1. Respondent has been acquitted of the charge under Section 376, Indian Penal Code. The prosecution case is that the accused, a minor boy of 16 years, took the victim girl aged 6 years to his house while she was playing in the afternoon of 25-5-1960, first made her to sit on a wooden plant and then made her sleep with face downwards on a paddy heap inside that room, and thereafter the accused inserted his penis into her private pacts. Her frock become blood-stained and she felt extreme pain and cried aloud. The accused consoled her by giving a pie. The girl then came out to the outer verandah of the house of the accused when Suryakanto a neighbour girl, (not examined) saw the blood on her frock and called P. W. 6 the mother of the victim girl. The girl narrated the story of rape to her mother. On getting information the father of the girl, who was a vaccinator, came to the spot and P. W. 2 narrated the same story to her father (P. W. .4). P. W. 2 was taken to the hospital at Raygada at a distance of about 3 miles.
After examination the medical officer directed P. W. 4 to lodge a report at the police station. P. W, 4 lodged the first information report. The Officer in charge seized the frock and sent the victim to the medical officer for examination, P. W. 1 the doctor, examined her and found an abrasion 1/3' long on the upper part of the labia minora just above 1/2' or even less to the left side of the clitoris of the victim girl. He also found streaks of dried blood on the inner side of both the thighs, knees and the legs of the victim who complained of pains on her private parts. Her cloths had blood clots. He preserved a swab from the vagina of the victim girl and sent it to the Chemical examiner, Calcutta, on police requisition. He sent the pant (M. O. II) worn by the accused for medical examination. The doctor on examination of the accused ascertained his age to be between 14 to 16 years. The accused had pubic hair of 11/2' long and his penis was well developed and had recent laceration and rupture of frenum of his penis. The inside of the prepuce and glans was clear and free from smegma. The penis had a laceration which was a sign of violence. The age of the laceration was about 40 hours at the time of examination on 27-5-1960.
2. The accused admitted that the victim girl came to his house for playing, but stated that while playing she fell down on a Pidha near the paddy heap and that the injuries and the bleeding on the girl were due to accidental fall on the Pidha which had a protruding nail. The injury on his penis was explained to be due to a boil on it one month prior to the occurrence.
3. The learned Assistant Sessions Judge acquitted the accused after discarding the prosecution evidence. The victim (P. W. 2) deposed in the committing Court that she was sitting in the room on a Pidha with some protruding nails and that she had bleeding injuries in her private part which came in contact with the protruding nail. As her statement before the Committing court was substantive evidence and there was conflict between her statement in the Committing court and in the Sessions Court, the learned Assistant Sessions Judge was not inclined to place reliance on her evidence. As the medical officer (P. W. I) deposed that the injuries on the private part of the victim would be possible it a protruding nail on the Pidha comes in contact with it, the learned Assistant Sessions Judge did not attach much importance to the injuries, bleeding and the blood stains on the pyjama of the accused arid the frock of the girl. Though the analysis and the judgment of the learned Assistant Sessions Judge are somewhat confused, on perusal of the materials on record we cannot say that his view was an unreasonable one. We are therefore not inclined to interfere with the order of acquittal.
4. We cannot, however, part with this case without noticing two important aspects in which the learned Assistant Sessions Judge acted contrary to law. He observed in para 5 of his judgment:
'In a case of rape the statement made by the complainant immediately after the occurrence to her mother, is admissible not as an evidence of truth of the charge but as corroborating the credibility of the complainant'.
This expression of law is confused and contrary to the well settled position decided in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54. The legal position is that the previous statement of the complainant at about the time of occurrence is legally admissible and relevant as evidence of conduct under Section 8 of the Evidence Act. It is also admissible as corroboration of the evidence of the complainant in Court under Section 157 of the Evidence Act. What weight is to be attached to such statement is of course a different matter. In some cases its weight may be nil, but in other cases, where corroboration is not essential to conviction, conduct of this kind may be more than enough in itself to justify acceptance of the complainant's story. This depends upon the tacts of each case.
5. The other matter which deserves serious consideration is the treatment of the learned Assistant Sessions Judge and the conduct of the officer-in-charge of the prosecution with regard to the report of the Chemical Examiner on the vaginal swab. The I. O. (P. W. 7) deposed:
'I received the report of the chemical examination regarding the vaginal swab in which the chemical examiner detected spermatozoa. That report was sent to the S. D.M. through C. S. I., Raigada on 14-9-60. Before sending that report to C. S. I., I sent it to S. P. for his perusal who returned the same on 8-9-60 through A. S. P. Raigada'.
This evidence was given on 23-9-1961. The learned Assistant Sessions Judge in para 7 of his judgment observes:
'The prosecution after conclusion of the trial filed a petition to admit a copy of the report of the Chemical Examiner which was received on 5-12-1961 into evidence but it was rejected in the light of a decision reported in State v. Karu Gope, AIR 1954 Pat 131, to the effect that a copy of the Chemical Examiner's report is not admissible in evidence'.
It is not known why the prosecution did not lender the original report unless it was in conspiracy to see that the case ended in acquittal. The copy of the original report, cannot be used in evidence wi thout formal proof. Section 510 Cr. P. C. (relevan. for the purpose) is to the effect:
'(1) Any document purporting to be a report under the band of any Chemical Examiner or Assistant Examiner to Government ........................... upon any matter or thing duly submitted to him for examination or analysis and report ITI the course of any proceeding under this Code, may be used as evidence in any enquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall on the application of the prosecution or the accused, summon and examine any such person as to the subject matter of his report'.
Though the prosecution failed in its duty to bring the original report, which definitely contains the statement that spermatozoa was detected in the vaginal swab, it is not intelligible why the learned Assistant Sessions Judge did not call upon the pro-sectuion to produce the original report once he came to know of the fact from the copy filed and from the statement of P. W. 7. If this report would have legally come into evidence, very strong evidence would be forthcoming to support the version of the girl in the Sessions Court corroborated by her statement made to the mother immediately after the occurrence and the alternate theory that the bleeding and the injuries were caused by the protruding nail could have been discarded. Then it would have been open to a Court of fact to prefer the statement of the girl in the Sessions Court to that of her in the Committing Court. As a result of laches on the part of the prosecution and on the part of the Court, justice does not appear to have been done in this case.
6. We have given anxious consideration as to whether further evidence should be directed to be taken in this case by exhibiting the original report of the chemical examiner and giving a chance to the accused for full-cross-examination. Section 428 Cr. P. C. lays down that the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take suck evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. Under Sub-section (3) unless the appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken. Under Sub-section (2) of Section 510, Cr. P. C. the Court may, if it thinks fit, and shall on the application of the. prosecution or the accused, summon or examine any such person as to the subject-matter of his report. It is open to the accused to insist on the examination of the Chemical Examiner for the purpose of cross-examination. In this case the victim was a girl of six years and the accused was a boy of 14 to 16 years at the, time of commission of the offence and much time had elapsed in the meantime. When the prosecution was not vigilant of its own responsibilities, we do not feel called upon putting the accused to further harassment by a protracted trial by giving a direction for taking further evidence.
7. Subject to the aforesaid observations the appeal fails and is dismissed.
8. I agree.