Judgment:
Arali Nagaraj, J.
1. The appellant herein was accused In Sessions Case No. 462/2007 on the file of the Fast Track IX Court, Bangalore City (hereinafter referred to as 'Trial Court' for short), has challenged the correctness of the Judgment and Order of conviction and sentence dated 20.8.2009 passed in the said case convicting the appellant - accused for the offence under Section 376 of IPC and sentencing him to undergo R.I. for a period of 10 years and also to pay fine of Rs. 10,000/- with default sentence of imprisonment for three months.
2. Stated in brief the case of the prosecution as alleged in Ex.P5 complaint dated 22.11.2006 filed by the complainant namely PW4 Nagesh Nayak - the Co-ordinator, Association for Promoting Social Action ('APSA' for short) is as under;
(a) On 14.11.2006 at 11.00 a.m. one Sister Flomy (PW9) telephoned to the complainant and informed him that she was sending to him one girl viz. Kum.Sharanya (prosecutrix) aged about 16 years as she was suffering from severe flue and therefore she should be take careof.
(b) Then the said girl came to the complainant. He noticed that she was suffering from severe flue. He got her a tablet for flue. On 16.11.2006 at 11.00 a.m., the said girl was taken to Dr. Shanta Abraham (PW6). At that time, the girl was complaining severe pain in her private part and difficulty in passing urine. When the said doctor interrogated her, she disclosed that she was subjected to forcible sexual intercourse. The said doctor gave her medicines. The girl was brought back to 'APSA', the Institution of the complainant.
(c) On the same night, when the complainant questioned the said girl, she told him that on 11.11.2006 at about 8.00 p.m. while her mother was not in the house, her father put his hands on her chest and behaved indecently and therefore, she ran out of the house and sometime thereafter she returned to the house. She further disclosed before him as under:
(i) On 12.11.2006 at about 7.00 a.m. she went to the Sister of Arunodaya Convent (PW9 Sister Flomy) and informed her that her (girl's) father was ill-treating and beating her and the said Sister advised her saying that her parents would be beating for her benefit only and therefore she should return to her house. Accordingly, she returned to her house and went to sleep. After mid-night, at about 3' O clock, she attempted to commit suicide by pouring kerosene on her person and lifting fire to herself. Consequently, she sustained burns on her head only as her mother extinguished the fire.
(ii) On the morning of 13.11.2006, her mother scolded her for having attempted to commit suicide and then the girl told her mother that her father (accused) should not come to the house. On the same day i.e. on 13.11.2006 at about 9.00 p.m. the complainant's father (accused) came to the house. Immediately after coming into the house, he started shouting saying:
On seeing this, her mother (PW11) went out of the house due to fear. The accused beat her (Kum.Sharanya). When her junior aunt intervened, the accused scolded her also and pushed her out of the house and closed the door. Then the accused beat her (Sharanya) with hands and put his foot on her chest and abused her saying:
While abusing so, the accused removed her clothes and committed forcible sexual intercourse on her and went away.
(d) On 17.11.2006 at about 10.00 a.m., he (PW4 complainant) took the girl (Kum.Sharanya) to Nimhans. One Dr. Suresh (PW 3) examined her and found that, on account of sexual assault on her, she was mentally upset and therefore he opined that she should be taken to a lady doctor. Thereafter, the girl was brought to 'APSA' the Institution of the complainant and she was made to stay there.
(e) On 30.11.2008 he (complainant) took the girl to Vanivilas Hospital. The doctor in the said hospital, after seeing the girl told that it was a medico legal case and therefore, they should inform the police and then come to the hospital along with the police. Accordingly, on 21.11.2006, the Director of complainant's Institution suggested that he (complainant) should go to the hospital through police. Therefore, on evening of 22.11.2006, the complainant lodged his said complaint (Ex.P5) before the Vijayanagar Police.
3. On appreciation of oral evidence of PWs.1 to 13, the documents at Exs.P1 to 14 and M.O. Nos. 1 to 3, the Trial Court, by Its impugned Judgment and Order, found the accused guilty of the said offence and convicted him accordingly. Of the 13 witnesses examined for the prosecution, PW 4 Nagesh Nayaka is the complainant PW8 is the victim girl Kum.Sharanya, PW1 Dr. K.V. Sathish is the Medical Officer who examined the accused and also the victim girl, PWs.2 and 3 respectively Dr. Sridevi Sanganna, Dr. Suresh and also PW6 Dr. Shantha Abraham are the three doctors who examined the victim girl on different dates, PWs.5 and 7 respectively Smt. Sheela Devaraj and Susan Thomas are the members/office bearers of 'APSA' PW9 Sister Flomy is the teacher in Arunodaya convent whom the victim girl is said to have met first after the incident, PW 11 Smt. Karpugam is the mother of the victim girl, PW13 Venugopal, Police Inspector of Vijayanagar PS is the IO. PWs.10 and 12 are other police witnesses.
