Kailash Chand vs State of Rajasthan

Banwari Lal Sharma, J—Two D.B. Criminal Appeal No. 182/2008 & D.B. Criminal Jail Appeal No. 66/2015 are preferred by the appellant accused Kailash Chand @ Kailash Chander through his counsel against the impugned judgment of conviction and order of sentence dated 19.12.2007 passed by learned Additional Sessions Judge, Kekri, District Ajmer in Sessions Case No. 25/2007 (FIR No. 99/2007 Police Station Bhinai, District Ajmer) by which learned Addition Sessions Judge (hereinafter referred to as ''the trial court'') convicted the appellant accused for offence under Section 376 and 323 IPC and sentenced is as under:--

It was also ordered that both the sentences shall run concurrently under Section 31 of Cr.P.C.

The D.B. Criminal appeal No. 182/2008 was admitted for hearing by this court vide order dated 20.02.2008 and record of the trial court was called for. Thereafter, D.B. Criminal Jail Appeal No. 66/2015 vide order dated 20.02.2008 was tagged with D.B. Criminal Appeal No. 182/2008.

The brief facts of the case are that complainant Smt. Prem Devi mother of prosecutrix-X PW-1 submitted a typed report before the Station House Officer, Police Station Bhinai, District Ajmer to the effect that:--

On the above report, FIR No. 99/07 under Section 376 and 323 IPC was registered at police station Bhinai District Ajmer on 29.8.2007 and investigation commenced. After usual investigation police submitted a charge sheet under Section 376 and 323 IPC on 29.08.2007 before learned Additional Sessions Judge, Kekri, District Ajmer against the accused Kailash Chand. Since, the alleged offence under Section 376 IPC was exclusively triable by the Court of Sessions, therefore, the learned Magistrate after compliance the provisions envisaged in Section 207 Cr.P.C. committed the case to the court of learned Additional Sessions Judge, Kekri.

Learned trial court after hearing the Additional Public Prosecutor and counsel for the accused on charge found sufficient grounds for framing charges under Section 323 and 376 IPC against the accused and explained the same to him for which accused pleaded denial and claimed for trial.

To substantiate the charges prosecution examined as many as 18 witnesses thereafter learned trial court examined accused under Section 313 Cr.P.C. and sought explanation for the incriminating circumstances produced against him by the prosecution. Accused pleaded that prosecution evidence is wrong and submitted that he has been falsely implicated in this case he is innocent. He did not opt to lead any evidence in his defence.

Learned trial court after hearing convicted the appellant accused under Section 323 and 376 IPC and sentenced as aforesaid.

Aggrieved by the impugned judgment of conviction and order of sentence dated 19.12.2007 appellant accused preferred this appeal.

Mr. Praveen Jain, learned counsel appearing for appellant has stated that accused has been falsely implicated in this case. Learned trial court convicted the appellant only on the basis of statement of prosecutrix-X (PW-2) which was not corroborated by medical evidence and FSL report. He submitted that Dr. Ritu Meena (PW-9) did not state in her statement that rape was committed with the prosecutrix-X. It was further submitted that there are strange relations between complainant who is none else but wife of accused and appellant accused therefore, due to it complainant lodged this false report. Without considering these facts, learned trial court wrongly convicted the appellant accused. He submits that the sentence awarded by the trial court is also maximum one therefore the same may also be reduced.

The learned counsel for appellant has placed reliance on the judgment reported in Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat, AIR 2012 SC 979 : (2012) CriLJ 1573 : (2012) 1 Crimes 230 : (2012) 2 JCC 974 : (2012) 2 JT 29 : (2012) 1 RCR(Criminal) 820 : (2012) 2 SCALE 321 : (2012) 2 SCC 684 : (2012) AIRSCW 1276 : (2012) 1 Supreme 740 .

Per contra, learned Public Prosecutor supported the impugned judgment.

We have considered the submissions made by the learned counsel and went through the impugned judgment and available record.

Prosecutrix-X (PW-2) in her statement clearly stated that:--

She was subjected to cross examination but nothing has come in cross examination which creates any doubt in testimony of this witness. The statement of PW-2 are supported by the complainant her mother to whom she narrated the whole story next day. Not only this father of appellant accused Laduram (PW-3) also stated that when Kailash was giving beating to her wife he went there for intervening with Sukh Dev. At that time, Sukh Dev (PW-2) told him that Kailash committed rape with prosecutrix-X. He proved FIR Ex. P-1 and written report Ex. P-2.

Gopal (PW-4) proved arrest memo Ex. P-5 and submitted that police recovered underwear of Kailash from his residential house in his presence in pursuance of his information. Ramlal was also there.

