State of Gujarat Vs. Bharwad Raju Raghav - Court Judgment

C.K. Buch, J.

1. The present Criminal Appeal is preferred by the State of Gujarat under Section 378 of CrPC against the judgment and order of acquittal dated 28.01.1986 passed by the ld. Sessions Judge, Rajkot in Sessions Case No. 25/1985, whereby the ld. Trial Judge acquitted the respondent accused for the offence punishable under Section 376 of Indian Penal Code.

2. The respondent accused was tried for the offence punishable under Section 376 of Indian Penal Code (IPC for short) on the strength of one complaint filed by the father of the victim girl namely Dhirajlal Bhimjibhai Sagar being CR No. 160/1985 registered with Rajkot City SB Division Police Station. According to the prosecution, the offence of rape has been committed by the respondent accused on 18.06.1985 between 8.00 a.m. and 8.30 a.m. Victim girl is allegedly raped by the respondent accused who was aged about 7 to 8 years of age. Her mother had sent her to purchase butter milk at Ranchhodnagar society of city of Rajkot. When she was returning, she was stopped by the accused and was taken behind one iron cabin lying near Kirodimal Pulse Mill and she was raped. The victim girl thereafter returned home with bleeding vagina and she informed her mother about the incident occurred and narrated about the events that had occurred with her. According to the prosecution, the victim girl was not knowing the accused as they had no past acquittance with the accused. She the victim girl has described the offender as a person wearing red bushirt. Considering the seriousness of the situation, prosecution witness Jashuben-mother of the victim girl and wife of the complainant rushed to the spot indicated by the girl i.e. place of incident and tried to inquire and to trace the culprit, but she could not get the details or description of the accused. Thereafter, she took the victim girl to Rajkot Zanana Hospital popularly known as Rasulkhanji Hospital which is a government hospital. Dr. Vaidya of Zanana Hospital informed Rajkot City SB Division Police Station that one girl named has come to the hospital for treatment with a history of a rape committed on her. That information was recorded by the Police Station Officer of the said police station in Station Diary vide Entry No. 15 at about 11.55 a.m. and PSI Shri Parmar was informed who in turn reached the hospital where the victim girl was admitted and taking treatment. On arrival of the father of the victim girl, he recorded FIR. After registering the offence, the police investigated the crime and it is the say of the prosecution that the person who committed the offending act described as a person wearing red bushirt, is the person accused. The accused was also sent for medical examination.

3. On completion of investigation, the police chargesheeted the accused and ld. Trial Judge after appreciating the oral as well as documentary evidence led by the prosecution, acquitted the accused. This order of acquittal is assailed on various grounds by the State saying that the findings recorded by the ld. Trial Judge are based on improper and illegal appreciation of evidence and findings are perverse. It was not possible in the present case to record any finding other than the guilt of the accused. It is the say of the State that the trial, because of legal as well as factual errors committed by the ld. Trial Judge while appreciating the evidence, has resulted into acquittal. The ld. Trial Judge has discussed the evidence in detail and while recording the acquittal, assigned reasons, mainly if stated in brief, are:

(i) That though the prosecution has established one fact beyond reasonable doubt that victim girl has been raped at relevant point of time and place, there is no sufficient evidence to link the accused with the crime;

(ii) The prosecution has not successfully established the identity of the accused beyond doubt and it would not be safe to link the accused with the crime merely because the muddamal Article No. 6 Shirt is having brown-red spots. The capacity of the victim girl to describe the colour of cloth when is found weak, it would be risky to link the accused with the crime;

(iii)When the girl was not knowing the accused prior to the commission of the offence and when there is no eye-witness, in absence of evidence that could have been collected by arranging identification parade, it would be risky to link the accused with the crime;

(iv) The deposition of girl is not on oath and considering the age of the girl, her evidence requires to be scanned closely as she being a child witness and there is a scope of tutoring or prompting. This aspect has clearly emerged, according to ld. Trial Judge, when she was being cross-examined by the defence counsel as to the evidence given by her whereby she had identified the accused by pointing finger at him in the Court for the first time. When the girl has admitted that she was asked to identify the accused on two consecutive days i.e. firstly the day on which she was brought before the Court-on the first day of the trial, and secondly i.e. on the day on which her deposition was recorded.

