M.R. Verma, J.
1. This appeal has been preferred by the accused-appellant (hereinafter referred to as the accused) against the judgment dated 19-2-1996 passed by the learned Addl. Sessions Judge (I), Kangra at Dharamsala whereby the accused has been convicted under Section 376, IPC and has been sentenced to undergo rigorqus imprisonment for 7 years and to pay a fine of Rs. 5000/- and in default of payment of fine, to undergo further imprisonment for a period of one year.
2. The case ot the prosecution, in brief, is that PW-1 Kumari Parvita (hereinafter referred to as the prosecutrix) resident of village Bahar was studying in 7th class in Government Middle School, Jasai in May, 1994. On 9-5-1994 when the school closed at 2 p.m., she left for home. At about 2.30 p.m. when she reached near a Baniyan tree at Kupru, she saw a boy aged about 22-23 years sitting under the said tree. When she reached near him, he got up and enquired from her about the distance of the house of Parveen Driver of War. The prosecutrix informed him that it was at some distance from there. The said boy informed her that he was to go there. He started walking with the prosecutrix. When they had covered some distance, the said boy caught hold of the prosecutrix from the neck from behind and threatened her that in case she created any noise, he would kill her. He then took her to the Nallah. laid her on the ground, broke the string of her Salwar and committed rape on her. During the process, the prosecutrix continued weeping. After having committed rape on her, the said boy again warned her that in case she raised hue and cry, he would kill her and then asked her to go home. On reaching at home, the prosecutrix narrated the occurrence to her sister-in-law and sister and in the evening also narrated the occurrence to her father. The occurrence was reported by the prosecutrix to the police at Police Station, Kangra on 14-5-1994 where FIR Ex. PW-1/ A came into being. During the course of investigation, the prosecutrix was got medically examined and the MLC in respect of such examination is Ex. PW-11 /A. Her Salwar Ex. P-1, shirt Ex. P-2 were taken in possession by the police vide memo Ex. PW-1/B. The Chadru Ex. P-3 which was put around her neck by the accused while removing her to the Nallah. on production by the prosecutrix and the Resha of such Chadru Ex. P-4 found on the place of occurrence were taken in possession by the police vide recovery memo Ex. PW-l/C and Ex. PW-1/ D. The opinion about the ossification age of the prosecutrix was also taken which is Ex. PW-10/C and it has been opined therein that the age of the prosecutrix, at the relevant time, was more than 11 years, but less than 18 years. The police also took in possession the certificate of birth of the prosecutrix Ex. PW-15/A mentioning her date of birth as 18-1-1981. After arrest by the police, the accused was also medically examined and the MLC about such examination is Ex. PW-6/A. While in custody, the accused made a disclosure statement to the police which is Ex. PW-4/A and as a consequence thereof, one pant, one shirt and one underwear of the accused were recovered by the police vide memo Ex. PW-7/A. Since the rapist was not earlier known to the prosecutrix, therefore, test identification parade of the accused after his arrest was got done from PW-12 S. S. Garg, who was the then S.D.J.M., Kangra and has proved the proceedings of such parade Ex. PW-12/A. The recovered articles that is the wearing apparels of the prosecutrix and the accused and the thread were sent for examination to the State Forensic Science Laboratory and the report received from such Laboratory is Ex. PX. On being satisfied that it was the accused who has .committed the offence complained against, the officer in-charge, Police Station, Kangra submitted the charge-sheet against the accused under Section 376, IPC. The accused was tried by the learned Addl. Sessions Judge (I), Kangra on a charge under Section 376, IPC.
3. To prove the charge against the accused, the prosecution examined as many as 15 witnesses.
4. The defence of the accused is that he is innocent and the real culprit is someone else and that he has been falsely implicated in the case because of the inimical relations between Punjab Singh, father of the prosecutrix and Man Chand, father-in-law of the elder brother of the accused. The accused has led defence also and examined three witnesses in his defence. The trial before the learned Addl. Sessions Judge concluded in conviction and sentence as already stated hereinabove. Hence the present appeal by the accused.
