[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 2260 of 2010 With [CASE NUMBER] FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] Appellant(s) Versus [ENTITY] Opponent(s)/Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Appellant(s) No. 1 MS. [ENTITY], ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 29/04/2015 Page 1 of 14 [CASE NUMBER] ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE [ENTITY]) These appeals arise out of the judgment of the Sessions Court dated 10.12.2010 rendered in [CASE NUMBER]. The accused was convicted for offence punishable under [SECTION], [SECTION] and [SECTION] of the [ACT], and sentenced to rigorous imprisonment of seven years. Fine of Rs.2,000/- was also imposed. The convict-accused has, therefore, filed [CASE NUMBER]. The State has filed [CASE NUMBER] seeking enhancement of sentence.
2. Briefly stated, the prosecution version was that on 20.3.2008 in the afternoon when the prosecutrix, a young girl aged about 11 years, was alone at her house her parents having gone to another village, the accused came to her house. After ensuring that she was alone, he picked her up and took her inside the house and raped her. She started bleeding from the private parts. He left threatening her that if she informed anybody or to the police, he would kill her. The victim girl did not inform her parents immediately. However, upon feeling pain, she confided in her mother. She was first taken to a private hospital at Sukhsar and thereafter Santrampur. She was not cured fully. The First Information Report was, therefore, lodged on 24.04.2008.
3. We may record the gist of evidence. The victim-girl P.W.1 was examined at Exh.5. She deposed that she was 11 years at the time of the incident, which happened on 20.03.2008. Her parents had gone to Sukhsar village. She was alone at home making rotis. The accused came there and enquired about her parents. When she said they had gone to Sukhsar, he picked her up, took her inside the house, removed her clothes and raped her. She had started bleeding from vagina, which she cleaned with her underpant. The accused took away this undergarment. While leaving he threatened her that if she informs her parents or to the police, [CASE NUMBER] he would kill her. Couple of hours later, her parents came back. She informed her mother about the incident after three days. She had pain in the vagina for which she was taken to the hospital at Sukhsar. Since she had no relief, she was taken to a hospital at Santrampur. She and her parents met the District Superintendent of Police at Dahod, and thereafter lodged the First Information Report, which is at Exh.6.
In the cross-examination, she stated that she knew the accused about 2 years before the incident. Her father was working with him as a helper. She denied that the accused had given money to her father for constructing a house. The house of her uncle was closeby. She, however, did not shout nor went to her uncle's house because the uncle and aunt were not at home. They had gone for labour work and would return only in the evening. She did not inform her mother immediately because of the threat. Even after the incident, she had gone to school. She denied that to avoid repayment of money taken by her father from the accused, a false complaint was filed.
4. In the First Information Report Exh.6, she had given substantially similar version of being alone at home on 20.03.2008, and being raped by the accused inside her house.
5. [ENTITY], P.W.3, Exh.10, is the father of the prosecutrix. He deposed that on the date of the incident, he and his wife had gone to Sukhsar. Prosecutrix was alone at home. When they returned, she was still at home. Since she experienced pain, she informed her mother about the incident after three days, who informed him. They took the daughter to the hospital at Sukhsar and then at Santrampur. About a month later, they met the District Superintendent of Police and filed the complaint.
[CASE NUMBER] In the cross-examination, he agreed that he had been working as a helper with the accused since two years. The employer had paid Rs.6,000/- for the first year, but paid only half for the second year. When the incident took place, he was still in employment. He denied that at the time of the incident, he was constructing the house, but claimed that the house was constructed five years back. He denied that he had borrowed any money from the accused for such purpose. After coming to know about the incident, he stopped going for work to his house.
6. [ENTITY], P.W.4, Exh.11 is the mother of the prosecutrix. She deposed that on the date of the incident, she and her husband had gone to Sukhsar. The daughter was alone at home. The daughter had told her about the incident.
