Full Judgment Text
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CASE NO.:
Appeal (crl.) 1266 of 1998
PETITIONER:
State of Himachal Pradesh
RESPONDENT:
Asha Ram
DATE OF JUDGMENT: 17/11/2005
BENCH:
H.K. SEMA & P.P.NAOLEKAR
JUDGMENT:
J U D G M E N T
H.K.SEMA,J
There can never be more graver and heinous crime than the
father being charged of raping his own daughter. He not only delicts
the law but it is a betrayal of trust. The father is the fortress and refuge
of his daughter in whom the daughter trusts. Charged of raping his own
daughter under his refuge and fortress is worst than the gamekeeper
becoming a poacher and treasury guard becoming a robber.
The facts of this case as unfolded by the prosecution
shocked the judicial conscience. Briefly stated the facts are as follows:-
The respondent-accused Asha Ram married to one
Smt.Kalawati - PW3. Out of the wedlock they have three daughters
and two sons. Accused and PW-3 were having strained relations and
living separately. PW-3 was living in some servant quarters in Brock-
hurst with one of the daughters and two sons. Accused was living in
the accommodation allotted to him in the servant quarters attached to
Raj Bhawan with the other two daughters namely Kumari Uma and
Kumari Seema (prosecutrix). In the intervening night of 23/24.8.1988
the accused returned home at about 12.30 AM and went to the room
where his daughters Uma and Seema were sleeping. He asked Kumari
Seema to serve him the dinner. On being asked, the prosecutrix went to
the kitchen and brought the food to the room of the accused. The
accused is alleged to have bolted the door of his room from inside and
after switching off the light asked Kumari Seema to sleep in the same
room. He then forcibly made Kumari Seema to lie on the bed and after
untying the waistband of her salwar started to commit rape on her. The
prosecutrix pleaded with the accused that she is his daughter but he
turned a deaf ear and forcibly committed sexual intercourse with her. It
is further alleged that when she tried to raise cries, her mouth was
gagged by the accused with a piece of cloth. Her sister Uma started
knocking at the door. After about half an hour when she came out of
the room of her father she found the door of the quarters, where her
sister was sleeping, bolted from outside and her sister was not at home.
Being frightened she climbed down from sanitary pipe. She met her
sister on the ground floor of the building and both returned to their
quarter. She narrated the entire occurrence to her sister Uma. On the
following morning they went to their mother to inform her about the
occurrence. The prosecutrix accompanied by her mother went to the
police station and on the basis of her statement lodged a complaint
registered vide FIR No.110 of 1988 (Ex.PA) under Section 376 IPC.
In the course of investigation a prima facie case was established.
A charge was laid under Section 376 IPC and the Trial Court after
examining PW-1(prosecutrix), PW2-Kumari Uma, sister of the
prosecutrix, PW3 - mother of the prosecutrix, medical evidence of
PW4-Dr.A Banerji and PW5- Dr.H.K.Premi, PW11- Dr.L.R. Verma
and found the respondent-Asha Ram guilty under Section 376 IPC and
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sentenced him to suffer rigorous imprisonment for 5 years and a fine of
Rs.1000/- and in default rigorous imprisonment for 3 months.
Aggrieved thereby the respondent preferred an appeal before the High
Court registered as Criminal Appeal No.6 of 1994. By the impugned
order Justice R.L. Khurana (since retired) acquitted the accused on a
perverse finding against all canon of justice. Hence this appeal by
special leave by the State of Himachal Pradesh.
The High Court after examining the prosecution evidence and
documents on record acquitted the accused after recording the
following findings:-
"From the evidence coming on record, it is
not established that PW 1 was subjected to
sexual intercourse on the night intervening
23/24.8.1988. No spermatozoa were found on
the salwar and underwear of the prosecutrix,
though according to the prosecution, complete
act of sexual intercourse was committed. No
spermatozoa were also found on the clothes of
the accused. No evidence has come on the
record to show that hymen was ruptured and
if ruptured, the same was afresh rupture. The
medical evidence coming on record, as
discussed above, is highly unreliable and even
otherwise it does not establish that PW 1
Kumari Seema was subjected to sexual
intercourse."
