1 cr-apeal-391-05 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 391 OF 2005 Patric Anthony Nathan C/5049, Central Prison Nashik Road. ..Appellant Versus The State of Maharashtra ..Respondent .... Shri Abhaykumar Apte (appointed), for Appellant Shri Y. S. Shinde, Additional Public Prosecutor for State CORAM : D.D.SINHA AND SMT.V.K.TAHILRAMANI, JJ. RESERVED ON : 21st December, 2010 DECLARED ON : 23rd December, 2010 JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1. Through this appeal the appellant-original accused has challenged the judgment and order dated 16.9.2004 passed by the learned III Additional Sessions Judge, Nashik in Sessions Case No. 110 of 2004. By the said judgment and order, the 2 cr-apeal-391-05 learned Sessions Judge convicted the appellant under Section 376 of IPC and sentenced him to RI for life and to pay a fine of Rs. 100/- in default, RI for one month. 2. The prosecution case briefly stated, is as under: i. The prosecutrix PW 3 Naina Nathan is the daughter of the appellant. Naina has no other brothers or sisters. She was residing with her father i.e. appellant at Wagle Estate, Thane. At the time of incident, the age of Naina was about 15 years. About 6 to 7 years prior to the incident, the mother of Naina had left the house. Thereafter the whereabouts of her mother were not known. The appellant was working in a liquor den. Every day he used to consume liquor and return home under the influence of liquor. ii. In April, 2002, the appellant returned home under the influence of liquor. He then committed rape on Naina. Naina objected to the act of her father. However, he did not pay any heed. He told her not to disclose this fact to anybody. As Naina was afraid of her father, she did not disclose the said fact to anybody. Thereafter, the accused 3 cr-apeal-391-05 committed rape on her on many occasions. Naina used to raise shouts at that time because of pain and suffering. Naina was frightened as there was nobody to maintain her and the appellant i.e. her father had pressurized her that she should not disclose the incident to anybody, hence she kept quiet. iii. One day prior to the lodging of the FIR Naina had stomach pain. PW-1 Jyoti Mahadik who was her neighbour was going to a Doctor. Hence Naina told Jyoti Mahadik that she would come with her to the Doctor. Both of them then went to the Doctor i.e PW4 Dr. Vasudha Bhanushali whose dispensary was situated at Wagle Estate. On examination, Dr. Bhanushali told her that she was pregnant. Jyoti Mahadik made enquiry with Naina how she became pregnant. Thereafter Naina replied that she became pregnant due to the act of her father. Thereafter, she returned home. Due to fear she did not say anything to her father. On the next day, she lodged her FIR (Exh. 11) in the Police Station. iv. Naina was referred to Civil Hospital at Nashik. PW-5 Dr. Anuradha Nandapurkar examined Naina. She also noticed 4 cr-apeal-391-05 that Naina was 28 weeks pregnant. She noticed that Naina was about 16 years old at that time. She then admitted Naina in the Hospital. Naina delivered a male child on 7.6.2003. When PW-5 Dr. Nandapurkar examined Naina, Naina disclosed to her the history of repeated forceful intercourse by her own father in the last about one year. After the delivery, Naina was sent to remand home along with the child. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under section 376 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. His further defence is that he has been falsely implicated by his daughter Naina on the say of his wife. After considering the defence of the accused and the evidence led by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned advocate for the appellant- accused and the learned Additional Public Prosecutor for the 5 cr-apeal-391-05 State. We have perused the impugned judgment and order and the evidence on record. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order of conviction and sentence does not call for any interference. 5. In order to prove its case, the prosecution has relied on the evidence of PW-3 Naina who is the star witness of this case. Naina has stated that she was residing with her father i.e. appellant at Wagle Estate, Thane. At the time of incident, the age of Naina was about 15 years. Her date of birth is 19.12.1987. About 6 to 7 years prior to the incident, the mother of Naina had left the house. Thereafter the whereabouts of her mother were not known. The appellant was working in a liquor den. Every day he used to consume liquor and return home under the influence of liquor. In April, 2002, the appellant returned home under the influence of liquor. He then committed rape on Naina. Naina objected to the act of her father. However, he did not pay any heed. He told