7. Dr. [ENTITY] P.W.2, Exh.7, was the Medical Officer at Godhra General Hospital. He had examined the prosecutrix on 26.04.2008, and taken various samples from her body. He produced the MLC Certificate at Exh.8, in which, he had recorded the history of rape by the accused on 20.03.2008 around noon when she was alone at home without her willingness as given by the victim. His examination of the victim revealed that hymen was ruptured, but contained no fresh injury marks nor were there any injuries on the private parts. He concluded that there were signs of entry in the vagina. As per the denture of the victim, her age was assessed between 11-13 years. Radiology Department assessed her age to be between 12-14 years. In the cross-examination, he admitted that the history was not given by the victim in his presence. Dr. [ENTITY], who had carried out the gynecology test, had issued a certificate suggesting that there was no evidence of intercourse by a male.
8. The panchnama of the scene of incident was produced at Exh.18.
[CASE NUMBER] The panch witness [ENTITY], P.W.8, Exh.17 supported the prosecution. In the panchnama, it was recorded that there is a verandah, which leads to a room, which is 20' x 15' in area, where different household articles were lying.
9. [ENTITY], P.W.9, Exh.20, was the investigating officer. He narrated the detailed steps taken by him during the course of the investigation. To get the precise date of birth of the victim, the principal of Bhojela Primary School was addressed a letter on 28.04.2008 to give the date of birth of the girl. The reply of the Principal dated 29.04.2008 was produced at Exh.23, in which he had pointed out that there was no girl student by the name [ENTITY], but there was another girl named [ENTITY], whose date of birth is 4.4.1995.
In the cross-examination, he agreed that he had not enquired from the doctors at Sukhsar and Santrampur, where the victim had taken treatment. He agreed that the victim had met the District Superintendent of Police before coming to Sukhsar Police Station for lodging the First Information Report, and that instructions were issued from the District Superintendent of Police Office to register such a First Information Report.
10. The accused was absconding for a long time, and was eventualy arrested on 29.1.2010 and sent for physical examination as per the deposition of the police officer [ENTITY], P.W.10, Exh.25.
11. As was expected, due to the time-gap, the Forensic Science Laboratory report, Exh.31, could not establish the presence of blood or semen from the private parts or the clothes of the victim or the accused.
[CASE NUMBER]
12. The accused examined one [ENTITY], P.W.1, Exh.35, of the defence witness No.1. He was the In-charge Headmaster of Bhojela Primary School. He produced a certificate, Exh.36, indicating that Ms. [ENTITY] had attended school regularly between 19.3.2008 to 24.4.2008. This certificate he had issued on the basis of attendance register, relevant extract of which was produced at Exh.37. On the basis of this evidence, perhaps, the defence wanted to contend that the victim girl had regularly attended the school before, during and after the alleged incident.
13. This, in the nut shell, is the evidence on record. On the basis of such evidence, learned counsel Shri [ENTITY] contended that (1) the trial court committed serious error in convicting the accused when the prosecution evidence was inconsistent on material aspects; (2) there were no injuries on the private parts of the prosecutrix, though she had claimed to have bled and received injuries; (3) there were inconsistencies about when she first informed her mother. In the deposition the victim as well as her parents stated that she revealed the incident three days later, whereas in the First Information Report, she had stated that immediately after her parents returned she spoke to her mother; (4) There was a delay of 34 days in filing the First Information Report, which remained totally unexplained; (5) there were other houses near the house of the prosecutrix, her uncle and aunt were residing closeby, she neither shouted for help nor rushed to them as soon as the accused left. Her version is thus highly improbable. Counsel contended that in order to avoid repayment of borrowed money, the accused had falsely implicated the father of the victim had falsely implicated the accused.
15. On the other hand, learned Additional Public Prosecutor, Ms. [ENTITY], submitted that mere delay in filing the First Information Report [CASE NUMBER] would not fail the prosecution. The version of the victim-girl was believable. It did not require any further corroboration. The theory of borrowing of money was not established. Victim was a young girl, barely aged 11 years. The sentence awarded by the trial court was insufficient.
16. We have noted in brief the evidence of the prosecutrix. Though the prosecution could not bring on record her precise date of birth, it is an undeniable position that she was a young girl, studying in 5th std. in a school. There is some discrepancy about the exact name of the student as indicated in the certificate issued by the Principal of the school, which was produced at Exh.23. We may, therefore, not place any reliance on this document. Never the less, as per the medical evidence, she was stated to be between 11-13 years going by her denture, and between 12- 14 years as per the radiology report. It is not the case of the defence that she is an adult matured person.