5. I have heard the learned counsel for the accused-appellant and the learned Addl. Advocate General for the State.
6. The fate of the case depends on the answers to the following questions :
1. Whether the prosecutrix was subjected to rape on May 9, 1994 by some one?
2. In case the above question is answered in the affirmative, whether the rapist was the accused?
7. There is hardly any dispute about the prosecutrix having been raped by some one on May 9, 1994. Even otherwise, PW-1 Parvita, the prosecutrix has fully supported the prosecution version to the extent that some one committed forcible sexual intercourse with her on May 9, 1994 when around 2.30 p.m. she was on way to her house from the school where she was then studying. Her version in the count is corroborated by the fact that immediately on reaching home she narrated the occurrence to her sister-in-law PW-3 Sumna Devi and her elder sister PW-13 Kamlita Kumari and in the evening on the same day, to her father PW-2 Punjab Singh. All the them support her version on this count. The prosecutrix was medically examined by PW-11 Rama Sharma on May 14, 1994 and issued MLR Ext. PW-11 /A about such examination and her opinion. Based on the features/injuries noticed at the time of medical examination, PW-11 has opined that the injuries on the person of the prosecutrix were caused within five days prior to her examination and that she had been subjected to sexual intercourse.
8. In the month of the occurrence, the skeleton age of the prosecutrix has been opined to be more than eleven years but less than eighteen years vide opinion of the Radiologist Ext. PW-10/C given by PW-10 Bharat Bhushan. However, her date of birth as per the certificate of birth Ext. PW-15/A which is duly proved by PW-15 Hans Raj is January 18, 1981. There is no reason to disbelieve this piece of evidence. Thus, at the time of occurrence the prosecutrix was less than 14 years of age and had not reached the age of consent. The statement of the prosecutrix that she was forcibly subjected to the sexual intercourse does not suffer from any infirmity or suspicion and is corroborated by medical evidence. Therefore, the age factor in this case is immaterial. However, assuming that she was a consenting party to the act, her consent, in view of her being below 16 years of age, is of no benefit to the offender.
9. The occurrence took place on May 9, 1994 and the matter was reported to the police on May 14, 1994, hence there was delay in reporting the matter. However, in view of the conclusion here-in-above and the explanation given by PW-2 Punjab Singh that he was shocked and mentally perturbed that is why the matter was reported after five days, the delay factor is immaterial.
10. In view of the above, the conclusion which can be safely arrived at is that the prosecutrix was raped by some-one on May 9, 1994.
11. Having found the answer to the first question supra in the affirmative, the second question does arise for determination.
12. The rapist in the case, admittedly, was not known to the prosecutrix before the occurrence. As per the FIR. Ext. PW-l/A lodged by the prosecutrix, the person who subjected her to forcible sexual intercourse was aged about 22/23 years. His height was about 5' -6', features were black (RANG KALA), had beard and spoke 'PAHART.
13. To establish the identity of the accused as the rapist, the police got his test identification parade conducted by PW-12 Mr. S. S. Garg, the then Sub-Divisional Judicial Magistrate, Kangra, on August 27, 1994.
14. The learned Sessions Judge has come to the conclusion that the test identification parade was conducted properly and the prosecutrix rightly identified the accused as the rapist.
15. The Punjab Police Rules, 1938, admittedly, applicable in Himachal Pradesh, under Rule 26.32 Chapter XXVI, Vol. (3) provides for identification of suspects. The provisions relevant to the test identification parade in the case in hand, are as follows :
26.32. Identification of suspects.-- (1) The following rules shall be strictly observed in confronting arrested suspects with witnesses who claim to be able to identify them:
(a) The suspects, who are to be subjected to an identification parade, shall be informed about it at the time of their arrest to enable them to take necessary precautions by way of keeping their faces covered and a request shall be made to the Magistrate to record a note in the remand papers regarding such precautions having been taken by them so as to eliminate any subsequent objection by the suspects that they had been shown to the witnesses before the identification parade was held.
