Deepak Gupta, J.
1. This appeal by the State is directed against the judgment of the learned Sessions Judge, Kangra at Dharmshala, in Sessions Trial No. 5 of 1994 whereby he acquitted the accused of having committed an offence punishable under Section 376 IPC.
2. The prosecution story in brief is that one Bimla Devi, who is a Nepali, was residing in a hut at Ghera near Gaj Project site alongwith her husband Man Bahadur. They had three children. One daughter, Lovely aged about 5 years, younger daughter (name withheld) aged about 2-1/2 years and son Veeru aged about one year. Both Bimla Devi and her husband worked as labourers in the Gaj Project. The respondent-Amin Chand, who was also a labourer, lived in another hut nearby. It is alleged that on 28.11.1993 at about 4.30 p.m. Bimla Devi and her husband were sitting in their hut. Their children were playing in the hut of the accused. Bimla Devi heard the cries of her younger daughter. She rushed towards the hut of the accused. When she reached the hut of the accused she found that the accused was lying on the top of her younger daughter who was only aged about 2-1/2 years. The accused was naked below the waist and his Pajama was lying near his feet. She caught hold of the accused by his coat and pulled him away. She saw that the private parts of her daughter were bleeding. She called for her husband, who reached the spot and the accused was beaten up. The child, who had been raped, was carried to the Police Station and on the basis of the complaint made by Smt. Bimla Devi, FIR No. 345 of 1993 was recorded against the accused. The prosecutrix was subjected to medical examination. After completion of the investigation challan was filed against the accused.
3. The accused pleaded not guilty and claimed trial. The prosecution examined a number of witnesses in support of its case. The accused has been acquitted by the learned trial Judge and hence the present appeal.
4. The main ground for acquitting the accused was that Section 157(1) of the Code of Criminal Procedure was not complied with and there was delay in sending the report of the F.I.R. to the Magistrate. The second ground which weighed with the learned trial Judge was that the sealed packets containing the frock of the victim, two slides of vaginal smear and swab which were removed from the thighs and perineal region of the victim had been sent to the Forensic Science Laboratory by PW-8 on 30.11.1993 through PW-7 constable Arvind Kumar and the link evidence regarding these vital pieces of evidence is missing. The learned trial Court also held that the prosecution version could not be believed since the father of the prosecutrix was engaged in the sale of Rum to which the accused had objected and therefore, false case may have been lodged against the accused.
5. We have heard Shri Ram Murti Bisht, learned Deputy Advocate General for the State and Shri G.D. Verma, learned Senior Advocate on behalf of the respondent.
6. It has been urged on behalf of the State that the learned trial Judge has approached the case in a very hyper technical manner and has wrongly discarded the statements of the eye-witnesses. It is alleged that the statements of the eye-witnesses completely support the prosecution version and there was no reason, to discard their testimony.
7. On the other hand, Shri G.D. Verma, learned Senior Advocate, has urged that the learned trial Court rightly acquitted the accused. He urges that in exercise of the appellate jurisdiction we should not interfere in the judgment of the trial Court.
8. PW-3, Smt. Bimla, is the mother of the prosecutrix. She states that the prosecutrix was only 2-1/2 years old. The prosecutrix alongwith her siblings was playing in the hut of the accused. The witness heard the cries of the prosecutrix. She went to the hut of the accused and found that the accused had made the prosecutrix lie on a Takhtposh (wooden cot). The Pajama of the accused was lying near his feet. The accused was committing sexual intercourse with the 2-1/2 year's old minor child. The witness caught hold of the accused by his coat and pushed him away from the minor girl. She found that the vagina of the prosecutrix was bleeding. In the meantime, her husband reached the spot and he gave two three blows to the accused. She and her husband immediately took the child to the police station and lodged the F.I.R. Thereafter, the prosecutrix was taken for medical examination. The witness states that the frock of the child was taken into possession by the police. Sealed parcel with seal of the FSL intact was produced and on opening the parcel was found to contain a frock which the witness identified to belong to her daughter. The witness also states that one Pushpa and Shibu had reached the spot thereafter.