Madhu (PW-5) proved arrest memo Ex. P-5. Smt. Sayari, Sister-in-law, (Bhabi) of appellant accused, Rama (PW-7) uncle (Taau) of appellant accused, Nanda (PW-8), Sukh Devi (PW-11) real brother of appellant accused also supported the statements of Laduram (PW-3) and stated that in absence of mother of prosecutrix appellant accused committed rape with his daughter Prosecutrix-X and gave beatings to his wife and daughter.

Dr. Ritu Meena (PW-9) who examined prosecutrix-X on 27.6.2007, noticed an abrasion on the cheek of the prosecutrix of 0.5 x 0.4 cm in size which was five days old. Another abrasion 0.3 x 0.1 cm was also there on the breast and lower lip there was swelling of 2.1 cm and the Hymen was found torn and healed up. She proved MLC report Ex. P-8. She further stated that on 28.6.2007 she again examined prosecutrix-X and got x-ray through S.P. Drivedi, Radiologist on the basis of x plates, she opined that age of the prosecutrix was 12-14 years. She also proved a report regarding the age of the prosecutrix Ex. P-9.

Dr. Anil Meena (PW-10) examined the injured Smt. Prem (PW-1) complainant and mother of prosecutrix-X and found three simple injuries on the person and proved injury report Ex. P-10.

Ramlal (PW-12), Soji (PW-13) proved Ex. P-4, recovery memo of underwear, Jamper and Ghaghara and recovery of Bangles Ex. P-5.

Hanuman Singh (PW-14) stated that after preparing forwarding letter from S.P. office he deposited sealed packets at FSL and got receipt Ex. P-11.

Dr. S.P. Sharma (PW-15) who examined the appellant accused and found that he was potent. He proved his report Ex. P-12.

Laxmanram (PW-16) stated regarding the investigation.

Gangaram (PW-17) Malkhana Incharge stated that on 27.6.2007, SHO Laxmanram deposited articles in Malkhana of Mark A and B which were entered in Malkhana. Register Ex. P-14 thereafter, the articles were sent to FSL in sealed position, Sh. Hanuman Singh FC.

Shewta Sharam (PW-18) Judicial Magistrate, Kekri who recorded the statements of prosecutrix-X under Section 164 Cr.P.C. proved her statement as Ex. P-6.

On the above prosecution evidence, learned trial court relying on the statement of the prosecutrix-X and medical evidence and the statements of other witnesses, convicted the appellant accused for offence under Section 323 and 376 IPC & sentenced as aforesaid.

In the case of State of Himachal Pradesh Vs. Asha Ram, AIR 2006 SC 381 : (2005) CriLJ 139 : (2005) 9 SCALE 371 : (2005) 13 SCC 766 : (2005) AIRSCW 6009 : (2005) 7 Supreme 742 Hon''ble Supreme Court observed as under:--

"There can never be more graver and heinous crime than the father being charged of raping his own daughter. He not only delicts t he 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."

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 : (1983) CriLJ 1096 : (1983) 2 Crimes 232 : (1983) 1 SCALE 665 : (1983) 3 SCC 217 : (1983) 3 SCR 280 the Hon''ble Supreme Court held as under:--

"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 how evidence of the girl or the women who complains of rape or sexual molestation 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 at 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 ostracised 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 an 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 over powered 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 husband''s 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, acts as a deterrent."

In the back drop of the legal settled law principles of law if the testimony of prosecutrix (PW-2) victim of lest of her own father is examined, we find that both that she had absolutely no motive against her father to falsely implicate him in this case. It may be mentioned here that the daughter of the appellant accused and her mother and other sister have been rendered homeless just because appellant accused not sparing even his 13 years old daughter (PW-2), was compelled to take action against her father has to be examined in the light that her own father who was obligation to protect her, was a predictator. (PW-2) and her mother did not report for few days and when her mother raised her voice. Appellant accused gave her beating even brother and father of the appellant accused deposed against the appellant accused.

Thus, no motive can be attributed to prosecution witnesses for false implication of the appellant in this case. It is his own daughter, wife, father and brother. Father brother and sister-in-law who have stood against him knowing fully well that their act would lead to further desired, as prosecutrix and her sister and mother had no one to take care of them as father.

As per MLC report Ex. P-9 regarding the age of prosecutrix was 12-14 years and her hymon was found torn.

