IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Appeal No. 501 of 2009 Date of Decision: 16th June, 2010 Rattan Dass. ….Appellant. Versus State of Himachal Pradesh. ….Respondent. Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes For the Petitioner: Mr. Satyan Vaidya, Advocate. For the Respondent: Ms. Ruma Kaushik, Additional Advocate General. Dev Darshan Sud, J. (Oral) The appellant is accused for offence under Section 376 of the Indian Penal Code. He was charged and tried for the offence and convicted by the learned Sessions Judge for rigorous imprisonment of seven years and fine of Rs. 20,000/- and in default of payment of fine, rigorous imprisonment for one year. 2. The prosecution case in brief is that the prosecutrix Mungla Devi, who was minor (which fact has not been disputed before me nor was it in issue before the learned Sessions Judge) has been subjected to repeated forcible sexual intercourse by the appellant, as a result of which she conceived and gave birth to a healthy baby girl. According to the case made out, the Prosecutrix was first subjected to forcible sexual intercourse by the appellant in the third week of 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 August, 2007 at which time she was a student of class nine. The case further is that the appellant, who was living with his four children in his house, raped the prosecutrix at night when she and his daughter Reema Devi PW 1 were sleeping on the same room. He threatened her that in case she disclosed this fact to any body, she would be visited with dire consequences. The case then proceeds that she again visited the house of the appellant after 2-3 days and at night again the accused/appellant committed rape on her. A week thereafter, she was again ravished by him. The case then continues that on 3.3.2008, the prosecutrix was called by Reema Devi, DW 1 to her house, where another person who was a stranger was present. He examined the prosecutrix and told her that she was pregnant. On this, the accused/appellant asked her to bring some new clothes, as she was to be taken to Chandigarh for medical treatment. She did not accept this and disclosed everything to Tulku Devi PW 3, her grand mother, and her father Balak Ram PW 2. She was taken to hospital in Rampur, where a healthy female child was delivered by her. The learned Sessions Judge, on the evidence on record, convicted the appellant for offences under Section 376 of the Indian Penal Code. In order to arrive at this conclusion, he places reliance on the testimony of prosecutrix PW 1 and Tulku Devi PW 3. 3. Before adverting to the submissions made by learned counsel Sh. Satyan Vaidya, learned counsel appearing for the appellant and learned Additional Advocate General, I must advert to the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure by the Judicial Magistrate on 23.6.2008. The facts as stated by her in her statement, which was recorded after ascertaining that she was capable of making such a statement on oath after understanding its implications and the consequences of speaking a lie on oath are that in August, 2007, there was a Mela in Village Surad where she had gone and was taken to the house of appellant by Reema Devi DW 1, daughter of 3 the accused/appellant. She stated that there at night she was subjected to rape in the presence of Reema Devi. Thereafter, on three different occasions after August, 2007, she was subjected to the same ordeal and trauma by the accused/appellant. She did not disclose this fact to any body as she was scared of the appellant, who had threatened her with dire consequences. On 3.3.2008 around about 9/10 A.M. in the morning Reema Devi called her to her house where one person was present. This person told her that she was pregnant, whereupon the appellant asked her to get some clothes, so that they go away. A sum of Rs. 10,000/- was promised to be given to her. She reported this matter to Tulku Devi, her grand mother as also to her father, who took her to hospital, where she delivered a female child. The prosecutrix states in no uncertain terms that the pregnancy is a direct result of the rape committed on her by the appellant. In her statement as PW 1, the prosecutrix has re-affirmed and re-iterated these allegations. What I find strange about the case is that blood samples of the accused, prosecutrix and as also of the baby were sent for forensic examination. The delivery, dispatch and analysis of the samples are not disputed by any one. However, the learned Sessions Judge holds on this ground that it was for the defence to prove that the samples did not match. I find this as a very strange approach to the case. The blood samples were taken by PW 5 Dr. Piyush Kapila, Assistant Professor Forensic Medicine IGMC, Shimla vide Ex. PW 5/A, Ex. PW 5/B and Ex. PW 5/C. The report of the Centre for DNA Fingerprinting and Diagnostics, Hyderabad has been placed on record by way of a supplementary challan on 6.5.2009. The appellant had been charged on 3.9.2008. No body including the Court has paid any attention to the supplementary challan. The report is clear and unequivocal that the DNA test performed on the prosecutrix and the baby did not match with that of the appellant. Surely, if this had been taken into consideration, the result would have been acquittal of the appellant, 4 disproving the allegations made against him. The prosecution case is that after repeated forcible