State of M.P. (Now C.G.) vs Bharatlal

D.R. Deshmukh, J.—The State has preferred this appeal u/s 378(1) of the Code of Criminal Procedure against the acquittal of the Respondent of the charge u/s 376 of the I.P.C. vide judgment dated 04.09.1992 by the Additional Sessions Judge, Khairagarh delivered in Sessions Case No. 2/1992.

Admittedly, the prosecutrix, aged about 15 years, is the daughter of the Respondent and lived with him. The Appellant also admitted in his examination u/s 313 of the Code of Criminal Procedure that on 05.10.1991 at about 12.00 noon the prosecutrix was sleeping at home in her cot. It is also not in dispute that the Appellant is potent and capable of sexual intercourse.

Prosecution story in short is that on 05.10.1991, after having meals the prosecutrix was sleeping at home. At about 12.00 noon, the Respondent came and slept with her. He thereafter committed rape on her. On hearing shouts of the prosecutrix, her step-mother Kamla Bai and grand-mother Ram Dulari P.W. 2 arrived. The prosecutrix narrated the incident to them. F.I.R. was lodged by the prosecutrix on 06.10.1991 at about 10.00 A.M. in Police Station Khairagarh situated about half a kilometer from the place of occurrence. Dr. Smt. L.D. Jindani P. W. 1 examined the prosecutrix on 06.10.1991 at 11.30 A.M., assessed her age as 14 years and found that semen like stains were present on the posterior inner side of her petticoat. Hymen was absent. Granular tags of tissue which were tender on touch though not swollen were present. Discharge from vagina was taken on a cotton swab and wrapped between two glass sides, packed and sealed. No injury was found on her body or on external genitals. Seminal or blood like stain was not found on thighs or on external genitalia. Dr. Smt. L.D. Jindani opined that the prosecutrix was accustomed to sexual intercourse. Ossification test was conducted on the prosecutrix on 23.10.1991 by Dr. D.K. Jindani P.W. 8, who opined that the radiological age of the prosecutrix was about 15 years.

The Respondent was arrested on 06.10.1991 at 4.00 P.M. On medical examination Dr. Chhabra found that the Respondent was potent and capable of sexual intercourse. The petticoat of the prosecutrix, having semen like stains was seized on 06.10.1991 at 1.00 P.M. and the underwear of the Respondent was also seized on the same day at 1.30 P.M. The vaginal slide, petticoat of the prosecutrix and the underwear of the Respondent were sent to the Forensic Scientific Laboratory for chemical analysis. Vide report Ex.P. 15, it was opined that the petticoat of the prosecutrix and her vaginal slides contained blood, human spermatozoa and seminal stains whereas no such stains were found on the underwear of the Respondent, On completion of investigation, the Respondent was prosecuted and charged u/s 376 of the I.P.C. The Respondent abjured the guilt. The prosecution examined as many as 9 witnesses. In his examination u/s 313 of the Code of Criminal Procedure, the Respondent stated that despite being forbidden by him, the prosecutrix continued her illicit relationship with Vijaylal. Even though on 05.10.1991 the Respondent had caught her with Vijaylal in a compromising situation, the prosecutrix wanted to persist her relationship with Vijaylal. No evidence was led in defence.