We record our displeasure and dismay, the way the High Court
dealt casually with the offence so grave, as in the case at hand,
overlooking the alarming and shocking increase of sexual assault on the
minor girls. The High Court was swayed by sheer insensitivity totally
oblivious of growing menace of sex violence against the minors much
less by the father. The High Court also totally overlooked the
prosecution evidence, which inspired confidence and merited
acceptance. It is now well settled principle of law that conviction can
be founded on the testimony of the prosecutrix alone unless there are
compelling reasons for seeking corroboration. The evidence of a
prosecutrix is more reliable than that of an injured witness. The
testimony of the victim of sexual assault is vital unless there are
compelling reasons which necessitate looking for corroboration of her
statement, the courts should find no difficulty in acting on the testimony
of a victim of sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be reliable. It is also well
settled principle of law that corroboration as a condition for judicial
reliance on the testimony of the prosecutrix is not a requirement of law
but a guidance of prudence under given circumstances. The evidence
of the prosecutrix is more reliable than that of an injured witness. Even
minor contradictions or insignificant discrepancies in the statement of
the prosecutrix should not be a ground for throwing out an otherwise
reliable prosecution case.
In the back drop of the settled principle of law, we now proceed
to examine the testimony of PW-1 (prosecutrix) corroborated by PW2-
Uma her sister, PW3 - mother of the prosecutrix, PW4 - Dr.A.Banerji,
PW5 - Dr.H.K.Premi and PW11 - Dr.L.R. Verma who examined the
accused, on the basis of which the Trial Court recorded conviction.
PW1 - Kumari Seema stated as under:-
"In the year 1988 I was living with my father Asha
Ram (accused) and sister Uma Devi in the servant
quarters known as Raj Bhawan At about 12.30
AM/on the intervening night of 23 and 24th August,
1988 my father (accused) entered my room switched
off its light. He desired me to serve him meals. I
served meals to my father (accused) in his own
room. The meals were brought from the kitchen.
When I was serving the meals, the accused bolted
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the room from inside. My father the accused desired
me to sleep in the same room. He forcibly made me
to sleep on the cot lying there in his room. He
switched off the light.
He untied the string of my salwar. I told him
that look here Papa I am your daughter. Despite
this, the accused committed sexual intercourse with
me. I raised hue and cry upon which he gagged my
mouth with a piece of cloth.
My sister Uam Devi came and knocked the
door from outside. I came out of the room after half
an hour. In the meantime my sister left the house
and I found the outer door of the flat having been
bolted from outside. I was so frightened that I
climbed down through sanitary pipe to set out from
the apartment. Uma and I again returned back to the
quarter and bolted the door from outside. I narrated
the whole story to my sister Uma Devi.
My salwar and underwear got blood stained
because of the sexual intercourse committed with
me by the accused.
My mother had been living separately. My
mother had been earning her livelihood by doing
manual work at the house of one Shri Atwal. I
narrated the whole story to her. I accompanied my
mother to report the occurrence to the police. The
FIR Ext. PA was reported to the police by my
mother Smt. Kala Wati.
Thereafter I was taken to the Indira Gandhi
Medical Hospital Shimla for medical examination. I
was medically got examined. My signatures Ext.PB
are on the Medico Legal report."
She was subjected to lengthy cross-examination but the substance of the
statement made in examination-in-chief remains totally unimpeached.
A suggestion was put that a false case has been foisted against the
accused at the instance of her mother was denied by her and that she
was having menstruation at that time was also denied by her.