4. The accused has got examined DW1 Smt. Chitra, the maternal junior aunt of prosecutrix in support of his defence, however, he has not chosen to produce any document.
5. Sri Y.S. Shiva Prasad, the learned Counsel for the appellant accused strongly contended that the oral evidence of PW2 Dr. Sridevi Saganna, who examined the prosecutrix on 22.11.2006 and the contents of Ex.P3 the certificate issued by the said doctor and Ex.P14 FSL report do not established that the prosecutrix was subjected to sexual intercourse in the recent past and PW11 Smt. Karpugam, the mother of the prosecutrix, has not supported the prosecution case that she was present in the house at the time of occurrence of the alleged incident of rape on prosecutrix by the accused, who is none other than the father of the prosecutrix and husband of PW11, and therefore, ignoring all these facts, the Trial Court convicted the accused for the said offence only on the basis of the testimony of PW8 prosecutrix and hence, the impugned Judgment and Order of conviction deserves to be set aside. He further contended, that the Trial Court has not properly appreciated the evidence of DW1 Smt. Chitra who is none other than the maternal junior aunt of the prosecutrix and therefore the findings recorded by the Trial Court that the prosecution proved its case against the accused beyond reasonable doubt for the offence under Section 376 of IPC cannot be sustained in law and consequently, the accused deserves to be acquitted of the said offence. He also contended that, the prosecution has not properly explained the delay caused in filing the complaint, in view of the facts that the alleged incident of rape is said to have occurred on 13.11.2006 and the complaint came to be filed by PW4 on 22.11.2006 and therefore the conviction of the accused for the said offence is bad in law. In the alternative, he further contended that even if it is held that the prosecution has established that the incident of some indecent assault by the accused on the prosecutrix did occur, the same does not constitute an offence under Section 376 of IPC, but it may constitute the one under Section 354 IPC.
6. Per contra, Sri Vijayakumar Majage, the learned High Court Government Pleader, strongly contended that the prosecutrix was subjected to forcible intercourse on 13.11.2006 and she was examined by PW2 lady Medical Officer on 22.11.2006 and therefore it was quite natural that there could be no evidence as to the sexual intercourse committed on her in the recent past and therefore, the Trial Curt has rightly believed the evidence of prosecutrix as to the occurrence of forcible sexual intercourse on her by the accused who is none other than her natural father. He further contended, that since the accused, being the natural father of the prosecutrix committed the said act, the prosecutrix was very much depressed and she approached PWs.4, 5, 7 and 9 with whom she was acquainted and the evidence of these witnesses clearly explains the delay caused in filing the complaint by PW4 complainant. He further contended that the evidence of PW6 Dr. Shantha Abraham and that of PW3 Dr. Suresh who examined the prosecutrix respectively on 16.11.2006 and 17.11.2006 clearly establishes the averments in the complaint Ex.P5 that as a result of the incident of rape on this unfortunate prosecutrix by her own natural father, she was totally depressed and she was given treatment by the said doctors during the period from 14.11.2006 and 21.11.2006 and therefore she herself could not file the complaint against her father in respect of the said incident.
7. PW1 Dr. K.V. Satish has stated in his evidence that on 23.11.2006 at about 11.00 a.m. he examined the accused who was brought to him and issued certificate Ex.P3 to the effect that he was capable of performing sexual intercourse. He has further deposed on the same day at about 12.30 p.m. he examined the prosecutrix for ascertaining her age and issued certificate as per Ex.P2 to the effect that she was aged between 16 and 18 years as on the date of his examination. This evidence has remained totally unchallenged. Therefore, it is clear that the prosecution has establish beyond reasonable doubt that the accused was capable of performing sexual intercourse and the girl was aged between 16 and 18 years as on the relevant date of occurrence of the incident of alleged rape on her by the accused. Thus, it is further clear that she was not below 16 years of her age as on the said date.
