HON’BLE SRI JUSTICE K.C. BHANU and HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.256 of 2007 Date: January 20, 2011 Between: Mohd. Iqbal Javeed … Appellant/ Accused And The State of A.P. Through Public Prosecutor, A.P. High Court Buildings, By S.I. of Police, Langerhouse, Hyderabad. … Respondent/ Complainant * * * HON’BLE SRI JUSTICE K.C. BHANU and HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No.256 of 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C. Bhanu) This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the judgment dated 19.02.2007 made in Sessions Case No.505 of 2006 on the file of V Additional Metropolitan Sessions Judge (Mahila Court) at Hyderabad, whereunder and whereby the appellant/sole accused was found guilty of the offence under Section 376 of Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.20,000/-. In default of payment of fine he was sentenced to undergo rigorous imprisonment for six months. Out of the said fine amount, an amount of Rs.15,000/- was ordered to be paid to P.W.2. 2. The facts that are necessary for disposal of the appeal may be stated as follows: The accused is the father of the victim P.W.1. Marriage of the accused and the mother of P.W.1 viz. P.W.2, was performed about 20 years back. Ten years thereafter, the accused married second time one Saheeda Begum and started living with her at Hasheem Nagar, Hyderabad. In the year 2004, the accused took P.W.1 to his house on the ground that the locality in which she was residing is not safe. Therefore, she started living with the accused along with his second wife, and their children. The accused used to take his daughter P.W.1 to her mother’s house once in one or two months. On one occasion, the second wife of the accused was sent to her maternal house. On one day at about 4-00 or 5-00 p.m. when nobody was in the house, the accused tried to commit rape on P.W.1, but she resisted and also pleaded saying that being her father he should not commit such acts. Fifteen days thereafter, at about 3-00 or 4-00 p.m. the accused again came to her, removed his clothes and clothes of P.W.1. When she pleaded to him the same request as pleaded earlier, despite her request, the accused forcibly committed rape against her will. He also threatened her with dire consequences and also threatened to kill her if she disclosed the matter to anybody. Fifteen days later, the accused took her to the house of her maternal aunt P.W.3, and on the way the accused also threatened her not to reveal the incident to anybody. After reaching her aunt’s house, she could not withhold the agony and insult and therefore informed the same to her aunt, P.W.3, who advised her to go along with the accused without publicizing the issue with a promise to come on the next day to take her and as such she went along with the accused. On the next day, P.W.3 along with his sister P.W.2, who is no other than the mother of P.W.1, came there, prepared a report and gave it to the Deputy Commissioner of Police who informed the same to the P.S. Langerhouse. Based on the said report, P.W.6 registered a case in crime No.237 of 2005 for the offence under Section 376 IPC and issued F.I.R to all concerned including the original to the Court. He also informed about registration of the case to the Inspector of Police P.W.7 who took up investigation, examined P.Ws.1 to 3, recorded their statements and sent the victim to the Medical Officer, Government Maternity Hospital, Nayapool, Hyderabad for medical examination. P.W.5 is the doctor, who examined the victim girl on 27.8.2005, did not find any external injuries or internal injuries. She preserved hair clippings and smears from vulva, vaginal swabs and blood and forwarded the same for chemical examination. Based on the Forensic Science Laboratory report dated 02.11.2005 she opined that the sexual intercourse cannot be ruled out, as hymen was not intact. P.W.7 visited the scene of occurrence on 28.3.2005, observed the same in the presence of P.W.5 and another and arrested the accused at Hasheem Nagar locality at 12-00 noon on the same day. The accused was referred to Osmania Medical College for potency test. The doctor who examined the accused gave Ex.P-8 certificate. Thereafter, the accused was produced before the concerned Judicial Magistrate of the First Class who remanded him to judicial custody and after completion of investigation, the successor-in-office of P.W.7 filed charge sheet. 3. The charge levelled against the accused is that for one month prior to 27.8.2003 at his house at Langerhouse, Hyderabad, he committed rape on Kum. Farheen, daughter of Mohd. Iqbal, aged 15 years continuously and that thereby committed an offence punishable under Section 376 IPC. When the charge was read over and explained to the accused, the accused pleaded not guilty of the charge and claimed to be tried. 