The statement of the prosecutrix is well corroborated in all-
particular material by PW2 - Kumari Uma sister of the prosecutrix. She
was also subjected to lengthy cross-examination but nothing could be
elicited to dislodge the creditworthiness of her testimony in
examination-in-chief. The testimony of P.Ws. 1 and 2 is also
corroborated by the statement of PW3 - mother.
PW1 \026 the prosecutrix was medically examined by PW4 -
Dr.A.Banerji on 24.8.1988 and he observed as under:-
"Patient was conscious and co-operative.
Bloodstains on clothes (Salwar and underwear).
Both the breast was normally devolved, pubic hair
well grown up to symphysis pubis. Injuries:
1. Linear abrasion 2 CM long on right nasal
ala. No fresh bleeding.
2. One linear abrasion 3.5 cm. Long on right
lateral aspect of thigh. 30 CM below right greater
trochanter. Patient was examined by Gynecologist
for local examination. I referred the case to
Gynecologist, MLC. PW4/A contains my material
observations as given above.
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My final opinion is Ex.PW4/B. It is opined
that sexual intercourse could have been done with
the patient examined. This opinion is based on the
report given by Dr.H.K. Premi."
Dr. Banerji - PW4 at the relevant time was posted as Casualty
Medical Officer and he was not a Gynecologist, therefore, he referred
the prosecutrix to Dr. H.K. Premi - PW5 who was a Lecturer in the
department of Obstetrics Gynaecology. He examined the prosecutrix
and made the following observations.
"There was matting of the pubic hair with brownish
appearance. There were no injuries marks on the
thigh, pubic region and posterior commissure and
libia minora and majora of the patient. There were
injury marks on the posterior and lateral aspect of
the hymen which showed fresh bleeding swabs
taken from posterior vaginal pool alongwith two
slides one for fresh examination in saline, other air
dried and handed over the casualty medical officer
Snowdown hospital for further examination. Dried
bloodstains were seen on the perineal region and
medial aspect of both thighs. Matted pubic hair
were excised with scissor and handed over to
casualty Medical Officer also for further medical
examination. The patient had no menarche till the
time of examination according to history. The
patient had changed all clothes at the time of
examination.
It is possible that sexual intercourse was
committed with the victim whom I examined. In
Ex.PW4/A my writing encircled in portion A and B
is in my hands and signatures."
Dr. L.R. Varma - PW11 examined the accused and opined that
there is nothing to suggest that the accused was incapable of performing
the sexual intercourse. He also noticed the following injuries on the
accused:
"Abrasion of 1 cm. long with over lying colour
reddish on the posterior aspect of the right elbow
joint, 3 cm. away from medial epicondyle. There
was another abrasion of 5 cm. In size and 1 cm.
away from the above mentioned abrasion and of the
same colour."
Dr.N.K. Sarin - PW12 has been examined to prove the report of
the radiologist. The skeletal examination was done by Dr.D.S.Dhiman
who had left India and could not be examined in the court. Dr.Sarin,
however, proved the report in the court given by Dr.D.S.Dhiman . As
per the report the age of the prosecutrix has been mentioned between 12
= to 15 years.
On perusal of the evidence we are clearly of the view that the
testimony of PW1 - prosecutrix is well corroborated by the testimony of
PW-2, PW-3 corroborated by the medical evidence of P.Ws. 4,5,11 and
12 inspires confidence and the Trial Court has rightly convicted the
accused - respondent under Section 376 IPC.
It is contended by the counsel for the accused that because of the
strained relationship between PW3 - mother of the prosecutrix and the
accused, the prosecution case has been foisted against the accused at the
instigation of the mother and deserves outright rejection. From the
evidence it is clearly established that P.Ws. 1 and 2 despite of strained
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relationship between their mother and father were happily staying with
the accused and there is no rhyme or reason as to why the daughter
should depose falsely so as to expose her honour and dignity and also
expose the whole family to the society risking the outcasting or
ostracization and condemnation by the family circle as well as by the
society. No girl of self respect and dignity who is conscious of her
chastity having expectations of married life and livelihood would
accuse falsely against any other person of rape, much less against her
father, sacrificing thereby her chastity and also expose the entire family
to shame and at the risk of condemnation and ostracization by the
society. It is unthinkable to suggest that the mother would go to the
extent of inventing a story of sexual assault of her own daughter and
tutor her to narrate a story of sexual assault against a person who is no
other than her husband and father of the girl, at the risk of bringing
down their social status and spoil their reputation in the society as well
as family circle to which they belong to.
