Punjab-Haryana High Court
State Of Punjab vs Mohammad Zamal Ansari on 26 May, 2010
Author: Hemant Gupta
Bench: Hemant Gupta, Jaswant Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision : May 26, 2010
Crl. Appeal No.366-DB of 2009
State of Punjab ...Appellant
Versus
Mohammad Zamal Ansari ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. H.S.Brar, Addl. A.G., Punjab,
for the appellant.
Ms. Kamalpreet Kaur, Advocate,
as Amicus Curaie for the respondent.
HEMANT GUPTA, J.
The present appeal is preferred by the State of Punjab against the judgment of acquittal dated 01.04.2008 passed by the Addl. Sessions Judge (Ad hoc), Fast Tract Court, Amritsar, acquitting the respondent for an offence punishable under Section 376 IPC.
The prosecution case was initiated on the basis of statement (Ex.P-8) made by Smt. Jebun wife of Mister before Inspector Gurpreet Singh at 12.30 PM on 10.8.2006. In her statement, she has stated that she alongwith her husband and children are doing labour work in Town Hall School, which is under construction. She has stated that she has three children. The youngest is Muskan aged about 2 years. On 10.8.2006, when she was washing clothes in the building of the school, her youngest daughter Muskan was sitting besides her and was playing. Around 11.00 Crl. Appeal No. 366-DB of 2009 2 o'clock, accused Zamal son of Abdul Mian, who is also doing labour work in the school, picked up her daughter and took her in the room. After some time, when she went towards the room, she saw that her daughter was weeping in the lap of Zamal and he had put his private part in the private part of her daughter. She raised alarm. Her husband namely Mister and two more labourers came there. Zamal ran from there after giving slip. On the basis of such statement, ruqa was sent by Inspector Gurpreet Singh from Shri Guru Ram Das Hospital through Constable Balwinder Singh to the Police Station 'A' Division, Amritsar for lodging of FIR. On the basis of such ruqa, FIR bearing No.111 dated 10.8.2006 under Section 376 was registered. The special report was received by the Magistrate at 4.30 PM.
The prosecutrix namely Muskan, aged about 2 years was medico-legally examined by PW-1 Dr. Seema Gupta, Medical Officer, Civil Hospital, Amritsar alongwith Dr. Jaswinder Kaur on 10.8.2006 at 1.00 PM. Ex.P-1 is the copy of medico-legal report. PW-1 Dr. Seema Gupta has found the clothes of the patient were soiled with blood. On local examination, she has found bleeding per vagina, posterior commissure was torn and hymen was intact. Vaginal swabs were taken from vagina and sent for chemical examination. Ex.P-2 is the report of the Chemical Examiner and on the basis of such report, she has opined that the patient has been subjected to sexual assault and intercourse. No cross-examination was conducted on the said witness.
The accused was arrested by PW-3 Inspector Gurpreet Singh, the Investigating Officer, when he searched for him in the school on 10.8.2006. The accused has already been apprehended by the labourers working there and he has been given beatings. He was medico-legal examined at 9.35 PM on 10.8.2006 by PW-2 Dr. Gurchetan Parkash, who Crl. Appeal No. 366-DB of 2009 3 has given his report Ex.P-5. PW-2 Dr. Gurchetan Parkash has found abrasions and bruises two each on the person of the accused. The medico legal report is Ex.P-6, whereas the opinion of the Doctor in respect of the queries asked by the investigating agency is Ex.P-5. Vide Ex.P-5, it has been concluded that he found nothing to suggest that the accused was incapable of performing sexual intercourse. Possibility of doing sexual intercourse in last 24 hours cannot be ruled out. The physical examination by the Doctor has found that bath was not taken; urine and motion were not passed; and the clothing was not changed. The doctor did not found any stains on the clothing and body.
PW-3 Inspector Gurpreet Singh, the Investigating Officer vide recovery memo Ex.P-12 has taken into possession one blood stained skirt of yellow colour alongwith pubic hair lying on it, converted the same into parcel and sealed with seal 'GS', whereas the pubic hair of accused Mohammad Zamal Ansari were taken into possession vide recovery memo Ex.P-13. The vaginal swabs drawn by PW-1 Dr. Seema Gupta were sent for chemical examination and vide its report Ex.P-2 spermatozoa was detected in both swabs. Vide report Ex.P20, the skirt contained in Parcel A was found to be stained with human blood, whereas on scientifically examination of Exhibits (Hair) contained in Parcels A & B, these are found to be human pubic hair and show similar characteristics.
The evidence of the prosecution was closed by an order without examining the author of the FIR Smt. Jebun and Mister, mother and father of the prosecutrix respectively, as the summons issued to them were received back with the report that their addresses are not available and their whereabouts are not known.