her not to disclose this fact anybody. As Naina was afraid of her father, she did not disclose the said fact to anybody. Thereafter the accused repeatedly committed rape on Naina. Naina used to raise shouts at that time because of pain and suffering. Naina was 6 cr-apeal-391-05 frightened as there was nobody to maintain her and the appellant i.e. her father had pressurized her that she should not disclose the incident to anybody, hence she kept quiet. One day prior to the lodging of the FIR, Naina was suffering from stomach pain. PW-1 Jyoti Mahadik who was her neighbor was going to the Doctor. Hence Naina told Jyoti Mahadik that she would go with her to the Doctor. Both of them then went to Doctor PW4 Dr. Vasudha Bhanushali whose dispensary is situated at Wagle Estate. On examination, Dr. Bhanushali found that Naina was pregnant. Jyoti Mahadik made enquiry with Naina as to how she became pregnant. Thereupon Naina replied that she became pregnant due to the act of her father. Thereafter, she returned home. Due to fear she did not say to her father. On the next day, she lodged her FIR (Exh.11) in the Police Station. Despite searching cross examination no dent had been created in the evidence of Naina. We find that her testimony inspires confidence. Hence, we have no hesitation in relying on the same. 6. Evidence of Naina is fully supported by the Medical Evidence. Naina was referred to Civil Hospital at Nashik. PW-5 Dr. Anuradha Nandapurkar examined Naina. She noticed that Naina was 28 weeks pregnant. She noticed that Naina was about 16 years old. She then admitted Naina in the Hospital. 7 cr-apeal-391-05 Naina delivered a male child on 7.6.2003. When PW-5 Dr. Nandapurkar examined Naina, Naina disclosed to her the history of repeated forceful sexual intercourse by her own father in the last about one year. After the delivery, Naina was sent to remand home along with the child. 7. The evidence of Naina receives corroboration in some measure from the evidence of PW-1 Jyoti Mahadik and PW-2 Ladubai Irane. PW-1 Jyoti Mahadik has stated that she was the neighbour of the accused and the prosecutrix. The wife of the accused left the house of the accused as she was fed up with the harassment of the accused. The accused was working at a liquor den and every day he used to return home under the influence of liquor. If anything happened in the house of the accused, it could be easily heard in her house as her house is adjoining the house of the accused. During the night she used to hear shouts of Naina from the house of the accused. Naina used to shout "Papa Mala Soda, Mala Soda" (father leave me, leave me). PW-1 Jyoti has stated that on 23.3.2003 she was proceeding to the dispensary of Dr. Bhanushali. Naina made enquiry with her where she was proceeding. Jyoti disclosed to her that she was proceeding to the dispensary. Naina asked her whether she could accompany her. Thereupon, Jyoti made 8 cr-apeal-391-05 enquiry with her as to what was wrong with her. Naina informed her that she was not having menstruation since last four months and she felt discomfort in her stomach. Saying so, Naina accompanied Jyoti to the Doctor. Dr. Bhanushali examined Naina and made enquiry with her. Then the Doctor disclosed that Naina was about six months pregnant. Jyoti made enquiry with Naina and Naina disclosed the name of her own father from whom she had conceived. Naina also told that she could not disclose the matter to her father as her father had already threatened her. Naina also stated that her father brought acid for throwing on the face of her mother and the accused had given threat that he would throw the acid on the face of Naina. Jyoti told Naina that it would be better to lodge complaint at the Police Station as there was danger if Naina stayed with the accused. Thereafter, Naina lodged her FIR in the Police station. 8. PW-2 Ladubai was the neighbour of the appellant and Naina. She has stated that she knew both, the appellant as well as Naina. She was their neighboor. Naina was residing along with her father i.e. the appellant. Wife of the appellant was not residing with him. Every day the appellant used to return home at about 12 mid night under the influence of liquor. Ladubai has stated that she used to hear sound of Naina shouting and 9 cr-apeal-391-05 weeping in the night time. After it happened on 2/3 occasions, she voiced her objection to the accused in respect of his behavior to Naina, at that time the accused insulted her. Thereafter she did not interfere in their matter. 