8. PW4 Complainant Nagesh Nayaka, the Co-ordinator of 'APSA' has stated in his examination-in-chief substantially the same facts as alleged in his complaint Ex.P5. PW13 Venugopal, the Police Inspector of Vijayanagar PS has stated in his evidence that on 22.11.2006 at about 8.00 p.m. PW4 Nagesh Nayaka appeared before him and lodged his written complaint as per Ex.P5 and, on the basis of the said complaint, he (PW13) registered a case in Crime No. 660/2006 of his PS against the accused for the offence under Section 376 of IPC and proceeded with the investigation. It is suggested to this PW13 in the cross-examination made on behalf of the accused that the said case came to be registered by him falsely at the instance of the said complainant. On careful reading of evidence of PW4 complainant, it could be seen that his evidence in examination-in-chief that on 22.11.2006 he filed his complaint Ex.P5 before the police of Vijayanagar PS has remained totally unchallenged. Therefore, the Trial Court has rightly held that filing of Ex.PS complaint by PW4 complainant has been proved by the prosecution beyond reasonable doubt.
9. On careful reading of the evidence of PW4 Nagesh Nayaka it could be seen that he has reiterated in his evidence many of the relevant facts stated in Ex.P5 complaint. He has stated in his evidence that on 14.11.2006 at about 11.00 a.m. one Sister from Arunodaya convent PW9 (Sister Filomy) telephoned to him and then gave the prosecutrix to his custody and at that time, she was depressed and suffering from fever. He has further deposed that when he enquired with her, she did not disclose anything except saying that she was feeling vomiting and difficulty in passing urine and therefore, on 16.11.2006 he got her examined by Dr. Shantha Abraham (PW6). He has further deposed that on the advice of the said Dr. Shantha Abraham, he got the prosecutrix examined by the doctor at Nimhans Hospital, Bangalore. He has further deposed that when himself and other members of his 'APSA' enquired with the girl, she disclosed that her father had attempted to commit rape on her. He has further deposed that when the said girl was taken to Nimhans Hospital on 17.11.2006, the doctor at Nimhans advised that she should be got examined by a lady Medical Officer, as she was subjected to sexual assault and therefore, he, along with other members of 'APSA', took the girl to Vanivilas hospital on 20.11.2006. He has further deposed that on that day, the doctor at Vanivilas hospital told him that it was a 'medico legal case' and therefore he should inform the police and then come to the hospital along with police. Therefore, on 21.11.2006 he discussed the matter with other members in his Institution and thereafter he lodged complaint as per Ex.P5 on 22.11.2006 before the police of Vijayanagar PS on the basis of the information given to him by the prosecutrix.
10. PW7 Mrs. Susan Thomas has stated in her evidence that on 14.11.2006, PW9 Sister Flomy informed her over telephone that one girl by name Kum.Sharanya, was depressed and she needed shelter and then, herself and PW4 complainant Nagesh Nayak together went to Arunodaya Convent and met Sister Flomy and the said Sister gave the prosecutrix to their custody and, at that time, the prosecutrix was depressed and was not in a position to say anything. She has further deposed that they brought the prosecutrix to their 'APSA', gave her tablets for her fever and asked her to take rest. She has further deposed that on 16.11.2006 they (PW5 and PW7) took the girl to the clinic of PW6 Dr. Shantha Abraham, who treated her and also advised that she should be got examined by a gynaecologist and also the doctor at Nimhans and therefore, she took the girl to Nimhans Hospital on 17.11.2006 where, the doctor, after examining the girl, advised that she should be taken to gynaecologist. She has further deposed that accordingly she took the prosecutrix to the lady Medical Officer at Vanivilas hospital who told her that since it was a medico legal case, a complaint should be given to the police and then she should be brought to the hospital.
11. PW6 Dr. Shantha Abraham has stated in her evidence that on 16.11.2006 at about 11.30 a.m. PW7 Susan Thomas brought to her clinic the prosecutrix kum.Sharanya and at that time the prosecutrix complained of pain in her abdomen and was suffering from fever. She has further deposed that she came to know that the prosecutrix was sexually assaulted.
12. PW3 Dr. Suresh, the Assistant Professor at NIMHANS Hospital has stated in his evidence that on 17.11.2006 the prosecutrix Sharanya was brought to him by one Kavitha and another Menaka who were working in 'APSA' and at that time the prosecutrix was depressed and she disclosed before him that her father had committed forcible sexual intercourse on her and therefore she felt that she should commit, suicide. He has further deposed that the prosecutrix was not examined by any lady doctor and no complaint was tiled in respect of the said incident and therefore he advised the said persons that they should file complaint before the police and get the girl examined by a lady Medical Officer.
13. PW5 Sheela Devaraj, who was working as Director in 'APSA' since the past 17 years, has stated in her evidence that on 1441.2006 at about 6 or 6.30 a.m. the prosecutrix came to her house and informed her that she was sent out of her house by her father by beating and abusing her. She has further deposed that thereafter the prosecutrix was got examined by the Doctor at Nimhans Hospital and then the complaint was lodged against the father of the prosecutrix in respect of the sexual assault committed by him on the prosecutrix.