Crl. Appeal No. 366-DB of 2009 4
The learned trial Court passed an order dated 01.04.2008 acquitting the accused, finding that the prosecution has failed to prove beyond a reasonable doubt the commission of crime by the respondent. It was found that the mother of the prosecutrix has not been examined as a witness. It was also found that the report of the Forensic Science Laboratory cannot be taken into consideration as proof of the accused committing the rape and that PW-2 Dr. Gurchetan Parkash has not stated that he had taken the pubic hair of the accused for test, therefore, the pubic hair which was produced by the Investigating Officer are not proved to be that of the accused.
No doubt the author of the FIR Smt. Jebun and her husband Mister has not been examined. It may be noticed that they are ordinary resident of District Hazaribagh, Jharkhand and are migrant labourers. As per the report on the summons to secure their presence, it was reported that neither their addresses nor whereabouts are known. In such circumstances, it needs to be examined that whether the other evidence produce on record is sufficient to conclusively prove the charges of rape against the respondent.
From the medico-legal report Ex.P-1, report of the Chemical Examiner Ex.P-2 and the statement of PW-1 Dr. Seema Gupta, there is no doubt that Muskan, a child of 2 years was subjected to sexual assault and intercourse. The report Ex.P-5 prepared by PW-2 Dr. Gurchetan Parkash is to the effect that there is nothing to suggest that the accused is incapable of performing sexual intercourse and possibility of doing sexual intercourse in last 24 hours cannot be ruled out. The said report is to the effect that the accused was brought by ASI Bakhtawar Singh. The copy of the report has been received by the aforesaid ASI Bakhtawar Singh. The medico-legal Crl. Appeal No. 366-DB of 2009 5 report of the accused is Ex.P-6. Again the name of the official who has brought the said accused for medico-legal examination is ASI Bakhtawar Singh.
PW-7 is Moharir Head Constable Gurinder Singh, who has tendered in evidence his affidavit Ex.P-18. In his affidavit, he has deposed that on 10.8.3006, the Investigating Officer Inspector Gurpreet Singh has deposited with him two parcels in the present case i.e. one parcel containing blood stained yellow skirt sealed with seal 'GS' and the other containing pubic hair, sealed with seal 'GP'. He has further deposed on affidavit that firstly the said parcels were sent through Constable Angrej Singh to the Forensic Science Laboratory, but the same were returned with some objections. Subsequently, the parcels were handed over to Constable Manjit Singh for depositing the same to the Forensic Science Laboratory on 28.8.2006, who had deposited the same to the Forensic Science Laboratory on the same day.
PW-3 Gurpreet Singh has arrested the respondent from the school, which was under construction, where he was engaged as a labourer, so was the mother and father of the prosecutrix. The accused was apprehended by the labourers and had given beatings. Such is the statement given by the Investigating Officer on oath in Court. It is suggested to the witness that the accused was beaten up by the Police in order to implead him as an accused in the present case. He has admitted that public was quite agitated on account of this incident and that it is incorrect that in order to satisfy public, accused has been falsely implicated in the present case. The part of the statement that a sample of pubic hair of the accused was taken from the Doctor and the same was converted into parcel and sealed with seal of Doctor and produced before him by ASI Bakhtawar Singh has not been Crl. Appeal No. 366-DB of 2009 6 suggested to be incorrect in any manner. It is also not suggested that the accused was not apprehended by the labourers working in the school site. There is no suggestion that there was any enmity so as to involve the respondent falsely in the present case. The crime of sexually assaulting a small girl of 2 years, who was having external injuries and the blood oozing out from her vagina, are sufficient to raise public anger. The outburst of anger is reflected in the injuries received by the accused, so deposed by PW- 3 Inspector Gurpreet Singh, the Investigating Officer and corroborated by medico-legal report Ex.P-6 prepared by PW-2 Dr. Gurchetan Parkash.