17. This discussion was not aimed at pointing out that the victim girl being below 16 years of age, her consent was not relevant. In fact, as per the prosecution, there was no consent at all. This was to point out that the victim was a girl of tender age of barely about12 years. Her testimony and all her actions during and post the incident would, therefore, have to be viewed accordingly. In her deposition, she had clearly narrated the incident, and the manner in which it happened. She was alone at home in the morning her parents having gone to village Sukhsar. The accused arrived there, and after enquiring about the whereabouts of her parents and being informed that they were away, picked her up, took her inside the room and raped her. This incident, the victim did not reveal to her parents for a few days. Only when she felt pain, she informed him about it some three days later, upon which, she was taken to hospitals at Sukhsar and Santrampur.
[CASE NUMBER]
18. To the limited extent the daughter having spoken to the mother and she being taken to the hospitals at Sukhsar and Santrampur, her parents also corroborated her version. The victim and her family members first met the District Superintendent of Police, and then lodged their complaint before the concerned police station.
19. We have no reason to discard the testimony of this witness only because she was the sole eye witness. By very nature of things, in cases of rape, availability of other or independent witnesses is most unlikely. The evidence of victim of rape, it is well settled, should be assessed in the same way as the evidence of an injured eye witness. If it is found that the testimony is clear, reliable and dependable, conviction on the basis of sole eye witness would also be perfectly legitimate and permissible. Merely because she did not confide in her parents for a couple of days or that the parents did not immediately react by lodging a First Information Report would not be a ground to discard her clear and substantially consistent testimony. Whether she was threatened in the same words as she deposed before the court not to reveal the incident to anyone else is not important. When a girl barely aged about 12 years is subjected to such an assault on her privacy and if she did not immediately confide to any of the family members, that by itself can not be seen as something unusual nor would make her version become unreliable or improbable.
20. It is by now well settled that in cases of rape, if the evidence of the prosecutrix; the sole eyewitness is found reliable and believable, conviction can be recorded on the basis of such testimony without insisting on corroboration. In case of [PRECEDENT], the Apex Court observed that too much importance cannot be given to minor discrepancies and the discrepancies which do not go to the root of the [CASE NUMBER] matter and shake the basic version of the witnesses cannot be annexed with undue importance. It was further observed that for offence of rape, corroboration is not a sine qua non for conviction. 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. The Court elaborated in the Indian context a girl or a woman bound by the tradition of non- permissive society, would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. She would have to brave the whole world. If she is unmarried, she would apprehend the difficulty to secure an alliance with a suitable match in future. She would also otherwise be extremely embarrassed.
In case of [PRECEDENT], the Apex Court rejected the contentions of false accusation of gang rape due to communal feeling observing that it is inconceivable that an unmarried girl and two married women would go to the extent of staking their reputation and future in order to falsely set up a case of rape on them for the sake of communal interests.
In case of [PRECEDENT], the Apex Court observed as under :
"7. 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 [CASE NUMBER] in [PRECEDENT] with some anguish. The same was echoed again in [PRECEDENT]. It was observed in the said case that in the Indian setting refusal to act on the testimony of the victim of Page sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a 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 or dignity had 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. Corroboration is not the sine qua non for conviction in a rape case. The observations of [ENTITY], J. in [PRECEDENT] 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 ".
8. 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 claim of rape will not be believed unless it is corroborated in material particulars as in "the case of an accomplice to a crime". See [PRECEDENT]. Why should be 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? The plea about lack of corroboration has no substance."
21. In criminal cases, the time of lodging of First Information Report often assumes considerable importance. Long gap of time between the incident and filing of First Information Report, which remains unexplained, would immediately raise suspicion of manipulation or false involvement. However, in cases of rape, due to peculiar nature of the offence and the reaction of the society towards victims of such offence, the courts have been viewing such delay with much greater tolerance.
