Arun Kumar Goel, J.
1. This appeal is directed against the judgment dated 29th July, 2002, given by learned Sessions Judge, Solan, in Sessions Trial No. 2-S/7 of 2002, whereby appellant after he held guilty, has been convicted to undergo following sentence :
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Sr.No. Offence Sentence imposed
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1. Under Section 376, IPC. Ten years' Rigorous imprisonment and
fine of Rs. 20,000/- (Rs. twenty
thousand only). In default of payment
of fine the convict shall further
undergo rigorous imprisonment of one
year.
2. Under Section 506, IPC. Rigorous imprisonment of two years and
fine of Rs. 5,000/- (Rs. Five thousands
only). In default of payment of fine
the convict shall further undergo
rigorous imprisonment of six months.
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2. Shri Thakur, learned Counsel for the appellant raised following contentions in support of this appeal at the time of hearing :--
(a) There is inordinate and unexplained delay in lodging FIR Ext. PA, as such, its benefit should be given to the appellant;
(b) PWs 3 and 4, the doctors had given different opinions after examination of the victim, therefore, either the matter should have been referred to a third medical expert or its benefit should also have been given to the appellant;
(c) That there were material contradictions in the statements of PW-1 the victim, and her brother PW-2, (names of both victim as well as her brother are not being mentioned in this judgment); and
(d) Evidence, both oral and documentary, has not been properly appreciated. On its being re-appreciation, it will lead to only one and irresistible conclusion pointing to the innocence of appellant.
3. All these pleas have been contested by Shri Vasudeva, learned Additional Advocate General. As according to him, assuming without conceding all these points against the prosecution, still there is enough, cogent, as well as legally acceptable evidence to uphold the impugned judgment while dismissing this appeal and he prayed for accordingly.
4. In order to properly appreciate the submissions urged on behalf of the parties in this appeal, facts as they emerge from the record of this case need to be briefly noted.
5. Appellant is the father of victim. Main witnesses in this case are the victim and her brother. Their mother is dead. Both of them were living with the appellant when the offence was committed. Appellant was working as Welder in a private concern at Parwanoo township of Solan District.
6. According to victim, appellant had an evil eye on her. She had been protecting herself, but in the month of May, 2000 during night time appellant ravished her by committing forcible sexual intercourse upon her. After this incident she remained unwell and was almost in the state of mental shock. Appellant threatened her that in case she disclosed the incident to any one, she will also be done to death like her mother. While extending such threats from time to time as well as by administering beatings, he attempted to sexually abuse her whenever he found opportunity to satisfy his lust. The appellant used to come late at night and thereafter he would remove her Salwar and undress her. After being fed up, she complained to the Pradhan of Mahila Mandal, Smt. Uma Wati PW-5, who in turn narrated the incident to the wife of Amar Nath, PW-6, Pradhan, Gram Panchayat, Taksal. These facts were reported on 25th June, 2001 to PW-6. He took the victim to Police Station and got FIR Ext. PA registered on 27th June, 2001.
7. After registration of the FIR victim was got medically examined firstly at ESI hospital, Parwanoo and then at Solan for opinion of the Gynaecologist as well as of Radiologist. Appellant was also got medically examined after he was arrested. After completion of the investigation, challan was filed. At the conclusion of the trial, appellant was found guilty and has been convicted and sentenced as noted in the opening para, by the trial Court.
8. In this case material witnesses are the victim, PW-2, Dr. Kamlesh Sharma, PW-3 Dr. Meenakshi Raina, PW-4, Uma Wati, PW-5, Amar Nath, PW-6 Dr. P. S. Rana PW-7, (he had examined the appellant), and Dr. Anita Sood PW-14.