(v) According to ld. Trial Judge, injury found on the genetic organs of the accused can be said to have been properly explained in view of the opinion expressed by the doctor and it is held by the ld. Trial Judge that therefore it also becomes clear that the above said eroding of the mucus membrane might be due to the grazing with the Chorna or the cycle.

(vi) There is no sufficient corroboration from the witnesses examined by the prosecution namely the victim girl and other two important prosecution witnesses viz. father and mother of the victim girl namely Dhirajlal Jashuben respectively. These witnesses can seek corroboration from the basic story unfolded in the FIR, but according to the ld. Trial Judge, FIR i.e. complaint given by the father of the victim girl can not be read or considered for any purpose because the same is hit by Section 162 of CrPC. It is observed by the ld. Trial Judge while recording this finding that as per settled legal position, station diary Entry No. 15 (exh.22) is the FIR whereby the cognizable offence has been disclosed and PSI Mr. Parmar had moved in the directions of investigation.

(vii) That the ld. Trial Judge has expressed doubt as to opinion given by FSL about the tracing out of blood stains from muddamal article No. 6 bushirt because there is no reference of such stains in the panchanama drawn by police when it was recovered from the body of the person accused at the time of his arrest.

(viii) That the incident had occurred in a broad day light, even than there is no evidence on record of any independent witness whereby it can be said that the accused was seen with the victim or in the area where the incident had occurred, especially when two witnesses examined by the prosecution for the purpose, have not supported the case of the prosecution and they have turned hostile.

(ix) That the victim girl possibly could have given signs or marks of identification of the offender and absence of such evidence needs consideration.

(x) That the initial inquiry made by the mother of the victim girl namely Jashuben had undisputedly failed and when witnesses have turned hostile, it is not safe to place reliance on the sole testimony of victim girl to link the accused with the crime.

So, the ld. Trial Judge, for short, has held that covetous action though is proved by the prosecution, it has failed in establishing one fact beyond doubt that the respondent accused is the author of the offending act.

4. The ld. APP Mr. Pujari appearing for the State has argued at length and while developing the various points taken up by the State in the memo, it is mainly submitted that:

(i) That the ld. Sessions Judge has failed to appreciate the evidence of the complainant victim girl and as per her evidence the prosecution has proved the case against the respondent accused and thereby the order passed by the ld. Sessions Judge is required to be set aside.

(ii) That the learned Sessions Judge ought not to have seen that the incident took place from in the early morning between 8.00 to 8.30 a.m. The complainant had gone to take buttermilk at Ranchhodnagar Society within the city of Rajkot and the respondent accused took the victim girl into or behind the iron cabin situated near the Kirodimal Pulse Mill and committed rape on her without the consent of the victim girl.

(iii) That the learned Sessions Judge ought to have seen that the victim girl will not implicate a wrong person, when in the present case the respondent accused was shown as an accused as per the evidence of victim girl to the effect that he had committed rape on her. Testimony of a sole witness should have been believed by the ld. Sessions Judge.

5. In response to the above submissions made by ld. APP Mr. Pujari, Mr. Maulin Pandya appearing for the ld. Counsel Mr. Yogesh Lakhani for the respondent accused has submitted that the finding recorded by the ld. Trial Judge is absolutely in accordance with law and reasons assigned by the ld. Trial Judge are based on the sound principles of appreciation of evidence and order of acquittal should not be reversed merely because one another view is also possible. This Court while dealing with acquittal appeals, can not re-write the judgment by substituting its own reasons. If submissions made by ld. Counsel Mr. Pandya appearing for the respondent accused are stated in brief, they are:

01.05.2006:

(i) That the ld. Trial Judge has rightly held that the complaint given by the father of the victim girl namely Dhirajlal can not be read for any purpose because the same is not FIR within the meaning of Section 154 of CrPC and therefore only, the ld. Trial Judge has said that the document should be considered as mark 16-A and the entry No. 15 (exh.22) be considered as FIR. The entry made in the station diary does not bear any description of the accused or any other mark of identification including the age of the accused and this aspect affects adversely the strength of the case placed by the prosecution.