Thus, the testimony of PW-2 about she being sexual assaulted by her own father stand corroborated by the medical evidence. So far as, medical discrepancies referred by the learned counsel for the appellant, are concerned, sufficient to say, that same does not refer testimony of PW-2 unworthy of credence. In this regard, it would be apposite to quote the observations made in the case of State of Rajasthan Vs. N.K.-The Accused, (2000) CriLJ 2205 : (2000) 3 JT 643 : (2000) 2 SCALE 652 : (2000) 5 SCC 30 : (2000) 2 SCR 818 : (2000) 1 UJ 762 : (2000) AIRSCW 1407 : (2000) 3 Supreme 70 wherein it was held 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 cob-web of criminal jurisprudence as administered in India is that nine guilty may 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 circum stances 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 finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prawl for easy preys, more so when the victims of crime are helpless fem ales. 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 impugned judgment, the learned trial court has elaborately analysed the evidence of the child victim and other prosecution witnesses before coming to the conclusion that there was no reason for them as to falsely implicate, the appellant accused who is none-less but the father of the victim in this case. The child victim prosecutrix-X, her mother, her grand father, her uncle have been cross examined at length and the child victim clearly described the acts of the appellant who is her father and she is duly corroborated by other witnesses.

The MLC of the child victim confirm that she had been sexually assaulted. In the injury report of Smt. Prem (PW-1) which is proved by also shows three simple injuries which also corroborates the testimony of (PW-1) Smt. Prem wife of the appellant accused and proved that appellant accused gave beatings to her when she made complaint for his in hum an Act.

We find that the trial court has rightly placed implicit reliance on the testimony of (PW-2), the child victim who has been subjected to the rape by the appellant without even realising that she was his daughter and only 13 years of age and act of the accused had subjected her to shock and trauma.

So far as sentence is concerned, the learned trial court convicted the appellant accused under Section 376 IPC and sentenced him to maximum sentence of life imprisonment with a fine of Rs. 10,000/- in default thereof to further undergo one year simple imprisonment. In the case of Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat, AIR 2012 SC 979 : (2012) CriLJ 1573 : (2012) 1 Crimes 230 : (2012) 2 JCC 974 : (2012) 2 JT 29 : (2012) 1 RCR(Criminal) 820 : (2012) 2 SCALE 321 : (2012) 2 SCC 684 : (2012) AIRSCW 1276 : (2012) 1 Supreme 740 wherein at the time of incident, prosecutrix-x was 17 years and the accused was 18-19 years of age and the incident occurred about 10 years ago Hon''ble Supreme Court reduced the sentence to 10 years R.I. from life imprisonment but in that case the accused was not fat her.

In the matter of Ramher Vs. State (Govt. of NCT) of Delhi, (2014) 3 AD 436 : (2014) 207 DLT 245 : (2014) 140 DRJ 344 : (2014) 1 JCC 478 a Single Bench of Delhi High Court while maintaining the conviction reduced the sentence to 10 years R.I. from life term imprisonment. So that case the prosecutrix-x was a teenaged girl. Since, at the time of incident the age of the appellant was 42 years and incident took place about eight years ago and appellant accused is suffering from agony of protracted trial, we deem it proper to reduce the sentence of life term imprisonment, to 14 years R.I.

Considering the overall facts and circumstances of the present case and the fact that at the time of offence appellant accused was aged 42 years, and has suffered from the agony and pain of a protracted trial, we deem it proper to reduce the sentence for offence under Section 376 IPC from life imprisonment to 14 years while maintaining the sentence of fine and default clause and the sentence awarded for offence under Section 323 IPC.

Having regard to the facts of the case and the tender age of the victim, State of Rajasthan is directed to pay the maximum amount of Rs. 3,00,000/- to the victim under Section 357A Cr.P.C. in consonance with provisions of Rajasthan Victim Compensation Scheme, 2011. 75% of the amount shall be deposited in the fixed deposit for a period of three years in a nationalised bank, interest accruing on the said deposit shall be deposited in the separate account to be opened for the benefit of the victim for this purpose. The balance 25% shall also stand deposited in the newly opened account. This direction shall be complied within six weeks. The District Legal Services Authority, Ajmer, which is designated authority under the scheme, shall comply with above directions. The State shall ensure the victim is duly informed within a month.

Having awarded the compensation under the scheme made under Section 357A Cr.P.C. to the victim, we direct State Government and the Secretary, Legal Services Authority to be cautious and careful that name and the particulars of the victim are not disclosed to anybody, their office shall ensure necessary sensitivity that the reputation of the victim is not compromised.

Since D.B. Criminal Appeal No. 182/08 has already been decided on merits, therefore, D.B. Criminal Appeal No. 66/2015 is disposed of as subsequent appeal is not maintainable.