Bhawani Singh, J.
1. This appeal, by the accused, arises out of the judgment of Sessions Judge, Kangra Division, in Sessions Trial No. 11 of 1985 decided on 31-12-1985. In this case, under Section 376 of the Indian Penal Code, the accused has been convicted and sentenced to undergo simple imprisonment for a period of three years; however, held entitled to the benefit of the provisions of Section 428 of the Code of Criminal Procedure. The accused has a grievance against this judgment and, therefore, urges to set aside the same by this appeal.
2. The prosecution case, in brief, is that the accused, a resident of Bala in Mauza Rakha raped Kumari Nisha (9 years) on 1-8-1984. It was a rainy day and she was going to her house after collecting fuel-wood. The place of occurrence was near a bowli, located near a resting place 'Sandhbehar' for cattle. She came home, went to her bed and apprised her mother only next morning and this fact was narrated to her father when he came back from the fields on the third day. She was taken to Primary Health Centre, Gopalpur, and on the advice of the hospital authorities, her father took her to Dharamshala. There also, the hospital authorities directed her father to go to the police station in the first instance and the prosecutrix and her father came to police Station, Palampur, where her statement was recorded on the basis of which the First Information Report was registered on 4-8-1984.
3. After investigation, challan was filed against the accused. The defence of the accused is that of denial. The proceedings terminated in the aforesaid conviction of the appellant. I proceed to examine this matter by a reference to the statements of the material witnesses to know whether the offence in question has been proved against the accused and the conclusions drawn and the sentence awarded by the trial Judge is legally justifiable.
4. Kumari Nisha, the prosecutrix (P.W. 6), states that the house of the accused is at a distance of about 200 yards and she knows the accused. She was studying in the Ist Class whereas the accused was Studying in 8th Class during the time this incident took place. She further says that she had gone to the forest for collecting fuel wood and the accused caught hold of her near the 'bowli' located nearby 'Sandbiakh', a resting place for the cattle; the accused then put off his pant and took out her shalwar. The accused then put his penis inside her vagina. The accused also closed her mouth with his hand. She cried loudly because of profused bleeding. Her hands were then held by the accused who laid himself upon her. Her shalwar was placed at a small distance. She was made to lie on the ground forcibly by the accused. None was there at that time nor did anyone come despite her raising loud alarm. After remaining on her for quite a sufficient time, the accused got up, put up his pant and ran away from that place. She then washed her private part with water of that 'bowli' wore her shalwar and then went home. On reaching home, she slept in her bed. On the following morning, she narrated this incident to her mother. Her father had gone to 'Haar' (paddy fields) and he returned home after the prosecutrix had slept. Her mother narrated this-incident to her father. Her mother put off her clothes and made to wear another pair in place thereof. She was taken to the Primary Health Centre, Gopalpur, by her parents where the hospital authorities advised her to go to Dharamshala and there also they were advised to go to police station first and they went to the police station, Palampur, where the Station House Officer recorded her statement regarding this incident. In her cross-examination, she states that prior to the incident, the accused used to visit frequently the shop of one Moola and also her house. The accused used to pass through the 'Gohar' adjoining to her house though he never visited her house. She had been hearing the villagers calling the accused by the name of Jitu and as such, she knew him by this name. She states that she told the police in her statement that this incident was narrated by her to her mother in the evening on the day of occurrence and also that she had slept just after returning home after the occurrence and had narrated the incident to her month in the morning (this fact is not recorded in her statement under Section 161 of the Code of Criminal Procedure). She further states that she knew Haria, father of the accused. He never cultivated their land and admits that there existed a dispute between the father of the accused and her father before the incident. Their land was not cultivated by Haria and the same was being done by her brother. The learned Sessions Judge has observed that this witness is intelligent despite her tender age.
5. Perusal of the statement of this witness evidences that she has given a truthful and convincing account of the incident. Her version is quite natural. Moreover, it cannot be expected from a witness of this age that even minor details, though important, should also be completely in tune with the statement of other witnesses. It is clear from her version that the accused had been identified. She knew him before, his family and his movements. On the day of the incident, she again saw him for a sufficient long time and due to her tender age, she could not put up resistence except raising an alarm which also appears to have been stopped by the accused by closing her mouth with his hand.
6. Although law is well-settled that conviction can be based upon the sole testimony of prosecutrix, however, it is safe to look for corroboration to support the version of the prosecutrix and to eliminate any possibility of wrong conviction of an innocent person. Therefore, I proceed to examine the versions of other material witnesses in this case to seek corroboration of her statement.