(ii) That the ld. Trial Judge after discussing the oral as well as documentary evidence, has inferred that this is a case of mistaken identity of the accused and there is no cogent evidence to show that the offence was committed only by the respondent accused.

(iii)That the medical evidence led by the prosecution as to the injuries found on the genetic organs of the accused has been held explained by the ld. Trial Judge because the doctor has opined during his cross-examination that the injury found on the private part of the accused is possible if his genetic organ is brushed with chorna and/or with bicycle. The accused in his statement under Section 313 of CrPC when asked about the said injury, he has said that since he is riding bicycle, he sustained the said injury. So, it was not possible for the ld. Trial Judge to conclude that this injury is caused because of illicit intercourse by the accused with the victim girl.

(iv) That the important witnesses who have allegedly seen the accused with the victim girl taking her behind the iron cabin lying near Kirodimal Pulse Mill, have not supported the cases of the prosecution and so it would not be safe for this Court to infer that the case placed by the prosecution is able to retain its original strength.

(v) That the absence of T.I. Parade goes to the root of the merit of the case placed by the prosecution because the girl was not able to give any specific identification mark of the accused including the age of the accused and she was recollecting only one thing that the accused had put on chorni and red bushirt. It is also submitted that no exact opinion is given by the doctor in his examination-in-chief that the injury that was found during the examination of the accused would remain visible even after more than 24 hours if such a person has committed any coital act with a minor girl of about 7 to 8 years of age. No blood on the chorni is found when the same was sent for serological examination, nor any semen was found on the frock of the victim girl of the group of the accused. It is on record that the blood of the accused is of group SB and if the opinion of serological examination if accepted, then the semen found on muddamal chorni is also of group SB. In the present case, the prosecution has not produced any cloth of the victim girl including the frock put on by her having semen stains and that too of group SB. On the contrary, the cloth of the girl does not indicate any stains of semen.

(vi) The finding of the ld. Trial Judge is based on the sound principles of criminal jurisprudence that the evidence of a child witness should be scanned closely and sufficient corroboration is required as a rule of prudence. The deposition of the victim girl was possibly not recorded on oath as she was not able to understand the sanctity of oath and so the child witness who is not aware of the sanctity of oath and if deposition is given in a judicial proceedings, the same should not be accepted as gospel truth. In the present case, the version of the victim girl does not get corroboration from any of the witnesses examined or any document produced during the course of trial. So, the ld. Trial Judge has rightly said that uncorroborated testimony of the girl is not found sufficient to link and hold the accused guilty.

(vii) That the contradictions brought on record by the prosecution from the evidence led by two witnesses i.e. (i) Ramesh Hamir and (ii) Bhanu Ahir, can not be used as a substantive piece of evidence. Such contradictions can be used only to appreciate the evidence of that witness. It is true that in a given case, the evidence of even a hostile witness can be considered and looked into, but this principle would apply in the cases where a witness is able to say something which is in the nature of substantive piece of evidence.

(viii) One submission made by ld. Counsel Mr. Pandya is that the ld. Trial Judge has specifically observed, while evaluating the evidence of victim girl and she had identified the accused in the court room at the instance of his father only and her version is found tutored version and, therefore, the ld. Trial Judge has not placed reliance on the evidence given by her during the examination-in-chief by identifying the accused in the Court during her deposition. When an evidence of a child witness is found tutored, no reliance can be placed on the evidence of such witness and that too in a case where the identity of the accused is under a serious challenge. This is not a case whereby the accused has said that he has been falsely implicated with some ulterior motive and, therefore, the ld. Trial Judge has rightly appreciated the possibility of erroneous or wrong implication of the accused on account of mistaken identity and the finding recorded by the ld. Trial Judge needs to be evaluated from that angle only.

Thus, the backbone of the argument of ld. Counsel Mr. Pandya for the respondent accused is that the conviction can not be recorded legally on presumption or assumption and mere suspicion can not take the place of proof and therefore, when the ld. Trial Judge who is able to demnor of each witness examined during the trial, has said that the evidence of the victim girl or her mother Jashuben is not trustworthy, then this Court can not substitute its own view. The view taken by the ld. Trial Judge is one of the possible view and when the finding recorded is based on sound logical knot, this Court should not reverse the finding of acquittal recorded by the ld. Trial Judge merely because one another view is possible. Mr. Pandya has cited certain authorities in support of his arguments, however, we will deal with the same while dealing with the merit of the judgment under challenge.