4. To substantiate the charge levelled against the accused, the prosecution examined P.Ws.1 to 7 and got marked Exs.P-1 to P-8. After completion of prosecution side evidence, the accused was examined under Section 313 Cr.P.C. to explain the incriminating evidence appearing against him in the evidence of prosecution witnesses. He denied the truth in their evidence. No oral or documentary evidence was let in by the accused. Ex.D-1 – part of statement of P.W.1 under Section 161 Cr.P.C. was marked as Ex.D-1. 5. The trial court accepting the evidence of P.W.1 coupled with the evidence of the doctor P.W.5, came to the conclusion that it is the accused who committed rape on his own daughter and that there are no strong suspicious reasons for a daughter to foist a false case of this nature and accordingly convicted and sentenced the accused as afore-stated. Challenging the same, the present appeal is filed. 6. As the accused was unable to engage an advocate to defend himself in this appeal, Sri Jogram Tejawat is appointed as State Brief to defend the accused. 7. Now, the point for determination is whether the prosecution proved the guilt of the accused beyond all reasonable doubt for the charge under Section 376 IPC against the accused? 8. The learned counsel for the appellant vehemently contended that the medical evidence does not lend support to the ocular testimony; that when the rape was committed she did not raise cries, that even after the incident, P.W.1 did not reveal about the incident to anybody for 15 days, that the delay is not explained, that accused became a scapegoat at the hands of the first wife of the accused (viz. P.W.2) who had a grouse against the accused, as the accused was not looking after her properly after marrying Shaheeda Begum, second wife and therefore, with a view to take vengeance against the accused and his second wife, the possibility of giving a false report by P.W.1 cannot be ruled out; that the evidence of P.W.1 cannot be shown to be a truthful one so as to base a conviction and that in view of the internal disputes between the two wives, the accused was falsely implicated and therefore he prays to set aside the same. 9. On the other hand, the counsel representing the Public Prosecutor contended that there is absolutely no reason for P.W.1 to foist a false case of this nature against her own father and that if really P.W.2, who is the first wife of the accused, entertained any enmity against the accused, she would have filed some other cases against the accused immediately after the accused married the second wife, that the accused and his second wife started living together for about 10 years; that all of a sudden P.W.2 would not have foisted a false case making use of her daughter and that there must be a strong reason or circumstance to indicate that a false case is foisted against the accused, that in the evidence of P.Ws.1 and 2, nothing has been elicited to foist a unreal case of this nature against the accused and that P.W.1 was an unmarried girl aged about 16 years, that her marriage prospects would be severely affected if a false case of this nature is foisted and that therefore the trial court after elaborate consideration of the evidence available on record rightly found the accused guilty for the offence with which he was charged and there are absolutely no grounds to interfere with the same. 10. The accused is no other than the father of the victim girl P.W.1. The marriage of the accused with P.W.2, who is the first wife and mother of P.W.1, was performed about 20 years prior to the incident. Ten years thereafter the accused married another lady Saheeda Begum. It is not in dispute that the first wife of the accused was residing at Karmanghat, Hyderabad along with her daughter P.W.1, whereas, the accused was residing with his second wife Saheeda Begum and their children at Hasheem Nagar, Hyderabad. It is in the evidence of P.Ws.1 and 2 that the accused took P.W.1 alone to his house at Hasheem Nagar, as the locality in which P.Ws.1 and 2 were residing is not safe. Therefore, P.W.1 started residing with his father at Hasheem Nagar locality at Hyderabad. About one year prior to the incident P.W.1 was taken to the accused at Hasheem Nagar and she started residing in the house of the accused along with his second wife Saheeda Begum. On one occasion when Saheeda Begum was not present in the house, as she went to her patents’ house, the accused tried to commit ravage on P.W.1 for which she resisted and pleaded that he being her father should not do such unethical acts. Fifteen days thereafter it is stated that about 3-00 or 4-00 p.m. the accused came to her and removed his clothes and then P.W.1 touched his feet and prayed him not to do such heinous acts. In spite of the same, the accused forcibly committed rape on her and threatened her with dire consequences if she divulged the same to anybody. Fifteen days thereafter she was taken to the house of P.W.3, who is no other than the sister of her mother P.W.2. It is at that time P.W.1 revealed about the incident to P.W.3. On the next day they lodged a complaint with the Deputy Commissioner of Police who made an endorsement to the concerned police station and the police registered a case. 11. In case of rape there can hardly be any eyewitnesses. The statement of prosecutrix supported by medical evidence can form basis for conviction, provided that evidence is true and trustworthy. 