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Judgment
This appeal has been filed by the appellant
being aggrieved by the judgment dated 11.05.2007,
passed by Sessions Judge, Bhopal in S.T. No. 253/2005,
whereby appellant has been found guilty for the
offence punishable under Section 376(f) of the Indian
Penal Code and has been sentenced to life
imprisonment and fine of Rs.20,000/- and in default of
payment of fine, to further suffer rigorous
imprisonment for two years.
The prosecution case in brief is, that on
27.10.2001, at about 7 P.M., the prosecutrix was
standing on the road, watching procession, when the
appellant, who is her real uncle (Mausa), came and
asked her to accompany him to his sister''s house, at
100 quarters. After going some distance, on the
pretext of nature''s call, he took her to the Jummburi
ground, where he beat her and took off his clothes and
prosecutrix''s underwear and threw her on the ground
and tried to rape her. When she cried and screamed,
he covered and pressed her mouth, so that no one
could hear her screams. On hearing the sound of
someone approaching, he left her and ran away.
Weeping, she went to her home and narrated the
incident to her mother. The parents alongwith the
prosecutrix went to the police station, Piplani in the
night itself to lodge the report.
P.W.-2 Sushilabai, mother of the prosecutrix
lodged the FIR (Ex.P-1), on 28.10.2001 at about 3.45
A.M., on the basis of which the criminal law was set
into motion. Prosecutrix was sent for medical
examination. In the morning, site map Ex.P-8 was
prepared and underwear of the prosecutrix, that she
was wearing at the time of incident was recovered
from the place of incident. The accused absconded
and was arrested on 24.08.2005, after about four years
of the incident.
The trial Court recorded a finding of guilt
against the appellant and convicted him of the offence
under Section 376(f) of the I.P.C. relying on the
testimony of prosecutrix (P.W.-1), the statement of
P.W.-7 Dr. Jyoti Kalikut and the fact that appellant in his
statement under Section 313 of the Cr.P.C. has
admitted that previously also he was convicted in two
other rape cases, in crime No.277/93 for 10 years and
in crime No.277/02 for two years, rigorous
imprisonment.
The learned counsel appearing for the
appellant submits that the appellant has been falsely
implicated because of previous enmity on account of
money dispute. Pointing to the statement of P.W.-2
Sushila bai, P.W.-3 Sahibrao, parents of the prosecutrix,
it is argued that the FIR was filed after due
deliberations. Learned counsel further submits that
there was no injury on the private part of the
prosecutrix and only injury on nose, which could be the
result of fall. It is argued that at the most, it was an
attempt to rape and the trial Court has erred in
awarding the maximum sentence.
Shri Neeraj Singh Chouhan, learned Govt.
Advocate, appearing for the respondent/State submits
that the statements of prosecutrix (P.W.-1), Sushilabai
(P.W.-2) and Shaibrao (P.W-3) are corroborated by the
medical evidence and the FSL report. He further states
that there is no inconsistency or contradiction in the
statement given by the prosecutrix in the Court and
her case diary statement and the Court below has
rightly recorded the finding of conviction against the
appellant.
We have heard the learned counsel for the
parties at length.
From a perusal of the record, specifically the
statement of prosecutrix, who was only 8 years of age
at the time of incident, it is evident that she had
clearly stated that accused who was the real uncle
tried to rape, there is no inconsistency or ambiguity in
her case diary statement and the statement given by
her in the Court. The statements made by the
prosecutrix are consistent, unimpeachable and of
sterling quality and can be relied upon.
In the case of Mukesh and Another Vs.
State (NCT of Delhi) (2017) 6 SCC 1 the Supreme
Court has held :
"416. If considered on the anvil of settled legal principles, injuries on the person of a rape victim is not even a sine qua non for proving the charge of rape, as held in Joseph v. State of Kerala (2000) 5 SCC 197. The same principle was reiterated in State of Maharashtra v. Suresh (2000) 1 SCC 471. As rightly held in State of Rajasthan v. N.K ., (2000) 5 SCC 30, absence of injury on the person of the victim is not necessarily an evidence of falsity of the allegations of rape or evidence of consent on the part of the prosecutrix. In the present case, the extensive injuries found on the vagina/private parts of the body of the victim and injuries caused to the internal organs and all over the body, clearly show that the victim was ravished."
In the instant case, Dr. Jyoti Kalikut (P.W.-7),
who examined the prosecutrix has stated that the
prosecutrix had simple abrasion over both the thighs
and swelling and bruises over the nose and eyes,
which are suggestive of the force used on her, while
she was subjected to the crime. On examination, the
doctor had found that urethra of the prosecutrix was
inflamed, red and congested, warm, tender and painful
on touching and there was redness around the area.