The Investigating Officer has further clearly deposed that the skirt with pubic hair was taken into possession, when he visited the spot and prepared the site plan. The statement in the cross-examination that the husband of the complainant did not produce any skirt of the prosecutrix is to be read in the context in which the cross-examination was conducted. The said line appears in the cross-examination in the context of complainant approaching him alongwith her husband in respect of commission of crime. On the other hand, ASI Bakhtawar Singh has handed over the parcel containing pubic hair of the accused sealed with seal of 'GP' alongwith sample seal. Seal bearing impression 'GP' is that of PW-2 Dr. Gurchetan Parkash. It is the said parcel, which was sent for chemical examination, which is apparent from the evidence of PW-7 MHC Gurinder Singh. It may be noticed that PW-2 Dr. Gurchetan Parkash as also PW-7 MHC Gurinder Singh were examined and cross-examined on the same date i.e. 6.10.2007 and no cross-examination has been conducted in respect of any doubt about the parcel handed over by ASI Bakhtawar Singh to MHC Gurinder Singh as that of the accused. Therefore, it transpires that it was the pubic hair of the accused alone, which was taken into possession by ASI Bakhtawar Singh Crl. Appeal No. 366-DB of 2009 7 and sent for chemical examination. Similarly, the skirt stained with blood and the pubic hair on it was taken into possession by the Investigating Officer and was sent for further examination. In the report, it was found that the pubic hair on the skirt has the same characterstics as the pubic hair contained in another parcel i.e. pubic hair of the accused. The said examination is sufficient to connect the respondent with the commission of crime. Apart from the said fact, arrest of the accused from the construction site of the school and having injuries on account of public anger corroborates the prosecution story beyond a reasonable doubt.
Learned counsel for the appellant has relied upon the judgments of Hon'ble Supreme Court in Chandrappa and others Vs. State of Karnataka, 2007 (4) SCC 415 and Satya Narain Yadav Vs. Gajanand and another, AIR 2008 (SC) 3284 to contend that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. The High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal. The Court has noticed that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence; and secondly, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened on the basis of findings recorded by the trial Court. In Chandrappa's case (supra), the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were delineated:
Crl. Appeal No. 366-DB of 2009 8
"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtain the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.
The aforesaid principles were reiterated in Satya Narain Yadav' case (supra). The Court also considered that what doubts would be called reasonable. It was held to the following effect :
"50. Doubts would be called reasonable, if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free Crl. Appeal No. 366-DB of 2009 9 from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reasons and common sense. It must grow out of the evidence in the case.
51. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice."
On relying upon the aforesaid judgments, the learned counsel for the appellant has contended that the learned trial Court was primarily influenced by non-examination of mother of the prosecutrix. It is argued that there is no reason or any judicial precedent that similar characteristics in pubic hair can be found even of different persons. The finding recorded by the trial Court is nothing, but based on surmises or conjectures.
As discussed above, it is ASI Bakhtawar Singh, who has handed over the parcel of pubic hair to MHC Gurinder Singh and it is the said MHC, who has handed over the samples in sealed and intact condition to Constable Manjit Singh for depositing the same to the Forensic Science Laboratory on 28.8.2006. There is no cross-examination conducted on any of the witnesses that the pubic hair sent for chemical examination was not of Crl. Appeal No. 366-DB of 2009 10 the accused. Thus, the trial Court has proceeded on the conclusion, which is not relevant. The evidence as discussed above is sufficient proof of the commission of crime by the respondent. A reasonable doubt to defeat the prosecution case is not an imaginary, trivial or a mere possible doubt, but a fair doubt based upon reasons and common sense. There is nothing on record to infer any doubt about the prosecution case.
Learned counsel for the respondent, on the other hand, referred to Rahim Beg and another Vs. the State of U.P., AIR 1973 Supreme Court 343, to contend that there is no injury on the male organ of the accused, therefore, the said fact points to his innocence. The absence of injury on the male organ while committing rape on a child of two years is not to infer that the accused was not involved in the crime. The bleeding from the vagina and the detection of spermatozoa in both the vaginal swabs prove that Muskan, a child of 2 years was subjected to rape. The Doctor has not been suggested that in case of committing rape on a child of 2 years, injury on the male organ is must. Therefore, the judgment referred to by the learned counsel for the respondent does not provide much assistance as it would be question of fact in each case.
The reliance of the learned counsel for the respondent on the judgment reported as Main Pal and Another Vs. State of Haryana and others, AIR 2004 (SC) 2158 that if two views are possible on the evidence adduced in the cases, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, is not tenable. In the aforesaid case itself, it has been held that where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for Crl. Appeal No. 366-DB of 2009 11 the purpose of ascertaining as to whether any of the accused really committed any offence or not.
In view of the above, we are of the opinion that the judgment dated 01.04.2008 passed by the learned trial Court acquitting the respondent is not sustainable in law. Consequently, we set aside the said judgment and convict the respondent for an offence punishable under Section 376(2)(f) IPC and sentence him to undergo life imprisonment and to pay a fine of Rs.2000/-. In the event of default of payment of fine, the respondent shall further undergo rigorous imprisonment for a period of 1 year.
The Chief Judicial Magistrate, Amritsar shall implement the order passed by this Court in accordance with law.
(HEMANT GUPTA)
JUDGE
May 26, 2010 (JASWANT SINGH)
Vimal JUDGE