12. No doubt, there is some dispute with regard to the age of P.W.1, but that is not much relevant fact in issue to determine whether she was a minor or major. On the evidence available on record, the trial court gave a categorical finding that P.W.1 was aged more than 16 years. Whether she was aged more than 16 years or less than 16 years, that is not the criterion because the specific case of P.W.1 is that rape was committed on her against her will which is punishable under Section 376 IPC. 13. In State of Punjab v. Gurmeet Singh[1] the Supreme Court held in para 20 as hereunder: Of late, crime against women in general and rape in particular is one the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault --- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. 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. In Bharwada Bhoginbai Hirjibhai v. State of Gujarat[2] the Supreme Court held in para 11 as hereunder: In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. 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 a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eyewitness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the “probabilities factor” is found to be out of tune. 15. One of the contentions of the learned counsel for the appellant herein is that P.W.1 did not lodge the complaint immediately after the offence and there was a delay of 15 days in reporting the matter. In a case of this nature, the victim or the relatives of the victim would not be dare enough to rush to the police station so as to lodge a complaint especially against the father who allegedly committed offence of rape because the reputation and honor of the young girl are at stake. If it is known to everybody that her own father committed sexual assault on her, she would be looked down in the society and nobody would come forward to marry her. The act would cause untold affliction to P.W.1. In such circumstances, it is not possible for the victim to rush to the police station to lodge a complaint immediately after the offence. But having suffered this kind of agony, there was a scope for her to inform the close relatives about the incident after restoring to normal state. As she was not allowed to go out from the house, there was no possibility for her to give a complaint. Fifteen days thereafter she was taken to the house of P.W.3. Since P.W.3 is the maternal aunt of the victim P.W.1, there is every reason for P.W.1 to reveal about the repulsive act committed by her father. Therefore, at the earliest opportunity she revealed the incident to P.W.3. It is not a delightful incident so as to inform everybody in the locality. 16. P.W.3, who is the maternal aunt of P.W.1, has categorically stated that about one year back P.W.1 and the accused came to her house at which time P.W.2 was also present in her house; that P.W.1 informed that the accused committed rape against her and he also made an attempt to ravish on earlier occasion; then she advised her to go along with the accused without saying anything; that on the next day, P.Ws.2 and 3 went to the house of the accused; then, the accused was not present in the house, but the second wife of the accused was present; that after informing the second wife, they brought P.W.1 to the house of P.W.2 and the latter reported the same to the police. It is only suggested to her that P.W.1 has been pressurizing the accused to divorce his second wife and that there were some differences between P.W.2 and the second wife of the accused, but the same were denied. There is absolutely no impetus for P.W.3 to speak false against the accused saying that she was informed by P.W.1 when she came to her house 15 days after the incident about the sexual assault by the accused. 