Criminal Appeal No 738 of 1981
From the Judgment and Order dated 2981980 of the Himachal Pradesh High Court in Criminal Appeal No 41 of 1980
Balakrishna Gaur Amicus Curiae for the Appellant
KG Bhagat Harish Kumar Sharma and Ms A Subhashini for the Respondent
The Judgment of the Court was delivered by AHMADI J
The appellant Prithi Chand a youth of about 18 years was prosecuted for committing rape of PW I Kancha na Devi a girl of tender age of 11 or 12 years on the afternoon of 15th June 1979 at a place known as Kutkharpati in village Kot Tehsil Palampur of Himachal Pradesh
The learned Sessions Judge convicted him under Section 376 IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs2000 in default to suffer rigorous imprisonment for a further period of two years
On appeal the High Court while confirming his conviction under Section 376 IPC reduced the substantive sentence from imprison ment for life to rigorous imprisonment for seven years but retained the order regarding payment of fine 126 and the punishment in default thereof
Thereupon the appel lant has approached this Court under Article 136 of the Constitution of India
The facts in brief are that PW I Kanchana Devi had gone to Balarahi Khad with her two younger sisters on the morning of 15th June 1979 for taking a bath
After the bath when she was returning to her residence the appellant met her on the way and asked her to permit him to have sexual inter course with her
She resented this behaviour of the appel lant and with a view to avoiding him changed her route
But the appellant intercepted her and offered her Rs5 for permitting him to have sexual intercourse with her
On the prosecutrix refusing the appellant physically lifted her and took her to a shallow place removed her trousers Salwar and after removing his clothes committed rape on her on account whereof she began to bleed profusely
After satisfy ing his lust the appellant gave her a few leaves to wipe her vagina
On hearing a call from PW 7 Sandhi Devi who was looking for her daughter the appellant ran away
The prose cutrix returned home
Her trousers were stained with blood
She narrated the incident to her mother PW 6 Vijaya Devi and thereafter to the other ladies of the village who had in the meanwhile collected at her residence
The mother and the other ladies examined the vagina of the girl and found that the same was ruptured and bleeding
As her father was not at home her mother could not decide on the course of action
On the return of her father PW 3 Bali Ram she narrated the incident to him whereupon the Sarpanch of the village PW 12 Chaturbhuj was informed about the incident who advised them to report the matter to the police in the morning since it was too late to travel to the Police Station
On the next morning the prosecutrix her parents and the Sarpanch went to the Police Station where the girl filed the report which is on record at Exhibit P A PW I Kanchana Devi narrated the incident as stated above in detail in her deposition before the Court also
Except for one or two minor omissions her evidence is consistent with the report Exhibit P A She has stated that on that afternoon the appellant forcibly lifted her and took her to the lower level where he had sexual intercourse with her
According to her the appellant removed her trousers there after removed his clothes and despite resistence from her inserted his organ into her vagina as a result whereof she experienced great pain and began to bleed profusely
She disclosed this fact to her mother PW 6 Vijaya Devi as well as to the neighbours PW 7 Sandhi Devi
and PW 8 Phulan Devi
On the return of her father PW 3 Bali Ram she narrated the incident to him
All these witnesses support the version of 127 the prosecutrix
The Sarpanch PW 12 Chaturbhuj has also stated that when the prosecutrix was brought to him she was wearing a blood stained Salwar and had complained that the appellant had raped her
PW 4 Julfi Chowkidar of the vil lage stated that the prosecutrix had pointed out the place of occurence wherefrom blood stained leaves were attached by the police under seizure Memo exhibit P B PW 5 Kishori Lal supports him
The prosecutrix was examined by Dr CS Vedwa who had issued the Medical Certificate exhibit P E dated 16th June 1979
The Medical Certificate shows that the prosecutrix had not developed secondary sex characters auxiliary and pubic hair were absent and there were abrasions of 3  x 18  and 2  x 18  on the lumber region
She also found signs of inflamation around the vulva the vagina was bleeding the hymen was absent with the edges torn and there was tender ness all around
The hymen was bleeding on touch and the vagina admitted one finger with difficulty
The girl s Salwar was blood stained
It was taken in a sealed packet along with two slides and swabs
Unfortunately this lady Doctor who had delivered a child was not available for giving evidence as she had proceeded on long leave
The learned Sessions Judge felt that it would not be possible to secure her presence without undue delay and therefore permitted the prosecution to prove the certificate through PW 2 Dr Kapila who was conversant with her hand writing and signature he having worked with her for about two years
He stated that the carbon copy of the certificate Ex P E was prepared by Dr Vedwa by one process and bears her signature
The learned counsel for the appellant contended that this certificate was inadmissible in evidence since the prosecution has failed to prove that the original certifi cate was lost and not available
Section 32 of the Evidence Act provides that when a statement written or verbal is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay the same is relevant and admissible in evidence
Besides since one carbon copy was made by one uniform process the same was primary evidence within the meaning of explanation 2 to Section 62 of the Evidence Act