14. PW9 Sister Flomy has stated in her evidence that on 14.11.2006 by about 8 or 9.00 a.m. while she was coming out of the church alter offering her prayer, the prosecutrix came to her I and at that time she was totally depressed and she did not say anything except weeping, She has further deposed that at that time the prosecutrix was suffering from fever also and therefore she gave her tablets and then sent her to 'APSA', as she refused I to go to her parents' house.
15. There are some discrepancies in the evidence of PWs.2 to 9 as to the persons who brought the girl to 'APSA', who took her to the clinic of PW6 Dr. Shantha Abraham, to NIMHANS and Vani Vilas hospitals, and also by what exact time she met PWs.5, 7 and 9 respectively Sheela Devaraj, Suran Thomas & Sister Flommy, etc. Referring to these discrepancies, the learned Counsel for the appellant-accused strongly contended that the evidence of these witnesses as to said facts should not have been believed by the Trial Court. On a careful reading of the above evidence of PWs.2 to 9 it could be seen that the said discrepancies are minor and deserve to be ignored inasmuch as they do not go to the root of the prosecution case. Besides this, the facts that the prosecutrix approached PW5 Smt. Sheela Devaraj in the early morning of 14.11.2006 and thereafter PW9 at about 10.30 or 11 a.m. and then she met PW4 complainant by about 11.30 who got her examined by the doctors as aforesaid, have all remained totally unchallenged. Further, nothing is brought in the cross-examination of these witnesses to show that they have deposed falsely against the accused with any definite motive. On the other hand, all these witnesses were independent witnesses having no ill-will or enmity against the accused nor, did they have any special interest in the prosecutrix. Therefore, I am of the opinion that the Trial Court did not. commit any illegality or irregularity nor has it shown any arbitrariness in accepting their evidence.
16. The above evidence of PWs.2 to 9 clearly establishes the averments in Ex.P5 complaint that on the early morning of 14.11.2006 the prosecutrix met PW5 Smt. Sheela Deveraj and then she met PW9 Sister Flomy and at that time she was totally depressed and suffering from fever and therefore she was given some tablets by PW9 and she was given shelter in 'APSA' by PW4 complainant and, she was examined by PW6 Dr. Shantha Abraham for her fever on 16.11.2006 and thereafter by PW3 Dr. Suresh at Nimhans Hospital on 17.11.2006 and then by PW2 Dr. Sridevi Sanganna the lady Medical Officer, Bangalore.
17. The above evidence of the said witnesses clearly establishes further that the prosecutrix informed them all that she was subjected to forcible sexual intercourse during the night between 13th and 14th November 2006 and, since the said act was committed on her by her natural father, she was totally depressed and was suffering from fever and pain in her private parts.
18. In order to see whether the delay caused in filing the complaint in respect of the alleged incident of forcible sexual intercourse on the prosecutrix is sufficiently explained by the prosecution, all these attending circumstances are to be taken into consideration. Having regard to all the said facts as deposed by PWs.2 to 9, I am of the considered opinion that they constituted proper explanation as to why there occurred delay in lodging the complaint Ex.P5. Besides this, every delay in giving information to the police cannot be held to be fatal to the prosecution case in the absence of any material on record to show that the said information could be fabricated falsely, against the accused. Therefore, I find no substance in the submission made by the learned Counsel for the appellant accused that the delay of more than one week caused in filing the complaint is fatal to the prosecution and the Trial Court has last sight of the same.
19. As to the incident of indecent behaviour of the accused with the prosecutrix that occurred on 11.11.2006, and her attempt to commit suicide on 12-11-06, PW8 prosecutrix has stated in her evidence that, at about 8 p.m. on 11.11.2006, when her mother was not in the house, her father behaved with her very indecently by putting his hand on her chest, but some how she escaped from him and went out of the house saying that some one were calling her. She has further deposed that some time thereafter, she returned to the house and went to sleep. She has further deposed that on 12.11.2006 she met the sister at Arunodaya Convent and informed her that, since her father was beating her, she would not go to her house, to that, the said sister told her that the parents would be beating the children for the good of the children and therefore, she should return to her house. She has further deposed that as advised by the said sister, she returned to her house and, after mid-night of 12.11.2006, at about 3 a.m. on 13.11.2006, she attempted to commit suicide by pouring kerosene on her person and litting fire to herself, but her mother extinguished the fire and also scolded her for doing so. She has further deposed that, on the next day morning she again went to the Sister of the said Convent viz., Ms. Flomy and told her that her father was beating her and therefore, she was not prepared to stay with her parents and at that time, her mother also came there and took her to house assuring that she would make some arrangement in the said matter. There appear no reasons to disbelieve this evidence of PW 8 as to these facts.
