Suresh S/O Yellaji Yerewar vs State Of Maharashtra
2003 Latest Caselaw 744 Bom

JUDGMENT

R.S. Mohite, J.

1. This is an appeal filed by the appellant for quashing and setting aside the judgment and order dated 17-1-2003 passed by the 3rd Adhoc Additional Sessions Judge, Chandrapur in Sessions Case No. 109/1998 convicting the appellant for offences punishable under sections 376 and 323 of the Indian Penal Code. By the impugned judgment and order, for the offence under Section 376 of the Penal Code, the appellant has been sentenced to suffer three years' rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default to undergo further R.I. for two months. For the offence under Section 323 of the Penal Code, the appellant has been sentenced to suffer R.I. for one year and to pay fine of Rs. 100/-, in default to undergo further R.I. for one month.

2. The brief relevant facts of the prosecution case are as follows :

(A) That the prosecutrix Sunita was a deaf, dumb and mentally retarded girl aged about 20 years. She was residing along with her father Kuta, her mother and her brother. Her grandfather Gatu Bira Medewar used to reside adjacent to their house. Sunita was a girl who could not talk or walk properly. On 28-8-1997 Sunita's mother had gone to the field for doing plantation work. Her brother Vasanta had gone to see a movie and this Sunita was alone at home. At about 4 'O' clock, in the evening Sunita's grand father Gatu went towards the bathroom to put dung and there he saw that the present appellant had felled Sunita on the floor and was committing rape on her. Gatu accosted the appellant and asked him as to why he was committing such a act with a disabled girl. On being so accosted, the appellant put his clothes and ran away towards his house. Later the appellant came in front of his house intimated him and beat him with a stick on his left hand and back. Gatu raised hue and cry and neighbouring people gathered there. The appellant then fled away on seeing the gathering crowd. Gatu asked Sunita as to what had happened and Sunita informed him by gesture that appellant had lifted her, taken her to bathroom, removed her underwear and raped her. Gatu who had witnessed the incident, told about the same to Sunita's mother and other people. On the same day he lodged his First Information Report at Police Station, Mul and upon receipt of the complaint, the police registered the crime, completed investigation and finally filed charge sheet. In due course, the matter was committed to the Court of Session.

(B) At the trial, the prosecution examined in all six witnesses, of this; P.W.I - Dr. Savita Kadam was Medical Officer examined to prove the injuries on the person of Sunita, P.W.2 - Dr. Ramesh Renge was Medical Officer examined to prove the injury of Gatu, P.W.3 - Tulsabai Narewar and P. W.4 - Bira Narewar were persons residing in the neighbourhood who were examined to prove the assault on Gatu, P.W.5 and P.W.- 6 were police witnesses. It may be stated here that the prosecution did not examine Sunita for the reasons, which are not on record. They also did not examine Gatu, who expired pending the trial. After recording the statement under Section 313 of Criminal Procedure Code, no defence evidence was led and ultimately by impugned judgment and order, the trial Court convicted and sentenced the appellant for offences as stated hereinabove.

3. The contentions raised on behalf of the appellant can be summarised as under:

(a) That, notwithstanding the fact that Sunita was dumb and deaf, she was not an incompetent witness under Section 118 of the Indian Evidence Act. She cannot be automatically said to be an incompetent witness under Section 118 of the said Act. She should have been produced by the prosecution before the Court so that the Court could form an impression as to whether she is an incompetent witness. If she was a competent witness, she ought to have been examined by the prosecution. However, since the prosecution could not produce her at all, an adverse inference should be drawn against the prosecution.

(b) That Gatu was not examined and therefore, the F.I.R. could not be read as substantive evidence for any reason and could not be read in support of the prosecution case.

(c) That as far as the medical evidence is concerned, only injury found on . the person of Sunita was the rupture of hymen. However, in the cross examination of the Doctor, there were certain admissions of the Doctor brought on record such as, lack of reddishness or tenderness to the vagina. The fact of rupture of the hymen can be due to many factors, due to itching and fingering and that there were no external injuries on the person of the prosecutrix. It was contended that in view of this admission made by the Doctor, it would be unsafe to rely upon the medical evidence pertaining to the single injury.

(d) As far as the Chemical Analyser's report was concern, no sperm was, detected on the clothes, or pubic hair of the prosecutrix and that merely because blood was found on the washed underclothes, of the prosecutrix, the same by itself cannot be an incriminating circumstance because the prosecutrix was a grown-up girl.

4. The learned A.P.P. supported the reasoning and findings given by the trial Court. It was stated that Sunita could not have been examined as evidence indicate that she was mentally retarded girl. It was contended that the Court had rightly relied upon the F.I.R. of Gatu which supported the prosecution case. It was also contended that there were two independent eye witnesses insofar as the prosecution case of assault on Gatu was concern. It was further submitted that the appeal filed by the appellant ought to be dismissed.

5.I, now intend to deal with each of the contentions raised on behalf of the appellant:--

(a) As regards non examination of the prosecutrix Sunita, it is true that P.W.-l Dr. Savita Kadam in her cross-examination stated that she had put some questions to Sunita and had found that she was dumb, deaf and mentally retarded. The lower Court has also held that the non-examination of Sunita as a witness for prosecution did not adversely affect the prosecution case because Sunita was a retarded girl. Assuming for a moment that Sunita was retarded, that fact by itself would not render Sunita as an incompetent witness. In this connection, section 118 of the Indian Evidence Act is relevant, and the same is reproduced as under:

118. Who may testify. -- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."

Scheme of Section 118 indicates that the witness has to be produced in Court and the Court has to consider the question as to whether the witness is unable to understand the questions put to the witness or from giving rational answers to those questions. The explanation of Section 118 makes it very clear that a lunatic would not be incompetent to testify unless he would be prevented by his lunacy from understanding the questions put to him and giving rational answers to them. It may be stated here that when Sunita was taken for medical examination to the doctor, her thumb impression was taken below a writing about her willingness to get her medically examined. This would indicate that at the time of medical examination, the doctor considered Sunita to be a person who would be in a position to understand the writing relating to her consent made below the medical certificate. It is also relevant that there is nothing on record to indicate that Sunita was not a person who could understand questions put to her or give rational answers. Be that as it may, in view of Section 118 of the Evidence Act, the authority to decide whether such a person is competent witness, is a Court.