sexual intercourse having been committed by the appellant on the prosecutrix, she conceived and delivered a healthy child, the natural conclusion is that the appellant would be the biological father of the baby. Learned Sessions Judge did not consider this fact and places burden of proof of this fact on the defence and not on the prosecution altogether the report of the expert was placed on the record by the prosecution itself. Even if the report of the Forensic Laboratory has not been proved by the prosecution, an adverse inference would be drawn against the prosecution under sub section (g) of Section 114 of the Indian Evidence Act. (See Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif and others AIR 1968 Supreme Court 1413, laying down the law that the best evidence should be brought on record irrespective of the onus). This proposition of law is now well established. The piece of evidence which was withheld was not one which could have been manipulated by the appellant, but one which was available with the prosecution only. The permission for DNA matching had also been taken by the prosecution from the Court. The report reads: “……….. RESULTS OF EXAMINATION The source of exhibit B (blood sample said to be of Baby Kaki) is matching with the DNA profile of the source of the exhibit A (blood sample said to be of Ms Mungla Devi). The material alleles present in the source of exhibit B are accounted for being present in the DNA profile of the source of exhibit A. However, the DNA profile of the source of the exhibit B (blood sample said to be of Baby Kaki) is not matching with the DNA profile of the source of exhibit C (blood sample said to be of Mr. Rattan Dass @ Ratnu). The 5 alleles shown by red colour in the enclosed table in the source of exhibit B are not accounted for being present in the source of exhibit C. CONCLUSION The DNA test performed on the exhibits provided is sufficient to conclude that the source of exhibit C (Mr Rattan Dass @ Ratnu) is not the biological father of the source of exhibit B (Babi Kaki). The source of exhibit A (Ms Mungla Devi) is the biological mother of the source of exhibit B (Baby Kaki)”. Adverting to the facts on record, I find that an application under Section 319 of the Code of Criminal Procedure was moved by the appellant, in which some very serious allegations were made. This application was filed after supplementary challan had been presented in the Court by the prosecution on 6.5.2009 alongwith report of DNA matching. The appellant therein had prayed that the case as set out by the prosecution was that the prosecutrix had become pregnant because of the rape committed on her by him and the prosecution had throughout dealt with the case in this light of this disclosure made by the prosecutrix. The appellant urged that the prosecution case was that the pregnancy was because of the alleged rape and not inspite of the rape. It was also pleaded that one Rinku who was on intimate terms with the prosecutrix was the biological father of the child and that he be impleaded as accused and his blood be sent for DNA matching. 4. Dealing with this application, the Court by a detailed order dated 21.10.2009 dismissed the application holding that the prosecution had taken a preliminary objection on the maintainability of the application on the ground that the charge was one of rape and did not involve determination of parentage of the child. Evidence had already been recorded and there was ample evidence on record to suggest that the appellant was guilty of offence under Section 376 IPC. The Court then holds that 6 it is beyond the jurisdiction of Criminal Court to decide the parentage of the child who had taken birth pursuant to the prosecutrix having been raped. The court holds:- “………….The charge against the accused is for committing rape with the victim and this Court had to decide on the prosecution evidence, statement of the accused and defence evidence whether the charge is established and proved against the accused for committing rape with the victim or not and it is beyond the jurisdiction of the Criminal Court to decide the parentage of the child who had taken birth to the victim after the alleged offence and more over no prosecution witness has alleged any such sexual relations of the victim with the person whose DNA test has been sought by the defence and the accused had examined his own daughter in his defence who has claimed that the victim had disclosed to her the factum of her pregnancy by such Rinku but since there is no material on record to proceed against such Rinku for any offence under Section 319 Cr.P.C. by impleading such Rinku as an accused and more over the defence has sought the intervention of this Court seeking DNA test of such Rinku and thereafter to implead as an accused under Section 319 Cr.P.C. but taking into consideration these facts and circumstances since the Criminal Court has not to decide about the parentage of the child of the victim as the charge against the accused is for committing rape…………………..”. This is the gist of the order passed by the Court. I do find it a bit strange that this line of reasoning has been adopted by the learned Trial Court. It was not the parentage of the child which was to be decided, but the involvement of the appellant in committing rape on the prosecutrix, as a consequence of which the child was born. The DNA report was a link in the chain of evidence which could 7 either exonerate or implicate the appellant. The prosecution case was not that the child was born in spite of rape. Had that been so, this line of reasoning would have been accepted. 