JUDGMENT
A.B. Pal, J.
1. These two appeals are interlinked being directed against the judgment dated 17-6-2003 passed by the learned Additional Sessions Judge, South Tripura, Udaipur in Sessions Trial (ST/U) No. 114 of 2000 whereby the convict appellant-Hari Shankar Tewari of Criminal Appeal No. 50 of 2003 has been convicted under Sections 376(2)(b) and 506 of Indian Penal Code (for short I.P.C.) and the accused-respondents Shri R. K. Shukla, Smt. Mita Dutta and Smt. Moutoshi Deb of Criminal Appeal No. 66 of 2003 have been acquitted. The convict appellant who has been sentenced to imprisonment for life with a fine of Rs. 10,000/-, in default six months’ rigorous imprisonment under Section 376(2)(b) of the I.P.C. and another term of 2 years’ rigorous imprisonment with a fine of Rs. 2,000/-, in default one month’s rigorous imprisonment under Section 506, I.P.C. has preferred the above appeal against his conviction and sentence. He has also been slapped with an amount of Rs. 1 lakh to be paid by him to the victim girl who is alleged to have been ravished by him. The State, on the other hand, being aggrieved by the order of acquittal of abovementioned respondents, R. K. Shukla, Smt. Mita Dutta and Smt. Moutoshi Deb has challenged the impugned judgment. Thus the parties are before us, and, we have taken up both the cases for disposal by a single judgment.
2. Prosecution version : This is a case where the convict appellant who was the Principal of Jawahar Nobodaya Vidyalaya, Kakrabon, South Tripura, a Central Residential School, aged around 50 years is alleged to have ravished a minor school girl aged only 14 years, reading in Class VIII in that school, once more focusing how insecure even our children are in the custody of the highly placed libidinous protectors. The startling and shocking prosecution version, inter alia, may be noted thus : The victim girl whose name we do not propose to mention here in view of the principles laid down in Section 228-A of the Indian Penal Code which has been enacted with a view to prevent social victimization or ostracism of the victims of sexual offence, but prefer to call her as ‘victim’ was only fourteen, reading in Class VIII in the Nobodaya Vidyalaya of which the convict appellant was the Principal at the relevant time. This being a residential school she and her elder sister (PW-3) who come from poor parents of a remote village were residing in the Girls’ hostel. The Principal Hari Shankar Tewari, the convict-appellant herein, had a daughter of victim’s age named Puja reading in the same class and they were close friends. The victim used to often visit the quarter of Hari Shankar with Puja. On the fateful day, on 27-4-1998 at 2 p.m. she went to his quarter to borrow a book from his daughter Puja who was then found to be absence. There was no other family member except Hari Shankar in the quarter at that time. Hari Shankar told her that Puja was not in the quarter and then forced her into the room, closed the door, and drew her on the bed, stripped her naked, pressed her mouth by hand so that she could not raise alarm and then raped her. Such a sexual assault coming from a father like figure stunned her, struck her with fear and the moments of bewilderment made her unconscious. When she regained sense she saw the convict spraying water on her face after the act of sexual lust was over causing blood oozing out from her private parts, which had even no pubic hair, During the course of sexual act and before she became unconscious she heard somebody knocking on the door when the convict replied not to disturb him and to come later. Upset as she was with the suddenness of the attack, first of its kind in her life, she ran into deep emotional crisis and indelible traumatic, experience. After she regained sense, she could fairly realize the damaging effect of the turmoil in her body and mind and then in the aftermath of the invidious storm she lapsed into sobbing tears. The convict threatened her of dire consequences had she dared to disclose to anybody his libidinal act. He also threatened that not only she but even her elder sister (PW-3) who was reading in Class XI at that time would be expelled from the Institution if there was any attempt by her to disclose the incident. The emotional crises became furthered by a real one and the shattered victim was found leaving the quarter crying loudly by P.W. 14 who was at that time in front of his shop near the convict’s quarter and the convict was found standing on the corridor of his quarter. His threat worked well as the victim failed to gather courage to confide to anybody the story of her plight, The convict did not stop there but. repeated the sexual assault on her again after she returned from home at the end of the summer vacation. In January, 1999 she was again raped and every time he summoned her to his quarter at a time when none else was present. She was once examined by a Doctor in the quarter of the con vict whom she did not know and after ex animation both the convict and the Doctor had left the room without telling her any thing and without prescribing any medicine. Few days later the convict had left the station on leave. Few days after his departure on 1st February, 1999, after a period of 9 months from the date of first sexual assault she felt pain in her abdomen and disclosed her condition to Smt. Moutoshi Deb, the accused-respondent, who was the House Mistress serving in the said Institution. The poor girl who was suffering from worm problem from time to time thought that the pain might be related to that disease only and never did she imagine that she could become pregnant following the sexual encounter. On the following day, she felt stomach pain again when the House Mistress asked her to go to Doctor Trivedi (P.W. 4) escorted by a peon but. her pain was so severe she could hardly move out of the hostel and, therefore Dr. Trivedi had to be given a call. Before the Doctor did arrive, Mita and Moutushi, the two accused-respondents examined her, whispered something among them and then shifted her to their room where the other accused-respondent R.K. Shukla joined them. He abused her in filthy language and asked her to disclose the name of the person who was responsible for her pregnancy. He wanted to know whether she had developed intimacy with any boy of the school and having been insisted she for the first time disclosed to him that she was raped by the Principal, the convict-appellant. This revelation was not taken at. face value by Mr. Shukla who was then Principal in charge of the school in the absence of Hari Shankar. He directed her not to divulge the name of the Principal and wanted to know from her whether she had any elder brother in her house. When her answer was in the negative, he directed her to make her father responsible for her pregnancy with the threat that had she disobeyed his direction she would not be provided any medical treatment and she would be killed by pushing injection. Thereafter, Mr. Shukla had left the room and returned again with Dr. Trivedi (P.W. 4) at about 7 p.m. The Doctor examined her, found her pregnant and wanted to know from her who was responsible. She first uttered the word ‘Sir’ to indicate the Principal responsible for her pregnancy. But the Doctor insisted she should disclose full name of the rapist and then she requested him to direct all others present to leave the room, as she wanted to disclose to him the secret only in confidence. The reason is obvious. She was in excruciating labour pain desperately seeking relief, but found no courage to disclose the name of Hari Shankar in the face of towering and overawing presence of accused-respondents. But the Doctor insisted that she must divulge the name in presence of all. Fear-stricken as she was, the victim looked at the faces of the accused-respondents and whispered with reluctance implicating her own father as tutored. Dr. Trivedi advised the accused-respondents to send her immediately to the hospital as her condition was critical and then when he was leaving the room the victim pulled him by his shirt whispered that she could not disclose the real name of the offender out of fear and that she wanted to tell him the name in secret. But the Doctor said he would listen her later and left the hostel. Despite Doctor’s advice she was not taken to the hospital, instead Moutoshi and Mita, began to play the role of a saviour for screening Hari Shankar and ordered her to utter her father’s name again which would be taken in a tape recorder. They then forced her to sign a blank paper, which was later converted into a document (Ext. I) where she has been shown to have stated that her father was responsible for her pregnancy. She alleged that the content of the letter was not written by her. That apart under their direction she had to read contents of a document implicating her father which was recorded by them. This episode had taken more than two hours intensifying her suffering and risking her life. At about 9/9-30 p.m. Dr. Trivedi visited the hostel again and asked the respondents why the victim was not sent to the hospital in spite of his advice, which however evoked no reply. The Doctor examined her again and found she was about to deliver. He quickly sent for a nurse living nearby but before she could reach the victim had delivered a female child. After administering injunction and pushing saline the Doctor left the room with advice not to shift her within 24 hours as blood was oozing out from her private parts, But ignoring his advice, Mr. Shukla, the accused-respondent, who in the meantime brought her father into the scene from his house and forced him to sign some papers, parcelled her, the new born baby, her elder sister and her father to her far away house by a vehicle. The father (P.W. 8) was at a loss after reaching the hostel and knowing the plight of his daughter. He wanted to report the matter to the police station, but Mr. Shukla dissuaded him from lodging any complaint. The teacher of the school who accompanied them to their house the same night cautioned her father not to disclose to police what had happened, as it would land him in serious trouble? He further told him that the rival side being very powerful it would be futile for him to dare a battle. Some days after, 2/3 persons came to their house from Kakraban and offered a compromise proposal, which was however, not acceptable. The father (P.W. 8) was under tremendous pressure and threats as he was receiving telephone calls of dire consequences. Fear had overtaken the rustic father who failed to gather courage to lodge a complaint to police. He went into hiding on the advice of his wife. But the incident had licked to the newspaper which prompted the Women Commission to take up the cudgel, visit the house of the victim, provide all assurance and assistance and only then the victim lodged a complaint on 12 2-1999 to the Officer in-Charge of Belonia Police Station which was later forwarded to the Udaipur Police Station under whose jurisdiction the alleged occurrence had taken place. In a situation, such as this, delay in lodging FIR could not be helped and the investigation was launched during which police examined several witnesses, visited the place of occurrence, got the statement of the victim recorded under Section 164, Cr. P.C. arranged for DNA test, arrested the accused persons and submitted charge-sheet against the convict appellant-Hari Shankar Tewari, and the accused-respondents, R. K. Shukla, Mita Dutta and Moutoshi Deb under Sections 376(2)(b), 506/201, 468, 471 read with 34 of the Indian Penal Code as noted above. After a full-dressed trial, the convict appellant was found to be guilty and convicted accordingly while the accused-respondents were given acquittal.
3. Defence version : The defence version, sans unnecessary details, is that Hari Shankar had no sexual encounter with the victim and that it is her own father who had ravished her and made her pregnant. He has been falsely implicated at the instance of Smt. Sima Mukherjee (P.W. 7), a teacher of the same school against whom the convict appellant as Principal of the School had to take certain disciplinary action. The defence of the three accused-respondents is that they tried to save the image of the Institution for which they did not send the victim to the hospital and after delivery sent her to her parents’ house. As regards the document (Ext. I) their defence is that it was signed by the victim itself, but written by her elder sister (P.W. 3) though they mistakenly named the victim as the author of the said document. They came to know about the cause of her pregnancy from the victim only when disclosed that she was raped by her own father.
4. Findings of Trial Court :- The rival versions of prosecution and defence having been compendiously traversed thus, we may now proceed to see how the trial Court has scanned and appreciated the evidence on record before convicting the convict appellant and acquitting the accused-respondents. During the course of trial prosecution examined 18 witnesses including the victim and relied on several documents which include radiological report about victim’s age (Exbt.-9), letter addressed to Principal purportedly written by the victim (Exbt.-I), DNA test report dated 28-4-1999 (Exbt.-43), Second DNA test report dated 3-8-99 (Exbt.-44), Certificate of birth of the victim (Exbt.-42), report of examiner of questioned document (Exbt.-49). The entire episode may be seen in two parts, the first one relating to the alleged rape committed by the convict appellant on the minor victim and the second part relating to delivery of a baby by her and attempts to screen the rapist by the accused-respondents. It is not in dispute that she was around 14 years when she experienced the first sexual assault on 27-4-1998; the birth certificate and the ossification test conducted by P.W. 5 are the definite proof that she was minor at the relevant time and, therefore, her consent to the sexual act is irrelevant. It is also not in dispute that during the entire episode commencing from April 1998 to February 1999 the convict appellant was the Head of the Institution though few days before the victim delivered a female child the convict appellant was out of station on leave. The trial Court discussed the evidence of the victim (P.W. 1) at length from different angles and after explaining out the minor discrepancies came to the definite finding that her statement inspired confidence for believing her story that she was ravished by the convict appellant. Obviously, there cannot be any other witness to the sexual assault, which took place in the quarter of the Principal where he had chosen the moments when no other family members were present. Therefore, the sole testimony of the victim, who delivered a child on 2-2-1999, having been found to be consistent on material particulars corroborated by circumstantial evidence the trial Court came to the only irresistible conclusion that none but the “Principal was responsible, for the offence of rape. The trial Court discussed the evidence of PW-1, 3, 4, 6, 8, 10, 14 and 17 in details to shore up the charge against the convict appellant. We have, however, noted that the testimony of Smt. Sima Mukherjee (P.W. 7) and Smt. Debosri Deb (P.W. 12) are no less Important to know about the man as they throw enough light on the significant traits and propensities of the character of the convict appellant. These two witnesses who were the employees in the institution under the Principal disclosed how immediately after joining the institution the Principal made sexual advances towards them leading to acrimony and finally they had to leave the institution. Their statements though have no direct link with the alleged offence of rape on the victim, adds enough credibility to the