of two minor witnesses made a note at the top of the deposition of each of the two witnesses that on making necessary inquiry, he was satisfied that those two witnesses understood the sanctity of oath. The trial Judge has not kept any record as to what inquiry he made in this regard. He has not kept any record as to what questions he put to the witnesses and what replies were given by the witnesses during that inquiry and what further inquiry, if any, he made in that regard. It was necessary for the trial Judge to have kept a record of this inquiry qua each minor witness and should have recorded reasons in brief so as to enable the appellate Court to know as to how the trial Judge came to the conclusion that the two witnesses understood the sanctity of oath. When a presiding Judge or Magistrate has recorded the evidence of a witness, he shall also record such remarks (if any) as he thinks material respecting the demeanour of such witness whilst under examination. The provisions of Section 280 thus show that the remarks have to be made at the foot of the deposition of each witness and not in the judgment, as done by the trial Judge."
In view of the fact that the trial Judge would have the advantage of observing the demeanour of witness and recording demeanour of the witness while recording the evidence of such witness always would be suggestible since in certain matters the same Judicial officer, who records the evidence may not be able to dispose of the matter finally in all cases. In such matters, if the remarks relating to the demeanour of witness, if not recorded, these essentials may be lost sight of while giving final verdict and on the other hand, if such remarks of demeanour are recorded, the same may be the guiding factor for the subsequent Officer or even to the Appellate Court or the Revisional Court as the case may be. Hence, the demeanour observed by the learned trial Judge and the findings recorded by the learned Judge in this regard, may have to be given due weight by the Appellate Court.
19. In the light of the findings recorded by the learned Judge, this Court as Appellate Court is of the considered opinion that clear findings had been recorded on observation of the demeanour of this witness (P.W.2) and she is a natural witness and her evidence is trustworthy. It is needless to say that this evidence is well supported by the other evidence available on record, viz., the evidence of P.W.1-mother and P.W.3 who had accompanied P.Ws 1 and 2, while lodging Ex.P1-complaint. P.W.4 also had corroborated P.W.3 in this regard.
20. The main contention, which had been seriously canvassed is that Exs.P8 to P.10 i.e., the medical certificate, Forensic Science Laboratory Report and Final Opinion of the Doctor were marked through the Investigating Officer (P.W.9) and these documents were marked subject to objection and hence, there is no medical evidence available on record and in the absence of corroboration by the medical evidence, the conviction and the sentence are not sustainable.
21. (I) Section 291 of the Code of Criminal Procedure, 1973 deals with deposition of medical witness, which reads as hereunder:-
"291. Deposition of medical witness:-
(1) The deposition of a civil surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under this chapter, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such deponent as to the subject-matter of his deposition."
(II) Section 293 Cr.P.C. deals with reports of certain Government Scientific experts. Section 294 Cr.P.C. dealing with no formal proof of certain documents specifies as hereunder:-
(a) "293: Reports of certain Government scientific experts:-
(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this Section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court, and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This Section applies to the following Government scientific experts; namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director Haffkeine Institute, Bombay;
(e) the Director, (Deputy Director or Assistant Director) of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
(b) "294. No formal proof of certain documents:-
(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved."
22. It is no doubt true that the Doctor who issued Ex.P8 was not examined since she had gone away to New Zealand and none others acquainted with her signature at least had been examined. This was made the ground of attack.
