Uttarakhand High Court
Rajpal Alias Raspal vs State Of Uttarakhand on 28 August, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Jail Appeal No.06 of 2014
Rajpal @ Raspal
........Appellant (in Jail)
Versus
State of Uttarakhand
.........Respondent
Date of judgment: 28.08.2017
Mr. Vinod Sharma, Advocate and Mr. Saurav Adhikari, Amicus Curiae for the
appellant
Mr. Raman Kumar Sah, Deputy Advocate General for the State.
Hon'ble Lok Pal Singh, J.
This appeal has been preferred by the convict through the Jailor, District Jail, Haridwar, against the judgment and order dated 23.11.2013 passed by IV Additional Sessions Judge, Dehradun in Sessions Trial No.23 of 2013, whereby the learned Sessions Judge has convicted the accused/appellant under Section 376(2)(f) of The Indian Penal Code (for short IPC) and has sentenced him to rigorous imprisonment for a period of eight years with fine of Rs.10,000/- and in default of payment of fine, further imprisonment for six months has been awarded.
2. Heard learned counsel for the parties, and perused the lower court record.
3. Prosecution story, in brief, is that on 27.10.2012 at about 08:45 pm Suraj lodged a report at P.S. Kotwali, District Dehradun, stating therein that his mother had gone to Bihar and his sister, aged 6 years, was alone in the house. At about 5.00 pm, when the complainant, his uncle and his grandmother returned to 2 house, then they heard the voice of his sister (prosecutrix) from the house of his landlord (accused/appellant). His aunt Smt. Shanti Devi (P.W.5) told him that the accused had taken the prosecutrix. The complainant went at the spot and through a window he saw that the accused and the prosecutrix both were naked and that his sister was crying. On the hue and cry of prosecutrix, many people gathered at the spot and the accused was caught hold by them. With these averments, P.W.2 Suraj (complainant) lodged the report (Ext.A2) alleging that the accused has tried to commit rape with the prosecutrix. On the basis of report, Chik F.I.R. (Ext.A9) was prepared and Case Crime No. 47 of 2012 was registered against the accused/appellant under Section 376/511 of IPC. Investigation was taken up by P.W.6 Sub Inspector Sushma Rawat, who recorded the statement of witnesses and the accused, prepared the site plan, and on completion of investigation, submitted charge sheet (Ex. A8) against accused/appellant under sections 376/511 of IPC.
4. Chief Judicial Magistrate, Dehradun, on receipt of the charge sheet, after giving necessary copies to the accused as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. Learned IV Additional Sessions Judge, Dehradun, on 21.02.2013, framed charge of offence punishable under section 376 IPC, against the accused/appellant Rajpal @ Raspal. The charge was read over and explained to the accused, who pleaded not guilty and claimed to be tried.
5. The prosecution, in order to prove its case, got examined P.W.1, the prosecutrix, P.W.2 Suraj 3 (complainant), P.W.3 Manoj (eyewitness), P.W.4 Dr. Vandana Sundriyal, Medical Officer, who medically examined the prosecutrix, P.W.5 Shanti Devi (eyewitness), P.W.6 Sub Inspector Sushma Rawat, Investigating Officer of the case, P.W.7 Smt. Bindu Rana and P.W.8 Dr. Rahul Joshi, Medical Officer, who medically examined the accused.
6. The oral and documentary evidence was put to the accused in the form of questions u/s 313 Cr.P.C. who, in reply, denied the allegations made against him and stated that he has been falsely implicated in the case. He stated that he is landlord and the prosecutrix and her family members are tenant and they wanted to illegally grab the house of accused and for this reason he has been falsely implicated in the instant case.
7. The trial court, after hearing the parties, found that the prosecution has successfully proved charge of offences punishable under section 376(2)(f) IPC against accused Rajpal @ Raspal, and convicted and sentenced him, as above.
8. Feeling aggrieved by the judgment and order of the trial court, this criminal jail appeal has been preferred by the accused through Jailor, District Jail, Dehradun.