prosecution story that a person like the convict appellant, though aged around 50 years, can commit the heinous offence of rape on a child of his daughter’s age. The trial Court found the statement of the victim corroborated by the statement of P.W. 3, her elder sister. The statement of Dr. Trivedi (P.W. 4) has enough potential to lend support to the prosecution story when he stated that after disclosing her father’s name in presence of the Vice-Principal, R. K. Shukla and the House Mistress Mita and Moutoshi, she tried to say something in confidence to the Doctor who, however, did not afford her this scope. The defence version that statement to P.W. 4 by the victim was the first disclosure that her father was responsible for her pregnancy has not been accepted at its face value as she initially requested the Doctor to ask all other persons leave the room before she could divulge the name of the rapist. But the Doctor insisted that she should tell the name in presence of all and only then, having no other alternative she had to utter the name of her father as she was tutored and under threat from the accused-respondents. Immediately after the first sexual assault, when she was leaving the quarter of the Principal weeping loudly, P.W. 14 had seen her and also the Principal standing on the corridor of his house. The delay in not disclosing the name of the rapist for a long period from 27-4-1998 to 2-2-1999 has been found to be satisfactorily explained as she disclosed that she was under threat of expulsion from the institution coming from Head of the Institution and, therefore, she could not dare to disclose the incident to anybody. As regards the discrepancies in her statements the trial Court observed that those are the omissions of details. Before her deposition in the Court as P.W. 1 she had also given a statement to the Magistrate (P.W. 15) recorded under Section 164, Cr. P.C. (Exbt, 3) and in the F.I.R (Ext, 2). In all her statement she is consistent that she was ravished by the Principal and she narrated the manner how the first sexual assault had taken place. Only the details of the encounter, which she stated before the Court, are absent in the F.I.R. or in the statement recorded under Section 164,Cr. P.C. She explained that she delivered her child on 2-2-1999, the F.I.R. was recorded on 12-2 1999 and the statement under Section 164, Cr. P.C. was taken on 17-2-1999. She was in great mental distress during that period and, therefore, she could not tell all the details of the occurrence. Even she committed mistake in naming the doctor (P.W. 4) in place of the accused-respondent R. K. Shukla who threatened her not to divulge the name of the Principal but to implicate her own father for her pregnancy. The defence could not give any reasonable explanation why the minor girl should implicate the Principal instead of implicating the real rapist. Doctor Trivedi (P.W. 4) on whose statement the convict appellant and accused-respondent placed much reliance disclosed to Dr. Parimal Chakraborty (P.W. 9) after his first visit to the victim that she was pregnant but did not tell him that she had implicated her own father. Had she really uttered her father’s name to P.W. 4, he would certainly have stated about such startling disclosure to his colleague (P.W. 9). Again P.W. 4 himself stated that after uttering her father’s name she pulled him by his shirt and tried to say something, which however, was not allowed to be stated. Thus, mainly relying on the statement of the victim supported by her elder sister, P.W, 3 and the circumstantial evidence derived from the conduct of the accused-respondents and other witnesses the trial Court found the convict appellant guilty of raping the victim. As regards the other three accused-respondents the trial Court held that there were no ingredients of causing disappearance of evidence of the commission of rape by them and that by merely sending the victim and her baby to her house no such offence can be said to have been committed. The evidence regarding conversion of a blank paper after obtaining victim’s signature into a document (Ext-I) implicating her own father, tape recording a statement, prepared by them and forcing the victim to read, threatening her not to disclose the name of the Principal but to implicate her father notwithstanding, the trial Court gave them acquittal.
5. We have heard Mr. J. M. Choudhury, learned senior counsel along with Mr. P. K. Biswas and other learned counsel appearing for the convict-appellant and accused-respondents and Mr. B. R. Bhattacharjee, learned senior counsel with Mr. D. Sarkar, learned Public Prosecutor for the State-respondents.
6. Discussion on merit of the appeal by the convict-appellant :- We shall first deal with the submissions advanced by the learned counsel for the convict-appellant-Hari Shankar Tewari in order to scrutiny the materials on record in support of his conviction. The first submission is that the trial Court committed error and injustice by rejecting the two DNA reports from Hyderabad and Calcutta which established the defence case that the convict-appellant is not the biological father of the baby delivered by the victim. Exbt. 43 is the DNA report dated 9-4-1999 from CDFD, Hyderabad which reads the result or examination thus :-
“On comparison of the STR profiles present in the source of Exhibit-B with the source of Exhibits-A and C i.e. victim and Shri Hari Shankar Tewari, it was found that Shri Hari Shankar Tewari (source of Exhibit-C) is excluded from being the biological father of the new born female baby,” (We have substituted the word victim for her name).
In our view, the trial Court discarded this result correctly because of another letter dated 20-4-1999 from the CDFD at Ext. 45 addressed to the Chief Judicial Magistrate which is quoted below :-
“With reference to the subject mentioned above, I wish to inform you that our core instrument, which is used, for analysis has gone out of order. Therefore, the analysis in the case cited above, has got interrupted. Hence, I request you to kindly grant us one month more time for completion and submission of the report in the above case.”
The earlier report and subsequent letter both came from Dr. G. V. Rao, Scientist-Ill of CDFD. As the subsequent letter created doubt about correctness of the earlier report, the trial Court did not feel it safe to rely on it.
7. It has been brought to our notice by Mr. B. R. Bhattacharjee, learned senior counsel appearing for the State-appellant that in the said report from Hyderabad there is another finding, which is more confounding. The finding of the report is quoted below :-
“White arrows in lane to indicate bands (alleles) present in the STR profile of the new born female baby Kumari name Gargi which are neither present in the STR profiles of the victim nor in the STR profile of Shri Hari Shankar Tewari.”
Such report seems to indicate that the victim was not the mother of the baby, which is an absurd finding. We are, therefore, of the view that this report from Hyderabad merits no consideration and has been rightly rejected. As regards the second report from Central Forensic Science Laboratory, Calcutta (Ext. 44) dated 3-8-1999, the result part is quoted below :
“Exhibit-I blood sample said to be of Shri Hari Shankar Tewari; Exhibit-II blood sample said to be of baby Gargi and Exhibit-Ill blood sample said to be of Kumari Pratima Dey were subjected for DNA isolation by organic solvent ext. (sic) reaction method. High molecular weight DNA could be recovered from the Exhibits I, II and III…. Exhibit-I blood sample said to be of Shri Hari Shankar Tewari, Ext.-II blood sample said to be of baby Gargi and Exbt.-III blood sample said to be of Kumari Pratima Dey reveals that the non-maternal alleles in baby Gargi are not present in the alleles of Hari Shankar Tewari….Shri Hari Shankar Tewari is excluded as the source of the non-maternal alleles.”
The trial Court rejected this report, as Pratima Dey is the elder sister of the victim and the results of the two reports from Hyderabad and Calcutta are in conflict. We have further noticed in the deposition of Dr. Nandalal Debbarma (P.W. 18), who headed the Committee of 4 doctors for collection of blood for the purpose of DNA test that there was no material for sealing the blood sample. The relevant part is quoted below :-
“As there is no material for sealing the blood sample without any sealing the sample was handed over to the Magistrate present at that time.”
In the re-examination part, he further stated that the collections of blood sample with preservation with sealing are the subject of forensic medicine. He admitted that like him other two members, namely, Dr. Deba Prasad Chakraborty and Dr. Partha Sarathi Chakraborty had no such qualification or experience though Dr. Prabir Deb had the academic qualification and experience in forensic medicine. The collection of blood was thus admittedly defective, and coupled with the conflicting and confusing results of the DNA report presented enough justification for the trial Court to reject both the DNA report. We entirely agree with the findings of the trial Court.
8. Delay in lodging the F.I.R. :- Delay in lodging the F.I.R. formed the second point of attack against the impugned judgment. The victim delivered the baby on 2-2-1999 while the F.I.R. was formally registered on 12-2-1999 after a gap of 10 days. According to the learned counsel for the convict-appellant such a long gap is fatal as it had afforded enough opportunity to the other players for prevaricating the correct factum that the father of the victim, not the convict-appellant, was the actual rapist. It is submitted that no reasonable explanation was offered by the prosecution for such a delay and, as such, the dictum of the Supreme Court in Vimal Suresh Kamble v. Chaluverapinake, shall squarely apply in the present case for rejecting the appeal. In that case a married maidservant, who worked in five flats, alleged that she was raped on one Sunday afternoon in one flat by the accused. She raised no alarm and worked in other four flats on the next morning. Only on the next evening she lodged the complaint. She was disbelieved not because of delay but because of her conduct and her uncorroborated testimony. This decision, therefore, lends no support to the above submission. The other citation also does not deal with delay. However, this submission on delay seems to be unfounded as we see sufficient explanation in the deposition of the victim, her elder sister (P.W. 3) and their father (P.W. 8). It can be gathered from their statements that they were under constant threat for not disclosing the incident to the police or anybody else. When P.W. 8 was brought to Kakrabon School by the accused-respondent-R. K. Shukla on the night of 2nd February, 1999 he was forced to sign some blank papers and prevented from going to the police station for lodging complaint. When he refused to sign the papers, some musclemen of Mr. Shukla showed their presence to cow down the poor father of the victim. On the same night the victim, her baby, elder sister (P.W. 3) and father (P.W. 8) were packed into a vehicle even against Doctor’s advice not to move the virgin mother within 24 hours. One teacher named Karmakar (not examined) accompanied them and he warned P.W. 8 that no disclosure should be made, as the rival party was strong and powerful. Since then, some persons from the Institution visited the victim’s house with compromise proposal and when it was turned down, P.W. 8 started to receive constant threats over telephone from unknown persons. Out of fear P.W. 8 on the advice of his wife went into hiding for few days and even when P.W. 16, the Circle Inspector of Police posted in Belonia visited the victim’s house on 9-2-1999 under instruction from S.P. (South) and wanted to record the F.I.R. he was told by the victim that without her father’s permission it would not be possible to lodge formal complaint. Though she stated in brief the episode that the Principal had raped her several times causing her pregnancy she was reluctant to lodge a formal complaint, obviously because of the situation surcharged by fear. The police officer recorded the statement and forwarded the same to the Udaipur Police Station. The incident, however, did not remain secret and got leaked into the newspaper, which prompted the Mahila Commission to appear in the scene and stand by the poor helpless and fear-stricken victim. Thus, on 12-2-1999 the F.I.R. was formally lodged. We are of the view that the above circumstances bear sufficient explanation for the delay of 10 days in filing F.I.R. The Supreme Court in State of Punjab v. Ramdev Singh, made valuable observations, which provide the ratio in appreciating the law relating to delay in lodging F.I.R. The observation is quoted below (para 8) :
“Delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the First Information Report. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the same cannot by itself be a ground for disbelieving and discarding the entire prosecution version as was done by the High Court in the present case.”
9. Suppression of victim’s first statement :-: Learned counsel for the convict appellant advanced his next submission that the statement of the victim recorded by the P.W. 16 on 9-2-1999 being prior in time should have been treated as F.I.R. which the prosecution has suppressed without offering any explanation therefor and hence the complaint lodged by the victim on 12-2-1999 under the aegis of the Women Commission was afterthought and fabricated with a view to screen the victim’s father and falsely implicate the convict-appellant. In support of this contention reliance is placed on the decision of the Supreme Court in Hem Raj v. State of Punjab, . Relevant part in para 21 is quoted below :
“The State of Punjab preferred an appeal against the order of acquittal. The High Court by its judgment and order has found the appellant herein as well as Baldev Raj A-3, guilty, but it upheld the acquittal of Hans Raj A-4, against whom there was a charge of conspiracy. The appellants were also acquitted of the charge of conspiracy. The High Court after noticing the evidence on record and the submissions advanced by the parties, firstly considered the correctness of the finding of the trial Court as to whether the statement Ex.PC made by P.W. 2 was the First Information Report, or whether the report earlier made by Vicky P.W. 3 to P.W. 6 in front of Society Cinema must be treated to be the First Information Report. The High Court observed that the first information as to the manner in which the occurrence had taken place was given by P.W. 2 and not by Vicky, P.W. 3 and, therefore, the trial Court was not justified in holding that the First Information Report was really the report made earlier by P.W. 3 to P.W. 6 as nothing had come on record to show that Vicky, P.W. 3 had told P.W. 6 about the manner in which the occurrence had taken place. In our view, since it is not clear from the record as to what was the nature of information given by P.W. 3 to P.W. 6 since the same was not recorded, it is not possible to hold categorically that the information given by P.W. 3 must be treated as the First Information Report. However, we must observe that the reasoning of the High Court in this regard cannot be accepted as correct, namely, that unless the manner in which the occurrence took place is stated in the report, the same cannot be treated as a First Information Report. The law is very clear and well settled that a report which discloses the commission of a cognizable offence must be treated as the First Information Report under Section 154, Cr. P.C. It does not matter whether the person lodging the report had witnessed the commission of the offence or not, nor is it necessary that all details should be mentioned in the report about the manner of occurrence, the participants in the crime, the time and place of occurrence etc. The requirement of Section 154, Cr. P.C. is only this that the report must disclose the commission of a cognizable offence and that is sufficient to set the investigating machinery into action. In this case, since the report to P.W. 6 made by P.W. 3 was not recorded and the endorsement made by P.W. 6 indicates that P.W. 3 had told him that quarrel had taken place a little earlier and that Toni, injured, had been taken to the C.M.C. Hospital. It is not possible to say in the absence of evidence on record, as to whether the report related facts disclosing the commission of a cognizable offence. We, however, do not attach much significance to this aspect of the case and we shall proceed on the basis that the report made by Parshotam Lai, P.W. 2 is the First Information Report.”
We are, however, unable to accept above submission firstly because she refused to make any formal complaint at that point of time and secondly P.W. 16 stated in unequivocal terms in his deposition what the victim had stated to him on 9-12-1999 about sexual assault on her by Hari Shankar Tewari. Thus, the statement of the victim given to him having been reproduced the grievance of suppression or any prejudice caused thereby is totally misplaced. As the statement was not signed by the victim who refused to lodge any formal complaint in the absence of her father, P.W. 16 thought it prudent to send the statement to the Superintendent of Police under whose instruction he had visited the victim’s house. The victim who was sucked into a bewildering situation by threat and fear gathered courage only later when the Chairperson of the Mahila Commission came to her rescue and stood by her firmly. Then only a formal FIR could be placed on record containing allegation against strong, powerful and influential Principal of the Institution. There is no discrepancy in material particulars between what has been stated by the victim to P.W. 16 and the statement made by her in the F.I.R. Learned counsel for the convict-appellant failed to convince us how non-registration of the earlier statement as F.I.R. caused any sort of prejudice or failure to justice. After all, whether it is first or second statement given by her in the FIR in point of time, it is immaterial inasmuch as in the given facts and circumstances of the case there is no scope to take a view that the minor victim could embellish or fabricate her version. The Apex Court in State of Himachal Pradesh v. Shree kant Shekari, observed in para 22 thus :-
“The victim lias categorically stated that she was afraid of the accused who was her teacher and the threats given by him to the extent that she would be put to physical harm if she spoke about the incident to anybody. The stand of the accused that he was falsely implicated because the brother of the victim was not successful in the examination and, therefore, his family had grudge against the accused is too shallow to be accepted. The incident which involved the accused and the mother and brother of the victim took place about a decade back. There is not even a remote possibility of the same being the foundation for false implication. In any event no girl of a tender age and her parents would like to jeopardize her entire future by falsely implicating a person alleging forcible sexual intercourse.”
Even if non-registration of the first statement as F.I.R. can be said to be a defect in investigation, such defect is totally insignificant in the face of credible and cogent ocular evidence. In Dhanaj Singh v. State of Punjab, reported in 2004 SCC (Cri) 851 : (2004 Cri LJ 1807), the Supreme Court held-
“Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective.”
10. Non-disclosure of rape for long nine months :- Non-disclosure of the incident of rape for a long period of 9 months by the victim came to be the next focal point in the robust submissions of the learned counsel for the convict-appellant. We are not convinced that there was anything unusual on the part of the victim for not disclosing the incident for such long time. She was a poor child reading in Class VIII and for the first time in her life she was subjected to traumatic experience of sexual assault from a fatherly figure like the Principal of the Institution whose daughter was her classmate and friend. It is most natural that she was not strong enough mentally or physically to defy the powerful rapist who defiled her under threat of her expulsion from the Institution. She meekly submitted to the libidinous monster again and again without knowing the consequences of the disaster be fell upon her. Even when her pregnancy was in full bloom the poor innocent child could not realise what it really meant and thought her swollen belly might be due to the disease of worm she had been suffering from since long. Little could she realise that worm of a different kind from the rapist’s body nested in her to make her a virgin mother and victimise her in an unkind society, which punishes the victim for the fault of offender again and again. Ignorant of the disastrous consequences and an ignominious life awaiting her, fear from the rapist made her dumb for this long period. Her conduct in not disclosing the incident, in our view, is most natural and usual in the given facts and circumstances of the case.
11. Statement of P.W. 4, Dr. Trivedi, who attended the victim in the hospital where she delivered the baby, has been highlighted in the next submission of the learned counsel for the convict-appellant. According to him it was the first disclosure by the victim to P.W. 4 that none else but her own father was the rapist. We notice from the records that this witness first visited hospital at about 6.30 p.m. on 2-2-1999 and initially he also thought she might be suffering from gas problem. But after careful examination when he found her in full form of pregnancy he asked her how it had happened. Her first reply was that nothing had happened, but when he insisted that she must disclose the facts, the victim then requested him to ask all others to leave the room. We may quote here the relevant part of the testimony of this witness in his own words :-
“I insisted her to disclose actual facts then she told me to ask all of them who were in the room to go to outside. I then told her to disclose everything before all, and she was found calm and quiet and also found her looking here and there in the room and then she disclosed that her ‘father’ is responsible for it. On hearing it I was about to go then she pulled my shirt and wanted to say something but I did not hear anything and told her I will hear you later on.”
This statement of Dr. Trivedi eloquently suggests that she was not feeling free to divulge the name of the culprit in presence of others including Mr. Shukla, Mita and Moutoshi supporting thereby her version before the trial Court that fear had prevented her from disclosing the name. The accused-respondents who had threatened her not to implicate the Principal but to shift the blame on her own father were present in the room and that explains why she wanted to disclose the truth in confidence and accordingly requested the Doctor (P.W. 4) to ask all others to leave the room. The Doctor should have done so in order to get the correct statement from her. Being forced to disclose in presence of all, the victim who was at that time under excruciating labour pain and desperately needed medical assistance looked here and there and seeing the accused-respondents present there failed to defy them and uttered the word ‘father’ as tutored by them. But then, she seems to have quickly realized that she should speak the truth and so pulled the Doctor’s shirt to say something more, which was, however, turned down by the Doctor. This part of the statement of P.W. 4 lends strong support to the prosecution case that under impending threat, fear, pain and uncertainty the poor, shattered child in her bewilderment had to utter the word ‘father’ though she wanted to disclose the secret to the Doctor confidentially. This first disclosure of ‘father’ to P.W. 4 is sharply in contrast with the statement of the victim who claimed she uttered the word ‘Sir’ not ‘father.’ According to the Doctor she uttered the word ‘father’ not ‘Sir.’ We have noticed that P.W. 4, after visiting the victim at 6.30 p.m., left the hostel with advice to the accused-respondents to immediately send her to the hospital and then went to the quarter of his colleague Dr. P. K. Ghosh, where Dr. Parimal Chakraborty (P.W. 9) was present. Dr. Chakraborty (P.W. 9) deposed before the Court that Dr. Trivedi told them that the girl was running full term pregnancy and her age would be between 13 to 14 years. The relevant part of this witness is quoted below :
“Dr. Trivedi also disclosed that the girl wanted to say something to him at that time. As the condition of the girl was critical so he advised authority to shift the girl immediately. He also disclosed that he was waiting for the patient for a long time but the patient was not brought.”