Therefore the medical certificate exhibit P E was clearly admissible in evidence
That apart there is strong reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant
PW 2 Dr Kapila examined the appellant on 31st July 1979
He found him to be well nourished and well developed for his age the beard had started to grow pubic hair were present and the scrotum 128 and penis were well developed
In the opinion of the witness the appellant was fit to indulge in sexual intercourse
It was however argued that having regard to the girl s age and the fact that her vagina admitted one finger with difficul ty it is not possible to believe that there was penetra tion
The argument overlooks the fact that in the absence of penetration there would not be absence of hymen with the edges torn and profuse bleeding from the vagina staining the Salwar
Merely because the Doctor found that the vagina admitted one finger with difficulty it cannot be inferred that there was no penetration as the muscles must have contracted by then
The appellant a robust man must have penetrated the vagina for otherwise there would not have been so much of bleeding
Surprisingly no question was put to Dr Kapila to solicit his opinion in this behalf
PW 9 Dr Mahajan examined the prosecutrix with a view to ascertaining her age
After her radiological examination he opined that she was between 8 V2 and 12 years of age on the date of the incident
The evidence of this witnesses corrob orates the say of the prosecution witnesses that she was around 11 or 12 years of age on the date of the incident
The leaves attached from the place of occurrence the slides the swabs and the Salwar were forwarded to the Chemical Analyser and Serologist for examination and report
Exhibit P N shows that there was blood on the leaves and the Salwar
However no spermatozoa were found on any of the exhibits
The report of the Serologist exhibit P O shows that the Salwar was stained with human blood while the origin of the blood stains on the leaves could not be determined on account of disintegration
This evidence would also go to support the say of the prosecution witnesses that there was profuse bleeding from the vagina
The learned counsel for the appellant submitted that there was delay in filing the First Information Report
We do not think so
Immediately after the incident was narrated to the mother and other ladies a decision was taken to await the return of the father before deciding on the course of action
On the arrival of the father the Sarpanch was contacted who advised that the police should be informed about the incident
The Sarpanch however stated that he would accompany them next morning since it was already dark
The girl was taken to the Palampur Police Station on the next morning and the FIR was lodged
We therefore do not think that there was any delay in reporting the matter to the police
129 It was next contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and that girl s father
The prosecutrix has in her deposition stated that the two families were not on talking or visiting terms since their relations were strained
It was suggested in the course of cross examina tion that Ratna the son of PW 8 Phulan Devi was intimate with the prosecutrix and he had raped the girl
In his statement under Section 313 of the Code of Criminal Proce dure he put forth the case that when he returned to his village in the evening he saw some ladies at the girl s house and heard the girl saying that she was subjected to rape by Ratna
It is not possible to believe that the prose cutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the com mission of the crime
Except for the suggestion made in the cross examination of PW 8 Phulan Devi Ratna s mother and the statement under Section 3 13 of the Code of Criminal Procedure there is no other material on record which can give credence to the suggestion
Lastly it was argued by reference to AW Khan vs State AIR 1962 Calcutta 641 Gorakh Daji Ghadge vs State of Maharashtra and Padam Bahadur Darjee vs State of Sikkim that since the girl was of tender age the possibility of her wrongly involving the appellant cannot be ruled out and this possibility is strengthened by prior enmity absence of spermatozoa and infirm medical opinion
We have already examined the argument of enmity as well as the so called infirmity in medical evidence
Mere absence of spermatozoa cannot cast a doubt on the correctness of the prosecution case
We have carefully gone through these decisions and we think they turn on the facts of each case
In view of the above we see no merit in this appeal and dismiss the same
NPV Appeal dismissed


Summary:
Rule 23 of the Prevention of Food Adulteration Rules 1955 prohibits the addition of any colouring matter to an article of food except as specifically permitted by the rules
Rule 28 interdicts use of coal tar food colours or a mixture thereof except those specifically enumerated there in in food
Item 2 of the said list includes sun set yellow FCF 
Rule 29 prohibits the use of even the coal tar food colours permitted under Rule 28 in or upon any food other than those enumerated in Rule 29 Fruit products  was one such item of food so enumerated under clf of Rule 29 as it stood at the relevant time
Section 16 of the Preven tion of Food Adulteration Act 1954 provides for punishment of the offenders
The appellant a tradesman was found guilty by the Trial Court of the offence of selling Kesari coloured sweet supari sali  adulterated with yellow basic coal tar dye and sentenced to one year s simple imprisonment and a fine of Rs2000 both being statutorily compulsory 139 minimum sentences under section 161ai of the Act
He was however acquitted of the charge by the first appellate court but on appeal by the State the High Court reversed the judgment of acquittal and restored the conviction and sen tence