20. For proving the occurrence of the incident of forcible sexual intercourse on the prosecutrix by the accused, the prosecution has got examined PW11 Karpugam, who is the mother of the prosecutrix and the wife of the accused. She has not supported the prosecution case. She has denied the suggestion of the learned Public Prosecutor that she stated before the IO as per Ex.P11 the substance of which is: 'at. about 9 p.m. on 13.11.2006, she and also her sister Smt. Chitra (DW1) were in the house and. at that time, the accused came to the house and, on seeing the prosecutrix in the house, he became angry at her and asked her (prosecutrix) as to why she had come to the house and then he sent both PW11 Karpugam and Chitra (DW1) out of the house and closed the door of the house, though PW11 knocked the door and asked him (her husband) to open it, he did not open it for some time and, after some time, he opened the door and went away and then she (PW11) saw the prosecutrix lying on the floor inside the house weeping, when she (PW11) asked the prosecutrix as to what had happened, she informed her that she was raped by her father'. The evidence of DW1 Smt. Chitra clearly establishes the presence of this PW11 in the house when the incident of forcible sexual intercourse on the prosecutrix by the accused occurred. By not supporting the prosecution case, this PW11 has chosen to side her husband-accused. It is clear that she has deposed falsely with intent to save her husband from being punished.
21. As to the occurrence of the incident of forcible sexual intercourse on the prosecutrix by the accused on the night of 13.11.2006, PW8 prosecutrix has deposed that, on the night of 13.11.2006, while she had slept in her house, the younger sister of her mother (DW-1 Smt. Chitra) was present in the house and at that time, the accused came to assault her by putting his foot on her chest and, on seeing the same, her mother and her said aunt both intervened, but the accused sent both of them out of the house and then committed forcible sexual intercourse on her by undressing her and saying:
22. This prosecutrix has further deposed in her evidence that, for two days she was made to stay in 'APSA' and thereafter, she was taken to NIMHANS hospital where she was examined by Dr. Suresh (PW3) and that there was counseling by the said Doctor and during the counseling, she disclosed before him that her father had committed forcibly sexual intercourse on her and therefore, the said Doctor advised that she should be examined by the Lady Medical Officer and therefore, she was brought back to 'APSA' institution. She has further deposed that (hereafter she was taken to Police Station and then to Victoria Hospital where she was examined by the Lady Medical Officer.
23. PW2 Dr. Sridevi Sanganna is the Lady Medical Officer, who examined this prosecutrix on 22.11.2006 at 11 p.m. and issued report as per Ex.P3. Though the oral evidence of this Medical Officer and the contents of Ex.P3 report and also Ex.P14 FSL report do not disclose that the girl was subjected to forcible sexual intercourse in the recent past, in view of the fact that the said incident took place on the night of 13.11.2006 and she was subjected to medical examination in that regard on 22.11.2006, it is quite natural that, there could not be found on her person any signs of sexual intercourse in the recent past. In such cases where the prosecutrix could not be subjected to medical examination immediately after occurrence of the incident of forcible sexual intercourse on her the entire case of the prosecution cannot be disbelieved on the ground that no signs of intercourse on her in the recent past were noticed on her person by the Doctor who examined her on a later date.
24. On careful reading of the above evidence of the prosecutrix and also the averments in Ex.P5 complaint, the filing of which by PW4 complainant, on the basis of the facts disclosed by the prosecutrix before him and other prosecution witnesses, is not seriously disputed, it could be seen that the evidence of PW8 prosecutrix given before the Court is quite consistent with the averment in the said complaint.
25. Learned Counsel for the appellant - accused strongly contended that the Trial Court should not have believed the evidence of prosecutrix in the absence of corroboration by medical evidence. In support of this contention, he has placed reliance on the decision of the Calcutta High Court in the case of Ananth Bandhu Kundu v. The State of West Bengal and Ors. reported in 1996 Cri.L.J. 3449 and the decision of Hon'ble Supreme Court in the case of Dilip and Anr. v. State of M.P. reported in 2002 SCC (Cri) 592.