5. DW-1 Reema Devi, daughter of the appellant has stated in no uncertain terms that the prosecutrix had very close and intimate relations with this Rinku and that no rape as alleged by the prosecutrix was committed on her by the appellant. The learned Judge has rejected this evidence by saying that it is not probable as she is an interested witness. The Court holds:- “…………The version of D.W.1 Smt. Reema Devi daughter of the accused claiming that the victim had disclosed her the cause of her pregnancy to be her cousion Rinku is not probable one as this defence witness is highly interested witness to save her father from the charge as the victim was found to be pregnant by the accused himself who called a person in his house for physical examination of the victim who found the victim to be pregnant and this fact was immediately disclosed by the victim to her grandmother P.W.3 Smt. Tulku Devi………….” It is thus clear that rape and pregnancy of the prosecutrix are inextricably entwined together. No doubt the prosecutrix was minor, but when the result of a scientific investigation was available with the Court and confirmation of a fact by sending the blood of Rinku for DNA examination, surely the Court should have considered this fact. In these circumstances, the conviction of the appellant could have been sustained only if the case was that the prosecutrix had been raped and no more. One another fact needs to be noticed that the prosecutrix was only about 14 years of age when she conceived the child. How she carried the pregnancy till the advanced stage of eight months without being 8 noticed by her grand mother, father or mother, is something, remains an obscure mystery on the record and has not been explained. 6. Subjecting a female to rape is mentally and physically traumatizing and can not be condoned under any circumstances. But in order to find a person guilty of such an offence, the evidence on record has to establish this fact beyond reasonable doubt and conviction can not be based on conjectures. It was the duty of the Court to consider the record of the DNA matching and then come to the conclusion as to whether the appellant was guilty of rape in spite of the pregnancy. This was required in the facts because the entire case was built on evidence of the prosecution on the allegations of rape and consequential pregnancy. Balak Ram, PW 2, who is the father of the prosecutrix states in his evidence that the appellant had called the prosecutrix three times in his house in August, 1997, raped her and thereafter called his daughter for abortion. PW 3 Tulku Devi, grand mother of the prosecutrix states that the prosecutrix informed this witness that she was called to the house of the appellant, where one person examined here and told her that she was pregnant and asked her to be prepared for abortion at Chandigarh. She says that the prosecutrix told her that she had become pregnant because of the rape. At this juncture, the evidence of PW 5 Dr. Piyush Kapila, Assistant Professor Forensic Medicine, IGMC, Shimla, who had taken the DNA samples, may be considered. He states that he had taken the blood samples of all the three i.e. the appellant, prosecutrix and also the baby. In his cross-examination, he says that even if the samples of the father and of the child are taken and matched the conclusion of paternity is certain. He testifies that if the DNA report goes against the prosecution the appellant cannot be the father of the child. 7. The other evidence on record is also required to be considered. The prosecutrix in cross-examination says that she, DW 1 Reema 9 Devi and the appellant were sleeping on the same bed when she was raped. This is very strange, as the room in which appellant along with his other six children was staying was only 10’X10’, as stated by the prosecutrix. She also carried the pregnancy till the advance stage, without being noticed by any one. These facts are strange and difficult to believe. However, even if, these facts are excluded, the other evidence on record and exclusion of the DNA report from the consideration, the evidence is perse sufficient to establish that there was no possibility of the appellant raping the prosecutrix. In case the sample of blood of the child had matched with that of the appellant, in that event, conviction would have been the only result. The statement of the prosecutrix in these circumstances can not be accepted. I accordingly hold that the prosecution has been unable to establish that the appellant was guilty of any offence. In these circumstances, the judgment of learned Sessions Judge is set aside and the appellant is acquitted of the offences under Section 376 of the Indian Penal Code. He shall be set at liberty forthwith, in case he is not required in any other offence. 8. Before parting with this case, I must express my anguish and displeasure in the manner in which the case has been conducted by the prosecutor and also in the manner in which the learned Sessions Judge has dealt with the criminal jurisprudence. Little care and caution should have been taken by the learned Sessions Judge to a citizen, who has spent more than two years in jail. June 16, 2010 (Dev Darshan Sud), (KRS) Judge