MUKTA GUPTA, J.
1. The Appellant Ashok Kumar has been convicted for offences punishable under Sections 451/376 IPC on the charge that on 2nd July, 1996, he committed house trespass in order to commit the rape on the prosecutrix aged about 26 years who is mentally challenged, when she was alone at home. The prosecutrix was sought to be examined by the learned Metropolitan Magistrate for recording her statement under Section 164 of CrPC and by the learned Additional Sessions Judge during the trial, however, her statement could not be recorded as both were of the opinion that she was not mentally fit and in a position to depose about the incident.
2. Briefly, the prosecution case is that on 2 July, 1996 at about 8:30 pm, complainant Sita Ram came to the Police Post along with his sister, the prosecutrix and accused Ashok. While handing over the accused Ashok to the police he got recorded his statement that on the aforesaid date at about 5 pm, his mother and younger sister Shakuntala had gone out of the house for household work. At about 6:30 pm, he had also gone out to purchase “Bidi Machis” leaving behind his mentally retarded sister, the prosecutrix aged about 25 years, in the house and while going he had also bolted the house from outside. At about 7 pm when he came back to his house, he noticed that the kundi of the door was open from outside and the door was closed from inside. When he knocked the door, accused Ashok Kumar, who used to live in the other gali near his house, whom he knew earlier, opened the kundi of the door from inside and after opening the door tried to run away after pushing him. That on suspicion he caught hold of him and took him inside. When he went inside the house along with the accused, he noticed that his sister was lying on a cot and cord of her petticoat was open and after seeing him, his sister started weeping and while pointing towards the accused, stated that the accused had raped her. He called his brother Kishan Lal and along with his brother and other persons brought the accused to the police station and prayed for legal action against the accused. On the statement of Sita Ram, a case FIR No. 389/96 under Secs. 376/454 IPC was registered at PS Dabri. The statement of the prosecutrix could not be recorded as stated above. After completion of investigation, a charge sheet was filed and the appellant was convicted for offences punishable under Section 376/451 IPC and awarded a sentence of Rigorous Imprisonment for seven years and a fine of Rs. 1,000/- and in default of payment of fine to further undergo Rigorous Imprisonment for two months for offence under Sec. 376 IPC. For offence under Sec.451 IPC a sentence of Rigorous Imprisonment for one year and a fine of Rs. 1,000/- and in default of payment of fine to further undergo a sentence of Rigorous Imprisonment for one month was awarded.
3. Learned counsel for the Appellant contends that there are material contradictions in the statements of the witnesses; there are contradictions inter se the testimony of the two brothers of the prosecutrix i.e PW2 Sitaram and PW3 Kishanlal and also in their statements recorded before the police and in the court. As per their testimony before Court PW2 Sitaram saw the Appellant outside the house which is a thoroughfare whereas in his statement recorded by the police on the basis which the FIR was registered, he stated that the Appellant was found inside the house. The case of the prosecution does not travel beyond the realm of suspicion. PW3 is not only unaware of the facts of the case as he came after PW2 called him, but has also made material improvements in his testimony in the court. His statement that his sister on inquiry told him (had spoken by words and not by gestures) about the offence having been committed by the Appellant is a material improvement and can also not be believed in view of the fact that both the learned Addl. Sessions Judge as also the learned Metropolitan Magistrate found her unfit to state facts coherently. Not only incriminating facts were not put to the Appellant in his statement under Section 313 CrPC, in fact wrong questions have been put to him and thus, conviction cannot be sustained. In his statement recorded under Section 313 CrPC, no question qua PW4 the prosecutrix has been put, hence these circumstances cannot be used against the Appellant. Reliance is placed on Ranvir Yadav v. State Of Bihar 2009 Crl.L.J 2962 (SC).
4. Learned counsel for the Appellant further contends that in the absence of creditworthiness of the testimonies of PW2 and PW3, the only circumstantial evidence sought to implicate the Appellant is the CFSL Report which records that group “A” semen is detected on the clothes of the prosecutrix and also the alleged underwear of the Appellant. For the semen stains found on the petticoat, cervical swab and vaginal swab of the prosecutrix, it is contended that in the absence of blood group examination of the Appellant, it cannot be connected to him. Reliance is placed on Rahim Beg & Another v. State Of U.P. 1972 SCC (Crl.) 827; Shankarlal Gyarasilal Dixit v. State Of Maharashtra . 1981 SCC (Crl.) 315; Subhash Chand v. State of Rajasthan JT 2001 (8) SC 505.