26. In first of the above said cases i.e., in the case of Ananth Bandhu Kundu, the facts constituting the case of the prosecution were:
The prosecutrix was resident of a village in Murshidabad district. Site was art employee under the accused. Accused had jewellery business at Bombay and he had possessed a Hat at Bombay, During the month of July 1989, the prosecutrix accompanied the accused to Bombay and stayed with him as his servant in his Hat at Bombay for lew days. No other servant or any other member of the family of the accused stayed in the said flat during the said period. The accused committed sexual intercourse on tier during the said period without her consent and against her will by putting her under threat to her life. Thereafter, both of them returned to Calcutta. She did not disclose the entire incident to anyone at Calcutta. However, she informed the wife of the accused that the accused had embraced her while she stayed with him at Bombay. To that, the wife of the accused told her not to disclose the said fact to any one. Therefore, she did not disclose the same to anyone. About few days thereafter, the prosecutrix again accompanied the accused to Bombay flat and stayed there for 15 days at a stretch. During the said period also, the accused used to rape her under threat.
On those facts, the Calcutta High Court found that the prosecutrix was a consenting party and therefore, no offence under Section 376 of IPC was made out against the accused therein. If is observed by the Calcutta High Court at para 20 of its judgment in the said case as under:
20. A careful scrutiny of the evidence as also the circumstance discussed earlier leads me to conclude that there was an utter valuation (sic) on the part of the prosecution to prove the charges against the accused-appellant beyond all reasonable doubt. The delay in lodging the F.I.R. is fatal in this case. The story given by the prosecutrix does no appear to be believable. There is nothing unnatural for her to accompany her Masters to Bombay on the first occasion when he might have gain some experience for which she was not prepared but tier second visit to Bombay with the same accused cannot be treated as possible in case she had the first: experience and in case she narrated the same to the wife of the accused. Her evidence that wife of the accused insisted her to visit Bombay again with the accused and stay there alone knowing fully well the alleged incident on the first occasion is absolutely impossible to believe. The evidence that even after her second experience which was bitter to her and which was on the insistence of accused who even assaulted her for her refusal to give consent for the second visit. And the story of enjoying the Puja with the accused and his family members in Calcutta after her return from the second series of incident cannot be reconciled. In order to disclosure of the incident to either of her parents or the uncle who used to visit: her monthly is not believable specially when she is reported to have described the incident to the wife of the accused even after her first visit to Bombay. It was very much natural for her to disclose the incident to her mother at least, when she could told everything to the Para Boys whose names are not even known to her. She had a lover staying in the house opposite to that of the accused. It was very much natural for her to tell the incident: to him at least specially when she was in love with him and there was also proposal for the marriage, between the two. She was never kept confined inside the house of the accused but she have to go to outside in course of performing her duty regularly.
The facts in the said case were quite different from the facts in the instant case. The accused has not brought any circumstance on record through the evidence of any of the prosecution witnesses to probabilise that the prosecutrix herein could be a consenting party. On the other hand, there is sufficient evidence placed on record by the prosecution to show that, by reason of this immoral act of her natural father committed on her, the prosecutrix was totally depressed and was not in a position to digest the same even after lapse of a week.
27. In second of the said decisions i.e., in the case of Dilip and Anr. v. State of M.P. 2002 SCC (Cri) 592 para Nos. 9 and 10 wherein facts are narrated, read as under:
9. According to the prosecutrix, she was wearing bangles, two in the left hand and one in the right and the three bangles were broken during rape committed on her. Both the accused had pressed her breasts which were painful. Blood had oozed out from her vagina consequent upon sexual intercourse by the accused persons. The site plan shows the house, where the prosecutrix was residing, as situated on the main road of the village. According to the prosecutrix, she was in the open verandah where fro m she was physically lifted by accused Mohan and taken inside the room. Though the prosecutrix had raised a hue and cry but no one came to her rescue. She was forced to lie down on the floor. On being asked whether she offered any physical resistance to the act of the accused persons, the prosecutrix stated that because she was threatened with her life by the accused persons therefore she did not make any attempt at rescuing herself from the clutches of the accused persons. The fact stated by her in the court that the accused Dilip had thrust, a piece of her saree in her mouth so as to disable her from raising any cry was not stated in the FIR and she was unable to explain this contradiction by omission. Soon after the incident, when she came out of her house, she had found many a person moving to and fro on the main road opposite her house because that was a festival day. She stated that she never had sex at any time prior to the date of the incident and it was false to suggest that she was used to sexual life. The act of the accused persons had caused swelling on her private parts and the blood which had oozed out had stained her legs and the frock which she was wearing at the time of the incident. The swelling and the bloodstains were shown by her to Dr (Mrs.) Jitpure. The prosecutrix stated that her underwear which was taken off by accused Mohan was not worn again by her. It was left behind lying in the house until it was seized by the police.