9. She was cross-examined but the main thrust of the cross-examination is that the two daughters are not from the loins of Man Bahadur but from the lions of one Hira Lal. It has been suggested to the witness that she has been married on a number of occasions. It has also been suggested that her husband was not present at the spot since the occurrence took place during working hours. She denied the suggestion. She has also denied the suggestion that due to the sound of the river Gaj no cries can be heard. A suggestion has been put to the witness that she and Man Bahadur are engaged in sale of illicit liquor to which the accused objected and that is why the relations were strained. She has denied the suggestion that at about 5.30 or 6.00 p.m. on the date of occurrence her husband Man Bahadur had a quarrel with the accused in regard to distillation of illicit liquor and therefore, the accused has been involved in this case. She admits that Purshotam had reached the spot soon after the occurrence.
10. Man Bahadur was examined as PW-4. He stated that he was working as a labourer and residing with his wife and his children including the prosecutrix. On the date of occurrence the accused was alone in his hut. He had returned to his hut at about 4-4.30 p.m. His wife heard the sound of his child crying and asked him to go to the hut. He told his wife to herself go there and then his wife went to the hut of the accused and immediately shouted that the child has been killed by the accused. On reaching the hut of the accused he found that his daughter was bleeding from her private parts. The Pajama of the accused was lying at his feet and the lower part of his body was naked. The witness then beat the accused and then they took their daughter to the police station for filing the report. After that she was taken to the hospital for medical examination. In cross-examination, it has been suggested to the witness that he was at work at about 4 O'clock and had not returned home. He has denied the suggestion that he and Bimla were not married. The other suggestion put to him is that the accused has been falsely implicated since the relations between the two were inimical.
11. PW-5 Parshotam is a tailor, who lives nearby. He turned hostile. According to him, he heard the sound of a fight at about 5.30 p.m. and saw Man Bahadur and the accused were fighting but did not go to the place where the fight was taking place. He was declared hostile and cross-examined by the public prosecutor. He, however, did not support the prosecution at all. In cross-examination, he stated that Man Bahadur sells illicit liquor. According to this witness, he had not seen the prosecutrix in an injured or bleeding condition. He further stated that the accused was objecting to the sale of liquor by Man Bahadur and that Man Bahadur had threatened the accused that he would involve him in a false case.
12. Statement of PW-6 Makar Bahadur is not very relevant since he is only a witness to the recovery of the blood stained earth and the Pajama allegedly worn by the accused.
13. The most important evidence is of PW-1 Dr. Shashi Mahajan, who had examined the prosecutrix. She states that on 28.11.1993 at about 8.10 p.m. she had examined the prosecutrix, who was a child about 2 years old. On examination of the child she found that medial side of both her thighs and legs were soiled with blood. Clotted blood was found on the vulva. On cleaning the vulva and after separating the libia majora, fresh blood was found coming out of the vagina and from the perineal tear. There was a first degree perineal tear. The Vagina could only admit little tip of finger and hymen and surrounding areas were red, congested and tender. She took two vaginal smears and prepared two slides and handed over the same to the police. The child was wearing the same clothes which she was wearing at the time of the occurrence, which she also took into possession and sealed with the seal of hospital and handed over the same to the police. The opinion of the doctor is as follows:
From the above findings there was definite evidence of introduction of foreign substance into the interoitus and anal region. Duration of the introduction of the foreign substance was within 4 to 8 hours. Child was admitted for observation. I have also written down the identification mark of the child examined by me (name withheld) the child, who is present in the Court today is the same child which I had examined on that day. The medico legal certificate issued by me is Ex.PA, which is written and signed by me. Foreign substance can be penis as well. There was partial penetration. An inch or two of the penis might have been introduced into the vagina of the child. Introitous is a portion of the vagina which is a small portion inside the vulva and vagina. Even after penetration hymen is not (...not eligible...) to be ruptured in some cases in adult girls and in case of children hymen is very high and it cannot rupture and complete penetration in case of small children is not possible.