7. Shrimati Kamla (P.W. 11) is the mother of the prosecutrix. She states that after grazing the cattle in the jungle, her daughter had gone to the forest to collect fuel-wood and she returned at about sun-set and after she was served with tea, the prosecutrix went to bed. She continued weeping, rather crying. Her father was not present at the house at that time and she was all alone with other children. Next morning, she found the bed and the clothes of the prosecutrix stained with blood. During night, she thought, the prosecutrix must be crying due to some abdominal pain. On inquiry, the prosecutrix told her that the last evening the accused, present in the Court, resident of Rakh, caught hold of the prosecutrix and committed rape. On this disclosure, she was shocked and keeping in view the honour of her daughter and of the family, she did not speak to anyone except her husband who returned at 5 p.m. on the following day of the incident which was the third day of the occurrence. She as well as her husband took the prosecutrix to Primary Health Centre, Gopalpur, where the doctor advised them to take the prosecutrix to District Hospital, Dharamshala. She returned home while her husband went to Palampur but there also the authorities advised them to report the matter to the police in the first instance. She admits that her family is not on visiting terms with the family of the accused. Although she found that the bed-sheet of her daughter had blood stains, but she did not hand over the same to the police and she did not know that the same was also to be handed over to the police along with the other clothes of the prosecutrix. She did not tell this fact to the police. She admits that she did not send for her husband through children or other person. She denies the suggestion that Haria, the father of the accused, had been cultivating her land as tenant and there was any dispute between the families relating to the said land.
8. Shri Parkash Chand (P.W. 12) is the father of the prosecutrix. He states that he had left his house on 1-8-1984 at about 8.30 a.m. for his land and at about 4 p.m. he left that place also for collecting medicines for himself. He did not come back and stayed with his relations that night. Next morning, he went to his land and continued working till evening. His wife, Shrimati Kamla, (P.W. 11) conveyed him the occurrence. He continued thinking over the matter and next morning he along with his wife and the prosecutrix came to Primary Health Centre, Gopalpur, where he reached at about 10.30 or 11 a.m. The doctor there advised them to take the prosecutrix to the District Hospital, Dharamshala, where they reached at about 1.30 p.m. At that time the hospital had closed. It opened at 3 p.m. and the Medical Officer advised them to go to Palampur and report the matter to the police. He along with his daughter returned to the village and reached there at about 6 p.m. Next morning, after making arrangement for money, as he had no money with him, left for Palampur and reached there at about 1 p.m. when the First Information Report was lodged with the police. Thereafter the prosecutrix was medically examined at Civil Hospital, Palampur. They stayed there for the night and next morning they came to the village along with the police. He denies the suggestion that on 1-8-1984 he was present at his house and that he did not know about the actual accused and that after ascertaining, the report was made to the police after visiting Gopalpur and Dharamshala. The land where he had been working is situate at a distance of about 1/2 km. from the house and the whole land is being cultivated by him. He is a retired army man. He denies that the accused or his father are his tenants and that there is a dispute between the parties though admits that they are not on visiting terms with each other.
9. Perusal of the statements of these witnesses (P.Ws, 11 and 12) shows that the version of the prosecutrix about rape has been corroborated and discrepancies pointed out by Shri Harish Behal, learned counsel for the accused, are quite insignificant.
10. Dr. (Mrs.) Sushma Kapila (P.W. 1) examined the prosecutrix on 4-8-1984 and found marks of violence oh the private parts of the prosecutrix. She also found that the prosecutrix was feeling difficulty in walking and was walking with keeping the legs apart. There was dried slight blood present on both the labia majoras; both labia majoras were swollen and red and both labia minoras were red and there was laceration of the left labia minora which was extending down unto the posterior commissure which was also lacerated. The prosecutrix bled on touch from the laceration. Hymen was red, edematus and markedly tender while examining with finger. In perineum, there was laceration of about 1/2 cm. in length and just skin deep. It bled on touch. It is opined by the doctor that the prosecutrix was subjected to sexual intercourse and the probable duration of injuries was about 1 to 4 days. She denied the suggestion that the injury found on the vulva of the prosecutrix could have been caused by inserting finger forcible because of the nature of the injuries found. Even laceration could not be caused by inserting finger forcibly. The same cannot be caused even by repeated insertion of finger into the vagina.
11. The accused was also examined by Dr. Shruti Parshad, Medical Officer (P. W. 2). The accused was found fit to do sexual intercourse. No other injury was found over his body, including penis.
12. Dr. T. K. Roy, (P.W. 3) is the Radiologist. In his opinion, the age of the prosecutrix from X-Ray examination appeared to be 8 1/2 to 12 years.
13. Smt. Pushpa Sharma (P.W. 2), is the Headmistress, Government Primary School, Rakh, where the prosecutrix was studying. The date of birth of the prosecutrix, according to the School Admission Register, is 2-4-1976 and she was admitted in the School on 2-5-1984 against Sr. No. 936. She issued the certificate relating to her date of birth.
14. Shri Harish Behal, learned counsel for the accused, submits that there is delay in the lodging of the First Information Report. He contends that the incident took place in the evening of 1-8-1984 whereas the First Information Report was filed on 4-8-1984 at 5.20 p.m. He refers to para 12 of AIR 1973 SC 501 : (1972 Cri LJ 1296) Thulia Kali v. the State of Tamil Nadu, the relevant part of which reads as under :
'12......First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.'