In the case of Bharwada Bhoginbhai Hirjibhai vs. State of
Gujarat, AIR 1983 SC 753 at sc pp.756-757 this Court pointed out
that 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?
It was further pointed out that 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.
The aforesaid observation was made by this Court because of the
following factors: (1) 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 had ever
occurred. (2) 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. (3)She would
have to brave the whole world. (4) She would face the risk of losing the
love and respect of her own husband and near relatives, and of her
matrimonial home and happiness being shattered. (5) If she is
unmarried, she would apprehend that it would be difficult to secure an
alliance with a suitable match from a respectable or as acceptable
family. (6) It would almost inevitably and almost invariably result in
mental torture and suffering to herself. (7) The fear of being taunted by
others will always haunt her. (8)She would feel extremely embarrassed
in relating the incident to others being overpowered by a feeling of
shame on account of the upbringing in a tradition bound society where
by and large sex is taboo. (9) The natural inclination would be to avoid
giving publicity to the incident lest the family name and family honour
is brought into controversy. (10) The parents of an unmarried girl as
also the husband and members of the husbands’ family of a married
woman, would also more often than not, want to avoid publicity on
account of the fear of social stigma on the family name and family
honour. (11) The fear of the victim herself being considered to be
promiscuous or in some way responsible for the incident regardless of
her innocence. (12) The reluctance to face interrogation by the
investigating agency, to face the Court, to face the cross-examination
by counsel for the culprit, and the risk of being disbelieved, act as a
deterrent.
In the case of Rafiq vs. State of U.P. (1980) 4 SCC 262,
V.R. Krishna Iyer, J speaking for the Court observed at scc p.265 as
under:-
"Corroboration as a condition for judicial reliance
on the testimony of a prosecutrix is not a matter of
law, but a guidance of prudence under given
circumstances. Indeed, from place to place, from
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age to age, from varying life-styles and behavioural
complexes, inferences from a given set of facts, oral
and circumstantial, may have to be drawn not with
dead uniformity but realistic diversity lest rigidity in
the shape of rule of law in this area be introduced
through a new type of precedential tyranny. The
same observation holds good regarding the presence
or absence of injuries on the person of the aggressor
or the aggressed."
In the case of Madan Gopal Kakkad vs. Naval Dubey
(1992) 3 SCC 204, it was pointed out at scc p.218 that even in cases
wherein there is lack of oral corroboration to that of a prosecutrix, a
conviction can be safely recorded, provided the evidence of the victim
does not suffer from any basic infirmity, and the ’probabilities factor’
does not render it unworthy of credence, and that as a general rule,
corroboration cannot be insisted upon, except from the medical
evidence, where, having regard to the circumstances of the case,
medical evidence can be expected to be forthcoming.
In the case of Ranjit Hazarika Vs. State of Assam, (1998) 8
SCC 635, this Court held that non-rupture of hymen or absence of
injury on victim’s private parts does not belie her testimony. This
Court further held that the opinion of doctor that no rape was
committed cannot throw out an otherwise cogent and trustworthy
evidence of the prosecutrix. This Court held that the evidence of the
prosecutrix was amply corroborated by her mother and father whom she
immediately informed about the occurrence.
In the case of State of Punjab Vs. Gurmit Singh (1996) 2
SCC 384, this Court pointed out at scc p.403:-
"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."
