RATTAN DASS Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) 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 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 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, 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 v. Mohamed Haji Latif and Ors., 1968 AIR(SC) 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: