1. This is an appeal from Jail by one Ramprashad, son of Thukra, who is convicted of rape under Section 376, Penal Code, and sentenced to suffer rigorous imprisonment for three years and pay a fine of Rs. 100 or in default to suffer rigorous imprisonment for six months by the Additional Sessions Judge, Bhopal, in Sessions Trial No. 14 of 1952.
2. One Mst. Jaitul (p.w. 2) a blind girl of about 11 years lived with her uncle Mangal (p.w. 8) near village Joshipur in a camp of labourers working on a kiln. On 24.2.51 late in the morning she along with her cousin Mst. Jagoo (p.w. 7) of the same age and a boy named Chaitoo aged 10 years, was going towards village Joshipur when near a lonely part of the road the appellant Ramprashad about 20 years of age who was a stranger to the children, came from the opposite direction and frightened them saying that the Census Officers were coming and would catch them. The children being afraid began to run away but the appellant caught hold of Mst. Jaitul, carried her to a dry sandy Nalla nearby and committed forcible sexual intercourse with her. She cried for help but her companions concealed themselves behind a bush and could merely watch the act of the applicant who having accomplished it left the blind girl and ran away.
3. The girl was then led by her companions to her uncle Mangal (p.w. 8) related to him the whole occurrence and Mastansingh (p.w. 4), the contractor, having been informed, laid the First Information Report (ex. p-3) at Police Station Budhni, 8 miles from Joshipur, at 4.30 p.m. late in the same afternoon. On medical examination of the girl on 26.2.51 by Dr. Subbalaxmi of Ladies Hospital Bhopal, her hymen was found torn and not healed up completely, the injury being of less than a week's duration. No sign of exterior violence was found. The appellant Ramprashad's personal examination on 27.2.51, by the Medical Officer, Budhni, showed a scratch on the right hand and on the left leg and smegma was found absent from the glands of the male organ. The Lehenga of the girl and Dhoti of the appellant were said to have borne stains of blood and semen on examination by the Chemist of the State Laboratory of Bhopal.
4. The appellant denied the allegations and the occurrence and pleaded that he was residing at Berkhera and had gone over to Hoshangabad beyond Narmada river on the previous day and went to Joshipur on that very day (24.2.51). He admitted that the Dhoti produced in Court was his and explained away the alleged blood stains on it as possibly caused by an injury on his foot.
5. The learned Additional Sessions Judgo relying on the evidence of Jaitul (p.w. 2), Jagoo (p.w. 7) and Chaitu's evidence in the committing Court brought on the record of the Sessions Court as he was not tracable, read with the medical evidence of Dr. Subba Laxmi (p.w. 3) read with her injury report (ex. p.5) and the evidence of Mangal (p.w. 8) and Mastansingh (p.w. 4) convicted the appellant and sentenced him as above. He rejected the alleged confessional statement said to have been made by the appellant and recorded by a Magistrate. He further held that the Chemist's report was admissible in evidence under Section 510, Criminal P.C. and corroborated the main evidence on record.
6-7. As regards the question whether the appellant had sexual intercourse with Mst. Jaitul, I am in agreement with the learned Additional Sessions Judge that the evidence of Mst. Jagoo (p.w. 7) and Chaitu's evidence rightly brought on record, read with the evidence of Mangal (p.w. 8) fully establish that the appellant had sexual intercourse with Mst. Jaitul (p.W. 2).
After considering the evidence his Lordship proceeded:
The learned Additional Sessions Judge has observed in para 11 of his judgment that 'the provision of Section 510, Criminal P.C. is equally applicable to the report (ex. P-10) of the Chemist and that there could not be a war of words over the mere terminology as the functions of the two viz. : the Chemical Examiner and the Chemist are at par as both examine chemically the articles submitted to them.' The Chemist had submitted his report (ex. p.10). It is not shown on record nor is anything brought before me to show that the functions of the Chemist of the Bhopal State Laboratory and those of a Chemical Examiner are really at par. There was nothing to prevent the Bhopal Government from appointing the Chemist of the State Laboratory as the Chemical Examiner for the Bhopal State. It is doubtful if the Chemist 'possesses the same knowledge and the high qualifications and the facilities which ordinarily a Chemical Examiner is expected to have. The learned Additional Sessions Judge places him at par with a Chemical Examiner simply because both examine chemically the substances sent to them and give their opinion etc but the reasoning appears to be fallacious as it would lead to strange conclusions and an ordinary Subordinate Judge will have to be placed at par with the Judge of a High Court as the functions of both are to decide questions of law and fact arising in the matters before them or a mere constable will have of to be placed at par with a senior Police Officer like a Superintendent of Police because their functions are more or less the same. There is nothing, as I have observed above, to show that the Bhopal Government had placed the Chemist at par with a Chemical Examiner, In my opinion, therefore, his report cannot be admissible in evidence without his evidence in support of it. 'The certificate of the Professor of Anatomy is not per se admissible in evidence' as is observed in Emperor v. Ahila Manaji A.I.R. 1923 Bom. 183.
8. Even if for the sake of argument the Chemist of Bhopal State Laboratory is considered to be at par with a Chemical Examiner appointed as such by the State Government, a number of decisions can be cited to show that a report like ex. P-10 which merely states the bald conclusion? in positive or negative in the matter of the substances sent to the Chemist is hardly of any value whether the appellant challenges it or the facts stated in them or otherwise. In Mt. Gaya a Kunwar v. Emperor A.I.R. it 1934 oudh 62, it is observed by a Bench that:
No hard and fast rule can be laid down us regards sue value to be attached to reports of Chemical Examiners but a meagre and cryptic report is hardly of any value
In Mt. Gajrani v. Emperor A.I.R. 1933 ALL 394, a Bench laid down that:
It is not enough for the Chemical Examiner merely to state his opinion. He must state the grounds on which lie arrives at that opinion. As the Chemical Examiner merely tenders a report and he does not appear and give evidence, it is extremely desirable that hits report should be full and complete and take the place of evidence which he would give if ho were called to Court as a witness.
In Happu v. Emperor A.I.R. 1933 ALL. 837, it is observed that:
No person ought to be put in peril of capital or any, punishment on a written report of Chemical Examiner not given on oath and untested by cross-examination.
This decision is relied upon in Ujagar Singh v. Emperor A.I.R. 1939 Lah. 149, where it is observed that:
The acceptance of mere written report of the Chemical Examiner as evidence in criminal cases without subjecting him to cross examination is dangerous.
In Behram Sheriar v. Emperor A.I.R. 1944 Bom. 321, it is observe that:
Under Section 510 the report of the Chemical Examiner may be used as evidence without the officer being called as a witness. But where the guilt or innocence of the accused turns entirely on the result of the chemical analysis as to the presence of certain ingredients in the articles before the Court it is desirable that the Chemical Examiner should be examined in support of his report and the accused given au opportunity of cross-examining him.
It would thus appear that the report of the Chemist (ex. P-10) cannot firstly be admissible in evidence under Section 510 and secondly even if it is accepted for the sake of argument that it is admissible, no value can be attached to such a bald report as it does not state any reasons in support of the conclusions stated therein nor the tests applied for arriving at such conclusions. In the circumstances, the report cannot be U3ed to establish the fact of the presence of the blood and semen stains on the Lehenga (Article A) and the Dhoti (Article B). It is, however, clear that such evidence is produced on record merely to corroborate the direct evidence of the act of the appellant and even in the absence of such corroboration. in my opinion, the other evidence, as has been referred to above, is sufficient to find the appellant guilty of the offence of which he has been convicted. The conviction is, therefore, correct. As regards the sentence it does not appear to be excessive and if anything, it leans towards leniency.
9. The appeal is, therefore, dismissed.