9. Before further discussion, it is pertinent to mention the medical report of the prosecutrix, who was medically examined by PW-4 Dr. Vandana Sundriyal, on 28.01.2012 at Doon Medical Hospital, Dehradun. Medical 4 report (Ext.A3) prepared by the Medical Officer is as under:-
External examination -
- No sign of any external marks of injury on her body was found.
Locally p/h - no external signs of injury were present on ......... but hymen was torn and labia and area around hymen was congested and reddish. No bleeding..
Impression - No definite opinion could be made regarding sexual intercourse. Only congestion around the torn hymen suggests sexual misconduct or finding.
Definite opinion could only by given after the reports.
10. P.W.4 Dr. Vandana Sundriyal has stated that on 28.10.2012 she was posted as Senior Medical Officer at Doon Women Hospital. She had conducted medical examination of the prosecutrix and while conducting medical examination, she had found no external injury on the body of the prosecutrix. She has further stated that there were no external injury on the private part of the prosecutrix but hymen was torn and labia and area around hymen was congested and reddish. There was no bleeding. In cross-examination, this witness has admitted that there was no bleeding on the private part of the prosecutrix and it is difficult to state that in case of rape whether bleeding is possible. She has also admitted that reddishness may also occur due to any other injury and she had not given her opinion as to how old reddishness was. She has also stated that besides above, there was no injury or swelling present on the body of the prosecutrix.5
11. P.W.8 Dr. Rahul Joshi is the Medical Officer who conducted medical examination of accused. He has stated that on 27.10.2012 he was posted as Emergency Medical Officer at Doon Hospital. He has stated that there was no sign of injury on the private part of the accused. There was no fresh injury on the body of the accused. In cross-examination, he has stated that he could not give opinion as to whether the accused has done sexual intercourse or not.
12. P.W.1 prosecutrix has stated that the accused had committed rape with her. On her crying, his brother and uncle had arrived at the spot. She has also proved her statement (Ext.A-1) recorded under Section 164 Cr.P.C. She has also identified the underwear of the accused, which was worn by him at the time of incident.
In cross-examination, prosecutrix has stated that on the date of incident, a quarrel had taken place between his brother and the accused and her aunt (chachi) had also come there. She clearly stated that the dispute had taken place before the incident of rape and his uncle used to quarrel with the accused before the incident.
13. P.W.2 Suraj is the complainant of the case. He has reiterated the version of the First Information Report in his testimony. In cross-examination, he has stated that he and his parents were tenant of the accused. They had not paid two month's rent. He has stated that he had scribed the report from Rahul, who is also tenant of the accused.
14. P.W.3 Manoj has stated that on the scream of Suraj, he has also reached at the spot. He has 6 corroborated the statement of P.W.2 Suraj regarding alleged incident of rape. In cross-examination, he has stated that on the date of incident, he was on leave and was on his house. P.W.2 Suraj had also not gone for his work.
15. P.W.5 Smt. Shanti Devi has stated that on the date of incident, the accused had taken away the prosecutrix with him, in her presence. After a while, Suraj met her and asked about the prosecutrix. In the meantime, they heard the scream of the prosecutrix, on which, she, Mukesh, Suraj, Asha Devi and Manoj went to the accused house. All of them, through a window, saw that the accused and prosecutrix were naked and the prosecutrix was lying between the thighs of the accused and was screaming. All of them shouted on which the accused worn his clothes and came outside. In cross- examination, she has stated that complainant is tenant of the accused and, that on the date of incident, no quarrel had taken place between Krishna and the accused.
16. P.W.6 Sushma Rawat has stated that on 27.10.2012 she was posted as Sub Inspector at P.S. Lakhibag. She was given the investigation of the case. During the course of investigation, she had prepared the site plan, recorded the statement of witnesses, prosecutrix and the accused, and on completion of investigation, she had submitted charge-sheet against the accused.
717. P.W.7 Bindu Rana is Principal of Agnes Kunj Academy School. She was examined to prove the age of the prosecutrix.
18. In the backdrop of what has been stated above, this Court has to deal with as to whether, in the facts and circumstances of the case, any offence is made out against the appellant.