14. The only cross-examination to this witness is that this injury can be caused if somebody forcibly inserts something blunt like a thumb into the vagina. Other line of cross-examination is that if a person like the accused lies on the child with full weight and pressure the child can suffocate and die.
15. PW-2, Dr. Atul Mahajan, examined the accused on 29.11.1993 at about 4.30 p.m. and he found lacerated wound and bruise on the person of the injured. He also found the accused capable of sexual intercourse.
16. PW-7 Arvind Kumar has stated that on 30.11.1993 the MHC handed over to him three sealed parcels with seals intact to be taken to the office of FSL, Shimla and he deposited the same in the office of FSL on 1.12.1993.
17. PW-8 Sarup Kumar, MHC, Police Station Dharmshala, states that on 29.11.1993 the Investigating Officer deposited with him three sealed parcels which he entered in the register of Malkhana and kept them in safe custody and on 30.11.1993 he handed over the same to Arvind Kumar for taking to the FSL, Shimla.
18. PW-9 Pritam Singh is the Investigating Officer. He states that the parcels were deposited by him with the MHC for sending them to the FSL, Shimla. He has been cross-examined and states that CJM is the Illaqa Magistrate of the area and if the CJM is absent the report of the F.I.R. was required to be sent to the Additional CJM. A suggestion has been put to him that the F.I.R. was recorded much later, after due deliberation and consultation by ante timing and ante dating the same.
19. From the medical evidence on record, it is clear that the 2-1/2 years old minor child was subject to gross sexual abuse. We are constrained to observe that the learned trial Court approached the case in a totally callous and insensitive manner. He did not take into consideration the fact that the victim was a minor child, 2-1/2 years old and she was the daughter of two labourers.
20. The main ground which weighed with the trial Court was that though the F.I.R. was lodged on 28.11.1993 at 6.45 p.m., barely two hours after the incident but the copy of the same was sent to the Chief Judicial Magistrate, Dharamshala, only on 13.12.1993. These observations of the learned trial Court are totally incorrect and not borne out from the record. There are two endorsements of the receipt of the F.I.R. Ext.PC. The first endorsement reads thus: 'Received at 12.00 p.m on 29.11.2009 at my residence'. This endorsement has been signed by the SDJM, Kangra. Thereafter, there is another endorsement which reads 'seen' and signed by the Chief Judicial Magistrate, Kangra at Dharamshala. This endorsement bears the date 13.12.2009. According to the learned trial Court, under Section 157 of the Code of Criminal Procedure the Ilaqua Magistrate was the Chief Judicial Magistrate, Kangra at Dharamshala and in his absence the Additional Chief Judicial Magistrate at Dharamshala. There is nothing on record to show that both these magistrate were not available. The. constable who took the F.I.R. to the Magistrate has not been examined and therefore, he has come to the conclusion that the F.I.R. might not have been recorded on the date and time mentioned therein.
21. Section 157 of the Code of Criminal Procedure is a salutary provision which casts a duty on the Investigating Officer to forthwith send the report of the cognizable offence to the concerned magistrate. The purpose is to keep the concerned Magistrate informed of the investigation of cognizable offence so that the concerned Magistrate may be able to control the investigation and if required to issue appropriate directions. It is well established that mere delay of prosecution in lodging the F.I.R. is not sufficient to throw away the prosecution case in its entirety.
22. The learned trial Court totally ignored the fact that copy of the F.I.R. bore a receipt showing that it had been received at 12 p.m. i.e. midnight of 29.11.2003 at the residence of the Sub-Divisional Judicial Magistrate, Kangra, Thus, within 4 to 5 hours of the recording of the F.I.R. the same was received by the Magistrate. Even if he was not the concerned magistrate then also the mere fact that a Magistrate had received the copy of the F.I.R. at mid night shows that the F.I.R. had been recorded before the said time. It could not have been fabricated thereafter. The learned trial Court also did not look into the record of the case wherein there is a letter dated 2.12.1993 sent by the Sub-Divisional Judicial Magistrate, Kangra to the Chief Judicial Magistrate, which reads as follows:
To
The Chief Judicial Magistrate,
Kangra Dharamshala
No. SDJM/FIR/Kangra/93-4019 dated 2.12.1993.