6. While dealing with the arguments advanced by ld. APP Mr. Pujari for the appellant State and ld. Counsel Mr. Pandya for the respondent accused, we would also deal with the findings recorded by the ld. Trial Judge. The ld. Trial Judge has recorded a finding that the complaint lodged by the father of the victim girl namely Dhirajlal in the hospital is not an FIR and therefore, can not be read for any purpose whatsoever as the same is hit by Section 162 of CrPC. In our opinion, this finding is erroneous. We have carefully seen the contents of the station diary entry No. 15 and language of it. The PSO made the said entry when police was informed by Dr. Vaidya that a girl aged about 8 years namely has been admitted as she has been raped. So, the hospital authority informed that a raped girl named has come to the hospital for treatment and is admitted in the hospital. The name of the doctor is mentioned. It is very likely that the doctor informing the police might have disclosed his identity or in response to the question raised by the police officer who has received the telephone, the doctor might have given his name. The contents are found mainly of cryptic nature. It is true that in all cases, it is not necessary to mention the name of the accused or description of the accused with certain details and the manner in which the offence is committed. The disclosure of one fact that a cognizable offence has been committed, is sufficient. The High Court of Madras, in the case of Guruswami Naidu alias Chinnaswami Naidu v. Villis Guruswami Naidu : AIR1951Mad812 , has observed that a document can be considered as an FIR if it is able to induce the police to investigate the facts that disclose a cognizable offence. In the cited decision, a report was given to the police officer in charge by SA that SB had been shot and that SB was removed to certain hospital. The officer, instead of taking down the statement, merely made an entry to that effect in the general diary and proceeded to the hospital. There he recorded statement of SB which was subsequently found to be false.

The facts before Madras High Court are materially different, but the principle discussed by the Madras High Court is still a good law.

(i) In this regard, we would like to refer to the decision of the Apex Court in the case of Tapinder Singh v. State of Punjab AIR 1970 1566. This decision of the Apex Court has been followed in other two subsequent decisions viz. (i) State of UP v. P.A. Madhu : 1984CriLJ1438 , and (ii) Ramsingh Bavaji Jadeja v. State of Gujarat 1994 Cr.LJ 3067. In the decision of the Apex Court in the case of Tapinder Singh (supra), the Apex Court has said that anonymous telephone message at police station that firing had taken place at a taxi stand, does not by itself clothe it with character of first information report merely because the said information was first in point of time and the said information has been recorded in the diary of the police station by the Police Station Officer responding to the telephone call. Undisputedly, the caller of the telephone call had informed the police about the commission of a cognizable offence, even then the Apex Court has observed that such an entry is not an FIR as per Section 154 of CrPC.

(ii) In the same way, in the case of Soma Bhai v. State of Gujarat : 1975CriLJ1201 , the Apex Court was dealing with one fact situation wherein an information was given to the police station officer on telephone and the Apex Court has observed that the message given to Surat Police Station was too cryptic to constitute FIR within the meaning of Section 154 of CrPC. The Supreme Court applied the test of meaning of the call and intention of the caller. It was held that the telephone was meant only for the purpose of getting further instructions. Furthermore, the facts narrated to the PSI Patel which were reduced into writing a few minutes later undoubtedly constituted the first information report in point of time made to the police in which necessary facts were given. The Supreme Court has observed S In these circumstances, therefore, we are clearly of the opinion that the telephonic message to the Police Station at Surat cannot constitute the FIR and the High Court was in error in treating the FIR lodged in the present case as inadmissible in evidence.

(iii) In the case of Ramsing Bavaji Jadeja (supra), the Apex Court has referred the decision of Dhananjoy Chatterjee alias Dhana v. State of West Bengal (1994)(1) JT (SC) 33, wherein the Supreme Court has observed that Sthe cryptic telephonic message received at the police station from the father of the deceased had only made police agency run to the place of occurrence and to record the statement of the mother of the deceased; the investigation commenced thereafter. In the present case also, after receipt of the telephonic message, the information was reduced in writing in the nature of entry in the police station diary and PSI Mr. Parmar thereafter rushed to the hospital. Dr. Vaidya meant to inform the police so that the police can rush to the hospital and take further steps.

