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2001(3) Supreme 588
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Doraiswamy Raju, JJ.
State of Himachal Pradesh -Appellant
versus
Gian Chand -Respondent
Criminal Appeal No. 649 of 1996
Decided on 1-5-2001
Counsel for the Parties :
For the Appellant : Anil Soni and Ms. Meenakshi Arora, Advocates.
For the Respondent : A.K. Panda, Sr. Advocate, Shrish Kumar Misra, Kishore Kumar Patel, T.K. Pradhan and Naresh K. Sharma, Advocates.
Held : Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the present case, PW.l -the mother of the prosecutrix is a widow. The accused is a close relation of brother of late husband of PW.1. PW.1 obviously needed her family members consisting of her in-laws to accompany her or at least help her in lodging the first information report at the police station. We are satisfied that the delay in making the FIR has been satisfactorily explained and therefore does not cause any dent in the prosecution case. (Para 12)
Held also : According to the High Court, the FIR states the occurrence of rape to have taken place in the room on the first floor of the building but according to the statement of PW.1 as recorded in the Court, the rape was committed on the prosecutrix in the open on the lintel of the house thus, according to the High Court, there was a doubt raised about the place of the incident which was an infirmity in the prosecution story. The room and the lintel are situated close to each other. PW.1 is not an eye-witness to the incident. When she reached home she found her daughter, the victim of rape lying on the lintel of the house below the cot. A perusal of the site plan shows the distance between the two places is insignficant. Moreover, such minor inconsistency coming from the mouth of PW.1, who is not an eye-witness, was of no significance and caused no infirmity in the prosecution case when the overall narration of the incident given by her is found to be natural and trustworthy. It is pertinent to note that PW.1 was only corroborating the statement of PW.7, the young victim of rape and the latter s testimony was found to be very natural and inspiring confidence by the learned Sessions Judge who had recorded her statement. The learned Sessions Judge had himself inspected the site of the incident and noted in his inspection note inter alia that the other houses were situated at a distance and another house situated nearest to the house where incident had taken place was about 50 yards away. The main road was at a distance of 100 or 150 yards from the house as shown in the site plan and there was also a tree which blocked the vision to some extent from the main road towards the first floor and rooms as shown in the site plan on the first floor. Thus, the place of the incident was secluded one and not visible from distance. Similar facts were deposed to by the investigating officer. The learned Sessions Judge had rightly noted in his judgment, relying on the evidence adduced and the observations made at the time of spot inspection, that the room and the lintel are situated near to each other and therefore the so-called inconsistency was immaterial and insignificant. The High Court was not right in ignoring this finding of the trial court or even otherwise making this insignificant discrepancy, if at all it is a discrepancy, a major lacuna in the prosecution case. It is not so. (Para 13)
Held further : So far as non-examination of other witnesses and an adverse inference drawn by the High Court therefrom is concerned, here again we find ourselves not persuaded to subscribe to the view taken by the High Court. The prosecutrix PW.7 has stated that soon before the incident she was playing with three girl-children of the same age as of hers and they were present when the accused committed rape on her. One of the girls picked up a broom and had tried to scar away the accused by striking the broom on him. This little friend of the victim had also raised a hue and cry but none from the neighbourhood came to the spot. These girls were none else than daughters of her uncle. What the High Court has failed to see is that these girls were of tender age and could hardly be expected to describe the act of forcible sexual intercourse committed by the accused on PW.7. Secondly, these girls would obviously be under the influence of their parents. (Para 14)
The observations made and noted by Dr. Mudita Gupta during medico legal examination of P.W. 7 clearly make out the prosecutrix having been subjected to rape. The prosecutrix has spoken of "penetration" in her statement. The discovery of spermatozoa in the private part of the victim is not a must to establish penetration. There are several factors which may negative the presence of spermatozoa. It is true that marks of external injury have not been found on the person of the accused but that by itself does not negate the prosecution case. Modi has opined (see, Modi ibid, page 509) that even in the case of a child victim being ravished by a grown up person it is not necessary that there should always be marks of injuries on the penis in such cases. Further, it is to be noted that about two days had elapsed between the time of the incident and medical examination of the accused within which time minor injuries, even if caused, might have healed. (Para 15)