Thus, according to this witness, P.W. 4 did not tell them that the victim disclosed to him that her father was responsible for her pregnancy. We are of the view that P.W. 4 did not perhaps correctly hear what she had actually stated and in all probability she uttered the word ‘Sir’ not ‘father’ if she had disclosed anything at all. Had there been any such startling disclosure to him by the victim that her own father had raped her, he would certainly have stated the same to his colleagues. We are not convinced that there had been any disclosure to P.W. 4, not to speak of ‘first disclosure.’ According to the victim she disclosed first to the accused-respondent-Mr. R. P. Shukla, the Vice-Principal of the Institution, that the Principle was the rapist. P.W. 4 came later, after the first disclosure to Mr. Shukla, P.W. 9, himself a doctor, stated that Mr. Shukla and another person came to the quarter of Dr. Ghosh for Dr. Trivedi who was not present there at that time. When he wanted to know why the patient was not brought to the hospital till then, Mr. Shukla told him that as the prestige of the Institution was involved the victim could not be brought to the hospital and that they had recorded her statement in a tape recorder and obtained written statement from her about her pregnancy. Mr. Shukla also disclosed to him that for the pregnancy the father of the victim was responsible. The witness then replied that it was absurd and could not be. The witness further told that they were not the authority to obtain such written statement from the victim girl or record her statement in tape recorder, as it was a matter for the police to look into. This shows that for the first time this witness came to know from Mr. Shukla about the cause of her pregnancy indicating thereby that there was no disclosure to him by Dr. Trivedi and so there was no disclosure by the victim to Dr. Trivedi.
12. The next submission of the learned counsel for the convict-appellant is that so far the allegation of rape is concerned the statement of the victim is the only evidence without corroboration and that too suffers from discrepancies on material points and, therefore, such a statement merits no reliance for conviction. We are unable to accept such a submission that victim’s statement alone cannot be the basis for conviction. In para 14 of Ram Dev Singh (supra) the Supreme Court observed thus (para 13) :-
“It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former; it is physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice would do.”
Why the testimony of a ravished girl should be placed on a higher pedestal has been focused by the Supreme Court in Para 1 of the above noted case, which reads (para 1 of AIR) :-
“Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity – it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Bodhisattewa Gautam v. Subhra Chakraborty the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution of India (in short “the Constitution”). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.”
In Bhupinder Sharma v. State of U.P., , the Apex Court delved into new depth of the principle in paras 11 and 12 thus :-
“11. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal juggler. A similar view was expressed by this Court in Rafiq v. State of U.P. (1980 Cri LJ 1344) with some anguish. The same was echoed again in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983 Cri LJ 1096). It was observed in the said case that in the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is an in-built assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. State of Rajasthari were :
“The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present at the mind of the judge….
12. To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. (See State of Maharashtra v. Chandraprakash Kewalchand Jain (1990 Cri LJ 889)). Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt disbelief or suspicion? The plea about lack of corroboration has no substance.”
13. The discrepancies in the statements of the victim, as dilated and highlighted by learned counsel for the convict-appellant notwithstanding, if her statement before the trial Court along with those recorded in FIR by police and under Section 164, Cr. P.C. by the Magistrate are placed on the anvils of the above principle, they inspire confidence and prompt us to believe that she stated the truth and only her deposition alone can be the basis for conviction.
14. Learned counsel for the convict-appellant placed strong reliance on the document i.e. Exbt. I, which is purported to be a letter, addressed to the Principal by the victim herself on 2-2-1999, at a time when she was struggling under labour pain. The letter reads :-
“With due respect I would like to clarify regarding my pregnancy that for last one year I was made pregnant by father and he is fully responsible for this just from the summer vacation ’98. This is for information and necessary action please.”
Below this content two certificates, one by Mita Dutta and the other by R. K. Shukla, the two accused-respondents, have been recorded. The certificates state that the victim herself had written the letter addressed to the Principal in presence of Dr. S. R. Trivedi (P.W. 4) whom the convict-appellant and accused-respondents claimed to be independent and unbiased witness. But this witness in his deposition before the trial Court stated in no uncertain terms that the victim did not write any such letter in his presence, raising thereby serious doubt over genuineness of the letter and its actual author. This document was subjected to scrutiny by Government Examiner of Questioned Documents Bureau of Police Research and Development (MHA) Central Forensic Institute (Exbt. 49) and the conclusion of the expert is that the document is made up one. The trial Court has accordingly and rightly rejected the document as it lends no credence to the defence story. The document is thus proved to be a false and fabricate one with a view to shift liability of the crime to the father of the victim.
15. After the DNA test reports (Exbts. 43-44) and the document (Exbt.l) which forms the foundation on which defence built its super structure paled out of consideration, the trial Court analysed and appreciated the evidence of the victim explaining and reconciling minor omissions and contradictions and then found eloquent corroboration from the circumstantial evidence emanating from the conduct and statement of other witnesses and the accused persons. Upon a careful consideration of the material on records, we find the conviction and sentence passed by the learned trial Court on the convict-appellant-Hari Shankar Tewari is on terra firma and they are call for no interference. We have noticed the convict-appellant could not substantiate his defence that he has been falsely implicated by the victim at the instance and under the influence of Smt. Sima Mukherjee (P.W. 7). She was an employee of the Institution like Smt. Debashree Deb (P.W. 12), who had to leave the Institution and was not present at the relevant time. We entirely agree with the trial Court that the prosecution has, in spite of minor hiccups here and there, proved its case against the convict-appellant beyond all reasonable doubt.
16. Discussion on merit of the appeal against acquittal :- We may now turn to consider correctness of the findings of the learned trial Court relating to acquittal of 3 accused-respondents-Mita Dutta, Moutoshi Deb and R. K. Shukla in the Criminal Appeal 66 of 2003. The conduct of these accused persons right from 2-2-1999 when the victim complained of stomach pain and later was found to be pregnant deserve intense scrutiny. They are the players in the second part of episode facing charges of screening the offender punishable under Section 201, I.P.C., committing forgery punishable under Section 468, I.P.C. and using a forged document as genuine punishable under Section 471, I.P.C. Learned counsel for the three accused-respondents advanced the argument that there is a general presumption in favour of the innocence of the accused persons which is strengthened by the acquittal. To buttress this submission, he placed reliance on the decision of the Supreme Court in Kunju Muhammed v. State of Kerala, are the relevant parts, which read :-
“19. Thus, we find most of the reasons given by the High court for rejecting the conclusions of the learned Sessions Judge unacceptable. At this juncture, we would like to bear in mind the law laid down by this Court in regard to reappreciation of evidence by the High Court in appeal against acquittals. This Court in Dhanna v. State of M.P.(1996 Cri LJ 3516) had laid down that though the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. While doing so it ought to bear in rnind : first that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. Secondly, it should bear in mind that every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed.