10. PW 3, the maternal aunt of the prosecutrix does support the prosecutrix to the extent that soon after the incident the prosecutrix had complained to her of having been ravished by the two accused-appellants. However, she stated that at that time the prosecutrix was wearing the underwear. The underwear was seen by her but she did not find any bloodstains thereon although a few white stains were there. The frock of the prosecutrix also did not have any stains. The accused persons had gagged the mouth of the prosecutrix by inserting some cloth therein and this fact though told to her by the prosecutrix was not stated by her during her statement recorded by the police. According to her, the prosecutrix had told her that the accused persons had made the prosecutrix lie on a cot whilst ravishing her.
Based on the above facts, Hon'ble Supreme Court observed at para Nos. 12 and 14 of its judgment as under:
12. The law is well settled that the prosecutrix in a sexual offence is not an accomplice and there is no rule of law that, her testimony cannot be acted upon and made the basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gian Chand on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is found to be natural, trustworthy and worth being relied on. This Court relied upon the following statement of law from State of Punjab v. Gurmit Singh (1996) 2 SCC 384 : 1996 SCC (Cri) 316 (para 21):
If evidence of the prosecutrix inspires confidence, it must be relied upon without, seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations......
14. The age of the prosecutrix was around 16 years, may be a little more. The fact remains that she was not just a child who would have surrendered herself to a forced sexual assault without offering any resistance whatsoever. Without going into testing the truthfulness of the explanation offered by the prosecutrix that because of being overawed by the two accused persons, she was not able to resist, the fact remains that the 'probabilities factor' operates against the prosecutrix. The gang rape is alleged to have been committed at about 2 p.m., in her own house, situated in a populated village by the side of the main road where people were moving on account of Holi festival. The prosecutrix did raise a hue and cry to the extent she could and yet none was attracted to the place of the incident. The prosecutrix is said to have sustained injuries, also bleeded from her private parts staining her body as also the clothes which she was wearing. This part of the story, is not only not. corroborated by the medical evidence, is rather belled thereby. The presence of bloodstains is not confirmed by the Forensic Science Laboratory or by the doctors who examined the prosecutrix. Her own maternal aunt to whom the story of sexual assault has been narrated by the prosecutrix gives a version which does not tally with the version of the prosecutrix as given in the court. The learned Counsel for the State relied on Section 114-A of the Evidence Act, 1872 which provides that in a trial on a charge under Section 376(2)(g) IPC on the prosecutrix stating that she was not a consenting party, the court shall presume absence of consent of the woman alleged to have been raped. Suffice it to observe that we should not be misunderstood as recording a finding that the prosecutrix was a willing party to the sexual intercourse by the accused persons. The Court is finding it difficult to accept the truthfulness of the version of the prosecutrix that any sexual assault as alleged was committed on her in view of the fact that her narration of the incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory. The defence has given suggestion in cross-examination for false implication of the accused persons which, however, have not gone beyond being suggestions merely. It is not necessary for us to dwell upon further to find out the probability of truth contained in the suggestions because we are not satisfied generally of the correctness of the story as told by the prosecutrix. We find it difficult to hold the prosecutrix in the case as one on whose testimony an implicit reliance can be placed.
28. In the case of State of Punjab v. Gurmit Singh reported in : AIR 1996 SC 1393, which is referred to by the Hon'ble Supreme Court in the above said case, it is observed as under:.The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.....In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepencies in the statement of the prosecutrix should not, unless the discrepencies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.....The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable.....It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a Victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice....
29. Following the above principles laid down by the Hon'ble Supreme Court in Gurmit Singh's case, I am of the considered opinion that the evidence of PW8 prosecutrix inspires confidence, it is trustworthy, and as such, it deserves to be accepted. The Trial Court, did not commit any error in believing this evidence of prosecutrix.
30. Learned Counsel for the appellant accused strongly contended that the Trial Court has not properly appreciated the defence evidence. DW1 Smt. Chitra has stated in her evidence that on the night of 13.11.2006, the accused and his wife Karpugam (PW11) together went out of the house leaving her (DW1) in the house saying that they would search and bring the prosecutrix Kum.Sharanya. She has further deposed that at about 0030 hours, after mid night, they brought the prosecutrix to the house and then PW11 Karpugam beat the prosecxitrix and the accused told PW11 that she did not know how to bring up the children and telling so, he beat Karpugam also. She has further deposed that at that time, Karpugam also beat the prosecutrix saying that she had slept with a person, who was picking up the papers. She has further deposed that then, herself and PW11 Karpugam advised the prosecutrix and then went out to get the milk and, by the time they returned to the house, the prosecutrix had gone out of the house.
