HONOURABLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.205 of 2008 Between: Man Bahadur ……….Appellant and The State, rep. by its Public Prosecutor, High Court of AP, Hyderabad. ………..Respondent HONOURABLE SRI JUSTICE G.V. SEETHAPATHY CRIMINAL APPEAL No.205 of 2008 JUDGMENT: This Criminal appeal is directed against the judgment dated 20- 11-2007 in Sessions Case No.235 of 2007, on the file of the V Additional Sessions Judge, Ranga Reddy District at L.B. Nagar, whereunder, the appellant-accused was found guilty of the offences under Sections 376 and 506 IPC, and accordingly, he was sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,000/- and in default, to undergo simple imprisonment for six months for the offence under Section 376 IPC and was also sentenced to undergo rigorous imprisonment for one year for the offence under Section 506 IPC. 2. Heard the learned counsel for the appellant-accused and the learned Additional Public Prosecutor for the respondent-State. Perused the records. 3. The case of the prosecution is that the accused is none else than father of the victim girl, P.W.1, and husband of P.W.2, and that the accused forcibly committed rape on P.W.1 by taking her to a bushy area, near by his house, on three occasions and after a gap of few days, he again repeated the offence against P.W.1 on four occasions and ultimately, P.W.1 informed the same to her mother, P.W.2, who gave a complaint, Ex.P.1 to the police, which was registered as Crime No.1 of 2007 under F.I.R., Ex.P-7. During the course of investigation, P.W.4, the Professor of Forensic Medicine, Osmania Medical College, Hyderabad, examined P.W.1 and gave a Certificate, Ex.P-2, to the effect that P.W.1 is aged about 15 years. P.W.5, Professor of Forensic Medicine, Hyderabad, examined the accused and gave the Potency Certificate, Ex.P-3, to the effect that there is nothing to suggest that the accused is not capable of performing the sexual intercourse. P.W.6, Assistant Professor of Gynaecology, Osmania Medical College, examined P.W.1 and gave an opinion, Ex.P-6, based on F.S.L. report, Ex.P-5, to the effect that sexual assault and sexual intercourse on P.W.1 cannot be ruled out as the patient was brought after five days of incident. P.W.7, Inspector of Police, inspected the scene of offence and drafted Panchanama, Ex.P- 8, and also rough sketch map, Ex.P-9 and examined the witnesses and arrested the accused on 03-01-2007 and recorded his confessional statement, Ex.P-10, in the presence of mediators and seized an axe, M.O.1, at his instance. After completion of the investigation, he filed the charge sheet for the offences under Sections 376 and 506 IPC. 4. The accused denied the offence and pleaded not guilty to the charges framed against him for the above said offences. 5. In support of its case, the prosecution examined P.Ws.1 to 7 and marked Exs.P-1 to P-10 and M.O.1. 6. On consideration of the evidence available on record, the learned Additional Sessions Judge found the accused guilty of the offences under Sections 376 and 506 IPC and convicted him for the same and imposed sentences as stated above. Aggrieved by the said conviction and sentence, the present Criminal Appeal is filed by the accused. 7. The prosecution relied upon the testimony of P.W.1, the victim girl, and her mother, P.W.2, besides the medical evidence of P.Ws.4 to 6 to prove the offence. It is to be noted that the accused is none else than father of P.W.1 herself. The testimony of P.W.4 coupled with Age Certificate, Ex.P-2, issued by him, shows that P.W.1 is aged around 15 years and is therefore, a minor girl. 8. It is in the evidence of P.W.1 that they hailed from Nepal and for the last ten years they are residing at Hyderabad and her father, the accused, is working as a watchman in Gachibowli University and that she is the elder daughter and she has two younger brothers. She further testified that about 11 months prior to her giving evidence, the accused took her to bushes by falsely representing that he was taking her to her grand parents’ house and he removed her cloths and threatened her and committed rape on her. She further testified that accused threatened that he would kill her, if she disclosed the incident to anyone. It is also in her evidence that subsequently, the accused made two similar attempts on her and somehow she escaped. But on the second occasion, he committed rape on her. It is also her evidence that after a gap of one day, the accused again attempted to commit rape, but she escaped and thereafter, she informed her mother about the incident, and herself and her mother went to the police and gave a complaint, Ex.P-1. The testimony of P.W.1 is not discredited in any manner in the cross-examination. She denied the suggestion that she foisted a false case against the accused at the instance of one Sukhbahadur. It is highly improbable and hard to believe that P.W.1 would have resorted to making a false complaint of this nature against her own father for whatever reason. It is again equally unbelievable that P.W.1 would be falsely implicating her own father leaving the real culprit. There is absolutely no reason as to why P.W.1 should give such a complaint as contained in Ex.P-1 against her father unless the incident alleged be true. The testimony of P.W.1 not having been discredited in any manner and is, therefore, found to be truthful and reliable is sufficient to base conviction without any further corroboration. 