In the case of State of Rajasthan vs. N.K. the accused,
(2000) 5 SCC 30 the observation made in Gurmit Singh’s case (supra)
was reiterated. The Court further observed in paragraph 9 at scc.p.38
as under:-
"Having heard the learned counsel for the parties
we are of the opinion that the High Court was not
justified in reversing the conviction of the
respondent and recording the order of acquittal.
It is true that the golden thread which runs
throughout the cobweb of criminal jurisprudence
as administered in India is that nine guilty may
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escape but one innocent should not suffer. But at
the same time no guilty should escape unpunished
once the guilt has been proved to hilt. An
unmerited acquittal does no good to the society. If
the prosecution has succeeded in making out a
convincing case for recording a finding as to the
accused being guilty, the court should not lean in
favour of acquittal by giving weight to irrelevant
or insignificant circumstances or by resorting to
technicalities or by assuming doubts and giving
benefit thereof where none exists. A doubt, as
understood in criminal jurisprudence, has to be a
reasonable doubt and not an excuse for a finding in
favour of acquittal. An unmerited acquittal
encourages wolves in the society being on the
prowl for easy prey, more so when the victims of
crime are helpless females. It is the spurt in the
number of unmerited acquittals recorded by
criminal courts which gives rise to the demand for
death sentence to the rapists. The Courts have to
display a greater sense of responsibility and to be
more sensitive while dealing with charges of
sexual assault on women".
In the premises aforesaid, we are clearly of the view that the High
Court has erred in law as well as on facts thereby committed grave
miscarriage of justice in acquitting the respondent by reversing the
conviction of the respondent recorded by the Trial Court under Section
376 IPC. The impugned order of the High Court is, accordingly, set
aside and the order of the Trial Court convicting the accused under
Section 376 is restored.
This leads us to consider as to the quantum of punishment. The
Trial Court on conviction sentenced the respondent to 5 years rigorous
imprisonment and a fine of Rs.1,000/- and in default rigorous
imprisonment for 3 months. Here is the case where the crime
committed by the respondent not only delicts the law but it has a
deleterious effect on the civilized society. Gravity of the crime has to
be necessarily assessed from the nature of the crime. A crime may be
grave but the nature of the crime may not be so grave. Similarly, a
crime may not be so grave but the nature of the crime may be very
grave. Ordinarily, the offence of rape is grave by its nature. More so,
when the perpetrator of the crime is the father against his own daughter
it is more graver and the rarest of rare, which warrants a strong
deterrent judicial hand. Even in ordinary criminal terminology a rape is
a crime more heinous than murder as it destroys the very soul of hapless
woman. This is more so when the perpetrator of the grave crime is the
father of the victim girl. Father is a fortress, refuge and the trustee of
his daughter. By betraying the trust and taking undue advantage of trust
reposed in him by the daughter, serving food at odd hours at 12.30
A.M. he ravished the chastity of his daughter, jeopardized her future
prospect of getting married, enjoying marital and conjugal life, has been
totally devastated. Not only that, she carries an indelible social stigma
on her head and deathless shame as long as she lives.
Having said so, regarding sentence we are tempted to quote the
observation of Justice Pandian in the case of Madan Gopal Kakkad
(supra) where it has been observed that "Judges who bear the Sword of
Justice should not hesitate to use that sword with the utmost severity, to
the full and to the end if the gravity of the offences so demand."
So, while maintaining the conviction recorded by the Trial Court,
we alter and enhance the sentence from 5 years rigorous imprisonment
to imprisonment for life. We also enhance the fine amount of Rs.1000/-
to Rs.25,000/-( Rs.Twenty Five Thousand only). The fine amount if
realized shall be paid to the prosecutrix. The appeal stands allowed in
the above terms. The respondent is on bail. His bail-bonds and surety
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stand cancelled. He is directed to be taken back to the custody
forthwith. Compliance report should be sent to this Court within one
month.