The learned Additional Sessions Judge, on appreciation of evidence led by the prosecution, held in paragraph 6 of the impugned judgment that the age of the prosecutrix was less than 16 years on the date of the alleged incident. In paragraph 10, it further held that the presence of semen, human spermatozoa and bloodstains on the vaginal slide and petticoat of the prosecutrix proved that the prosecutrix had been subjected to sexual intercourse sometimes before 11.00 A.M. on 06.10.1991 i.e. the time when she was medically examined by Dr. Smt. L.D. Jindani P.W. 1. In paragraph 11, the learned trial Judge further went on to record that the F.I.R. Ex.P. 8 lodged by the prosecutrix was recorded in brief and observed that where the testimony of the prosecutrix was corroborated by circumstances and medical evidence, insistence on independent corroboration of her testimony would amount to adding insult to injury. The statement of the prosecutrix u/s 161 of the Code of Criminal Procedure having also been recorded in brief, contradictions in the testimony of the prosecutrix were natural, and therefore, minor discrepancies ought not to be given much importance. Reliance was placed on Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, . In paragraph 12, it was held that the prosecutrix had stayed in her house with the Respondent - father on the date of occurrence i.e. 05.10.1991. After recording the above findings, the learned Additional Sessions Judge acquitted the Respondent after giving him the benefit of doubt only on the ground that the testimony of the prosecutrix that the Respondent had tied her hands with a rope while committing sexual intercourse rendered her testimony doubtful as no injuries were found on her wrists. Noticing this omission in the F.I.R., it further observed that if the prosecutrix aged only 15 years was not used to sexual intercourse, it was highly improbable that she would have narrated the act of the Respondent on her as "Bura Kaam" in the F.I.R. On these premises along with the absence of injury on private parts and the fact that Dr. Smt. L.D. Jindani P.W. 1 had opined that the prosecutrix was used to sexual intercourse, the learned Additional Sessions Judge held that the testimony of the prosecutrix was neither reliable nor wholly unreliable and acquitted the Respondent after giving him benefit of doubt.

Shri Bhaskar Payashi, learned Panel Lawyer for the Appellant/State has assailed the impugned judgment arguing that the grounds on which the learned Additional Sessions Judge has acquitted the Respondent after giving him the benefit of doubt are perverse and wholly contrary to the law, as laid down by the Hon''ble Supreme Court of India in B.C. Deva @ Dyava Vs. State of Karnataka, . It was argued that even though the testimony of the prosecutrix that the Respondent had tied her hands with a rope could be exaggerated, the report of the Forensic Science Laboratory which confirmed presence of semen, human spermatozoa and bloodlike stains on the underwear of the prosecutrix and her vaginal slides was a strong corroborative piece of evidence which proved that she was subjected to sexual intercourse on 05.10.1991. The learned trial Judge had recorded a clear finding that the prosecutrix had stayed in the house with the Respondent/father on 05.10.1991 after the incident till lodging of F.I.R. on 06.10.1991. Learned Panel Lawyer drew attention of this Court to the demeanour of the witness in paragraph 8 wherein the prosecutrix had, during cross-examination, burst into tears and while crying, asked as to why she would falsely implicate her father. It was also argued that there was absolutely no material on record from which the statement of the Respondent made in his examination u/s 313 of the Code of Criminal Procedure and referred to in paragraph 5 (supra) could be substantiated. The prosecutrix had categorically denied the defence taken by the Respondent. As regards the non-examination of the step-mother Kamla Bai and the testimony of Ram Dulari P.W. 2 who turned hostile, it was argued that Ram Dulari being the mother of the Respondent did not speak against him and Kamla Bai, the step-mother was given up by the prosecution as she had absconded after the incident (as per report on her summons). Referring to their case diary statements, it was further argued that these witnesses had reached the place of occurrence after commission of rape by the Respondent on his daughter and thus were not eye witnesses. Lastly, it was vehemently argued that the testimony of the prosecutrix was worthy of credence and ought to have formed the basis for convicting the Respondent u/s 376 of the I.P.C. On these premises, it was urged that the impugned judgment deserved to be set aside and the Respondent was liable to be convicted u/s 376 of the I.P.C. and deserved exemplary punishment for the heinous act of rape committed by him on his hapless daughter.

On the other hand, Shri R.N. Jha, learned Counsel for the Respondent argued that the testimony of the prosecutrix belied confidence since it was not corroborated by Ram Dulari Bai P.W. 2 and was highly exaggerated in view of the totally false allegation that the Respondent had tied her hands by a rope before committing rape on her. This material fact was not mentioned by the prosecutrix in the F.I.R. Ex.P.8. It was further argued that the fact that Dr. Smt. L.D. Jindani P.W. 1 found the prosecutrix habitual of sexual intercourse substantiated the defence taken by the Respondent that she had illicit relationship with Vijaylal. It was argued that the Respondent was innocent and was falsely implicated by the prosecutrix because he had forbidden her from persisting with the illicit relationship with Vijaylal. The absence of any injury on the private parts of the prosecutrix as also on her hands completely rendered her unworthy of any credit. Reliance was placed on State of Punjab v. Ajaib Singh and Ors. (2005) SCC (Cri) 43, while arguing that the view taken by the learned Additional Sessions Judge was a plausible and reasonable view of the evidence on record, and therefore, acquittal of the Respondent was not liable to be interfered with unless the view taken by the learned Additional Sessions Judge was demonstrated to be unreasonable or perverse.