(iv) It is also pertinent to note that in the present case, the incident in question had occurred between 8.00 & 8.30 a.m. on 18.06.1985. It appears that till the time the girl was taken to Zanana Hospital, her mother was trying to find out some clue as to who is the offender, but she could not get any clue as to identity of the offender either direct or indirect and ultimately she went to Zanana Hospital taking minor in bleeding condition and she was admitted in the hospital at 10.30 a.m. It emerges from the evidence that girl had informed about the incident to her mother Jashuben. It is not the say of the prosecution that when police reached the Hospital, mother of girl i.e. Jashuben was not there with the patient. So, the information recorded by PSI Mr. Parmar was not from the first person i.e. girl or her mother Jashuben. However, when the prosecution has examined all these three witnesses as witnesses, the time of recording of the complaint, according to us, becomes relevant and important. No witness has said about the exact time when the complaint came to be recorded and reached to the police station and the same is found registered at 13.05 hours on that very day i.e. on 18.06.1985. As per the evidence available, the girl was admitted in the hospital at about 10.30 a.m. So, in couple of hours, the police was informed by the father of the victim girl that the culprit who had put on red bushirt had committed rape on his daughter minor . The complainant had also described the place of commission of offence i.e. behind the iron cabin lying near Kirodimal Pulse Mill. Thereafter only the police had started investigation. The act of PSI Mr. Parmar of going to the hospital from the police station, can not be said to be commencement of investigation. On the contrary, if entry Exh.22 is read closely, it is clear that informant was Senior Clerk of the Hospital who was informed by Dr. Vaidya about the admission of girl in the hospital as rape was committed on her. So, this entry, according to us, is cryptic in nature and could not have been considered as an FIR. The document mark 16A i.e. complaint given by the father of the victim girl should have been considered by the ld. Trial Judge for all purposes treating the same as an FIR within the meaning of Section 154 of CrPC. The finding of the ld. Trial Judge is erroneous in treating the entry as an FIR.

7. The crucial question before us is that even if it is believed that the document mark 16A- complaint is an FIR, whether the ld. Trial Judge could have recorded the finding contrary to the present finding of acquittal recorded by him? The decision cited by ld. APP Mr. Pujari for the appellant i.e. State of Rajasthan v. Om Prakash : 2002CriLJ2951 , requires to be referred in this regard because the facts of the cited decision are materially similar to the facts of the present case. In the cited decision, the prosecutrix aged about 8 years was alleged to be raped. While such an act is done, the nature and tendency of a human being is not to talk about it to others. FIR in the cited decision was found as delayed FIR. The Apex Court, in the cited decision, has observed that Sthe child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. There can not be anything more obscene than this. It is a crime against humanity. In child rape cases, the accused is playing with the life of a child and he does not deserve any leniency or sympathy. The Apex Court has observed that no lenient view can be taken merely because the incident had taken place about 13 years back and by now the accused is matured and is around 31 years of age. In the cited decision, the victim girl had gone to take butter milk at Ranchhodnagar Society within the city of Rajkot. When the prosecutrix did not return for a long time, P.W.2 went to see her in the said house. When she went to that house, door was closed which she pressed open and she found her daughter lying naked on the cot and accused was lying over her. So, she had witnessed the actual act and thereafter after a lapse of some hours, complaint came to be lodged. After evaluating evidence of witnesses examined by the prosecution, the High Court acquitted the accused. By reversing the acquittal, the Apex Court allowed the appeal filed by the State of Rajasthan, observing that:

19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of social stigma attached thereto. According to some surveys, there has been steep rise in the child rape cases. Children need special care and protection, in such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resources of our country. They are country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well considered and well analyzed judgment of the trial court on the grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established, beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwear was wholly insignificant.

20. Lastly, it was contended on behalf of the respondent that the incident took place about 13 years back and by now the accused has matured and would be around 31 years of age and having already undergone nearly three years of sentence, the same may be treated by this Court as sufficient punishment to him and, therefore, taking a sympathetic view, the sentence already undergone be imposed. We are unable to accept the contention. The trial court imposed on the respondent sentence of seven years' rigorous imprisonment besides fine, as earlier noticed. Having played with the life of a child, the respondent does not deserve any leniency and for him sympathy on the ground sought for will be wholly uncalled for. The respondent deserves to undergo the remaining part of the sentence awarded by the learned Additional District and Sessions Judge.