19. Before going any further, it would be cite here the site plan prepared by P.W.6 Sushma Rawat, Investigating Officer.
lsok dk edku jktw jke ckFk:e B jkefoykl A fnus'k jke fd'kksjh vk'kksd lqjs'k jkenso uk jkgqy
20. In the site-plan, place of incident where the accused tried to commit rape is shown by letter 'A'. Window from where the complainant and other witnesses saw the incident is shown by letter 'B'. From 8 the perusal of the site-plan prepared by the I.O., in my opinion, it is not possible to see inside the room place 'A' from the window 'B', which creates doubt in the prosecution story.
21. Now, coming to the factual matrix of the case. In the present case, the prosecutrix is a minor girl, aged about six years. No sign of any external marks of injury on her body was found. There was also no bleeding present. In a case of rape with a minor girl, as per medical jurisprudence, usually following type of cases are met with by medical officers in their medico-legal work.
(1) Examination of virgins - for alleged rape.
The person may be a woman or a girl who has had no previous experience of sexual intercourse. In these cases, when the first intercourse takes place, the hymen is torn, the tear occurring usually on the posterior aspect on one or both sides. It may also be torn in the mid-line posteriorly. If the hymen is of the annular type, the tears may be multiple. This is so, because such a hymen nearly fully closes up the vaginal orifice.
If the hymen is of the semilunar type, the ruptures are usually bilateral posteriorly, and present the hymen thus torn, in three segments.
When these cases are brought for examination soon after the commission of the act of rape, the hymen is seen with torn margins, which are red. The surrounding tissues are tender and swollen. The edges 9 bleed on touching. The torn edges of the hymen heal quickly, usually within five to six days. Complete healing is present about eight to ten days, when, the tears appear shrunken and like granular tags of hymeneal tissue. These torn but healed edges never unite.
22. The Court further finds that underwear of the accused and the clothes worn by the prosecutrix at the time of incident as well as the bed sheet were sent to Forensic Science Laboratory for examination and the report is Ext.A15, but out of four articles, semen was detected only on Ext.A1, on the underwear of the accused. It is worth to state here that the I.O. has not taken the sample of semen of the accused in order to check as to whether the semen found on the underwear of the accused belongs to the accused. That apart, no information has been given in the FSL report as to how old the semen was, which was detected in the underwear of the accused. No compliance of Section 53- A of Cr.P.C. has been made to match the semen of the accused from the semen found on the underwear of the accused.
23. In the case of Krishan Kumar Malik vs. State of Haryana, reported in (2011) 3 SCC (Cri), Hon'ble Apex Court, has held as under:
"40. The Appellant was also examined by the doctor, who had found him capable of performing sexual intercourse. In the undergarments of the prosecutrix, male semen were Crl. A. @S.L.P. (Crl.) No.8021 of 2009 found but these were not sent for analysis in the forensic laboratories which 10 could have conclusively proved, beyond any shadow of doubt with regard to the commission of offence by the Appellant. This lacuna on the part of the prosecution proves to be fatal and goes in favour of the Appellant.
41. It is pertinent to mention here that Appellant is a physically handicapped person to the extent of 55% as per Doctor's Report, and this fact is not controverted by the prosecution. This much of handicap of any person would be easily noticeable, which Appellant failed to mention at all. In fact, this would have been much better identification of the Appellant, which the prosecutrix did not mention at all.
43. With regard to the matching of the semen, we find it Crl. A. @S.L.P. (Crl.) No.8021 of 2009 nd from Taylor's 2 Edn. (1965) Principles and Practice of Medical Jurisprudence as under:-
"Spermatozoa may retain vitality (or free motion) in the body of a woman for a long period, and movement should always be looked for in wet specimens. The actual time that spermatozoa may remain alive after ejaculation cannot be precisely defined, but is usually a matter of hours. Seymour claimed to have seen movement in a fluid as much as 5 days old. The detection of dead spermatozoa in stains may be made at long periods after emission, when the fluid has been allowed to dry. Sharpe found identifiable spermatozoa often after 12 months and once after a period of 5 years. Non-motile spermatozoa were found in the vagina after a lapse of time which must have been 3 and could have been 4 months."
Had such a procedure been adopted by the prosecution, then it would have been a foolproof case for it and against the Appellant.