(b) xxx xxx xxxx
(c) Identification shall be carried out as soon as possible after the arrest of the suspects.
(d) The suspects shall be placed among other persons similarly dressed and of the same religion and social status, in the proportion of 8 or 9 such persons to one suspect...It is advisable that, whenever possible, an independent and reliable person, un-connected with the Police, should be present throughout the proceedings at the place where the witnesses are kept, and should be required to devote his attention to the prevention of collusion. It is important that once the arrangements for the proceedings have been undertaken, no police officer whatsoever shall have any access whatever either to the suspects or to the witnesses.'
16. Similarly, Chapter 11-C of the Rules and Orders of the Punjab High Court (Vol. III), as applicable to the State of Himachal Pradesh, provide guidelines to the Magistrate Incharge of the identification parade. The Rules relevant for the purpose of the present case, read as under :
(1) List of all persons included in the parade should be prepared. The Magistrate incharge of an identification parade should prepare a list of all persons, including the accused who form part of the parade. This list should contain the parentage, address and occupation of each member of the parade.
(4) Duty of Magistrate to record precautions taken and to note other points.-- The Magistrate should state--
(a) What precautions he has taken to ensure--
(1) that the witnesses do not see the person to be identified by them before the identification proceedings commence;
(ii) that no communication which would facilitate identification is made to any witness who is awaiting his turn to identify; and
(iii) that after making identification the witnesses do not communicate with other witnesses who have yet to do so;
(b) Whether the person to be identified is handcuffed or is wearing fetters; and if so, whether or not other persons taking part in the parade are handcuffed or are wearing fetters, and also whether or not they are inmates of the Jail.
17. Evidently, the above Rules are intended to ensure a fair identification leaving no room for suspicion about the result of the test identification parade.
18. In the case in hand the proceedings of the test identification parade are Ext. PW-12/A and the remand order passed by the Judicial Magistrate is Ext. PW-12/C. Be it stated here that the accused was arrested on August 26, 1994 at 6.00 p.m. and was produced before the concerned Judicial Magistrate on August 27, 1994 when the police presented two applications, one for his judicial remand and another for test identification parade. The Judicial Magistrate passed the order, copy whereof is Ext. PW-12/C which reads as under:
27-8-1994 :
Presented by Sh. ASI Balbir Singh Patial, P. S. Kangra.
The police has filed this application for the identification of the accused Sukesh Kumar who is also produced today before this Court. In view of the facts and circumstances of the case, the application is allowed. Now for the identification of the accused be conducted on 30-8-1994 and he be produced before this Court on that date at 10 a.m.
SDJM, Kangra.
19. A plain reading of the above makes it clear (i) that the Magistrate did not ask the accused as to whether his face was kept muffled from the time of his arrest till the production before the Magistrate, and (ii) that the order of the Magistrate does not contain anything to show that when the accused was produced before him, his face was muffled. Thus, the Judicial Magistrate while remanding the accused to the judicial custody, has committed two irregularities leaving room to suspect the very foundation of the test identification parade in question.
20. The accused remained in judicial custody till August 30, 1994 when he was produced before the Magistrate for identification parade. There is nothing on the record that necessary precautions were taken in District Jail, Dharamshala where the accused was kept during this period to ensure that the identifying witness did not have any occasion to see the accused and that on way from the jail at Dharamshala to the Court of Judicial Magistrate Incharge of the test identification parade at Kangra on August 30, 1994 the face of the accused was duly muffled and the prosecutrix who was also to appear to identify the accused, had no occasion to see the accused.