8. The learned trial Judge in the present case has held that the act of rape is committed, but the evidence is not adequate to link the accused with the crime. According to us, the finding recorded by the ld. Trial Judge is also one of the possible view that a reasonable Judge would take. Undisputedly, the girl was not knowing the accused either by name or by description and therefore only, she has not described the look of the accused to her mother when she unfolded the story for the first time to her mother at her home. There is nothing in evidence to show that on the description of the accused, mother of the victim girl has started inquiry, otherwise, it was possible for her to inquire about the person having a look similar to the look narrated by her daughter. So, her inquiry was random and from the persons who were there at the spot of incident. It is true that there is no question or doubt to be raised as to the place of incident, but we can not miss one important aspect that two witnesses who have been examined to establish the link between the crime and the accused involved in the crime posing to be eye-witnesses of some part of the event, have not supported the case of the prosecution. During the cross-examination, it has come on record that the mother of victim girl namely Jashuben met some persons when she was inquiring about the name of the culprit and at that time these two witnesses who have been posed as eye-witnesses of the part of the event, were also there. It appears from the answers given by her in the cross-examination that at least these two minor witnesses were known to the prosecution witness Jashuben. Therefore only she could have replied in the manner in which she responded to the question that Ramesh Hamir and Bhanu Ahir were there. Considering their tender age i.e. 12 years and 8 years respectively, probably she might not have asked questions to them. However, the possibility of receiving information from these two boys voluntarily by them, is not the possibility which can be ruled out. These two young boys irrespective of the inquiry made by Jashuben, as per natural conduct, could have informed Jashuben that they have seen Raju beating one girl even though they were not knowing the name of the girl. For more than 48 hours, the police was not able to get the name of the real culprit from any source. It appears that the accused has been arrested on 20.06.1985. PSI Parmar, in his examination-in-chief, has not stated that he had recorded the statements of these two witnesses i.e. Ramesh Hamir and Bhanu Ahir which were recorded prior to the arrest of the accused. So, it is difficult to infer that the statements of these two witnesses were recorded prior to the time of arrest of the accused on 20.06.1985. If we accept that these two witnesses examined by the prosecution were real persons present on the spot where the incident had occurred or in the nearby area, then their conduct of not informing the mother of the girl who was anxious to know from the persons who were there at the spot or nearby the area, can be said to be unnatural or their presence itself would become doubtful. Jashuben had accepted that they were present. As per settled legal position, the suggestion made to a witness by the defence counsel is not binding to the accused, but in view of the nature of arguments that were advanced before the ld. Trial Judge, it is possible to infer that the accused even does not dispute the presence of these two witnesses at the spot of incident or in the nearby area. But really if they had seen anything at the spot qua the conduct of the accused and his behaviour with the minor girl , they had not supported the case of the prosecution and so emerging probability of planting of these two witnesses is not possible to be ruled out.

9. It is not possible to get it from the evidence led by the prosecution that PSI Mr. Parmar was an experienced police officer at the time of incident or was a novish in investigating such a sensitive crime. But when the identity of the accused was hazy and mistaken identity was likely to hit the strength of the case of the prosecution, than he ought not to have left the entire thing on the shoulder of two minor witnesses even if it is inferred that their statements were recorded prior in point of time of the arrest of the accused. Immediately on the day of discharge of the girl from the hospital or the day next to it, it was possible to hold the identification parade of the accused. It is true that evidence collected by drawing panchanama required to be drawn, itself is a weak piece of evidence in a given situation.

10. Ld. APP Mr. LR Pujari, while developing his arguments, has placed reliance on number of decisions. We would like to reproduce the observations made by the Apex Court in the case of George and Ors. v. State of Kerala and Anr. : 1998CriLJ2034 , wherein the Apex Court has observed that:.It must, therefore, be said that the approach of the trial Court in dealing with the F.I.R. was legally impermissible. We are also surprised to find that the trial Court disbelieved P.Ws.3 and 4, relying upon the statements contained in the inquest report (Ext.P.8). Statements contained in an inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by S. 162, Cr.P.C.