9. Brief reference is being made to their statements.
10. Per PW-1 the victim stated that, she and her brother lived at Parwanoo in their own house with the appellant. Their mother died about six years ago, on 2nd June, 2002, her statement was recorded, she was a +2 student. After having passed 8th class, she joined 9th class, when according to her, the appellant started making advances and behaving towards her, as if she was his wife and not daughter. In the month of May, 2000, the appellant in the night joined her in the bed and subjected her to forcible sexual intercourse. He also extended threats that in case she disclosed this act to anyone, she would be done to death as he has done to her mother. Sexual abuse continued by the appellant even thereafter. Appellant used to come late at night after 12.00 midnight, being drunk. Two months prior to reporting of the matter, the appellant had committed sexual intercourse with her. Before making this complaint, appellant did not allow her to come out of the house. He extended threats to the victim that in case she disclosed his misdeeds to anyone, she would be done to death. She had firstly disclosed the misdeeds of the appellant to one Uma Wati, President of Mahila Mandal, who took her to Dhanwati, wife of Amar Nath. She in turn told her husband, i.e., Amar Nath, who took her to the police station. This resulted in lodging of the FIR. Per her she was 12/13 years or 13 years when appellant committed rape on her. Bed-sheet Ext. P. 1 was taken into possession by the police in the presence of PW-2 and PW-6 vide memo Ext. PB.
11. Reference to cross-examination shows, that she had studied upto 5th standard in Government Primary School, Ambota. Her grand parents are living separately at Parwanoo-Kalka barrier with her Chacha and Chachi. She was on visiting terms with them. House of her grand-parents was at a distance of one kilometer from her house. They, however, were not visiting the house of the appellant. She has further stated that these mideeds of appellant were disclosed by her, to her grand-mother who was asked her to inform her grand-father. This complaint was made 15 days after the happening. Her grand-mother told that she was not in a position to do anything in this behalf. Rather she advised the victim to complain to the police. Further according to her, she was taken to some Chela by her grandparents as according to them she was under some evil impact. Her grand-father had taken her to a private clinic by saying that she was a lunatic girl, but doctor's opinion was to the contrary. ,
12. Appellant's case as made out from her cross-examination is, that the victim was having affair with one Raju, who was working with one Thekedar named Pyare Lal and she was caught in compromising position by the appellant. She also denied the suggestion of the appellant that the victim wanted to marry said Raju and both of them having been beaten by the appellant. She finally denied the suggestion that because of this reason she got a false case registered against the appellant.
13. PW-2 has by and large supported the victim on material particulars so far commission of the offence is concerned. He disclosed these facts to his grand-parents and also to his maternal grand-parents, but they left them to their fate as they refused to intervene, and/or to take pity on them. Both of them at times thought to attack the appellant with the intention to eliminate him but refrained from doing so because in case they were unsuccessful, the appellant would cause their elimination. He has further stated that the appellant was using contraceptives while committing sexual intercourse with the victim. He knew this because he used to throw in the room, which he (the witness) used to collect and throw away. Appellant was extending threats to kill them, per PW-2.
14. Perusal of his cross-examination further shows that nothing material has been brought out so as to dislodge him.
15. PW-4 is Dr. Meenakshi Raina, Medical Officer, ESI Hospital, Parwanoo. She examined the victim on 27th June, 2001 immediately after registration of FIR Ext. PA. Amongst other things she stated that hymen was found ruptured, vagina admitted one finger with difficulty. Victim felt pain on introduction of finger in the vagina. In her opinion victim was certainly subjected to sexual intercourse. This witness had issued Medico-Legal Report Ext. PC.
16. PW-3 is Dr. Kamlesh Sharma, Medical Officer, Zonal Civil Hospital, Solan, who examined the victim on 30th June, 2001 on having been referred from ESI Hospital, Parwanoo. According to him, vagina admitted two fingers tightly. In her (his) opinion, sexual intercourse had been done. This witness had proved his MLC Ext. PD issued by her.
17. A reference to the statements of PWs-5 and 6 supports the version given by the victim in its material particulars regarding matter having been reported first to PW-5 by her (the victim). According to PW-5, victim met her near her house. On seeing her latter broke down and after great deal of persuasion she disclosed regarding her having been sexually abused by her own father. Witness was suffering due to fever, which subsided after 10 days. Thereafter she took her to Up-Pradhan, Amar Nath. This witness narrated this act of the appellant to the wife of the Up-Pradhan because she could not disclose such facts to him. This witness besides other things had stated in her cross-examination that appellant used to beat his wife, she also used to come to her, (the witness) for shelter.
