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CASE NO.: Appeal (crl.)  667 of 1998

PETITIONER: State of Chhattisgarh

RESPONDENT: Derha    

DATE OF JUDGMENT: 21/04/2004

BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.   

       Respondent herein was charged of an offence punishable  under section 376(2) of the Indian Penal Code before the  Second Additional Sessions Judge, Durg, M.P. The trial court  found him guilty of the offence charged and sentenced him to  undergo RI for 10 years. In appeal filed against the said  conviction and sentence before the High Court of Madhya  Pradesh at Jabalpur, the High Court allowed the appeal, setting  aside the said conviction and sentence. It is against the said  judgment of the High Court u/s. 376(2)(F) the State of Madhya  Pradesh is in appeal before us. Brief facts necessary for the  disposal of this appeal are as follows :

       Complainant Manbai was residing with family at Kaktipara  within the jurisdiction of Rajhara Police Station. Her family  consisted of her husband, 2 sons aged 12 and 6 years and a  daughter aged about 8 years. It is stated that on 6.3.1990 her  husband had gone out of station and at about 4 p.m. when she  had gone to work as a labourer at the Railway colony, the  respondent herein forcibly took her daughter Duleshwari PW-2  to his house and committed rape on her. Prosecution alleges that  said PW-2 returned home and after arrival of her mother, told  her about the incident in question but since the father of the  victim was not in station they did not lodge any complaint. The  further case of the prosecution is that the father of the victim  came back to the house on 7.3.1990 and when he was told about  the said incident he decided that the accused should be first  traced and taken to the Police Station and thereafter they should  lodge a complaint. In that process the prosecution alleges that on  finding the accused on 10.3.1990 the parents of PW-2 went to  the Police Station and lodged a complaint in regard to the  incident which took place on 6.3.1990. PW-6, I.O. who was  Incharge of the Police Station as on that date, took down the  statement of PW-1, the mother of the victim and registered the  case. He also seized the underwear of the victim and after arrest  of the accused, seized his trousers of brown colour. The seized  articles were sent for chemical examination. Said I.O. then sent  the victim PW-2 and the accused for medical examination and  on receipt of the medical reports, filed a chargesheet as stated  above.  Prosecution in support of its case relied on the evidence of  the mother of the victim PW-1, the victim herself who was  examined as PW-2 and the doctor PW-3 who examined the  victim. The accused was examined by one Dr. G.R. Naamdev on  10.3.1990. The trial court relying on the evidence led by the

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prosecution came to the conclusion that the accused was known  to the victim since he was staying in the same locality and the  actual act of rape having been proved by the medical evidence,  there was no reason why the evidence of PW-2 should not be  accepted since nothing was suggested by the defence against this  victim. The only suggestion made was that there was some  dispute between the parents of the victim and the accused  without giving any particulars whatsoever of such enmity. The  trial court also came to the conclusion that though there was  delay in filing the complaint said  delay was properly explained  by the prosecution which was mainly due to the fact that the  father of the victim was not in station on the said date of the  incident and after he came back to the station they had decided  first to trace the accused before lodging a complaint in question.  Thus primarily based on the evidence of PW-2, the victim and  the medical evidence which proved the factum of rape and there  being no enmity or reason for PW-2 to state falsely convicted the  accused, as stated hereinabove.

       In the appeal filed by the accused before the High Court  the High Court firstly found that the delay in lodging a  complaint was fatal to the prosecution case. The explanation  given in regard to this delay was rejected by the High Court.  The High Court also came to the conclusion that it was not safe  to rely on the evidence of PW-2, the victim to base a conviction  because according to the High Court there was some  discrepancy as to the act of penetration while committing rape  in the evidence of the victim and the evidence of the doctor. It  also relied on a reply given by the doctor PW-3 to a suggestion  made by the defence that the injury suffered by PW-2 may also  have been suffered by hard and blunt object hence the High  Court inferred that the injury on the victim could have been  suffered by the victim by falling on some such hard and blunt  object. It also took note of the fact that the medical examination  of the accused did not show any injury on his private parts  therefore it inferred that the accused could not have committed  rape on the minor without hurting himself on his private part. In  regard to the evidence of PW-2 the High Court was of the  opinion she being a child witness who was about 8 years of age  it is possible that she could have been tutored. On the above  basis the High Court came to the conclusion that it is not safe to  base a conviction hence allowed the appeal, setting aside the  conviction and sentence imposed on the appellant.  Mr. Rajesh Srivastava, learned counsel for the appellant  submitted that the High Court erred in doubting the prosecution  case because of the fact that there was some delay in filing the  complaint and also based its findings on certain inferences  which could not have been drawn by any reasonable person,  such as the possibility of injury suffered by the victim by falling  on a hard and blunt object. Learned counsel also contended that  there was absolutely no reason why the High Court could not  have accepted the evidence of PW-2 alone to base a conviction  even assuming that there was no other corroboration in regard to  her statement.  While Ms. K Sharda Devi, learned counsel for the  respondent contended that the nature of injury suffered by PW-2  being capable of being caused in the alternate manner suggested  by the defence and accepted by the doctor by itself was  sufficient to come to the conclusion that the respondent was not  guilty of the offence. She also pointed out that the inordinate  delay in filing the complaint and non-examination of the father  of the victim could also indicate that there was some collateral  reason for lodging the complaint against the respondent. She  specifically pointed out from the evidence of PW-2 that she had  stated in the cross-examination that the grandparents of the