9. This evidence of PW-1 and PW-2 corroborates the evidence of Naina. Not that the evidence of prosecutrix requires any corroboration , however, both these witnesses have stated that they had heard Naina shouting and crying in the night. The Supreme Court in the case of State of M.P. Vs Dayal Sahu reported in (2005) 8 SCC 127 has held that the evidence of prosecutrix does not require any corroboration and the sole testimony of the prosecutrix is sufficient to sustain conviction under Section 376 of IPC. 10. The Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 has held 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, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the 10 cr-apeal-391-05 circumstances of the case, medical evidence can be expected to be forthcoming. This rule is subject to the qualification that 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. 11. We may make useful reference to a decision of the Supreme Court in the case of Om Prakash Vs State of U.P. reported in (2006) 9 SCC 787 wherein it is observed that if evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. It is further observed that a prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured witness in cases of physical violence.....It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require 11 cr-apeal-391-05 corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. 12. In our view, corroboration of the victim of the sexual offence may be considered essential to establish the offence in the backdrop of the social ecology of the western world. But it is wholly unnecessary to import the said concept and to transplant it on Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian society and its profile. Rarely will a girl or a woman in India make false allegations of sexual assault due to various psycho-social factors. And when in the face of those factors the crime is brought to light, there is a built-in assurance that the charge is genuine rater than fabricated. 13. The learned counsel for the appellant submitted that the appellant has been falsely implicated by his daughter Naina on the say of his estranged wife. We have carefully considered 12 cr-apeal-391-05 the submission. We regret to say that we find no merit in this submission. It was tried to be shown by the learned counsel for the appellant that the prosecutix Naina was in contact with her mother and on instructions of her mother she had lodged a false case against her own father. In fact, the evidence of Naina shows that her mother had left the house about 6-7 years ago and Naina did not know the whereabouts of her mother. It is also relevant to mention that Naina has specifically stated that initially when her mother left her house, she accompanied her mother but the accused had traced them and brought them back to the house. Thereafter again her mother left the house and at that time she did not know the whereabouts of her mother. Thus, it is seen that there is no evidence at all on record to show that at the relevant time Naina had any contact with her mother. It is also pertinent to note that the suggestion given to Naina in her cross examination that her mother used to visit the house was specifically denied by her. 14. The evidence of PW-6 ACP Machhindra Suryawanshi shows that during the investigation also it did not transpire that mother of Naina was on visiting terms with her. Thus, from the evidence on record, it is seen that when Naina went to PW-2 Dr. Bhanushali for the first time for checkup or even when she went 13 cr-apeal-391-05 to the police station for lodging the FIR against her father, she did not have any contact with her mother, therefore, there was no question of Naina being under the influence of her mother due to which she has falsely implicated her own father. In the instant case, the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. 15. It also cannot be ignored that no circumstance has come on record in the cross examination of prosecutrix Naina to show that she had contact with any other male person or she was having a bad character and to conceal the fact that she had became pregnant from some other person, she implicated her own father. We may also refer to the evidence of the Investigating Officer PW-6 Suryawanshi who has stated that he had made enquiry in respect of the character of the girl and he did not doubt the character of the prosecutrix. Moreover, it cannot be believed that in order to conceal the fact that she become pregnant from some other person a daughter will take the name of her own father. 16. We have already stated above that the evidence of the prosecutrix inspires confidence and we find no reason to 14 cr-apeal-391-05 disbelieve her testimony. Thus we find that there is sufficient evidence on record to connect the appellant with the crime of rape on PW-3 Naina, hence, appeal is dismissed. 17. Office to communicate this order to the appellant who is in jail. [D.D.SINHA, J. .] [ SMT. V.K.TAHILRAMANI, J.]