Having considered the rival submissions, we have perused the record with utmost circumspection. It is well settled that while hearing an appeal against acquittal, the appellate Court has the power of reappraisal of evidence and to come to a conclusion whether the acquittal by the trial Judge is against the evidence or in disregard of the evidence or in violation of the principles of criminal justice in which case the appellate Court would be justified in interfering with an order of acquittal. In Madan Lal v. State of Jammu and Kashmir AIR 1998 SC 386, the Supreme Court dealt with the power of the appellate Court in an appeal against the acquittal and observed as under:

...the power of the appellate Court in an appeal against acquittal has been discussed in a catena of cases by this Court and it has been indicated that there is no limitation on the part of the appellate Court to review the evidence upon which an order of acquittal is founded. The different expressions used in different judgments of this Court to the effect that there must be "sufficient and compelling reasons" for the appellate Court to alter an order of acquittal to one of conviction, by no manner curtail the power of an appellate Court in an appeal against acquittal to review the entire evidence and come to its conclusion. But in doing so the appellate Court should consider every matter on record and the reasons given by the trial Court in support of the order of acquittal. The essence of several decisions of this Court is the rule that in deciding appeals against acquittal the Court of appeal must examine the evidence in a particular case; must also examine the reasons on which the order of acquittal was based; and should interfere on being satisfied that the view taken by the acquitting Judge is unreasonable. If two views are possible on a set of evidence then the appellate Court need not substitute its own review in preference to the view of the trial Court who has recorded an order of acquittal. In other words, if an order of acquittal is based on proper appreciation of evidence then the same cannot be reversed. But when the acquittal by the Sessions Judge is found to be against the evidence or in disregard of the evidence or in violation of the principles of criminal justice then the appellate Court will be fully justified in interfering with an order of acquittal since it is the duty of the Court to convict a person when the guilt is established beyond reasonable doubt. If the Sessions Judge acquits an accused by giving undue importance to minor discrepancies and making a suspicion on evidence based on conjectures then the High Court will be fully justified in interfering with the order of acquittal. But all the same while reversing an order of acquittal the High Court must give sufficient grounds for holding that the appreciation of evidence by the trial Court is unsupportable. The High Court must consider the reasons advanced by the trial Judge in recording the order of acquittal and indicate while reversing the same the grounds of reversal. If, however, the appellate Court finds the conclusion established at by the lower Court are based on evidence and are plausible then it will not substitute its views on the evidence and interfere with an order of acquittal. It is in this sense the expressions "substantial and compelling reasons" used by this Court while dealing with the power of an appellate Court to interfere with an order of acquittal has to be understood. This Court in case of State of U.P. Vs. Krishna Gopal and Another, , observed that the principles relating to limitations of the appellate Court in an appeal against acquittal do not detract from the plenitude of the power of the appellate Court to review and reappreciate the evidence if the order of acquittal on review of the evidence is found to be grossly erroneous. There is, thus no immunity to an erroneous order from a strict appellate scrutiny but it must record reasons in support.

We have carefully scrutinized the testimony of the prosecutrix P.W. 3 who had deposed that at about 12.00 noon she suddenly awoke from sleep and noticed that both her hands were tied with a rope to the cot. Her father, the Respondent, committed forcible sexual intercourse upon her by penetrating his penis inside her vaginal orifice. The Respondent gagged her mouth with a towel and completed the sexual act. Her step-mother Kamla Bai came to the spot and ran towards the police station. In re-examination paragraph 5, she reiterated the above. In paragraph 6, she testified that she had bled from the vagina which had white seminal discharge. On being cross-examined, she started crying and stated that why would she falsely implicate her father. She categorically denied that she used to loiter and was found in a compromising situation with Vijaylal by the Respondent. She admitted that her step mother Kamla Bai had lodged a report of assault by the Respondent on her and stated that the Respondent had assaulted Kamla Bai till she bled from the head. In paragraph 12, she stated that she had narrated the fact of her hands being tied to the cot by a rope and the gagging of her mouth by the Respondent in the F.I.R. and could not explain for its omission. She further stated that she did not sustain injury on her hands due to friction with the rope and explained that the Respondent had freed her hands after the sexual act was over. She admitted that she experienced pain inside the vagina and had bled there from. In paragraph 16, she stated that after the incident she was living with her grandparents in another village. Such was the testimony of the prosecutrix before the learned trial Judge.