17. Similarly, the evidence of P.W.2 would go to show that after P.W.1 attained puberty the accused took her to his house, as the locality in which she was residing was not safe; and the accused was bringing his daughter to her house now and then and as such P.W.1 resided with her father for one year. She also stated that about one year back the accused came to the house of P.W.3 along with P.W.1, and at that time P.W.1 revealed about the inhuman acts of the accused and he also attempted to commit rape on her on earlier occasion and committed rape against her after 15 days of his first attempt. Therefore, the evidence of P.Ws.2 and 3 is completely in corroboration with the evidence of P.W.1. The evidence of P.Ws.2 and 3 is very clear that about 15 days after the incident P.W.1 informed the incident to them about the accused committing the rape. It is admitted by P.W.2 that P.W.1 did not inform her directly and she came to know the same through P.W.3. It is quite possible for P.W.1 for not informing about the heinous act of the accused even to his mother because of the nature of the act committed by the accused and in such circumstances there was a possibility for her to inform about the same to her aunt. Except giving a suggestion that herself and second wife of the accused used to quarrel and that she threatened that she would file a false case against him if he did not give divorce to his second wife, nothing has been elicited to doubt the testimony of P.W.2. 18. In considering the question as to whether evidence given by a witness should be accepted or not, the Court has to examine whether the witness is an interested witness and to infer whether the story deposed by her in probable and whether it has shaken in the cross-examination. The totality of the evidence of witness has to be taken into consideration for fixing the probative value. The evidence of a witness will have to be assessed by its intrinsic worth. If it is a case where the accused was implicated falsely, definitely P.W.2 would have played an active role. It is not the case of the accused that P.W.2 falsely implicated him so as to take vengeance. Therefore the question of P.W.2 using her own daughter to implicate the accused falsely in a case of this nature is ruled out. 19. Similarly, coming to the evidence of P.W.1, there must be strong reason for her to foist an ersatz case of this nature stating that her own father committed rape on her. In the entire cross- examination nothing has been elicited to discredit the testimony of P.W.1. It is suggested to her that no incident of this nature occurred and she gave a false report at the instance of her mother in order to make a cause to give divorce to his second wife. That appears to be improbable because for the last 10 years when the accused was actually residing with his second wife, the first wife P.W.2 did not take any steps which were available to her under law against her husband. So, all of a sudden, after 10 years, it cannot be said that P.W.2 entertained the grouse against the accused so as to take vengeance against her husband making use of her own daughter as a pawn. Since P.W.1 has crossed 16 years, if she was used as an instrument to involve the accused in this case, she would not get good alliance and nobody would come forward to marry her and her marriage prospects would be diminished and further more she would be looked down by her own relatives and also by the persons of the locality. In such circumstances, the implication of the accused cannot be shown to be a wanton or willful or deliberate act so as to take vengeance against the accused. In the absence of any false implication, P.W.1 would not have dared to depose falsely against her father stating that he committed rape on her. In arriving at the conclusion about the guilt of accused charged with the commission of crime the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. The probative value of a piece of evidence means the weight to be given to its credibility of testimony, oral and circumstantial depends considerably on a judicial evaluation of the totality, not isolated scrutiny. 20. Now it has to be seen whether the evidence of P.W.1 has to be relied upon or accepted so as to base a conviction on the accused. It is in the evidence that P.W.1 was residing with the accused since one year prior to the incident in question. She had no grievance against the accused during that period. She has not complained anything against the accused during that period. Such is the case, there is absolutely no rancor for P.W.1 to foist a false case of this nature against her father. It is not the case of accused that P.W.1 is acting to the dictation of her mother. Even if P.W.2 insisted P.W.1 to depose against the accused, P.W.1 would not have stated that accused committed rape on her. In the facts and the circumstances of the case, the contention that P.W.1 had given a false evidence against the accused at the instance of her mother cannot be accepted. It is wholly untenable and devoid of merit. 21. Coming to the evidence of P.W.2, there must be a strong dislike for her to implicate the accused in a case of this nature. The evidence of P.W.2 does not appear to take vengeance against her husband. For the last ten years, she kept quiet even though accused married another woman. Even after accused married another lady, P.W.2 did not file a single case against the accused.