18. PW-6 Amar Nath has also similarly stated that his wife Dhanwanti disclosed that the victim had come to lodge a complaint against her father for commission of sexual intercourse upon her by denuding her in the night in her bed. PW-5 was former President of Mahila Mandal, was also present. Thereafter the witness took her, (the victim) to the Police Station on 27th June, 2001, when FIR Ext. PA was lodged. He also proved memo Ext. PB vide which the bed-sheet Ext. P.1 was recovered by the police in his as well as in the presence of PW-2. In cross-examination, he admitted that the victim had come to him two days earlier to the registration of the FIR. He had a telephone but did not inform the police on it. He was aware that in such cases police is to be immediately informed. According to this witness, victim had informed him that the appellant started illicit intercourse with her about one and half years earlier.
19. PW-7 is Doctor P. S. Rana. He examined the appellant and found that he was capable of performing intercourse. Doctor had issued Medico-Legal Report Ext. PE.
20. PW-14 Dr. Anita Sood is the Radiologist. She had examined X-ray films of the victim daughter of the appellant which were conducted at Parwanoo. Her observations are as under :
Upper end of radius and ulna have fused which fused at the age of 14/15 years respectively.
Head femur has fused. Distal end of femur is in the process of fusion. Lower end ,, of radius and ulna has not fused. Crest of ileum has not fused. Hence the radiological age of the girl is between 15 to 17 years.
21. After conclusion of the prosecution evidence, appellant was examined under Section 313 of the Code of Criminal Procedure. Its perusal shows that he has summed up his case in response to questions 21 and 22. Both these questions for ready reference are extracted hereinbelow :--
Q. 21. Why the prosecution witnesses have deposed against you?
Ans. I caught the prosecutrix when she was performing sexual intercourse with one boy named Raju. I have also beaten the prosecutrix. On account of this, prosecutrix had deposed against me.
Q. 22 Do you want to say anything else?
Ans. That boy was the resident of Bihar and he had illicit relations with my daughter and when I stopped my daughter from committing illegal act then he instituted false case against me. I have been falsely implicated in this case.
22. Now coming to the first submission of Shri Thakur that there is unexplained delay in lodging FIR from the date of alleged occurrence, which is fatal to this case. This resulted in giving time as well as opportunity to the prosecution to deliberate, as well as to cook up the story against his client. Its benefit needs to be extended in favour of his client.
23. Delay in lodging the FIR in a given case depending upon its facts can be fatal. However, delay being there so its benefit has always and necessarily to be extended to an accused like the appellant, cannot be accepted much-less, laid as a rule universal application for upholding, that whenever delay occurs prosecution case is to be thrown out and acquitting the accused in each and every case. What is the effect of a delayed FIR had been attending the attention of the Supreme Court in various cases.
24. State of H. P. v. Shree Kant Shekari : 2004CriLJ4232 , deals with the delayed FIR and its effect. In this case victim was sexually abused by none-else but her own school teacher on 28th May, 1993. In September, 1993 she stopped going to school. As she regularly complained of stomachache, her mother took her to Rampur Hospital where after examination by the doctor, it was learnt that she was pregnant. On enquiry by her mother, the victim disclosed to her mother that the conception was due to sexual intercourse by her teacher. On return to her village, the mother of the victim discussed the matter with her husband and then disclosed the incident to a Member of Gram Panchayat who suggested to report the same to the police. In this background, on 20th November, 1993 that FIR was lodged at Police Station Rampur after the expiry of almost six months. Delay in lodging the FIR was raised as one of the grounds. Supreme Court in this case while reversing the judgment of acquittal passed by the High Court held that delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. It was further held that the Court is to only see whether it is satisfactorily explained or not.
25. In State of Rajasthan v. N.K. 2000 Cri LJ 2205, it was held that mere delay in lodging the FIR cannot be ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test of truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court, it cannot be counted against the prosecution. Again to similar effect is the judgment of Supreme Court in State of Rajasthan v. Maharaj Singh : 2004CriLJ4195 .