20. In Shailendra Pratap v. State of U.P. this Court held (SCC p. 766, para 8) : (p. 1274, para 8 of Cri LJ).
“It is well settled that the appellate Court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants Recorded by the trial Court as the same did not suffer from the vice of perversity.”
The above principles have been consistently followed by this Court in a large number of cases. If we apply the said principle to the facts of this case, we notice that the High Court in the instant case has not come to the conclusion that the finding of the Sessions Court was in any manner perverse or one that cannot be arrived at by a reasonable person. Therefore, in our opinion, assuming another view was possible to be taken on the material on record, the High Court ought not to have substituted its view in place of that of the Sessions Court, and reversed an order of acquittal on such substituted view of its own. At any rate, on the facts of this case, we have come to the conclusion that the view taken by the learned Sessions Judge was the only possible view, hence, the High Court ought not to have interfered with the same. From the material on record, the defence has been able to establish that the prosecution case in regard to the time and place of incident is highly doubtful; even the evidence of the eye-witnesses apart from being interested was full of contradictions and improbabilities based on which no conviction could have bean recorded against the appellants. For the reasons stated above, this appeal succeeds and the judgment and conviction awarded to the appellants by the High Court is set aside. The appellants, if in custody, shall be released forthwith, if not required in any other case.”
17. The factual position may now be examined on the anvil of above principle.According to the defence the first disclosure of pregnancy and the identity of the rapist by the victim was to P.W. 4, Dr. Trivedi, who made first visit to the hostel at 6/6.30 p.m. But according to the prosecution the first disclosure by the victim was to the three accused-respondents before arrival of the Doctor (P.W. 4). She stated in her deposition that at about 6/6.30 p.m. Mita and Motoushi examined her abdomen by their hands and left her room whispering something. After some time they came back again and shifted her to their room when other accused-R. K. Shukla joined them. He abused her and insisted to disclose the name of the person who made her pregnant and only then for the first time she told them the name of “Principal Saheb.” This part of her evidence could not be discredited by cross-examination, which largely consists of mere suggestions and denials. According to her, Mr. Shukla then warned her not to disclose the name of the Principal to anybody and then insisted she should implicate her father for her pregnancy as otherwise she would not be provided with medical care and would be killed by pushing injection. Such was the heartless and dehumanizing behaviour of the accused-respondent on a minor girl who was in severe mental distress and under an excruciating labour pain. In order to appreciate the role played by the three accused-respondents, the relevant parts of victim’s deposition may be quoted below :-
“…At about 6/6.30 p.m. Mita Madum and Moutushi Madum came to me and they examined my abdomen by their hands and after some time they left the room after whispering something. Again they came to me after some time and took me to their room where they were staying and keeping me in their bed they left the room. At about 6.35/ 6.40 p.m. Moutushi Medum, Mita Medum and accused Shukla came to my room. Accused Shukla abused me in filthy language and asked me who is responsible for my pregnancy. On hearing it I mentally disturbed and Shukla Sir also asked me whether I had any intimacy with any boy student or not and in reply I told him that I did not have any relation with boy student. He insisted me to disclose the name of the person with whom I got the relation and then I told the name of Principal Saheb and then accused Shukla Sir told me not to disclose the name of Principal Sir and also enquired and insisted me to disclose the name of my father who is responsible for such pregnancy and also enquired other family members of my family including whether I have any elder brother or not and then I disclosed to him that I had one youngest brother who was an aged 5/6 years. Shukla Sir also told me if I failed to disclose the name of my father regarding pregnancy in that case I will not be provided any medical treatment, also threatened me to kill by pushing injection. At that time I was in a distress condition and feeling severe pain on my stomach and out of fear I told them that I will name my father who is responsible for such pregnancy and I sought the help to treat me medically in the hospital as my condition was deteriorating very fast. They did not take me to hospital and told me that necessary medical aid will be given by taking doctor here. By that time I found Shukla Sir left the spot, it was then at about 7 p.m. after about half an hour Shukla Sir came to the spot with Dr. Trivedi of Kakraban hospital and Dr. Trivedi examined me. Dr. Trivedi also enquired who was responsible for such pregnancy, in reply I told the name of ‘Sir’ and not disclosed the full name out of fear…. In presence of didi accused-Moutushi and Mita told me to disclose the name of my father who was responsible for such pregnancy and at that time didi was present there. Accused-Mita and Moutushi also told me that such version would be recorded in the tape-recorder. Shukla Sir was not present at that time. As per direction of Mita and Moutushi I put my signature on a blank paper. This is my signature which I gave on a blank paper (roll paper) on that day. Signature identified and marked Exbt.-I. Contents of the letter was not written by me except the signature which I put as per direction of accused-Moutushi and Mita. I cannot say who wrote the contents of the said letter.”
Thereafter, Dr. Trivedi was brought into the scene who on examination found her pregnant and insisted her to disclose the name of the rapist. Because of the threat from the accused respondents she was at a loss and feeling not free to tell the truth. Dr. Trivedi (PW-4) stated before the Court that she requested him to ask others to leave the room as she wanted to disclose the name of the rapist in confidence, but he insisted she should disclose the name in presence of all. Then only, having no other alternative and after looking here and there she uttered the word ‘Sir’, which the Doctor claimed to have heard as ‘father’. The materials on record as already discussed which we do not intend to repeat again show the conduct of the accused-respondents in their following activities :-
(i) Giving threats to the victim not to disclose the name of the Principal;
(ii) Forcing her, under threat of not providing medical care and of killing her by pushing injection, to implicate her father as responsible for her pregnancy;
(iii) Not shifting her to the hospital in spite of Doctor’s advice that her condition was critical calling for immediate hospitalization;
(iv) Obtaining her signature on a blank paper and converting it into a statement of the victim implicating her own father as rapist in place of convict-appellant and then planting two certificates on it to the effect that it was written by the victim herself in presence of Dr. Trivedi (PW-4);
(v) Tape recording a statement prepared by accused-respondents and forcing the victim to read it out for the purpose;
(vi) Bringing her father (PW-8) from his house to the hostel in the same night and forcing him to sign some papers under muscle power when he refused to sign;
(vii) Preventing PW-8, the father of the victim, from lodging complaint to Udaipur Police Station,
(viii) Sending the victim, her baby, her elder sister and her father in the same night to the victim’s house far away from the hostel in spite of the clear direction from the Doctor not to shift her after delivery as it was risky for her to undertake any journey immediately after child birth;
(ix) Threatening PW-8 not to disclose the name of the Principal, as it would lend him in trouble.