Dr. Smt. L.D. Jindani P.W. 1 deposed that on internal examination of the prosecutrix she found that hymen was absent and granular tags of tissues were present which were tender on touch. She deposed that she had prepared the vaginal slide and she had sealed the white coloured petticoat of the prosecutrix having semen like stains for chemical examination. The report of the Forensic Science Laboratory Ex.P. 15 revealed that blood, human spermatozoa and seminal stains were present on the vaginal slide and the petticoat of the prosecutrix. It was marked as Ex.P. 15. Ramdulari P.W. 2, mother of the Respondent, turned hostile and did not support the prosecution. Dr. D.R. Jindani P.W. 8, who conducted the ossification test for determination of the radiological age of the prosecutrix, testified that the prosecutrix was aged about 15 years.

It is well settled that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a rule of prudence under given facts and circumstances. In State of Punjab Vs. Gurmit Singh and Others, the Supreme Court observed as under in paragraph 7:

... The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bash fulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act 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. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.

In State of Maharashtra Vs. Chandraprakash Kewalchand Jain, , the Supreme Court observed in paragraph 16 as under:

A prosecutrix of a sex offence cannot be put on 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 u/s 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case.

The learned Additional Sessions Judge recorded the following findings in the impugned judgment:

(A) Admittedly, the prosecutrix is the daughter of the Respondent and aged less than 16 years. On death of her mother, the Respondent remarried one Kamla who was arrayed as a prosecution witness (paragraph 2).

(B) The prosecutrix was subjected to sexual intercourse before 11.00 A.M. on 16.10.1991 i.e. the time when she was medically examined by Dr. Smt. L.D. Jindani P.W. 1 (paragraph 10).

(C) After the alleged time and date of the occurrence, the prosecutrix stayed at home with the Respondent i.e. her father, till lodging of the F.I.R. (paragraph 12).

(D) There was no delay in lodging the F.I.R. by the prosecutrix, which was recorded by Sub-Inspector V.K. Mishra P.W. 9 in short (paragraph 11).

(E) The presence of semen and human spermatozoa on the vaginal slide and petticoat of the prosecutrix confirmed that she was subjected to sexual intercourse before her medical examination on 06.10.1991 at 11.00 A.M. (paragraph 10).

After recording the above findings, the learned Additional Sessions Judge held in paragraph 15 that the prosecutrix is a witness who was neither reliable nor wholly unreliable. For recording this finding, the learned Additional Sessions Judge gave two reasons. In paragraph 11, he observed that the prosecutrix had stated that when she suddenly awoke she found that both her hands were tied to the cot by a rope. Since this fact was not stated by the prosecutrix in the First Information Report and also in her statement u/s 161 of the Code of Criminal Procedure, the learned Additional Sessions Judge felt that it was not safe to rely on her testimony. The second reason finds place in paragraph 15 in which it was stated that although the prosecutrix was 12 years of age, yet she stated in the F.I.R. that the Respondent had committed "Bura Kaam" on her. It was strange that at that age she could understand as to whether the act committed by the Respondent with her was "Bura Kaam". Besides, Dr. Smt. L.D. Jindani P.W. 1 had stated that the prosecutrix was used to sexual intercourse.

