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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.