[CASE NUMBER]
22. Referring to the delayed lodging of First Information Report, the Apex Court in the case of [PRECEDENT] observed as under:-
"13. The factors which seem to have weighed with the High Court are
(i) the age of the victim, which according to the High Court was more than 16 years; (ii) no evidence has been placed by the prosecution to show that the victim had not consented to the act; and (iii) the time of alleged rape as given by the victim and her mother was improbabilised by the medical evidence. A particular reference was made to the fact that a child was born on 10.4.1979 and if the alleged rape has been committed during the period indicated by the victim and her mother the same would have been altogether different periods. The delay in lodging the first information report was also highlighted to attach vulnerability to the prosecution case.
17. The High Court has also disbelieved the prosecution version for the so-called delay in lodging the FIR. The prosecution has not only explained the reasons but also led cogent evidence to substantiate the stand as to why there was delay. The trial Court in fact analysed the position in great detail and had come to a right conclusion that the reasons for the delay in lodging the FIR have been clearly explained.
18. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility [CASE NUMBER] of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle. These aspects were highlighted in [PRECEDENT]."
23. The victim was a young girl of barely 12 years. Her parents were poor labourers. If, therefore, they weighted for some time and tried to cure the girl before filing First Information Report when she was not fully cured would not be fatal to the prosecution.
23. The mere fact that the victim could have but did not shout for help would not render her testimony unreliable. We may record that the accused was aged about 46 years, and the victim was aged 12 years. Under the circumstances, what would be the reaction of a young girl cannot be standardized, and must change from person to person. When overpowered by a much elder and a stronger male member, what would be the nature of resistance of a young girl cannot be a subject matter of pre-decided specifications. She further explained that though her uncle and aunt were also residing in the neighbourhood at the time of incident, they were not at home having gone for labour work.
24. The attempt on the part of the defence to establish that on the very day of the incident she had attended the school has failed. The defence witness, the In-charge Principal of the school merely issued a certificate Exh.35 that the girl student [ENTITY] was [CASE NUMBER] present in the school between 19.3.2008 to 24.4.2008. There is, thus, a clear discrepancy in the name registered in the school, same as we noticed in the letter of the Principal Exh.23. Even otherwise, close perusal of the copy of the extract of attendance register Exh.37 shows that there is no indication of the month or the year for which attendance was recorded. Though the second page of the document refers to the month of April 2008, the first page contains no such details. If according to defence witness No.1 the certificate Exh.36 was prepared on the basis of attendance register Exh.37, there is nothing to confirm that the attendance indicated in the said document is for the month of March 2008.
25. The accused tried to develop the defence of false implication to avoid repayment of money borrowed by the father of the complainant from the accused. However, barring making a suggestion to the witnesses, which they denied, no further evidence could be brought on record in this respect. There was no suggestion put to any of the witnesses about any previous demand by the accused for payment of loan, even if any made. In absence of any previous demand, any resistance by the father of the complainant or quarrel between the two, it would not be possible to accept this mere suggestion by the defence as a ground for false accusation. The very fact that the family went right up to the District Superintendent of Police to lodge the First Information Report would indicate the earnestness in pursuing the allegations.
26. In the result, we confirm the conviction of the accused recorded by the trial court. The victim was barely aged 12 years. The accused was about 46 years old. Offence of rape punishable under [SECTION] prescribes sentence which could be imprisonment for life or extended to imprisonment up to 10 years. The Section also mandates that ordinarily [CASE NUMBER] the court would impose a minimum sentence of seven years, unless of course for special and adequate reasons to be recorded in the judgment, such period is to be reduced. Though, in absence of of clear proof showing the victim girl to be below 12 years of age, we do not accept the suggestion of the learned Additional Public Prosecutor that the sentence should be for offence punishable under [SECTION], we find that sentence of seven years of imprisonment was inadequate.
27. Looking to the facts and circumstances, therefore, while dismissing the accused's appeal against the conviction, we partially allow the State Appeal, and enhance the sentence to eight years of rigorous imprisonment. Judgment of the trial court shall stand modified accordingly. Record and proceedings be transmitted back. Both the appeals stand disposed of accordingly.
([ENTITY], J.) ([ENTITY], J.) sndevu