Full Judgment
Servesh Kumar Gupta, J.
This appeal, preferred u/s 374(2) of the Code of Criminal Procedure, 1973, is directed against the judgment and order dated 08.06.2011 rendered by learned Sessions Judge, Pauri Garhwal in S.T. No.41 of 2010, State Vs. Ram Kumar @ Raj Kumar, whereby the appellant has been convicted u/s 376 of the Indian Penal Code and sentenced to undergo imprisonment for life with fine of Rs.5,000/-, in default of which, one years additional simple imprisonment was awarded. He was further convicted u/s 354 IPC and sentenced to undergo one years R.I. with fine of Rs.1,000/-, in default of which two months additional simple imprisonment was awarded. Appellant/accused was further convicted u/s 506 IPC and sentenced to undergo one years R.I. with fine of Rs.1,000/-, in default of which, two months additional simple imprisonment was awarded. All the sentences, except the sentences in lieu of fine, were directed to run concurrently.
2. Facts of the case are that Km. Kiran and Km. Yamini, students of Class VII and Class V respectively, gave a written report (Ex.A-1) to the S.O. P.S. Chowki Banekhal, with the averments that their father was misbehaving with them and also threatening not to inform about the same to anyone otherwise they would be killed. It was further stated that their mother and sister were also expelled by their father and then, he was tormenting them. On the basis of this information, a report was lodged at Patti Patwari Maniyasyun, Pauri on 3.5.2010 at 5 PM for the offences punishable u/s 354, 506, 323 and 511 IPC. PW5 Dr. Vandana Sundariyal medically examined the victims on 5.5.2010 and prepared joint medical report Ex.A-7. PW4 Dr. D.K. Jain, Radiologist also given his report as regards the age of victims which are Ex.A-6 in respect of Ms. Kiran and Ex.A-5 in respect of Ms. Yamini. Thereafter, the statements of the victims, namely, Ms. Kiran and Ms. Yamini were recorded by the Judicial Magistrate (First) Pauri under Section 164 Cr. P.C. on 11.5.2010, which are Ex.A-2 and A-3 respectively. Pathology report dated 13.5.2010 in respect of Ms. Kiran is Ex.A-4. The Investigating Officer also prepared the site plan of the place of occurrence, which is Ex.A-10. On completion of investigation, a charge-sheet Ex.A-12 was submitted by the Investigating Officer against the appellant for the offences punishable u/s 376, 354, 323 and 506 of I.P.C.
3. The matter was thereafter committed to the court of Sessions and on 30.7.2010, learned Sessions Judge, Pauri Garhwal framed charges against the accused for the offences punishable u/s 376, 376/511 and 506 I.P.C. The appellant abjured his guilt and claimed trial.
4. Prosecution, in order to prove its case, got examined as many as eight witnesses, out of whom, PW1 and PW2 are the victims, PW3 Dr. Vijay, PW4 Dr. D.K. Jain and PW5 Dr. Vandana are the medical officers, PW6 Sunil Kumar is Patwari, PW7 Smt. Madhu Shah is the Principal of the school where victims were studying and PW8 is C.S. Rawat, Naib Tehsildar, who conducted the investigation and submitted charge-sheet. Thereafter, the statement of appellant /accused was recorded u/s 313 Cr. P.C.
5. After hearing the parties and considering the entire evidence led by the prosecution witnesses, learned trial court has convicted and sentenced the appellant/accused, as afore-stated.
6. We have heard learned counsel for the parties and perused the entire material available on record.
7. The instant case is the one wherein against the accused Ram Kumar @ Raj Kumar, his own daughters have raised allegations of commission of rape. In this regard, PW1 Km. Kiran, a child witness, is one of the victims, who deposed that on account of misbehaviour of accused, her mother was constrained to leave her husbands house. According to this witness, she was living in the house along with her father, brother Sukhraj and sister Km. Yamini. She has also averred that her elder sister Ms. Puja was also subjected to the same misbehaviour at the hands of appellant/accused and hence, she had also left the house. This witness along with her sister Yamini used to go school and they were under tutelage of Smt. Madhu Shah (PW7) and one other teacher. She further stated that after her mother and sister went away, her father used to maltreat her. In the night of 02.5.2010 (wrongly written by slip of pen as 30.5.2010), her sister and brother were sleeping separately, whereas her father was sleeping with her. She found that her father was naked at that time. In her statement, she has narrated about the entire process of commission of rape by her father, which we do not want to mention here. In nutshell, she has specifically stated that on that night, her father committed rape upon her. She has also stated that before this occurrence also, her father used to molest her. Even she was further threatened by the accused not to speak about the same to anyone. She has also stated that blood was oozing out from her private parts. She thereafter on the next day went to school where she informed her teacher (PW7 Smt. Madhu Shah) about the incident. Thereafter, her teacher called up the Patwari and also got written a slip (Ex.A-1) from her. She also proved the statement given by her u/s 164 Cr. P.C. to the Magistrate concerned.
8. The Court does not find any reason to disbelieve the testimony of this witness, inasmuch as, no daughter can raise such an allegation against her own father without their being any truth. It also appears from the evidence of this witness that on account of this misdemeanor on the part of accused, her mother, as also her elder sister Ms. Puja had also left the house. The argument that there is a contradiction in the statement of PW1 to the effect of date of occurrence, i.e. 2.5.2010 as stated by her u/s 164 Cr. P.C. and 30.5.2010 in her evidence before the trial court, has no force for the simple reason that looking to the age of victim viz. only 13 years, such contradiction cannot be said to be fatal at all for the prosecution story nor on the basis of such an inconsistency, her entire testimony can be discarded.