31. On careful reading of the evidence of PW11 Smt. Karpugam and this evidence of DW1, it could be seen that this version of DW1 is totally inconsistent with the evidence of PW-11. If PW 11 has denied the suggestion of the learned PP that that during the night between 13th & 14th Nov 2006 when the incident of rape occurred herself and DW1 were in the house, DW 1 has stated that they were present there at that time. It could further be seen that this evidence of DW1 is also totally inconsistent with the suggestions that are put to PW8 prosecutrix. If it were be true that PW11 Karpugam, being the mother of the prosecutrix, had actually seen the prosecutrix having slept with any person, she could not have kept quiet. In view of my finding that the evidence of PW8 prosecutrix is trust worthy and deserves acceptance, the defence version does not in any way rebut the said evidence. On the other hand, evidence of DW1 corroborates the evidence of PW8 prosecutrix that at the time of the occurrence, the accused PW11 Karpugam, DW1 Chitra were present in the house of PW11, the scene of offence. Though it is settled that accused need not prove his defence beyond reasonable doubt, the evidence of DW1 and the suggestions put on behalf of the accused, to all the prosecution witnesses, including the prosecutrix, do not in any probabalise that PW4 complainant falsely filed his complaint against the accused and other witnesses who belonged to 'APSA' supported the prosecution, with any definite motive against the accused.
32. Placing reliance on three decisions in (i) (2006) 3 SCC (Cri) 398 (Tejpal v. State of M.P.), (ii) : 2008 Cri.L.J. 675 (State of Maharashtra v. Rameshwar Shridhar Jaware and Anr.) and (iii) : 2008 Cri.L.J. 483 (Bachcha v. State of U.P.), the learned Counsel for the appellant strongly contended that even if it is held that some indecent behaviour by the accused with the prosecutrix is proved by the prosecution, the accused could not be convicted for the offence under Section 376 of IPC, at the best, he could be convicted for the offence under Section 354 of IPC. I have not been able to accept this contention for the reason that no circumstances are brought on record, through any of the prosecution witnesses, from which it could be held that the accused behaved only indecently with the prosecutrix and he did nothing more than outraging her modesty. Therefore, I am of the considered opinion that the findings recorded by the Trial Court in its judgment that the prosecution has proved its case against the accused beyond reasonable doubt for the offence under Section 376 of IPC deserve to be confirmed.
33. As to the sentence of Rigorous Imprisonment for ten years imposed on the appellant - accused by the Trial Court for the offence under Section 376 of IPC, the learned Counsel for the appellant - accused contends that the said sentence is very harsh and therefore, the same deserves to be reduced. The accused was aged about 46 years as on the date of the offence. Besides there being PW 11 Karpugam as his first wife, he had a second wife also. The prosecutrix was aged between 16 and 18 years. It was the duty of the accused, being the natural father of the prosecutrix, to protect her chastity by taking care that she was not subjected to any indecent assault or such forcible sexual intercourse by any stranger. It is very shocking to any one that the accused, who was bound to protect his minor daughter, himself committed such an act on her. It is very unfortunate that the natural father of the girl committed this heinous offence against her. Learned Counsel for the appellant - accused vehemently contended that, it would be very hard to believe that, 'natural father' of a minor girl would commit such heinous act of forcible sexual intercourse on his own daughter. It is equally hard to believe that, for whatever reason, a minor daughter would falsely allege against her own father that he committed forcible sexual intercourse on her. If it could be impossible that a father would commit, such an act against his own daughter, it could also be impossible that a daughter would make such allegations against her own father. All the facts and circumstances proved in this case have clearly established that the accused herein has made possible, the first, impossibility viz., impossibility of a father committing rape on his own daughter. Therefore, in my opinion, the accused-appellant does not deserve to be called a 'human being' as, such an incident could only occur amongst animals.
34. The offence under Section 376 of IPC is punishable with minimum sentence of imprisonment of seven years, which may be extended to ten years or even to life imprisonment. The Trial Court, after considering all the facts and circumstances of the case and also the submissions made before it by the learned Counsel for the accused, has imposed on him sentence of Rigorous Imprisonment for ten years. Thus, the Trial Court is quite justified in imposing this sentence. In view of all the facts and circumstances of the case, the appellant - accused does not deserve any lenience to be shown in his favour. Therefore I do no find any reasons to interfere with the impugned order of sentence. Since the instant appeal is against conviction and no appeal is filed by the State seeking enhancement of sentence imposed on the appellant - accused by the Trial Court, this Court cannot enhance the sentence imposed on him by the Trial Court.
35. In view of my foregoing discussion, the present appeal is hereby dismissed as being devoid of merits. The impugned judgment and order of conviction and sentence dated 20.8.2009 passed in S.C. No. 462/2007 by the Fast Track Court-IX, Bangalore is hereby confirmed.