In this appeal by special leave it was contended for the appellant that the legislation being penal the expres sion Fruit products  in Rule 291  should receive a rea sonably liberal construction and if so construed supari  being basically and essentially an yield of the arecapalm would reasonably admit of being considered such a fruit product in which the use of coal tar colours was not prohib ited
In the alternative it was contended that supari  in the form in which it was offered for sale in this case was a flavouring agent  within the meaning of Rule 29m in which case also the use of permitted coal tar food colours was not prohibited
It was further contended that the appel lant having acted bona fide on a particular understanding of Rule 291 which could not be said to be wholly implausible he should be entitled to the benefit of doubt
Lastly a grievance was made that the appellant who was a small time tradesman and had purchased the supari from a big manufac turer to sell in retail had alone been exposed to prosecu tion while the distributor had gone scot free
Dismissing the appeal HELD 11 The scheme of Rule 23 28 and 29 of the Pre vention of Food Adulteration Rules 1955 makes it apparent that coal tar food colours permitted by Rule 28 can be used if the food articles in question are Fruit products  as understood in Rule 291
144C F 12 Supari  in the form in which it was offered for sale in the instant case though vegetative in origin and derived from and prepared out of the usufruct of areca palm does not admit of being classified as a Fruit product  under Rule 291
Merely because a particular article of food was of plant origin did not render that article neces sarily a Fruitproduct 
Even products derived from or associated in their origin with fruits need not ipso facto be Fruit products  for purposes and within the meaning of Rule 291
Item 16 of Appendix B to the Rules which dealt with Fruit products  referred to juice syrup squash beverage drinks sauce ketchup relish marmalade chatni etc
That indicated what were envisaged as Fruit products  in Rule 291 Supari  also does not admit of being classi fied as a flavouring agent  under Rule 29m
145F H 146A 140 2
The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes
The Court is not entitled to decline to determine the legal meaning of a statute on the principle of non liquet
In the instant case a wider con struction of Fruit Products  in clf which is in the nature of exception to Rule 29 results automatically in a corresponding narrower construction of the substantive provision in Rule 29
This is not a case of relieving provi sion excepting from the definition of an offence where the rule of construction against doubtful penalisation operates
The offence is really a violation of a prohibition imposed on a penalty as a social defence mechanism in a socio eco nomic legislation
The construction appropriate to such a legislation would be one which would suppress the mischief aimed at and advance the remedy
It would therefore be a strain on the statutory language and the statutory scheme to include supari  in the form in which it was sold within Fruit products  as understood in clf of Rule 29
150A D Planters Nut and Chocolate Co Ltd vs The King  Ramavatar Budhai Prasad vs The Assistant Sales Tax Officer XII STC 286 Municipal Corpn
vs Kacheroo Mal   Goodfellow vs Johnson 1965 1 All ER 941 and Criminal Law Smith  Hogan 5th Edn
p 92 re ferred to
31 The question of what a word means in its context within the Act is a question of legal interpretation and therefore one of law
The choice of the proper rule of construction to be applied to ascertain the meaning is again a matter of law
To countenance the contention of the appel lant that he had acted bona fide on a particular understand ing of Rule 29f would be to contradict one of the funda mental postulates of a legal order that rules of law enforce objective meaning to be ascertained by the courts and to substitute the opinion of the person charged with the breach of the law for the law itself
Otherwise the consequence would be that whenever a defendant in a criminal case thought that the law was thus and so he is to be treated as though the law was thus and so that is the law actually is thus and so
150D G United States vs Wurzbach   399 Criminal Law Smith  Hogan 5th Edn
p 70 referred to 32 The statute prescribes a strict liability without need to establish mens rea
The actus reus is itself an offence
There might be cases where some mental element might be a part of the actus reus itself
This is not one of those cases where anything more than the mere doing 141 of the prescribed act requires to be proved
The appellant is therefore not entitled to the benefit of doubt
151F Pyarali K Tejani vs MR Dange 1974 2 SCR 154 Goodfellow vs Johnson  Smedleys Limited vs Breed and Criminal Law Smith  Hogan 5th Edu
p 92 referred to
The big offenders who manufactured the supari  and who distributed them to the retailer in the instant case have gone scot free
The offence was committed ten years ago and the appellate court had acquitted the appellant
Fur thermore the expression Fruit products  in Rule 29f in the context of what the delegated legislative authority really meant and wanted to convey was not a model of preci sion and has since been deleted enumerating in its place precisely the specific products in which the food colours permitted by Rule 28 could be used leaving no room for the possibility of any argument of the kind advanced in this case
153D E F This is therefore a fit case in which the appropriate Government should exercise its executive powers of remission of the substantive sentence of imprisonment though not of fine under section 432 Cr
PC or under other law appropriate to the case
The imposition of the substantive sentence of imprisonment on the appellant to be postponed till his prayer for remission which he shall make is considered and disposed of
153G H 154A B Ganeshmal Jashraj vs Govt
of Gujarat and Anr
  and Inderjeet vs UP State   referred to