23. (I) A Division Bench of this Court in Kudumula Pratap Reddy v. State of A.P., 1985 Crl.L.J.1446 held that "Sections 293 and 294 of the Code are obviously intended to slim the proceedings by dispensing with elaborate and sometimes long drawn procedure of examining the concerned person when the genuineness of document is not in dispute. The refrain from such procedure is not invariable and the Court is empowered to examine depending upon the circumstances and expediency. In the instant case, the report of the Deputy Controller of Explosives is taken as evidence as the Court did not consider it necessary to examine the expert in view of express consent of accused for reception of the report. Similarly post-mortem report is admitted as evidence as no exception is taken for reception of the same. Section 294 Cr.P.C., empowers Court to admit the document as evidence in the situations embodied in Section 294 Cr.P.C. namely, when no objection, is taken as to the admission of the document by either side and when it is not possible to examine the person connected with the document. Both these requirements have been satisfied as there was no objection for the admission of the document and further the doctor who conducted the post-mortem was laid up in the hospital. The trial Court is justified in admitting the report of the Deputy Controller of Explosives and post-mortem report as evidence without insisting upon the evidence of expert or doctor."
(II) Reliance also was placed on Phool Kumar v. Delhi Administration, .
(III) A Full Bench of Bombay High Court in Shaikh Farid Hussinsab v. The State of Maharashtra, 1983 Crl.L.J. 487 while dealing with scope and ambit of Section 294 of the Code of Criminal Procedure held that:
"Section 294 of the Cr.P.C. dispenses with proof of every document when it becomes formal on its genuineness not being disputed. There is nothing in Section 294 to justify exclusion of a post-mortem report, from the purview of "documents" covered thereby. Sub-section (3) of Section 294 Cr.P.C. covers post-mortem notes and every other document of which genuineness is not disputed. The word "genuineness" contemplates not only genuineness of the signature but also genuineness of the contents of the document. Raising no dispute to the genuineness of any document implies their considered decision of further details being irrelevant. The Court has ordinarily to accept this decision and refrain from entering into the arena itself unless miscarriage of justice is apprehended on demonstrable grounds. Thus, a document whose genuineness is not disputed can ordinarily be read in evidence without the formal proof. The authority to read in evidence implies the authority to use the document and rely on it for adjudicating points at the trial. A document becomes both relevant and authentic evidence of its contents without the proof of its authenticity by the author or anybody else by force of Section 294 on its conditions being complied with. The documents covered by Section 294 are, therefore, receivable in evidence without anything more. Thus, the post-mortem report is receivable in evidence without the doctor's evidence and can still furnish corroborative evidence to support other evidence in the case."
24. On the aspect of corroboration and the nature of corroboration, the learned Additional Public Prosecutor placed strong reliance on Rameshwar S/o. Kalyan Singh v. The state of Rajasthan, and Krishnalal v. State of Haryana, .
In Krishnalal case (7 supra), the Apex Court at paragraph 4 observed as hereunder:
"We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivet_nd the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilities the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed, as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'Judicial' probability. Indeed, the court loses its credibility if it rebels against realism. The law court is not an unnatural world."
25. As per the demeanour observed and recorded by the learned Judge, P.W.2 who is an innocent girl was taken away by the accused on the ground that her mother and sister were available at the house of the accused and had perpetrated the heinous crime against P.W.2. On the mere ground that the medical certificate-Ex.P.8 was not proved in view of the fact that the Doctor, who issued it, had left to New Zealand and none concerned with the same had been examined, especially, in the light of the clear evidence of P.W.2, well corroborated by the evidence of P.Ws 1, 3 and 4 to some extent, this court is of the considered opinion that the findings of the learned Judge cannot be reversed and acquittal cannot be recorded on that sole ground. Hence, the submissions made in this regard are hereby rejected and the findings recorded by the learned Judge are hereby confirmed.
26. In the result, the conviction imposed by the learned Assistant Sessions Judge, Karimnagar, in Sessions Case No. 312 of 2003 against the appellant-accused on 29.09.2003 is confirmed.
But however, taking into consideration the age of the accused and the relevant factors, the sentence imposed against the appellant-accused for the offence under Section 376 IPC is modified and reduced to Rigorous Imprisonment for a period of five years from ten years and the imposition of fine by the learned Judge is hereby set aside.
Except the aforesaid modification, in all other particulars, the findings of the learned Judge are hereby confirmed. The Criminal Appeal shall stand dismissed.