JUDGMENT
M.K. Chawla, J.
(1) In this appeal, Om Parkash Singh has challenged the correctness of the finding of fact given by the Additional Sessions Judge holding him guilty under Section 376 Indian Penal Code . and sentencing him to undergo R, for 7 years and a fine of Rs. 5000.00 , in default of payment of fine to further under go R.I. for six months.
(2) Public Witness . 2 Smt. Devki is the prosecutrix. On the basis of her statement, F.I.R. Ex. Public Witness . 2/A under Section 376 Indian Penal Code . was recorded in Police Station, Shakar Pur. She has unfolded the prosecution version in her examination-in chief alleging therein that she is 26 years old married woman having one child named Amit aged 4 years. At the time of the occurrence she was residing at 36, Krishan Kunj along with her husband. This house belongs to her father. The accused was a tenant of one or the rooms in the same premises. Narrating the incident she deposed that about I j year back at about 8.30 P.M., she was present in her house. She was all alone at that time. Her son Amit had gone to her maternal grand-mother. She was lying on the bed when the accused came to her house. The accused immediately thereafter gagged her mouth and switched off a the light. He also threatened that in case she raised hue and cry, he would kill her. At that time she was wearing a blouse petticot and a sari. The accused committed rape on her and went away. She immediately narrated the occurrence to Lalan Pandey and his wife Pajindari who were residing in the adjoining house. They advised her to wait till the arrival of her husband. However, on that night her husband came late at about 10.00 P.M. She immediately narrated the incident to her husband who decided to call her parents and her brother. After sometime she along with her husband, father and brother went to the Police Station and lodged the report Ex. Public Witness . 2/A. Thereafter she was got medically examined. Her petticot, Dhoti and the bed sheet were taken into possession.
(3) The accused was arrested and his underwear was also taken into possession. These articles were sent to the office of the C.F.S.L. for report. In the meantime, the Investigating Officer recorded the statement of various witnesses, prepared the site plan, got the site photographed and after collecting reports from the hospital and the office of C.F.S.L. completed the investigation and filed the challan. The accused was charged to stand trial under Section 376 I.P.C. and he was also charged under section 506 IPC. The accused pleaded not guilty to the said charges and claimed trial.
(4) During the course of the trial the prosecution examined as many as 13 witnesses including the prosecutrix. The accused in his statement under Section 313 Cr.P.C. admitted that he is the tenant in a house No. 15-B, Krishan Kunj. This house belongs to the uncle of the prosecutrix who is the younger brother of Ram Gopal, the father of the prosecutrix. They had been quarrelling with him on number of occasions and had also instituted a suit for his eviction. Ram Gopal had also been giving threats that in case he does not vacate the premises, he would be falsely implicated in some heinous cases. Ram Gopal in collusion with the police and his daughter has implicated him in this case. He, however, did not lead any evidence in his defense.
(5) The learned lower court on the basis of oral as well as documentary evidence placed and proved on record, came to the conclusion that the accused had committed rape on Smt. Devki and held him guilty of the offence under Section 376 and sentenced him as stated above. However, he was acquitted of the charge framed under Section 506 Indian Penal Code ., as the prosecution failed to lead any worthwhile evidence to connect him with the said offence.
(6) The contention of the learned counsel for the appellant is that the conviction of the accused is mainly based on the evidence of Public Witness . 2 Smt. Devki and if her statement as a whole is carefully perused, the accused cannot be convicted of the charge of rape. His further submission is that the learned trial court failed to appreciate the provisions of Section 114-A of the Evidence Act and raised the presumption that the accused was required to prove his innocence to the charge of rape. According to the learned counsel, the reports of C.F.S.L. who examined the presence of semen on the clothes of the prosecutrix do not advance the case of the prosecution in the absence of nonexamination of the underwear of the accused. On the other hand, the submission of the learned counsel for the State is that once the evidence of the prosecutrix is believed, there hardly remains any scope for the accused to get away with this charge. According to him, the surrounding circumstances do indicate that the accused who is the next door neighbours took undue advantage of the loneliness of the prosecutrix and committed forcible sexual intercourse against her wishes. In these circumstances, the accused does not deserve any leniency.
(7) , I have given my careful consideration to the rival contentions of the parties. The case of the prosecution is to be looked into with the background that there is a long-drawn litigation between the accused and the father of the prosecutrix who is the general attorney of his younger brother, the owner of the house. The parties have been extending threats leading to the altercations and quarrels. Ram Gopal had already instituted a suit for eviction and the accused is fighting for his survival.
(8) In this background, one has only to carefully peruse the crossexamination of the prosecutrix, Smt. Devki. The following salient admissions on her part to my mind, is a complete answer to the false implication of the accused. “(A)It is correct that my mother has filed certain suits against the accused. (b) Before this occurrence, there was a quarrel on two or three times between the accused and my father regarding the vacation of the portion of the house in his occupation. (e) It is correct that my father told the accused that he would see as to how the house is not vacated. (d) There was a quarrel between my father and the accused one day prior to the occurrence. (e) My father had told me that the accused was to be implicated in this false case. (f) On the day of occurrence, my husband Rajender was present in the house from 8 P.M. to 10 P.M. (g) The Police came to our house at 8.30 P.M. on that day. (h) The Police remained at our house on that day i.e.,17.1.84 from 8.30 P.M. to 9.00 P.M. My father was present in our house when the Police came. (i) It is correct that my father took me to the Police Station at about 9.00 P.M. (j) I did not say anything to the Police Officer who was present there. He himself had written and my signatures were obtained, (k) No memo was prepared in my presence. Only my Signatures were obtained. I went to the doctor the next day. I did not tell any thing to the doctor. My father told the doctor and she recorded. (1) The accused had come to our house on 17.1,84 at 8.30 P.M. He had no talk with my husband regarding the vacation of the house…………On 17.1-84, the accused stayed at our house for about a minute and them he left. (m) It is correct that the report with the Police was lodged only with a view to get the house vacated from him.”
(9) There is no need for this Court to comment on the above said admissions which are self-destructive to her evidence itself. She was not got declared hostile in spite of the damaging statement in the cross-examination for which there is no explanation. It appears that the most of the admissions have been made on the basis of the facts which them existed. Her examination-in-chief on the other hand is the handy-work of her father. The perusal of the M.L.C. shows that the prosecutrix was described as mentally retarded for which she took treatment for many years. Presumably, the father must have taken full advantage of his daughter’s illness and used her as an instrument in falsely implicating the accused. This part has been admitted by the prosecutrix herself.
(10) The Chemical analysis report from the office of the C.F.S.L. also does not lend any support to the prosecution version. Admittedly, the petticot, a dirty striped cotton bed-sheet and a small gauze cloth piece were taken into possession from the person and house of the prosecutrix. These articles along with one dirty brown cotton underwear of the accused were sent to the office of C.F.S.L. for comparing the semen found on the articles, if any. The first report Ex. Public Witness 12/B indicates that human semen was detected on the dirty white petticot and the small gauze cloth piece. However, semen could not be detected. on the dirty striped cotton bed sheet and the brown cotton underwear. In the second report, Ex. Public Witness 12/A, the laboratory could not ascertain the grouping of the semen-stains found on the articles. The finding is inconclusive. These reports go to show that there was a missing link in the grouping of semens of the accused and the one found on the petticot and the a gauze cloth piece. Had there been an immediate intercourse, the accused semens must have been detected on his underwear as well as the petticot of the prosecutrix or the bed sheet. This fact also falsifies the story of rape having been committed. Azad Medical College with respect to the presence of sperms in the vaginal smear of the prosecutrix is neither here nor there. This sample was sent to the department of Forensic Medicine of the hospital after 45 days of the incident. It is just not possible to believe that the test would show the presence of vaginal cells, bacterial debris and leucocytes or that spermatozoa, would be seen several in numbers in tact. It is not explained as to why this part of the examination was not got done from the C.F.S.L. I do not place any reliance on this report even though this by itself is not conclusive of the commission of rape.
(11) The next circumstances which appears to have weighed with the learned Lower Court in basing the conviction is the raising of a presumption against the accused by virtue of Section 114-A of the Evidence Act. According to the learned lower court, if there is a specific allegation of rape against the accused, it is for him to prove his innocence. Section 114-A of the Evidence Act reads as under :- “14-A.Presumption as to absence of consent in certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (e) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.”
(12) Thus, the presumption applies only to cases enumerated in sub-section (2) of Section 376 Ipc, Sub-section (2) of Section 376 Indian Penal Code reads as under: – “WHOEVER-(a) being a Police officer commits rape : (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him, or (e) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes, advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine;”
(13) The standard and onus of proof in a case of rape has not changed by the amendment. It only created a presumption qua the consent of the prosecutrix, The bare perusal of the above-said provisions goe to show that the case of the present appellant does not fall in any of the categories enumerated in sub-section (2) of Section 376 Indian Penal Code . In this case, the rape has not been proved. Even otherwise, the accused was not required to prove his innocence to the charge of rape, against a word of the prosecutrix that she had not given consent for the sexual act. The learned lower court has gone wrong in raising the presumption against the accused which he should not have raised in view of the reasons stated above.
(14) The prosecution version suffered a serious set-back insofar as PW-4 Shri Vidya Sagar Misra and PW-5 Smt. Rajindri Devi did not support the prosecutrix. According to Smt. Devki, immediately after she was raped by the accused, she narrated this a occurrence to Lalan Pandey and his wife Rajinderi. According to her, both of them advised her to remain composed and wait for the arrival of her husband. To support the story of rape, these persons who are the next-door neighbours of the prosecutrix were the most material witnesses for the prosecution. Unfortunately, even though produced, both of them turned hostile and did not support the prosecution version. Because of the lack of important link in the chain of circumstances the prosecution story falls to the ground.
(15) All these circumstances taken together leave no doubt in my mind that the prosecution has miserably failed to connect the accused with the offence charged I, therefore, accept the appeal and set aside the order of conviction and sentence of the learned Addl. Sessions Judge Dated 27.2.1986, and acquit the accused. The accused is on bail. His bail bind is discharged.