9. In ‘State of H.P., vs. Gian Chand[1]’, the Apex Court held as follows: “It is now well settled that conviction for an offence of rape can be based on the sole testimony of 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. If the 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 may be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” In ‘State of H.P., vs. Mange Ram[2]’ the Apex Court held as follows: “In view of the evidence of prosecutrix (PW.5) which is corroborated by medical evidence and other item of evidence and in the absence of any consent on the part of the prosecutrix, it is clearly established that the accused had committed rape on the prosecutrix and is liable for the offence punishable under Section 376 IPC. The finding given by the learned sessions Judge is not based on proper appreciation of evidence and, therefore, unreasonable and we are of the view that the Sessions Court dealt the case so lightly. The offence of rape being a serious one, the case should have received careful attention and that the learned Sessions Judge and the learned Single Judge should have shown greater sensitivity to these type of cases. The evidence should have been appreciated on broader probabilities and not to be carried away by insignificant contradictions.” In the present case also, the testimony of P.W.1, which is free from any infirmities, can certainly form the basis for conviction as no direct evidence in the form of an eye witness account can be expected to prove an offence of this nature which the accused would normally commit only after ensuring privacy and secrecy. 10. It is in the evidence of P.W.1 that the accused had taken her into the bushes during night times for committing the offence and her cries for help were of no avail. The accused being none else than father of P.W.1, it is quite possible that P.W.1 innocently and unsuspectingly accompanied the accused. The accused being middle aged person, it is equally possible that P.W.1, young girl of tender age, could not offer any resistance against the beastly conduct of the accused. The delay in giving the complaint is quite natural as the accused is father of P.W.1 herself and prestige of the family is involved, apart from the fact that P.W.1 was under continuous threats from the accused against disclosure. 11. It is in the evidence of P.W.2, mother of P.W.1, that she found P.W.1 weeping and on her questioning, P.W.1 revealed the incident and also told her that she could not reveal earlier acts committed by the accused due to fear and thereafter, herself and P.W.1 went to the police and gave a complaint. It is also in her evidence that when she questioned the accused about the incident, the accused beat her and thereafter, she came out of the house along with the children due to fear for the accused, and then gave a complaint to the police. The testimony of P.W.2 is not discredited in any manner. 12. P.W.3, a neighbor, also corroborated the evidence of P.Ws.1 and 2 to the effect that P.W.2 along with her children, came out of the house and took shelter in his house on account of the incident and the threats of the accused and he gave shelter to P.W.2 and her children and advised them to give a report to the police. 13. That apart, the medical evidence on record also corroborates the version of P.W.5, who issued the Potency Certificate, Ex.P-3, certifying that the accused was capable of performing the sexual intercourse. P.W.6, the Medical Officer, who examined P.W.1, found that the hymen was not intact and she preserved the vaginal smear and other items and sent them to Forensic Science Laboratory for analysis and after receiving the F.S.L. Report, Ex.P-5, she gave final opinion, Ex.P-6, to the effect that sexual assault and intercourse of P.W.1 cannot be ruled out. It is also in her evidence that the semen or spermatozoa could not detect as P.W.1 was examined five days after the occurrence. Even as per the evidence of P.W.1, she was subjected to rape by the accused on more than one occasion with a gap in between. The report, Ex.P-1 was given about 5 or 6 days after the first commission of offence. It is therefore possible that no sperm or spermatozoa could be detected on the person of P.W.1 and on her cloths after a gap of 5 or 6 days from the date of first occurrence. The fact that the hymen was not intact coupled with the testimony of P.W.1 that she was subjected to forcible sexual intercourse clearly establishes the offence against the accused. The absence of any injuries on P.W.1 is of no consequence as P.W.1 was too young and tender in her age to offer any resistance. It is well settled proposition that absence of any external injuries, under given circumstances, does not rule out the offence when the same is otherwise established. 14. In the circumstances and in view of the unimpeached testimony of P.W.1, duly corroborated by medical evidence and other circumstantial evidence of P.Ws.2 and 3, the trial Court has rightly found the accused guilty of the offences under Sections 376 and 506 IPC and convicted him for the same and the said conviction does not call for any interference. 15. Regarding quantum of sentence also, having regard to the gravity of the nature of the offence and the beastly conduct of the accused in perpetrating the offence repeatedly on his own daughter, P.W.1, the sentence of rigorous imprisonment for ten years and fine of Rs.1,000/- imposed for the offence under Section 376 IPC and sentence of rigorous imprisonment for one year for the offence under Section 506 IPC imposed by the trial Court are perfectly justified and the same also do not call for any interference. 16. The conviction and sentence as recorded by the trial Court against the appellant-accused are, therefore, confirmed. 17. In the result, the Criminal Appeal is dismissed. _____________________ 25th September 2009 kvr [1] 2001 SCC 2075 [2] AIR 2000 SC 2798