Lastly, remains the observation of the High Court regarding mental state of the accused-respondent. We are not persuaded to hold even prima facie, on the material available on record, that the accused was suffering from unsoundness of mind and that too of a nature which would have rendered him incapable of knowing the nature of the act which he was doing or incapable of distinguishing between wrong or right as per law. The entire discussion by the High Court on this aspect of the case was irrelevant and meaningless. The learned counsel for the respondent has very fairly not persisted in pressing this plea before us. (Para 16)
Held finally : For the foregoing reasons we hold the judgment of the High Court wholly unsustainable in law. We are unhesitatingly of the opinion that the Division Bench of the High Court ought not to have interfere the well-reasoned, detailed and well-articulated Judgment of the Sessions Court wherein we find no infirmity. For the foregoing reasons the appeal is allowed. The judgment of the High Court is set aside and the judgment of the Sessions Court holding the accused guilty of an offence punishable under Section 376 IPC along with the sentence passed is restored. The bail bonds of the accused-respondent are cancelled. He shall be taken into custody to serve out the sentence passed by the trial court. (Paras 18 and 19)
No legal document content was provided in the
JUDGMENT
R.C. Lahoti, J.-The accused-respondent was charged under Section 376 IPC for having committed forcible sexual Intercourse with the prosecutrix, a girl of the age of the 5 years and 6 months, on 29.10.1991 at about 6.30 p.m. at Village Baru. On trial, the learned Sessions Judge found the accused guilty and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 5,000 and in default of payment of fine to undergo rigorous imprisonment for a further period of 6 months. The amount of fine, if realised, was directed to be paid to the mother of the prosecutrix. The accused-respondent preferred an appeal. A Division Bench of the High Court has by judgment dated 22.12.1995 allowed the appeal, set aside the conviction and directed the accused-respondent to be released. Feeling aggrieved thereby, the State of Himachal Pradesh has come up in appeal by special leave which has been granted.
2. PW.1 is the mother of the prosecutrix. Her husband had expired a few years before the date of the incident. She was residing in the family house. However, her father-in-law, her two brothers-in-law and she herself had separated in residence and they were living in three separate portions of the house. PW.1 has a son and two daughters. The prosecutrix is the youngest of the three children. The accused is brother of wife of PW.l s brother-in-law, i.e., jeth or her deceased husband s brother. The accused, being a relation, was often visiting the house. According to the prosecution on the date of the incident, PW.1 had gone to the fields for collecting grass. Her son and the elder daughter had accompanied her. They returned to home at about 7 p.m. PW.1, on her return, found her youngest daughter lying below a cot on the lintel of the house. Her salwar and shirt were having blood stains. There was blood on the bed sheet and a towel lying on the cot. She looked into the private parts of the victim child and found blood and inflammation therein. On being asked, the prosecutrix told the mother, that when she was playing the accused had committed "Bura Kaam" (a sinful act) with her. The mother PW.1 told about the incident the next morning to her parents-in-law and co-sister (i.e. husband s brother s wife). The father of the accused was summoned and was told of what the accused had done. The father of the accused defended his son saying that he could not have indulged into such a wrongful act. On the third day, in the morning hours, when PW.1 was going to police station, Ruldu Ram, PW.9, a member of village Panchayat met her on way and agreeing with her advised PW.1 to lodge the report with the police. The FIR of the incident was lodged in the morning of 31.10.1991. An offence under Section 376 IPC was registered and the investigation commenced.
3. On 31.10.1991 at 12.15 p.m. Dr. Mudita Gupta, PW.5, conducted medico-legal examination of the prosecutrix and found the following injuries on her person :
Local Exam - No external injury.
On retracting the labia - erythema seen.
Hymen torn - irregular edges.
Posterior vaginal wall tear about 0.5 cm in length.
No blood clot seen. No evidence of healing, no pus seen - foul smell.
Tenderness. No sperms were seen.
4. The observations noted by Dr. Mudita Gupta were that the prosecutrix had changed her clothes and taken a bath also on the next day of the incident. The victim had passed urine and stool about one hour after the incident. There was no external injury on any part of the body of the victim. Dr. Mudita Gupta opined that possibility of commission of rape on the prosecutrix on 29.10.1991 could not he ruled out.
5. The accused was arrested on 31.10.1991 and subjected to medico-legal examination on the same day. Dr. Jagdish Gupta P.W.6, who examined the accused, recorded the result of his medico-legal examination as under:-
The general behaviour of the patient was normal. The mental condition was normal. Bath not taken for the last five days. Urine passed many times.
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