5. It is next contended that the underwear was sealed with the seal of KSS and none of the police officers of the team possessed the seal of KSS. The Investigating Officer who is examined as PW9 in his cross examination has stated that the said seal belonged to the Chowki Incharge. PW8 Constable Satyawan in his cross examination has stated that the said seal was retained by the Investigating Officer. The seized underwear was sent to CFSL after a delay of 1½ months, with the seal remaining with the Investigating Officer, thus chances of planting of the underwear to implicate the appellant cannot be ruled out. Even the place of seizure of underwear is discrepant inasmuch as PW1 has stated that it was seized on the spot whereas PW3 stated that the same was seized at the police station. The seizure of the underwear has not been proved as the independent witness PW2 Sitaram i.e the witness to the said recovery memo denies having witnessed the recovery of the underwear from the Appellant. Though PW8 Constable Satyawan deposes about the recovery memo however the same i.e Ex. PW2.C was not shown to this witness. It is stated that in the absence of the link evidence proving the underwear to be belonging to the Appellant, the liability of the offence under Sections 451 and 376 IPC cannot be fastened upon him and he is entitled to be acquitted.
6. Learned APP, on the other hand, contends that though PW2 in his testimony has stated that he saw the Appellant passing in front of the house, however in his cross examination by the learned APP, PW2 has affirmed his statement made before the police wherein he had stated about the presence of the accused inside the house. As regards the contradictions in the statement of PW2 and PW3, it is stated that their examinations in chief, if read in entirety, show that they have narrated the entire sequence of events. It is stated that under Section 313 CrPC, incriminating circumstances have to be put to the accused and not the evidence. Besides the police witnesses, PW3 has also stated about seizure of the Appellant's underwear. There is no force in the contention that the seal was retained by the Investigating Officer as the Investigating Officer PW9 has stated that he had returned the seal to the Chowki Incharge to whom it belonged. PW8 has stated that the Investigating Officer retained his own seal. Thus there is no contradiction between the testimonies of PW8 and PW9. The retention of the seal by the Investigating Officer has no bearing in the present case as the seal of the Chowki Incharge was used and not that of the Investigating Officer.
7. I have heard learned counsels for the parties and perused the record. PW2 Sita Ram, the complainant in his testimony before the court has stated that on 2 July, 1996 at about 6/6:30 pm, his mother along with his younger sister had gone out and at that time his sister, the prosecutrix who was mentally retarded, was alone at the house. He had gone to purchase “bidi machis” and when he returned after half an hour, he saw the Appellant Ashok passing in front of his house. When he proceeded towards his house; he noticed the kundi of the house lying open which was closed by him when he left the house. When he entered the house, he saw his sister lying on a cot. She started crying on seeing him and her clothes were also not at the proper place. He suspected something foul and apprehended the Appellant with the help of the neighbourers. He suspected that his sister had been raped, however, she could not tell anything as she was not in a position to say anything. This witness has been cross examined by the learned APP. However, in his cross examination though he reiterates that his statement Ex. PW2.A was recorded and then the same was read over to him by the I.O and thereafter he put his signature, however, he did not state to the police that about 7 pm when he came back he noticed the outside kundi of the door lying open and the door was bolted from inside and that when he knocked the door, accused Ashok Kumar who is known to him prior to the incident, opened the door from inside and tried to run away after pushing him and on suspicion, he over-powered him. Thus as per his testimony, the Appellant was only found passing in front of his house when he reached there and the kundi was lying open. PW3 the brother of the complainant, as per his testimony, had come only after his brother PW2 called him and on reaching inside the house he saw his sister, the prosecutrix lying on a cot and the Appellant was also present over there. Thus, this witness had reached the spot only after PW2 apprehended the Appellant on suspicion and called out PW3. This witness has made material improvement in his testimony as he stated that on enquiry his sister told him by spoken words that the Appellant had committed wrong with her. He has categorically stated that his sister has spoken by words and not by gestures. This part of the testimony of PW3 cannot be relied upon as firstly it is contrary to the testimony of PW2 who states that his sister was not in a position to tell anything and also in view of the observation of the learned Addl. Sessions Judge and the learned Metropolitan Magistrate (PW5) who have stated that the prosecutrix was not in a position to answer the question put to her coherently. Thus, from the analysis of the two testimony of these two witnesses, the two circumstances proved are - firstly, when PW2 reached, the Appellant was passing from in front of his house; secondly, on reaching inside, PW2 and PW3 saw that their sister was lying on the cot in a disarrayed condition with her clothes not in a proper position.
8. Both the prosecutrix and the Appellant were medically examined. Their clothes were seized and sent for CFSL examination along with the vaginal swab and cervical swab of the prosecutrix. As per the CFSL report Ex.PW9.F and 9.G human semen was detected on the vaginal swab, cervical swab and the petticoat of the prosecutrix and also on the underwear of the Appellant. Though the semen on vaginal swab gave no reaction, however, those on the cervical swab, petticoat and underwear were of “A” Group. Thus, the CFSL report Ex. PW9.F proves that the prosecutrix was subjected to sexual intercourse.