26. On the other hand, Shri Thakur by referring to the decision of the Supreme Court in Bihari Nath Goswami v. Shiv Kumar Singh : (2004)9SCC186 , urged that in the face of this decision and delay having not been explained, his client is entitled to acquittal on this short ground alone. A perusal of this judgment clearly shows that it is a judgment of its own facts. Mere delay was not the sole ground on which acquittal ordered by the High Court was not interfered with. In this case while considering the statements of persons friendly to the deceased, who were examined as witnesses, it was held by the Supreme Court that merely because the witnesses were friendly with the deceased that would not be sufficient to term them as interested witnesses. Whenever any plea is taken by the accused persons about the interestedness of witnesses, materials have to be placed in that regard. In this background unexplained delay in lodging the FIR and non-disclosure to the police officials about the assailants, or the scenario of the crime when they arrived at the spot and conduct of the witnesses was found to be unusual, Court observed regarding their presence at the spot doubtful. This resulted in upholding the acquittal of accused persons.
27. Applying the ratio laid down by the Supreme Court in this case and then examining the evidence as briefly narrated hereinabove, we have no doubt that the delay in peculiar circumstances of this case stands immaterial. Protector in this case is the father of the victim. In our society parents are in fact there to shield their children. PW-2 has categorically stated that they had complained about the conduct of their father to their grand-parents as well as to their maternal grand-parents. Both of them were left to their fate. It has come in evidence of the victim that her grand-father took her to some Chela and then to a private doctor alleging that she was suffering from some mental ailment, which in fact she was not. It has also come in the statement of PW-2 that both brother and sister thought of eliminating the appellant but could not do so, because they thought that in case they did not succeed in their attempt, the appellant would certainly cause their elimination. In these circumstances to say that there was a delay in lodging the FIR which remained unexplained, is not correct.
28. Similarly reliance placed by Shri Thakur on the decision of Supreme Court in Thulia Kali v. The State of Tamil Nadu : 1972CriLJ1296 , also in our view as well as, in the face of subsequent judgments referred to in the preceding paras by co-ordinate Benches, also does not advance the case of the appellant.
29. Reliance placed by Shri Thakur on behalf of the appellant on the decision of the State of Rajasthan v. Maharaj Singh (2004 Cri LJ 4195), supra is wholly misconceived.
30. No benefit can be derived from the decision of the Allahabad High Court in Kanchan Chaudhari v. State of U. P., 1989 (2) Crimes 510 : 1989 All LJ 1131, because we have held that the delay in the present case is immaterial.
31. To whom could victim and PW-2 complain about brutality of their father? They did complain to their grand parents both, parental as well as maternal, but without any consequence. Their grand-father made an attempt to get the victim treated of mental ailment. In these circumstances, on the basis of evidence on record, we are satisfied that delay in lodging is not fatal in this case.
32. Another reason to take this view is the tender age of the children i.e. P. Ws. 1 and 2. In the cases where the victim is a child of tender age there are many other considerations due to which delay occurs. In a given case it can be for avoiding the stigma. Victim has to live with it in the society, as well as in the brotherhood. Chances of getting married substantially get reduced and in these circumstances no benefit can be given to the appellant as was urged on his behalf.
33. Now coming to the next contention of Shri Thakur that doctors had given different opinions so the matter should have been referred to either a third doctor for opinion or alternatively benefit of such difference of opinion should have been given to the appellant.
34. For the reasons to be recorded hereinafter this plea has been raised simply to be rejected. Shri Thakur laid great emphasis that rape is not made out in this case. As according to him, PW-4 has stated that on examination of the victim she found that vagina admits one finger and the victim feels pain on introduction of finger, whereas on the other hand, PW-3 has stated that it admitted two fingers tightly. Therefore, both these statements excluded rape having been committed on the victim. Prima facie this argument appears to be attractive, but when the statements of both these witnesses are read together, this submission is found to be completely hollow. Reason being that both these doctors have clearly, as well as unambiguously and in no uncertain terms stated that in their opinion sexual intercourse has been committed on the victim. Exts. PC and PD also establish this fact.