In the present case the provisions of Section 118 of the Evidence Act were lost sight of by the trial Court. The non-examination of Sunita, therefore is a fact which accrues to the advantage of the accused insofar as it deprived him of the right of cross examination the witness. It may also be mentioned that Sunita was also to be a dumb witness, it was contended on behalf of the appellant that a dumb witness was also not an incompetent witness, on the contrary Section 119 provided the manner in which the dumb witness could have given the evidence. It was pointed out that there was nothing on record to indicate that Sunita could not have made herself understood through intelligible signs. It was contended on behalf of the defence that the non examination of Sunita was a circumstance that deprived the defence from cross examining the material witness and to that extent was a circumstance which must held against the prosecution. There is substance in this contention made on behalf of the appellant at least insofar as the offence punishable under Section 376 of the Penal Code is concerned.

(b) Now, the second contention that the F.I.R. could not have to be used for any purpose as Gatu was also not examined by the prosecution as he died pending the trial. It was contended that the trial Court referred to the contents of the F.I.R. in paragraph 20 of the judgment and in fact the conviction was substantially based on the contents of the F.I.R. It was contended that the F.I.R was not a substantial piece of evidence and it can be only used through or contradict, who is maker under Section 145 of the Evidence Act or to corroborate under Section 157 of the said Act. In absence of the examination of the first informant, the contents of the F.I.R., cannot be used for any other purpose including the purpose of corroborating any other eye witness to the alleged crime. There is substance in this contention of the appellant. The Apex Court in the case of State of Bombay v. Rusy Mistry, held that, "The first information report is not substantive evidence, but can only be used to corroborate or contradict the evidence of the informant given in Court or to impeach his credit. It follows that a Judge cannot place such a report before the jury as substantive evidence but can only refer to that portion of it which had been used for one or other of the aforesaid purposes." Further the Apex Court in a case of Hasib v. State of Bihar, laid down the law relating to a F.I.R. as under :

"The object of first information report from the point of view of the informant is to set the Criminal law in motion. From the point of view of the investigating authorities, it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose of contemplated Section 157 or Section 145 of the Evidence Act, that is for corroborating or contradicting its maker and not of other witnesses".

To my mind, once the first informant is not examined, even if the F.I.R. is proved and exhibited through the investigating officer, all that can be read from the evidence of the Investigating Officer is the fact that, F.I.R. was in fact recorded at the date and time mentioned by the Investigating Officer in his evidence. The contents of the F.I.R. cannot be used for any purpose to base the conviction save and except in a situation where the F.I.R. is a statement as contemplated under Section 32 of the Evidence Act. In this view of the matter, no relevance can be placed on the contents of the F.I.R. of Gatu and the trial Court was in error in passing the conviction inter alia upon the contents of the F. I. R,

(c) That brings us to third circumstance relating to the injury found on the body of Sunita. No doubt, hymen of Sunita was found ruptured. However, in the cross examination the doctor gave the following admissions:

"If there is a rupture in hymen then, reddishness and tenderness to vagina appears. These symptoms are not mentioned in certificate Exh. 19.

Colour is essential factor to decide the age of rupture of vagina. I have not mentioned the colour in my report. There are so many factors such as itching, fingering for the rupture of hymen in vagina. If lady is ravished by forcible intercourse, then the injuries (external) on her person must appear. In my report Exh. 19 I did not find the external injuries on the body of Sunita."

In my view these admissions raise doubt regarding age of the rupture of the vagina. No other injury is found on the body of Sunita and it would be dangerous to pass a conviction merely on the fact that the hymen of Sunita was found ruptured.

(d) The last circumstance was regarding finding of blood on the underclothes of Sunita. The Chemical Analyser has recorded that underclothes appear to have been washed. Admittedly, no semen was found either on the pubic hair, underclothes or vaginal swab of Sunita. In my view finding of washed blood on the underclothes of adult girl by itself cannot be said to be a major circumstance in favour of the prosecution as the finding of such blood could be due to variety of reasons including menstruation.

6. Insofar as the offence under Section 323 of the Penal Code is concerned, I find that there are two independent eye witnesses about the beating given to Gatu, The fact that Gatu was beaten by the present appellant is referred to by P.W.-3 Tulsabai and P.W.-4 Bira who claimed to have been eye witnesses to the beating. There is nothing in the cross-examination of these witnesses to shake their evidence. The reasons given for accepting the evidence according to me are proper.

7. The net result is that the appeal partially succeeds. Conviction of the appellant for the offence punishable under Section 376 of the Indian Penal Code and his sentence of three years' rigorous imprisonment and fine of Rs. 1,000/-(rupees one thousand only) in lieu of the said conviction is hereby quashed and set aside. However, the conviction of the accused for the offence punishable under Section 323 of the Indian Penal Code and the sentence imposed on him in lieu of such conviction is hereby confirmed. If the appellant has paid the amount of Rs. 1,000/- for his conviction under Section 376 of the Penal Code, he will be entitled for refund of the same.