21. A perusal of the proceedings of the parade Ext. PW-12/A reveals (i) that the Magistrate Incharge of the parade has no where mentioned therein that the accused when produced, had his face covered, (ii) that the six persons among whom the accused was placed, were arranged by an Assistant Sub-Inspector of Police but there is no assurance/satisfaction noted in the proceedings that these persons were not seen/shown to the prosecutrix before bringing them to the place of test identification parade, (iii) that the proceedings as mentioned are silent as to whether such persons had similar clothes as the accused was wearing at that time, (iv) that there is nothing in the proceedings whether at the time of test identification parade the accused was having a beard or not and if yes, whether other persons had beards or not, (v) that there is nothing in the proceedings Ext. PW-12/A that the Magistrate ever questioned the accused as to whether his face remained muffled throughout, (vi) that the police officials were asked to leave the place of parade only after the accused had been placed between the other persons whereby the police officials before leaving the place must have come to* know the standing position of the accused amongst other persons, and (vii) parentage/addresses of the persons amongst whom the accused was placed has not been given.
22. There is no evidence on the record to prove that either the police on arrest of the accused or the Magistrate at the time of remanding the accused to custody on May 27, 1994 in any form forewarned the accused to keep his face muffled.
23. PW-12 Mr. S. S. Garg in his statement recorded after more than a year of the parade, has stated that the accused was produced for remand as also for the purpose of parade with covered face. However, in the absence of any mention about it in the order Ext. PW-12/C and the proceedings of the parade Ext. PW-12/A, what he states after such period as aforesaid, may be an after thought, is a strong possiblity which cannot be conveniently ruled out.
24. As a result what can be concluded is that the test identification parade and outcome thereof is an unrealiable piece of evidence utterly incapable of even lending assurance much less corroboration to the version that the accused is the rapist.
25. The learned Additional Advocate General has contended that the accused had remained with the prosecutrix for sufficient time to enable her to recognize him even at the time of making statement in the Court and that she recognised the accused as the rapist and that there is no reason to disbelieve the identification of the accused by the prosecutrix in the Court as aforesaid.
26. It is true that the prosecutrix states that it was the accused present in the Court who had ravished her, but this statement in isolation or collectively with other evidence about identity of the accused is far from being believable. The reason for this conclusion is that when a person sees another person, he may not accurately judge his age and height, but the complexion of a person seen in day-light for some-time cannot be remembered and described wrongly. The prosecutrix is though of young age, yet is not a child of the age who may not distinguish different shades of colours. She was a student of 7th standard at the relevant time, therefore, the possibility of her being incapable of distinguishing between 'Kala' (Black) on one hand and any other shade of brighter colour on the other is absolutely ruled out in this case. She has clearly mentioned in the First Information Report that her rapist was 'Kala' (Black) in complexion. However, the features of the accused are not black as is evident from the observations of the learned Addl. Sessions Judge in the impugned judgment. Though he has not specifically mentioned therein as to what was the complexion of the features of the accused, yet one of the contentions raised before him for the accused was that 'the accused who has committed the alleged offence of rape was of black complexion but the accused who is facing trial in this Court is of fair complexion.' The learned Additional Sessions Judge brushed aside the contention by observing '. . . . .the attention of the Court was drawn towards the accused and it was pointed out that the accused who was facing trial in this Court, was not of black complexion and that the accused has been falsely implicated. These arguments are again baseless, especially when identification parade has been conducted by the then S.D.J.M. Kangra Shri S. S. Garg who has appeared in this Court as PW-12 and has proved that the identification parade has been conducted in a manner as required by law.... Moreover, the evidence on the file is that on the fateful day, the accused had applied the black paint on his body including his face.