15. There is no doubt that the principle enunciated in this judgment is fundamental. However, it has also been laid down in this case that in case there is delay in the lodging of the First Information Report, the same has to be satisfactorily explained. The question is whether this has been explained satisfactorily in the present case. In my opinion, delay has been explained satisfactorily keeping in view the facts and circumstances of this case. The prosecutrix, soon after the sexual assault, reaches home and goes to her bed and continues weeping throughout the night and narrates the incident to her mother when asked. She may not have narrated this incident when she came home due to various reasons like her being afraid of her mother or feeling shy in doing so, etc. etc. Her mother did not ask her seriously during night as she thought that the prosecutrix was having some abdominal pain. Next morning, the incident is narrated and her husband is away to look after the fields from where he comes the next evening. Simply because he was not called by Shrimati Kamla (P.W. 11), does not mean that no incident had taken place or the conduct of this witness was thoroughly unworthy. Look at the situation when even the father arrives and the incident is narrated to him. The family is involved in a serious thinking as to whether the matter should be reported to the police or not. Looking to the future of the girl and the honour of the family, such conduct cannot be doubted as unreasonable. Families who suffer from such incidents know the consequences and many times they prefer to suffer in silence than reporting these matters to the police. Such a situation has been exhaustively noticed, appreciated and dealt with by the Supreme Court in AIR 1983 SC 753 : (1983 Cri LJ 1096) Bharwada Bhoginbhai Hirjibhai v. State of Gujarat. Further, it is in evidence that the prosecutrix is taken to the hospital at Palampur and then to Dharamshala. They are again advised to report the matter to the police at the first instance. It appears, the father of the prosecutrix must be under the impression that the matter can only be initiated in case medical certificate is first obtained. In this process, time is spent. It is noticeable also that the family does not have money with them to incur the expenditure for going from place to place. The conclusion, therefore, is that the delay in lodging the First Information Report is satisfactorily explained and the contention of Shri Harish Behal on this ground is rejected.
16. The next contention relates to discrepancies in the statements of the prosecutrix (P.W. 6) and her mother Smt. Kamla (P.W. 11). These discrepancies are of very minor nature. They do not hit the basic case. The prosecutrix is of tender age, her mother is illiterate and so is the father. Variations are bound to occur in these circumstances and with the passage of time. Their statements would be dubbed parrot-like in the absence of these minor discrepancies, which, in my opinion, are bound to occur in a genuine, straightforward and truthful accounts of an incident. This assertion of Shri Harish Behal is, therefore, of no substance. Equally sub-stanceless is the contention of the learned counsel for the accused on the point of corroboration. As already observed, a corroboration is not always required. It is a rule of caution and is resorted to in the facts of a given case to insulate against any wrong conviction. It is essential to quote the observations of the Supreme Court in extenso in the above case:
'7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar v. State of Rajasthan, (1952) 3 SCR 377 at p. 386; AIR 1952 SC 54 at p. 57: (1952 Cri LJ 547 at p. 550) has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court --
'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,............
The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is ho rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.'
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9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own Code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :--
(1) The female may be a 'gold digger' and may well have an economic motive -- to extract money by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and i chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being refused.'
17. Reference to AIR 1926 Pat 58: (26 Cri LJ 1475) Emperor v. Phagunia Bhuian by Shri Behal is of no consequence because it is in evidence that the prosecutrix narrated the incident to her mother just on her asking and in the form of narration. With respect, I do not agree with the principle laid down in this judgment. It is not the form which is material. What is necessary to be seen is the substance of the revelation.
18. Further contention of the learned counsel relates to the absence of injury on the penis of the accused. It is contended that presence of injury is essential because of the tender age of the prosecutrix. Reference to AIR 1973 SC 343: (1972 Cri LJ 1260), Rahim Beg and Mahadeo v. The State of U.P. is made to support this contention. In this case, it appears from para 20 of the judgment, that the Court came to this conclusion on the basis of the opinion of the doctor. Normally an injury is caused to the male organ when sexual act is committed by a fully developed male with a girl of tender age who is virgin. However, this is not a universal phenomenon. It is relevant to quote para 9 at page 380 of Modi's Medical Jurisprudence and Toxicology, Twenty-first Edition:--
'9. Injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a struggle, an abrasion or a laceration may be discovered on the prepuce or glans penis, but more often on the fraenum, due to the forcible introduction of the organ into the narrow vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases.'
(Underlining supplied).
19. The accused cannot, in my opinion, take any benefit simply because of the absence of the injuries on his penis. Moreover, he was examined on 18-8-1984 relating to an incident which took place on 1-8-1984.
20. The last contention of Shri Behal relates to the disaffection prevailing between the two families. It is contended that a false case has been initiated against the accused due to enmity. I am not impressed by this submission. Parents of a tender age girl cannot, at all, be expected to set up such a case and thereby mar the whole life of their child. The evidence on this aspect is not, at all, convincing and hence this submission has no force and is, therefore, rejected.
21. The result, therefore, is that the prosecution has successfully established the charge against the accused. He has been rightly convicted by the trial Court. His conviction is confirmed. Perusal of the sentence shows that the Court has already shown enough leniency on this aspect. It calls for no interference in such like cases.
22. There is no merit in this appeal and the same is accordingly dismissed.