Sub.: F.I.R. No. 345/93 Under Section 373 IPC Police Station Dharamshala.
Sir,
I have the honour to send herewith F.I.R. No. 345/93 under Section 376 IPC Police Station Dharamshala, which has been received on 29.11.1993 at 12.p.m as the Police station falls in your jurisdiction.
End: FIR No. 345/93
Yours faithfully,
Sub-Divisional Judicial Judicial
Magistrate, Kangra, H.P.
23. This letter clearly shows that the Sub-Divisional Judicial Magistrate, Kangra, had received the report of F.I.R. No. 345/93 under Section 376 IPC on 29.11.1993 at about 12.00 p.m. This also rules out the possibility of fabrication of the F.I.R. or the same having been recorded after due deliberation.
24. There is an order on the record of the file dated 30.11.1993, which reads as follows:
30.11.1993 Accused Amin Chand aged 55 years son of Nihal Das R/o Kareri P.S. Dharamshala produced before me in the custody of LHC Gian Chand No. 449 and under the supervision of ASI Pritam Singh, Investigating Officer in case F.I.R. No. 345 of 1993, under Section 376 IPC, Police Station Dharamshala.
The Investigation officer has moved an application for judicial remand of the accused for 15 days as the accused is no more required by the police for further investigation. No application for bail has been moved on behalf of the accused. The accused is remanded to judicial custody for 14 days and he be produced in this Court on 13.12.1993 at 10 a.m.
Announced: 30.11.1993
(George)
Chief Judicial Magistrate,
Dharamshala.
25. A perusal of this order clearly shows that on 30.11.1993 the accused had been produced before the Chief Judicial Magistrate. Therefore, even if there was any lapse on the part of the prosecution in sending the F.I.R. to the (concerned Magistrate) then also no prejudice was caused to the accused because the F.I.R. was recorded without delay and report sent to a Magistrate. The aforesaid order was passed on the remand application submitted by the prosecution, original of which is on record. This remand application gives entire details of the occurrence and on the basis of the detailed facts given therein, which completely tally with the F.I.R., the application was moved on 30.11.1993 before the Chief Judicial Magistrate, Dharamshala.
26. The next ground which weighed with the learned trial Court was that according to the police the Investigating Officer had deposited three sealed packets containing the case property with PW-8 MHC Sarup Kumar on 29.11.1993 and these sealed packets were sent to the FSL, Shimla, by PW-8 through PW-7 constable Arvind Kumar on 30.11.1993. These packets contained the frock of the victim, two slides of vaginal smear, and swab which was removed from the thighs and perineal region of the victim. The learned trial Court has come to the conclusion that the Medico Legal Certificate Ext.PA shows that the MLC and the sealed packets containing the aforesaid three items were sent to the police station by Dr. Shashi Mahajan through constable Shashi Pal No. 777 on 30.11.1993. The learned trial Court has doubted the prosecution version on the ground that since these parcels were sent on 30.11.1993 how they could have been received by the MHC on 29.11.1993. The learned trial Court has totally misread the Medico Legal Certificate. The Medico Legal Certificate only shows that the prosecutrix was admitted on 28.11.1993 and she was discharged on 30.11.1993 and the report that is the Medico Legal Report was sent to the Police Station on 30.11.1993. The perusal of the report shows that original copy of the report dated 28.11.1993 alongwith the sealed parcels containing the frock, slides and swab were handed over to Constable Shashi Pal on 28.11.1993 alongwith seals. It appears that after discharge of the victim another copy of the report was sent. PW-1 Dr. Shashi Mahajan in her statement in Court clearly stated that after preparing the vaginal slides and the swabs she had handed over the same to the police alongwith the frock after sealing the same. She has not at all been cross-examined as to when she handed over these to the police. Even PW-7 Arvind Kumar who took the swabs from Dharamshala to Shimla has also not been cross-examined. There is also no cross-examination to the Investigating Officer with regard to the receipt and deposit of these parcels.