44. Now, after the incorporation of Section 53 (A) in the Criminal Procedure Code, w.e.f. 23.06.2006, brought to our notice by learned counsel for the Respondent-State, it has become necessary for the prosecution to go in for DNA test in such type of Crl. A. @S.L.P. 11 (Crl.) No.8021 of 2009 cases, facilitating the prosecution to prove its case against the accused. Prior to 2006, even without the aforesaid specific provision in the Cr.P.C. prosecution could have still resorted to this procedure of getting the DNA test or analysis and matching of semen of the Appellant with that found on the undergarments of the prosecutrix to make it a fool proof case, but they did not do so, thus they must face the consequences."
24. In the present case, the accused was medically examined by P.W.8 Dr. Rahul Joshi; however, no injury was found by the medical officer on the private part of the accused. The prosecution case rests on sexual intercourse with a minor girl. In case of rape of a small child there would have been some injury on the Appellant's male organ if he had committed the crime. Learned counsel for the Appellant has also relied upon a decision rendered by Hon'ble Apex Court in the case of Rahim Beg & Ors. v. The State of U.P. AIR 1973 SC 343 to contend that in case of rape of a small child there would have been some injury on the Appellant's male organ if he had committed the crime. He has referred Para 26 of the judgment which is extracted hereunder:-
"26. According to Dr Katiyar, Medical Officer of District Jail, Rae Bareli, if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence. The examination of the two accused by Dr Katiyar, was on August 5, 1969. The two accused, however, had been arrested, according to the prosecution, on the morning of August 4, 12 1969. No cogent explanation has been furnished as to why they were not soon thereafter got medically examined by the police."
25. I have carefully examined the statement of witnesses and the medical officer who conducted the medical examination of the prosecutrix. P.W.4 Dr. Vandana Sundriyal, conducted medical examination of the prosecutrix and stated that the hymen of the girl was torn and labica and area around hymen were congested and reddish. There was no bleeding and injury on the private part of the victim. The medical jurisprudence does not support the statement of this witness as well as the medical report prepared by her. Thus, in my view, the statement of P.W.4 is not reliable and trustworthy. The prosecutrix, in her cross-examination, has clearly stated that on the date of incident, a quarrel had taken place between his brother and the accused and her aunt (chachi) had also come there. She clearly stated that the dispute had taken place before the incident of rape and his uncle used to quarrel with the accused before the incident. P.W.2 Suraj, P.W.3 Manoj and P.W.5 Smt. Shanti Devi seems to be interested and chance witnesses and all of them have stated in their statement that the accused was the landlord and the prosecutrix and her parents was living under the tenancy of the accused and that there was a dispute regarding rent between them. Implication of the accused/appellant on the basis of dispute of landlord and tenant and on the basis of enmity cannot be ruled out.
26. Having gone through the entire evidence adduced by the prosecution, it illustrates that the 13 prosecution has utterly failed in proving the guilt of the accused under Section 376 (2)(f) for the reasons enumerating- firstly, neither any injury was found on the private part of the prosecutrix nor on the private part of the accused. Secondly, site-plan prepared by the I.O. does not support the prosecution story, thirdly, which is significant and most salient that that the girl in her cross-examination, has stated that a quarrel had place between his brother and the accused just before the incident. Considering all the facets of the case, this Court is of the view that the prosecution has miserably failed to proved its case beyond reasonable doubt against the appellant under Section 376(2)(f) IPC and the trial Court has erred in law in convicting the accused/appellant under the said Section.
27. For the reasons as discussed above, the appeal is allowed. Impugned judgment and order dated 23.11.2013 passed by IV Additional Sessions Judge, Dehradun in Sessions Trial No.23 of 2013, convicting and sentencing the accused/appellant under Section 376(2)(f) is hereby set aside.
28. Appellant Rajpal @ Raspal is in jail. Let him be released forthwith if not wanted in any other case.
29. Let a copy of this judgment be sent to the Superintendent of jail concerned for compliance and a copy, alongwith the Lower Court Records, be sent to the concerned trial Court.
(Lok Pal Singh, J.)
Rajni 28.08.2017