9. Learned counsel for the Appellant had laid much emphasis on the fact that the prosecution has not proved the link evidence as the underwear was not connected to the Appellant. I do not find any force in this contention of the learned counsel for the Appellant. The Appellant was apprehended at the spot immediately from outside the house. Vide seizure memo Ex. PW2.C, PW9 seized underwear of the Appellant. Though PW2 has not supported the prosecution case to this extent but he has admitted his signatures on the memo Ex. PW2.C. However, PW3 has stated that the underwear of the Appellant was taken into possession at the police station and this statement of PW3 is reliable because it is the case of the prosecution that immediately after the incident they took the Appellant and their sister to the police station. Moreover, PW8 Constable Satyawan who is the other signatory to the seizure memo has also stated that the underwear of the accused was seized vide Ex. PW2.C which bears his signature. Thus the link evidence to show that the underwear was of the accused has been proved by the prosecution.
10. Thus, the following circumstances have been proved by the prosecution:
1. When PW2 came back to the house after about half an hour, he saw the Appellant passing from in front of their house.
2. The kundi of the house which he bolted from outside when he left, half an hour earlier, was open.
3. On entry inside the house, they found the prosecutrix lying in a cot in a disarrayed condition.
4. The underwear of the Appellant and the petticoat and cervical swab of the prosecutrix had semen stains of blood group “A”.
All these circumstances conclusively prove that the offence of rape was committed on the prosecutrix as she was subjected to sexual intercourse. And as she was mentally retarded, she was not in a position to give her consent, thus without her consent she was subjected to sexual intercourse.
11. However, the moot question is whether the two circumstances i.e, the Appellant being found passing in front of the house of the prosecutrix when PW2 reached after half an hour of leaving her alone and the presence of “A” group human semen in her cervical swab and petticoat also found on the underwear of the Appellant, prove beyond reasonable doubt that the Appellant committed the offence of trespass and rape on the prosecutrix. At this stage it would be relevant to note that the area is a populated area where there are number of houses in the neighbourhood. The possibility that it was someone else who had trespassed and committed rape, cannot be ruled out. The circumstances mentioned above would have proved beyond reasonable doubt the guilt of the Appellant had it been a lonely place where nobody except the Appellant and the prosecutrix were present or the Appellant would have been found inside the house.
12. Blood group “A” is a very common blood group. The mere circumstance of group “A” semen being found on the underwear of the Appellant and the petticoat and cervical swab of the prosecutrix is not sufficient to rule out every other hypothesis of the innocence of the Appellant. In Shankarlal Gyarasilal Dixit (supra) the Hon'ble Supreme Court held:
“The discovery of a blood-stain of the ‘B’ Group measuring 0.5 cm in diameter on the appellant's pant and of a dried stain of semen on his underpant are circumstances far too feeble to establish that the appellant raped or murdered Sunita. ‘B’ Group is not an uncommon group of blood and no effort was made to exclude the possibility that the blood of the appellant belonged to the same group. As regards the dried stain of semen on the appellant's underpant, he was a grown up man of 30 years and no compelling inference can arise that the stain was caused during the course of the sexual assault committed by him on the girl.”
13. Though unfortunate that the offence of rape on a mentally retarded woman should go unpunished, however it would be more unfortunate and illegal to punish an accused against whom the guilt has not proved beyond reasonable doubt. In a criminal trial it is the duty of the prosecution to travel the long distance from “May be true” to “Must be true” and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. The circumstances should conclusively prove the guilt of the accused and rule out every other hypothesis of innocence of the accused.
14. There is yet another failure which has struck the final blow to the prosecution case. In the statement of the Appellant recorded under Sec. 313 CrPC, the first two questions put to him and their answers are as under:
“Q. It is in evidence against you that on 2.7.96 at about 7.00 p.m you entered in the house of Bhagwan Devi mentally retarded woman with an intention to commit rape what have you to say?
Ans. It is incorrect.
Q. It is further in evidence against you that Sita Ram after hearing the cries of Bhagwan Devi entered in the room and found that her clothes were not at proper place on her body and you were trying to escape from the said room, but you were apprehended by Sita Ram and other persons, what have you to say?
Ans. It is incorrect.”
These two questions are wholly incorrect. This was stated by PW2 to the police, on the basis of which the FIR was registered. He has not stated these facts in his statement before the court. In a statement of the accused under Sec. 313 CrPC, the court is required to put the incriminating circumstances which have come in evidence during trial and not the facts stated in the charge sheet. Thus, the material incriminating circumstances that have been adduced in evidence having not been put to the Appellant, a serious prejudice is caused to him.
15. At this stage, it would be appropriate to be reminded of the law laid down by the Hon'ble Supreme Court in Ranvir Yadav (Supra):
“5. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
6. The word ‘generally’ in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.”
16. For the reasons stated above, I am of the opinion that the Appellant is entitled to the benefit of doubt. The appeal is allowed and the Appellant is acquitted of the charges under Sections 376/451 IPC. The bail bond and surety bond are discharged.
(MUKTA GUPTA)
JUDGE
JANUARY 04, 2011
‘raj’
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