27. Even assuming for the sake of arguments that the safe custody of these parcels has not been proved and it has not been shown that as to in whose custody these parcels were from 28.11.1993 to 29.11.1993, at best these are only corroborative pieces of evidence and the main evidence of the eye-witnesses could not be discarded on the ground of the absence of the link evidence.
28. The statements of the eye-witnesses have been discarded only on the ground that no independent witnesses supported the prosecution case and the only independent witness PW-5 Parshotam turned hostile and supported the accused. The learned trial Court has held that though PW-4, father of the prosecutrix, has denied the suggestion that he indulged in sale of illicit liquor, he has admitted that he sells Rum. The learned trial Court hold that this is an illegal activity and offence and therefore, lends support to the accused. The learned trial Court has not at all considered the medical evidence and the injuries on the private part of the prosecutrix. The trial Court has held that since PW-1 Dr. Shashi Mahajan has admitted that injuries found on the private part of the victim could be caused if somebody tries to insert the thumb into the Vagina, therefore, rape is not proved. To say the least, the observation of the learned trial Judge is totally ludicrous. One can imagine that a false case may be lodged against the accused due to inimical reasons but just to lodge a false case will any parent inserts a thumb into the Vagina of a 2-1/2 years old child. The learned trial Judge has acquitted the accused merely on the ground that the accused may have been framed in the case. But we cannot countenance a situation where parents will cause such grievance injuries to a child and act in such a barbaric manner just to settle scores with a person with whom they have inimical relations.
29. The Apex Court in Chandrappa and Ors. v. State of Karnataka : (2007) 4 SCC 415 has laid down the principles relating to the powers of the Appellate Court while dealing with appeals against acquittal. The Apex Court held as follows:
15. Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.
16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent Court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court.
Thereafter the Apex Court culled out the following principles:
42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
30. In a number of cases, the Apex Court held that the prosecutrix and her family members are like victims and must be treated like victims and not as accomplices to a crime. In the present case, the statements of the parents fully supported the prosecution case. The incident took place at about 4.30 p.m. The F.I.R. was lodged in about two hours at about 6.45 p.m. A copy of the F.I.R. was received by the SDJM, Kangra, at 12 midnight. Even if he was not the concerned Magistrate, the fact remains that all the facts were stated in the F.I.R. which he received. In such a short time, this entire story could not have been concocted. The version of the prosecution is totally corroborated by the medical evidence which shows that the 2-1/2 year's old girl had been subjected to sexual abuse. The report of the Forensic Science Laboratory also corroborates the prosecution version since the slides had traces of human blood and semen. Even if the last piece of evidence is discarded the statements of the eye-witnesses and the medical evidence clearly establish that the prosecutrix was raped by the accused.
31. In State of Punjab v. Gurmit Singh and Ors. : JT 1996 (1) SC 298, the Apex Court held as follows:
The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
32. The Apex Court in Rajinder @ Raju v. State of H.P. : JT 2009 (9) SC 9, held as follows:
In the context of Indian Culture, a woman - victim of sexual aggression-would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self respecting woman would put her honour at stake by falsely alleging commission of rape on her and, therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.
33. In the present case, the prosecutrix is too young to speak or to testify in Court. It is her mother and father who took her place. There is no reason to disbelieve their evidence. If we apply the principles laid down in the aforesaid cases, it is apparent that no parents would involve their minor daughter in a false case of sexual molestation just to settle scores with somebody with whom they have inimical relations.
34. In our considered opinion, the judgment of the learned trial Court is totally based on misreading of evidence. The learned trial Court has approached the trial in a totally insensitive manner and the only view possible on the basis of the evidence is that the accused had raped the minor child.
35. In view of the above discussion, we have no doubt in our mind that the respondent-accused is guilty of having committing an offence punishable under Section 376 (2)(f) IPC. Having convicted the accused, we would like to hear him on quantum of sentence. For this purpose the matter be listed on 30th September, 2009.