The doctor has further stated that prosecutrix has
disclosed that she was taken to jungle by her uncle
who tried to commit forcible intercourse with her.
It is evident from the record that the
incident took place after 07.00 P.M. on 27.10.2001 and
the report was lodged at Police Station Piplani, at
about 3.45 A.M. on 28.10.2001, i.e., on the same night
and the prosecutrix was thereafter sent for medical
examination. The contention of learned counsel for
the appellant that Sahibrao lodged the FIR after
discussing it with his wife, sans merit as it was but
natural for P.W.-2 Sushilabai and P.W.-3 Sahibrao to
ponder and discuss before filing a complaint, as the
accused person involved in the crime was the husband
of his wife''s sister and the real uncle (Mausa) of the
prosecutrix. Under the facts and circumstances of the
case, the testimony of P.W.-2 Sushilabai and P.W.-3
Sahibrao cannot be discarded.
Apart from this fact, it is also evident from
the record that in two other cases, the appellant has
been previously convicted for committing the offences
of sexual assault/rape on minor girls and sentenced to
2 years and 10 years rigorous imprisonment
respectively. The appellant in his statement under
Section 313 Cr.P.C. has also admitted that he went to
the prosecutrix''s house on the fateful evening/night.
He has also admitted that he was previously convicted
in two other cases for committing sexual assault/rape
on minor girls. When he was asked, whether he wants
to give written or oral defence, he had stated that he
is disturbed by his own acts. No one accepts him in the
society and even his wife and children have disowned
him and never visit him. He has asked that he should
be hanged.
In the case of State of Himachal Pradesh
Vs. Sanjay Kumar alias Sunny (2017) 2 SCC 51,
the Supreme Court has held in paragraphs 30 and 31
thus:
"30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevents such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long
lasting effects on such victims.
After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. 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.
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? The plea about lack of corroboration has no substance { See Bhupinder Sharma v. State of Himachal Pradesh (2003) 8 SCC 551}. Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.
Learned counsel for the appellant submits
that the appellant has been sentenced to life
imprisonment, the maximum sentence prescribed
under Section 376(f) of the I.P.C. and fine of
Rs.20,000/-. He submits that as the appellant has
remained in custody for about 12 years, under the
circumstances, his case may be considered
sympathetically and sentence may be modified in the
light of decision rendered by the Supreme Court in the
case of Bhavanbhai Bhayabhai Panella Vs. State
of Gujrat (2015) 11 SCC 566, wherein the sentence
of the appellant for the offence under Section 376(2)(f)
of I.P.C. was modified to 10 years of rigorous
imprisonment, while maintaining the sentence of fine
and compensation. However, keeping in view the facts
and circumstances of the instant case and the fact that
the appellant is a habitual offender, no leniency be
shown to him.
It is to be noted that previously appellant
was convicted and sentenced to 10 years rigorous
imprisonment on 13.09.1994 for committing rape on a
minor girl, who was 7 years of age. He was released
from jail on 07.06.2001 and committed the instant
offence on 27.10.2001. He flee from the scene and
was absconding and was arrested on 24.08.2005.
During this period, he again attempted to commit rape
on a minor girl, who was 10 years of age and was
convicted on 12.04.2002 and sentenced to two years
imprisonment. Looking to the conduct of the
appellant, it is clear for a fact that he has not mended
his ways. Under the circumstances, he is not entitled
for any sympathy or leniency form this Court.
In the case of State of Rajasthan Vs. Om
Prakash (2002) 5 SCC 745 the Supreme Court has
held :
"19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even
brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country''s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well-considered and well- analysed judgment of the trial court on grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant."
In the case of Mukesh (supra) the
Supreme Court has held :
"516. Society''s reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal-justice
system. As held in Omprakash Vs. State of Haryana (1999) 3 SCC 19, the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime."
In view of the clear, consistent, reliable and
unimpeachable statement of prosecutrix, which is
corroborated by the statement of Dr. Jyoti Kalikut
(P.W.-7) and the medical evidence on record and the
fact that appellant was habitual offender and in view of
the clear admission made by him in his statement
under Section 313 Cr.P.C., we find no illegality or
infirmity in the finding of guilt recorded by the Court
below.
In the circumstances, the appeal filed by the
appellant being merit-less is dismissed. The conviction
of appellant under Section 376(f) of the I.P.C. is
accordingly affirmed and confirmed. The appellant,
who is in jail shall remain incarcerated to undergo the
remaining part of the jail sentence.