On scrutiny of the evidence of the prosecutrix, it appears to us that the defence tried to build up a case that the prosecutrix had falsely implicated the Respondent as she was prevented from persisting with her illicit sexual relationship with Vijaylal. It was also argued that the prosecutrix was not a reliable witness as Dr. Smt. L.D. Jindani P.W. 1 did not notice any external injury on her body. This plea of the accused, in our view, is wholly unfounded and baseless and it is falsified by the opinion of Dr. Smt. L.D. Jindani P.W. 1 that on medical examination of the prosecutrix, she had found that granular tags of tissues were tender on touch and the presence of blood, seminal stains and human spermatozoa on her vaginal slide and petticoat confirmed by the report of Forensic Science Laboratory Ex.P. 15. Besides, the learned Additional Sessions Judge held that the prosecutrix remained at home with the Respondent till she was medically examined on the next day. In our considered opinion, no daughter would ever try to implicate her father on a false charge of rape on her. The Respondent/accused led no evidence to substantiate that the prosecutrix had illicit relations with Vijaylal or was caught in a compromising position with Vijaylal by the Respondent 15 days prior to the alleged rape. It is pertinent to note that no question was asked to Ramdulari P.W. 2 in cross-examination regarding the defence of illicit relationship of the prosecutrix with Vijaylal. Thus, the defence taken by the Respondent is absolutely baseless. The evidence of the prosecutrix in this case inspires confidence. We are unable to agree with the learned Counsel for the Respondent that in the absence of corroboration of the statement of the prosecutrix by medical opinion, the acquittal of the Respondent is proper. We find that the testimony of the prosecutrix that she had bled from the vagina and white seminal discharge had taken place is corroborated by the report of Forensic Science Laboratory confirming presence of blood, human spermatozoa and seminal stains on her vaginal slides and petticoat.

In the impugned judgment, the learned trial Judge quoted Bharwada Bhoginbhai Hirjibhai v. State of Gujrat, in which the Supreme Court had observed 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 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 ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focuses on the Indian horizon.

The learned Additional Sessions Judge, after noticing that, presence of blood, semen and human spermatozoa on the Sahvar and the vaginal slide of the prosecutrix was confirmed by the report of the Forensic Science Laboratory Ex.P. 15, completely overlooked that it provided strong corroboration to the testimony of the prosecutrix even though it was not established that the human spermatozoa was that of the accused. In Madan Lai v. State of Jammu and Kashmir (supra), it was held that presence of semen/human spermatozoa on the Salwar of the prosecutrix was a strong corroborative piece of evidence to the prosecutrix version even if it was not established that the human spermatozoa is that of the accused. In the present case, in view of the finding recorded by the learned Additional Sessions Judge that till being examined by Dr. Smt. L.D. Jindani P.W. 1, the prosecutrix had stayed at home with the Respondent, there was not even the remotest possibility that she might have been subjected to sexual intercourse by anyone else. The learned Additional Judge also completely overlooked that the prosecutrix had no reason or rhyme to falsely implicate her own father. The prosecutrix had strongly asserted the same in her testimony.

We find that the testimony of the prosecutrix P.W. 3 that she was subjected to sexual intercourse by her father is corroborated in material particulars by medical evidence since after medical examination Dr. Smt. L.D. Jindani P.W. 1 found that there were granular tags of tissue which were tender on touch. Even if the prosecutrix was used to sexual intercourse as her hymen was found absent, it would not, by itself, render the testimony of the prosecutrix unworthy of credit. In a catena of judgments, the Supreme Court of India has held that the mere fact that the prosecutrix was used to sexual intercourse would, by itself, not render her testimony unworthy of credit. The learned Additional Sessions Judge also fell into error by completely ignoring the fact that the defence taken by the Respondent was not even plausible since no evidence was led by the Respondent to substantiate that the prosecutrix had illicit sexual relationship with one Vijaylal. The prosecutrix had in paragraph 9 categorically denied that she was seen by the Respondent in a compromising situation with Vijaylal 15 days prior to the alleged incident. In paragraph 16 also she had categorically denied that she knew Vijaylal. Thus, there was not even an iota of material on record to even suggest that the defence taken by the Respondent was plausible. By no stretch of imagination can it therefore be assumed that there was a possibility that the prosecutrix would falsely implicate her father for committing rape on her because he prevented her from having illicit sexual relationship with Vijaylal.