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accused were present in the house, forgetting for a moment that  in an answer to the previous question this witness had  specifically stated that there was no person in the house when  she was forcibly taken to his house and raped.

       Having heard learned counsel for the parties and perused  the records, we are satisfied that the High Court has erred in  coming to the conclusion that the accused was not guilty of the  offence charged. We first notice from the evidence of PW-3 the  doctor that the injuries suffered by PW-2 could not have been  self-inflicted. There was blood on her private part, the hymen  was torn and medial side of the labiaminora was inflamed. This  was even after 4 days of the incident. The doctor in specific  terms had stated that the victim is not habituated to sexual  intercourse. The mere fact that to a suggestion made in the  cross-examination that such injuries could be suffered by the  victim by falling on a hard and blunt substance, by itself, in our  opinion, would not suffice to reject the evidence of PW-2 who  had no enmity whatsoever to implicate the respondent-accused.  The suggestion which has come in the form of 313 statement  merely says that there was some enmity between the parents of  the accused and that of the victim. Neither the nature of enmity  nor gravity of the same has been stated, therefore, that  explanation would be of no assistance to the accused to  establish the fact that he has been falsely implicated. The law is  well settled in regard to the evidence of a prosecutrix. It is now  well established that if the court is satisfied from the evidence of  the victim a conviction can be solely based on such evidence  without looking for further corroboration. Same can be done  because prosecutrix is no more treated as an accomplice in the  crime. In the instant case the factum of injury suffered by PW-2  and the opinion of the doctor that such injury could have been  caused by sexual intercourse and the victim having not been   habituated to earlier sexual intercourse itself goes to show that  the injury suffered by the victim was one that could have been  caused only by an act of rape as alleged by the prosecution.  Even in identification of the accused by the victim we have no  doubt because he was known to the victim.

         We have noticed the fact that there has been some delay  in filing the complaint which according to us has been explained  by PW-1 mother. The fact that their father was out of station on  the date of occurrence is not disputed. In such circumstances  since it is a minor who was violated the possibility of there  being hesitation on the part of mother to lodge a complaint  cannot be over ruled. Even otherwise the mere factum of delay  in filing complaint in regard to an offence of this nature by itself  would not be fatal so as to vitiate the prosecution case. The fact  that the accused did not suffer any injury on his private part also  will not be of much help to him because he was medically  examined 4 days after the incident in question. For the reasons  stated above we are satisfied that the High Court was in error in  taking a view different from that of the trial court and acquitting  the accused.         The question then arises what should be the sentence that  should be imposed on the accused. The trial court as stated  above has sentenced the respondent for an offence under section  376(2)(F) to 10 years RI. We are told by learned counsel for the  respondent that he was hardly 18 years of age at the time of the  incident in question and has already served about 6 = years  imprisonment consequent to the sentence imposed on him by the  trial court. It is also submitted that he has since married and has  a family. In such circumstances we think a sentence of 7 years  RI would be appropriate in the facts and circumstances of the  case. Hence while allowing the appeal of the State, setting aside

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the judgment of the High Court and restoring the conviction  recorded by the trial court, we reduce the sentence to 7 years RI.  We further direct that if the respondent has undergone any part  of the sentence as submitted by learned counsel, set off shall be  given for the said part of the sentence and he will also be entitled  to any legal remission permissible in law for having served 6 =  years’ imprisonment.         With the above observations, this appeal succeeds and the  same is allowed to the extent stated above.