18. The learned trial Court recorded the above conduct in the impugned judgment but devalued them in favour of their acquittal after recording his observation in para 47 which reads thus :
“The principal offence in this case is the commission of rape by Mr. Tewari on PW-1. All the four accused-persons namely Mr. Hari Shankar Tewari, Raj Kumar Shukla, Smt. Moutushi Deb and Smt. Mita Dutta had been charged for causing disappearance of the evidence or committing rape on PW-1 by Mr. Tewari having such information. There is no evidence in the record to show that prior to 2-2-1999 at about 6.30 p.m. accused-Raj Kumar Shukla, Moutushi Deb and Smt. Mita Dutta had any information about commission of rape on PW-1 by Mr. Tewari. It is from the version of PW-1 that they could learn the commission of rape on PW-1 by Mr. H. S. Tewari. But according to the accused-persons PW-1 disclosed the name of her father to be responsible for causing her pregnancy and, therefore, in order to save the good image of JNV, Kakraban they did not inform the matter to the police instantly and sent the baby and the other to the parental core. Here I do not find any ingredient of causing disappearance of evidence of the commission of rape at least on the part of accused-Raj Kumar Shukla, Moutushi Deb and Mita Dutta who acted to remove the PW-1 and her baby from the hostel to her residence under the instruction of the accused Mr. Tewari. There is also no evidence that the four accused-persons caused disappearance of the evidence of rape in furtherance of their common intention, so alleged by the prosecution. Here the evidence (sic) rape is nothing but the baby delivered by PW-1 which in fact has not been disappeared but simply handed over to parental care of PW-1. So there is no ingredient of causing disappearance of evidence of rape. Having the evidence discussed hereinabove I am to hold that the prosecution has failed to prove that the four accused-persons in furtherance of their common intention caused disappearance of the evidence of rape in order to screen the offender i.e. Mr. Tewari from legal punishment. So this point is decided against the prosecution and in favour of the accused-persons.”
(Emphasis ours)
19. We are unable to agree to such a finding that the above conduct of the accused-respondents were only to save the image of the Institution. The underlined part of the above observation of trial Court speaks otherwise. The finding is, in our view, perverse for the reason that learned trial Court discussed the conduct of sending the victim to her parent’s house only for dismissing the charge of causing disappearance of evidence. There is no discussion about other conduct of the accused-respondents such as obtaining signature of the victim on a blank paper and converting it into a statement for shifting the liability of pregnancy from Hari Shankar to her father and then attempting to foreclose evidence against Hari Shankar. There is also no discussion about other conduct noted above. The trial Court mentioned that victim was sent to her parent’s house under instruction of Hari Shankar. This shows accused-respondents acted under his instruction throughout to screen him from the offence. Though ingredient of ‘cheating’ being absent in evidence, charge under Section 468 fails and there is no cogent evidence to prove the charge under Section 471, I.P.C., we are of the firm view that in the name of saving the image of the Institution they were trying to save their Principal under his instruction from his lustful and heinous act of raping a minor student by obtaining her signature on a blank paper to convert it into a statement. All sense of humanity and morality takes a deep plunge when accused Shukla did not even hesitate to threat the victim of killing her if she dared to implicate the Principal. He defied the advice of the Doctor to shift her immediately to the hospital when she was under labour pain. Even when the Doctor advised them not to send her anywhere after delivery as it was highly risky and she was being given saline, he ignored the advise and packed her (sic) to her home at a long distance and remote place in the same night. We also fail to understand how the conduct of obtaining signature of the victim on a blank paper, and then converting it into a false document of her statement implicating her father as responsible for her pregnancy which is not only highly immoral and unethical act, but a sin, forcing her father to sign some blank papers and preventing him from making any complaint can be explained as mere attempt on the part of the accused-respondents to save the image of the Institution. We are of the view that it was an unmerited acquittal and that the materials on record irresistibly lead to the only conclusion that the three accused-respondents herein of whom Mr. Shukla was the leader are guilty of offence punishable under Section 201 of the Indian Penal Code. Section 201, I.P.C. provides-
“201. Causing disappearance of evidence of offence, or giving false information to screen offender- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false,
if a capital offence.- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
if punishable with imprisonment for life.- and if the offence is punishable with (imprisonment for life), or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
if punishable with less than ten years’ imprisonment.- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may . extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”
The conduct and activities of accused-respondents, as aforementioned, in our view fall within the province of Section 201, I.P.C. There is no denial of the above activities, particularly making of a false document (Exbt. I), except saying that the intention was to save the image of the Institution. We are not at all convinced of such a motive for the reasons aforementioned. In our view, it was inhuman and unbecoming activity to distort and divert the evidence in order to screen and save a rapist wolf. The materials on records, in our view, have proved the charge under Section 201, I.P.C. against the accused-respondents beyond all reasonable doubt.
In Ramdev Singh (supra), the Supreme Court has held on unmerited acquittal thus (para 15) :-
“16. The High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubt and giving benefit thereof where none reasonably exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, moreso when the victims of crime are helpless females or minor children. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on woman, particularly of tender age and children.”
20. In the result, the Criminal Appeal No. 50 of 2003 is hereby dismissed and the Criminal Appeal No. 66 of 2003 is hereby allowed. The order of acquittal is hereby set aside.
21. The accused-respondent Shri R. K. Shukla, Smt. Mita Dutta and Smt. Moutoshi Deb are found guilty and convicted under Section 201 of the Indian Penal Code. Shri R. K. Shukla, the leader of screening episode is sentenced to undergo rigorous imprisonment for six months and the other two, Mita and Moutoshi to undergo rigorous imprisonment for two months. All the three are also liable to pay a fine of Rs. 5,000/- each in default another term of one month’s rigorous imprisonment. The fine money shall be invested in the name of the baby by the trial Court in a suitable scheme for a period till she becomes major. They shall surrender to the trial Court within seven days from the date of judgment, else the trial Court shall proceed to take them to custody.