27. It has already been concluded heretofore that many irregularities had been committed in conducting the test identification parade and it is not a reliable piece of corroborative evidence. So far the version that the accused had applied black paint to his body including face at the time of the occurrence is concerned, it is one of such unfortunate and unscrupulous padding which often defeats the cases of prosecution in the law Courts. It is not in the First Information Report that the rapist had painted his body with black colour when he met the prosecutrix and raped her. Had it been so, black paint could have been noticed on the garments of the accused and the prosecutrix were wearing at the time of occurrence and which allegedly were subsequently taken in possession. It is nobody's case that such garments contained any traces of black paint. In the ordinary course of human nature meeting a person painted black will be a matter of curiosity, surprise and fun. It would have been more so for a girl of the age of the prosecutrix. It is, thus, unbelievable that it was this fact which the prosecutrix forgot to tell her sister-in-law, father, the police and finally the trial Court. It is, thus left to PW-13 Kamlita Kumari to state in her cross-examination that PW-1 Parvita had told that the boy who raped her had made his hands and mouth blackish (painted). The reasoning adopted by the learned Additional Sessions Judge to believe this version is simply wrong and baseless.
28. The learned Additional Advocate General has urged that the rapist, as per the First Information Report, used to speak 'Pahari' and the disclosure statement Ext. PW-4/A made by the accused is in 'Pahari'. The contention is far fetched and without merit. Lacs of people speak 'Pahari' language. Thus, speaking 'Pahari' is not a peculiar circumstance to identify any person, voice in some cases may be, but that is not the case here. Even otherwise, making of this statement by the accused is not proved for the reason that it is alleged to have been made in the presence of PW-4 Mohinder Pal and one Kishori Lal. The former has stated that neither the accused was interrogated nor he made any statement of his presence, and the latter has not been examined. As a consequence of this statement having not been proved to have been made by the accused, the consequential recovery of his clothes vide memo. Ext. PW-7/Ais rendered a farce. More so, when it has been made after more than three months of the occurrence. The trial Court also appears to have Ignored the said statement as a believable piece of evidence. In this regard the observations in the judgment are that :
In the light of opinion given vide report Ex. PX by the expert, the value of the disclosure statement under Section 27 of the Evidence Act, did not carry any weight. Moreoso, the accused in this case, was arrested in the month of August, 94, and occurrence had taken place in May, 1994, which further compels this Court to say, that the recovery of clothes on the basis of statement of PW 4 under Section 27 of the Evidence Act, is not of much significance.
29. It may be pointed out that the trial Court has relied on the report Ext. PX to conclude that semen stains were found in the clothes of the victim and the accused which further strengthens the case of the prosecution. The conclusion is not only illogical but self-contradictory. Once it is found that disclosure statement about clothes of the accused Ext. PW-4/A and the consequential recovery of his clothes vide memo, Ext. PW-7/A are not worth being taken into account as evidence, no reason could be logically and legally advanced to say that detection of semen on the said clothes of the accused further strengthens the case of the prosecution. On the contrary, the detection of semen on the 'Pant' allegedly recovered pursuant to statement. Ext. PW-4/A vide memo, Ext. PW-7/A, the disbelieved piece of evidence, was of no help to the prosecution for the reason that in view of such findings the said 'Pant' could not be connected with the accused. Assuming that the said 'Pant' belonged to the accused, still detection of semen stains thereon does not necessarily connect the accused with the commission of the offence, he is charged with. The reasons being (i) that this recovery has been effected after more than three months of the occurrence, (ii) the accused is a grown up person and of the age that semen could be found on his clothes due to many causes other than his alleged involvement in the commission of rape, and (iii) in case the 'Pant' got the semen stains at the time of alleged commission of rape by the accused, then it must have been blood-stained also as the clothes of the prosecutrix were.
30. Thus, what can be concluded is that there is no reliable and trust-worthy evidence on the record to prove that it was the accused who has committed rape on PW-1 Parvita. The impugned conviction and sentences, therefore, cannot be sustained and deserves to be set aside.
31. As a result, this appeal is allowed. The conviction and sentence imposed on the accused by the learned trial .Judge are set aside and the accused is acquitted of the charge against him.
32. Fine if recovered, be refunded to the accused. The bail bonds furnished by the accused are discharged.