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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.