So far as the absence of injury on the wrists of the prosecutrix is concerned, the learned Additional Sessions Judge overlooked the fact that the prosecutrix was a minor girl of 14 -15 years and while sleeping on the cot she was overpowered by her father who, to satisfy his lust, committed sexual intercourse with her. There is absolutely no material to show that the prosecutrix had attempted any resistance. In our considered opinion, to expect a minor girl to physically overpower her father by means of resistance while he was ravishing her, is farfetched. Nothing was put to the prosecutrix as to whether she had attempted to free her hands while being subjected to sexual intercourse by her father. Nothing was elicited from Dr. Smt. L.D. Jindani P.W. 1 in this regard. The fact that granular tags of tissues were tender on touch and presence of blood, semen and human spermatozoa on the vaginal slide and petticoat of the prosecutrix was confirmed by the Forensic Science Laboratory provides the necessary corroboration to the testimony of the prosecutrix and renders her testimony wholly reliable. Even though she did not mention in the F.I.R. that while committing rape on her, her father had tied her hands, the learned Additional Sessions Judge ignored that it had recorded a finding that the F.I.R. was recorded summarily by V.K. Mishra, Sub-Inspector P.W. 9.

So far as the non-examination of step-mother Kamla Bai and the fact that grand-mother Ramdulari P.W. 2 did not support the testimony of the prosecutrix is concerned, it is obvious that Ramdulari P.W. 2 would not speak against her son i.e. the Respondent. So far as Kamla Bai is concerned, a report on her summons was received that she had absconded after the occurrence and could not be served. The prosecutrix had categorically stated that Kamla Bai had lodged a report of assault on her by the Respondent in which the police had apprehended the Respondent. She had volunteered in paragraph 9 that the Respondent had assaulted Kamla Bai on the head till it bled. Thus, non-examination of Kamla Bai by the prosecution does not, in any manner, render the testimony of the prosecutrix unworthy of credit. Both Ramdulari and Kamla Bai, according to their statement u/s 161 of the Code of Criminal Procedure, did not witness the actual commission of rape.

The reasoning given by the learned Additional Sessions Judge that since the prosecutrix had, in the F.I.R., narrated the act committed by her father with her as "Bura Kaam", the opinion of Dr. Smt. L.D. Jindani that she was used to sexual intercourse was plausible is perverse. The learned Additional Sessions Judge had held that the F.I.R. was recorded summarily. The mere fact that the prosecutrix knew what is meant by "Bura Kaam" could, in no case, lead to an interference that she was habitual of sexual intercourse.

The learned Additional Sessions Judge erred while trying the Respondent on the serious charges of committing rape on his daughter in categorizing the prosecutrix as a witness who was neither reliable nor wholly unreliable. The present case is a sad reflection of the insensitive approach of the learned Additional Sessions Judge in dealing with the testimony of the prosecutrix in a serious offence of the present nature. In State of Himachal Pradesh Vs. Shree Kant Shekari, , it was observed by the Supreme Court of India as under:

Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim''s most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.

In State of Punjab v. Gurmit Singh, in paragraph 20 the observations of the Supreme Court of India are worth reproducing here:

Of late, crime against women in general and rape in particular is on 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 contractions 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.

To conclude, besides the findings recorded by the learned Additional Sessions Judge and reproduced by us in paragraph 13 (supra), we find that the testimony of the prosecutrix that she was subjected to rape by the Respondent is duly corroborated by the following:

(A) The report of the Forensic Science Laboratory confirming presence of blood, semen and human spermatozoa on her petticoat and vaginal slides,

(B) The evidence of Dr. Smt. L.D. Jindani P.W. 1 that she found granular tags of tissues in the vagina of the prosecutrix which were tender on touch,

(C) The fact that there was not even an iota of material on record to show that the defence taken by the Respondent was plausible, and

(D) No good reason was shown by the defence as to why the prosecutrix would falsely implicate her father for committing rape with her.

We therefore hold that the prosecutrix is a reliable witness and her testimony inspires confidence. The evidence led by the prosecution establishes that the Respondent had, to satisfy his lust, committed rape on the prosecutrix on 05.10.1991.

In the result, we allow the appeal and set aside the acquittal of the Respondent and hold him guilty u/s 376 of the I.P.C. A warrant of arrest be issued against the Respondent forthwith and sent to the Superintendent of Police, Rajnandgaon for execution and production of the Respondent before this Court on 21.08.2009 for hearing him on the question of sentence.