9. Our attention was also drawn to the fact that she used to go school along with other children also but she did not inform about the same to anyone. This argument does not hold good for the simple reason that PW1, in her deposition, has already stated in great detail as regards the entire occurrence. She was also threatened by her father (accused) not to inform about the same to anyone. But on the next day of occurrence i.e. on 3.5.2010, PW1 informed about the same to her teacher PW7. In these circumstances, such a witness, aged about 13 years, cannot be expected to speak any further.
10. PW2 Km. Yamini, also a child witness aged about 10 years, who is another daughter of the accused, has also fully corroborated the evidence of her sister PW1. She also stated that her father used to do bad work. About 4-5 months ago, her father had tried to strangulate her elder sisters Puja and Kiran. Thereafter, her eldest sister managed to flee. This witness has also fully supported the fact that on hearing the weeping of his sister Kiran, she as well as her brother had awaken. She has also stated that her father committed bad work (rape) with his sister, and she also saw her father in bodily nude. Then on the next day, all the three children informed about the occurrence to the teacher. She has also proved the statement given by her u/s 164 Cr. P.C. to the Magistrate concerned.
11. So far as medical evidence is concerned, PW5 Dr. Vandana has opined the age of Km. Kiran and Km. Yamini to be about 13 and 10 years respectively. She also testified that in the night of 2.5.2010, Km. Kiran was raped. Though it has been stated by this witness that it was not possible to give any specific opinion regarding the rape, but on the basis of previous history, as also in view of the fact that the hymen was found torn, she has clearly opined the strong possibility of sexual abuse. PW4 is Dr. D.K. Jain, who, on the basis of radiological examination, found the age of Ms. Yamini to be about 10 years, whereas Km. Kiran was found to be 12-13 years of age. This fact further goes on to testify the evidence of PW1. That apart, PW3 Dr. Vijay Suri, Head of Department of Pathology, posted in Govt. Medical College Srikot (Srinagar), has given opinion in respect of two slides of vaginal smear relating to Ms. Kiran, to the effect that on microscopic examination of H.P.E. and Leishman stain slides, spermatozoa and squamous epithelial cells were found present. Thus, according to PW3, spermatozoa were found in the private parts of the victim. As such, the medical evidence also fully supports the prosecution story.
12. PW7 is Smt. Madhu Shah, Principal of the school where the victims were studying. She has proved that on 3.5.2010, Yamini and her sister Kiran came at about 6 A.M. and started weeping; on being enquired, they informed that they had been subjected to rape by the accused. They also informed that their mother and sister had also left their house and in the night, their father misbehaves with them, and hence they did not want to go house. Thereafter, Patwari concerned was informed but he refused to do anything since he did not vest with police power. Then with the help of local people, a correspondent of a local television was called. For the whole night, the girls remained with this witness, and on the next day, they were taken to Pauri for medical examination. PW7 has also testified that the girls had informed her that their father used to sexually assault them.
13. PW8 C.S. Rawat is the Naib Tehsildar, who conducted the investigation and submitted charge-sheet against the accused. He is the formal witness of the case.
14. Thus, in view of the above evidence, the evidence given by P.W.1 also gets ample corroboration from the medical evidence. There is no ground to disbelieve the evidence either of PW1 or of PW2. PW1 Km. Kiran has unambiguously and specifically stated about the fact of commission of rape upon her by the accused, who is none other but her real father. She cannot be said to be lying, inasmuch as, in Indian Society, a forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a daughter, for roping her own father falsely in the crime of rape.
15. Though on a perusal of the statement made by PW2 u/s 164 Cr. P.C. as also before the trial court, the offence of commission of rape upon her by the accused is not proved, but her evidence fully supports the evidence given by PW1. Thus, it is proved that the appellant/accused outraged the modesty of his younger daughter Ms. Yamini at several instances, therefore, the offence, punishable u/s 354 IPC, is completely made out against the accused/appellant. It has also come in evidence that when the appellant/accused was asked to restrain from his misdeeds, he also threatened his daughters not to inform anyone about the same else they would be killed. As such, the offence u/s 506 IPC is also completely proved against the appellant/accused.
16. It was lastly argued before us that the accused, in his statement u/s 313 Cr. P.C., has stated that the witnesses are giving the false evidence. He has also stated that his daughters were working at the house of PW7 Smt. Madhu Shah and when he stopped them from doing so, he was falsely implicated in this case by PW7. We do not find any force in this argument at all since there is no ground to disbelieve the clear-cut evidence of PW1 and PW2, the victims, which also gets full support by the medical evidence of PW3 to PW5 medical officers, as also by PW7 Smt. Madhu Shah, nor any such animosity has been proved. The Court feels that it is a barbarous act committed by the accused, who is none other but the father. In the instant case, a father, who was supposed to rear the victims, has turned to be a butcher. The act of rape, on the part of accused against his own daughters, can be attributed to be of a heinous nature, as if they were being reared for everyday sexual pleasure.
17. In view of the foregoing facts and circumstances of the case, the Court feels that the trial court was perfectly justified in recording the conviction and sentence of the appellant/ accused, as afore-stated, and there is no scope of interference with the same. This jail appeal, preferred by the convict Ram Kumar @ Raj Kumar, from jail, fails and the same is dismissed.
18. Let a copy of this judgment along with the lower court record be sent to the court concerned.