According to us, this decision would not help the State. In the present case, three important prosecution witnesses namely victim girl , her mother Jashuben and her father Dhirajlal were not able to describe the look of the accused or the age of the accused. Their say before the Court was that a culprit had put on red bushirt. The ld. Trial Judge has made certain comments as to the colour of the bushirt that has been recovered from the present accused when he came to be arrested on 20.06.1985. It is clear that the bushirt is not red. It appears that the muddamal article bushirt recovered by the police allegedly put on by the accused at the time of committing the offending act, is green in colour having red and brownish spots. It is true that the girl might not have noticed the background of the colour of the bushirt and she might have stated the colour focused by her i.e. reddish spots in it. It is also true that this bushirt was sent to FSL and FSL has found human blood on it, but any how, no serological report or finding is available qua this bushirt. So, it was not possible for the ld. Trial Judge to infer that the blood found on the bushirt was of the victim girl. It is inferable from the reports received from FSL that blood group of the victim girl probably was also of SB group and when blood group of victim girl and accused is the same, even then there is no positive report as to the availability of the blood group SB on the bushirt. In such a situation, the finding recorded on chemical examination of the bushirt that the same is found stained with human blood, can not safely be used as incriminating evidence or the evidence adverse to the accused. At the time of drawing of panchanama of the arrest of the accused, the police and panchas had gathered one information that probably this bushirt does not bear any stains of blood. It is the FSL which has found out blood on bushirt. So, immediately after drawing of the panchanama of the arrest of the accused, PSI Mr. Parmar positively could have arranged for T.I. Parade, otherwise it could have been argued successfully by the prosecution that the name of the accused was disclosed to the police prior to his arrest and when his bushirt was found blood stained when he came to be arrested, there was no necessity to conduct the T.I. Parade. As the girl was in the hospital for certain days, T.I. Parade even if arranged, defence side could have alleged the same as a drama.

11. We have carefully gone through the observations made by the Apex Court in the case of Munshi Singh Gautam (D) and Ors. v. State of M.P. 2001 AIR SCW 6537 and especially the observations made in paras-15, 16, 17, 18 & 20 of the said decision. It is argued by ld. APP Mr. Pujari that T.I. Parade is required only when the accused is not known to the witnesses. It is true that in the present case, the accused was not known to the very important witness i.e. victim girl , but when it is doubtful as to at what point of time statements of the alleged eye-witnesses were recorded and after arrest of the accused when clothes of the accused were not seen stained with blood, T.I. Parade ought to have been arranged to link the accused with the crime and to rule out the case of mistaken identity. The ld. Trial Judge has rightly appreciated that this is not a case of false implication of the accused on account of any animosity and/or the accused has been replaced vice the real culprit.

12. In the above set of facts and background, the evidence of child witness has been appreciated by the ld. Trial Judge whereby the ld. Trial Judge has held that it is not safe to accept the say of minor that the person sitting in the court room as an accused, was the person who has committed rape on her. Ld.APP Mr. Pujari, of course, has hammered that a girl or any female would not commit any mistake in identifying a person who has ransacked her chastity and has played with morale and dignity, but the ld. Trial Judge has dealt with this aspect and has observed that the identification of the accused made by the girl probably was on account of the lesson given to her. It is not necessary for us to quote the observations made by scholars who are dealing with social psychology, but it is accepted principle that the children and persons of old age can be easily subjected to the suggestion, but it depends on the intellectual level of a child or a person who has grown old enough. In such a situation, when the ld. Trial Judge was supposed to scan the evidence of a child witness closely who himself had seen the demnor of the witness, if has observed that it is not possible to rely on such a child witness safely, then it would be difficult for us to say that inference drawn by the ld. Judge is either perverse or illegal. Undisputedly, the girl at the time of incident was a rustic, illiterate girl. It is well-settled position that identifying the accused in the court room for the first time is a substantive evidence and can be made use of it for linking the accused with the crime, but such identification made by the witness in the court room for the first time should not inspire the confidence. This type of identification of the accused is considered to be a weak peace of evidence. This weak peace of evidence could have gathered some strength by the evidence collected by way of T.I. Parade. So, the ld. Trial Judge, according to us, has rightly recorded acquittal saying that the evidence led by the prosecution falls short in convincing the Court that a person charged with a serious offence of the rape is the culprit himself and nobody else. The Apex Court, in the case of State of Himachal Pradesh v. Lekh Raj and Anr. : 2000CriLJ44 has observed thus:

The holding of identification parade in the instant case would have been irrelevant, had the name of respondent No. 2 been mentioned in the FIR Exhibit P/D. The prosecutrix in her deposition before the Trial Court even denied the suggestion of the respondent No. 2 to the effect that the respondent No. 2 has been working at her place at a Mason. It was, therefore, incorrect for the Trial Court to hold:

So far as the identification of the accused is concerned that is not disputed at all, therefore, at the relevant time they could not have been identified by the prosecutrix.

The identity of the respondent No. 2 was, admittedly, not established during the investigation and it is not clear as to how the said respondent was put on trial along with respondent No. 1. We agree with the finding of the High Court that accused Diwan Chand could not be held guilty as no unimpeachable, reliable and satisfactory evidence was produced regarding his involvement in the commission of the crime.

13. It is true that the accused was found with the injury on his private part and especially genetic organs and injury according to the doctor who had examined him and opined that this injury can be caused or sustained when a person commits sexual offence. The age of the girl was undisputedly less than nine years in the present case. So, normally, the forcible penetration would result into injuries. But this very doctor has not opined that even swelling would remain for more than about 56 hours or a penis of a young man of 20 years of age would look reddish even after this much of hours. Rape allegedly has been committed between 8.00 a.m. and 8.30 a.m. i.e. in broad day light and accused has been examined by the doctor on 20.06.1985 at about 8.00 p.m. i.e. after 60 years. According to us, in appreciating medical evidence, the ld. Trial Judge can not be said to have committed any grave error especially when the doctor has admitted that the injury similar to the injury that has been noticed can be caused if the private genetic organ is brushed or otherwise gets affected with a particular type of rustic cloth or by bicycle. The accused had put on Chorni at relevant point of time. Semen found on the Chorni can not be said to be a incriminating evidence against the accused especially when no blood stain is found from that very cloth otherwise the things probably would have been different. So, the medical evidence is also appreciated in a legal perspective.

14. The decision of the Apex Court in the case of State of Rajasthan v. Om Prakash (supra), would not help the State in the present case because in the cited decision, the case of the prosecution was that the mother of the victim girl had witnessed the incident. Undisputedly, the house where the victim girl was found naked, was the house of the accused Om Prakash and he was the only male person available in the entire house. The High Court acquitted the accused on the ground of other infirmities noticed in the evidence of the prosecution witnesses examined and the fact of delay in lodging the FIR. So, according to us, this judgment would not help the State.

15. For short, according to us, the arguments advanced by the ld. APP Mr. Pujari are not found acceptable because the view taken by the ld. Trial Judge is one of the possible view that can be taken in a given set of facts. In absence of any perversity or patent illegality in the finding recorded by the ld. Trial Judge or in appreciating the evidence led by the prosecution, the appeal is bound to fail and, therefore, the same requires to be dismissed. The reasons recorded by the learned Trial Judge are logical and there is no element of perversity or patent illegality. The Apex Court in a decision in the case of Dwarkadas v. State of Haryana reported in (2002) 1 SCC 204, has reiterated the principles of law where it has been held that the judgment and order of acquittal normally should not be reversed merely because the other view is possible. In the same way, the observations of the Apex Court in the case of Kanshiram v. State of Madhya Pradesh (Re. Para-21) reported in : AIR2001SC2902 , in respect of appeal against the order of acquittal, positively would help the accused. As per the settled legal position, while appreciating the order of acquittal, the Court should go slow in reversing the order of acquittal unless the order is absolutely illegal and perverse. In view of the ratio of the above cited decision, and in view of the discussion made above, there is no merit in the present criminal appeal.

16. In the result, Criminal Appeal is dismissed. The impugned judgment and order of acquittal recorded by the ld. Trial Judge in favour of the respondent accused is hereby confirmed.