35. Third contention raised by Shri Thakur that there are contradictions in the statements of the victim and PW-2. He laid great emphasis on the statement of PW-2. According to him, PW-2 was made to quit the room by the appellant who only allowed the victim to be all alone inside. Whereas in his cross-examination, he has stated that the appellant used to keep him aside while sharing the bed of the victim.
36. In our view, on an overall examination of the entire evidence, we find that this does not demolish the entire case of the prosecution which may call for the acquittal of the appellant. Minor discrepancies here and there and bound to occur in course of time, besides being natural in the ordinary course of things. Otherwise statement of a witness is criticized on account of the fact that it is parrot like, having been tutored.
37. Another limb of submission of Shri Thakur is, that the statement of the victim lacks corroboration. Therefore, on this ground also her statement is not worthy of credence and this case has been cooked up by her against the appellant because of her having been found in compromising position by her father, the appellant with one Bihari boy when both of them were found naked. As such corroboration was necessary to accept the statement of the victim.
38. Corroboration in a case (and particularly of the present nature), is not the rule of the evidence, but is a rule of prudence. If otherwise, (as we are satisfied from the statement of the victim in the present case), Court comes to the conclusion that the statement of the prosecutrix is reliable, trustworthy, then it calls for no corroboration and as such her sole statement is enough for convicting the accused. In addition to this, on material aspects the victim is sufficiently corroborated by PW-2 and also by the medical evidence, supra. Therefore, this submission has no substance and is accordingly rejected.
39. We may also mention in this behalf that position of the victim is not like an accomplice. In the present case she was ravished by the appellant when he found opportunity to satisfy his lust. Person raped lives with a perpetuated stigma with which she has to go throughout her life. Thus it is not only a physical injury, but the victim has to bear and to remain with its trauma because of her having been sexually raped and ravished. It leaves permanent scars on her mind. It permanently affects the psyche of the victim. Observations made by the Supreme Court in Bhupinder Sharma v. State of Himachal Pradesh, 2004 Cri LJ 1 (SC) which are relevant for the present case, are as under :--
11. The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery. A similar view was expressed by this Court in Rafiq v. State of U. P. : 1980CriLJ1344 with some anguish. The same was echoed again in Bhogiabhai and Hirjibhai v. State of Gujarat : 1983CriLJ1096 . It was observed in the said case that in the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. A girl or woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity and ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. State of Rajasthan : 1952CriLJ547 were, 'the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge....
12. To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her chain of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. (See State of Maharashtra v. Chandra Prakash Kewalchand Jain : 1990CriLJ889 . Why should the evidence of the girl or the woman who complaints of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.
40. Now coming to the last contention of Shri Thakur that the evidence has not been appreciated in its right perspective by the trial Court. For the view that we have taken while dealing with his other contentions on consideration of the entire evidence, we find no substance in this submission. At the risk of repetition, we may notice that conviction in the present case is sustainable on the statement of the victim alone. Her evidence as well as of two doctors PW-3, PW-4 and PW-2 has been properly appreciated by the trial Court and we see no reason to take a different view.
41. In the alternative it was also urged by Shri Thakur on behalf of the appellant, that if none of his submissions find favour with the Court, then at least the Court may examine the desirability of reducing his client's sentence, to which he has already undergone so as to give him a chance to reform himself looking to the present trend of penology. As according to him, since the date of his arrest the appellant is in custody. He needs to be given a chance to become a civilized person and to get into the main-stream of the society.
42. From the facts narrated hereinabove and looking to the relationship between the victim and the appellant, we find no ground to take a lenient view in the matter of sentence while keeping in view the present trend of penology. We cannot lose sight of the fact that the sentence has to be an eye opener, so as to deter other members in the society from committing such crimes. Therefore, the submission of Shri Thakur is hereby rejected.
43. No other point is urged.
44. In view of the aforesaid discussion, we find no merit in this appeal, which is accordingly dismissed.