(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) This appeal is directed against the judgment and order dated 22.10.2008 passed by learned 6th Additional Sessions Judge, Surat in Sessions Case No. 198 of 2007, whereby, the present appellant is convicted for the offence under section 376 of IPC and sentenced to undergo 10 years rigorous imprisonment, and imposed fine of Rs. 5000/-, and ordered 2 ½ years rigorous imprisonment in default of payment of fine.
The case of the prosecution in brief is to the effect that the complainant Pritiben, aged about 12 years, daughter of the present appellant Shyamsundar Tiloribhai Vishwakarma, gave a complaint to the Salabatpura Police Station, Surat City on 9.4.2007 to the effect that her mother Kiranben had died before about four years. She is staying with her father- present appellant and two other younger sisters and one youngest brother. She stated in her complaint that her father is doing motor-cycle and scooter repairing work, she does the house work and her younger sister Puja is selling "Gutkha" etc. near the garage of his father. His father goes to work at about 8 O'clock in the morning and comes back at about 11.00 to 12.00 hours in the night to the home and she was serving meal and thereafter they all go to bed. They have one rented room and have one steel cot, on which her father used to sleep and she along with other two sisters and brother used to sleep on the floor. The complainant further stated that after the death of the mother of the complainant, before about 1 ½ years of the complaint, the father of the complainant-present appellant had taken the complainant asleep on the cot, and thereafter, he had removed the clothes of the complainant and had also removed his own clothes also. In the meantime, the complainant had wake up and started crying but the father had shut her mouth and forcibly had the intercourse with her. The father- present appellant had also threatened the victim, and therefore, she had not complained about it to any one at that time. Thereafter, the father - present appellant had repeated the same periodically with her. The complainant having no other option, succumbed to that pressure and when she could not bare any more the said assault, informed her landlord Gajanadbhai, who had also seen from the window the offence being committed by the present appellant, who in turn, had scolded the present appellant and thereafter the father had started staying at garage even at night and stopped coming to the room. Even the tiffin was also sent there. In the meantime, she informed her school teacher Sangitaben and the said teacher in turn, informed the office bearers of Women Association, and ultimately, the complainant had described the incident in details to them, and thereafter, the police complaint is filed. Along with the complaint, the birth certificate of the complainant was also given to the police. The date of birth as recorded in the school register was 19.6.1995. Based on this complaint, the offence came to be registered, the case was investigated and the accused - present appellant was arrested and the charge-sheet was filed. Since the case was being triable by the Court of Sessions, the same was committed to the Court of Sessions.
Thereafter, the learned Sessions Judge has framed the charge against the present appellant at Exh. 5. The appellant - accused has pleaded not guilty and came to be tried.
The prosecution, to prove the case had led oral evidence of 15 witnesses, the details of whom are mentioned in para-5 of the judgment and had also produced 19 documentary evidence, the details of which are mentioned in para-6 of the judgment.
After recording of the evidence, the statements of the accused - present appellant was recorded under section 313 of Cr.P.C. by the learned Sessions Judge and on overall evaluation of the evidence on record, the learned Sessions Judge came to the conclusion that the present appellant is guilty of the offence punishable under section 376 of IPC and imposed the sentence as aforesaid. It is against this judgment and order, the appellant is before this Court.
We have heard Ms. Sadhana Sagar learned advocate for the appellant and Mr. KL Pandya learned APP for the State. Both the learned advocates have taken us through the entire evidence on record.
Dr.
Amisha Dummaswala, PW-1 Exh. 11, who had examined the victim girl, in her deposition, has deposed that the patient, the victim girl was examined by her and the certificate issued by this witness has also come on record, wherein, the history given by the victim was recorded, which stated that the father of the girl had forcibly intercourse with the victim. The certificate further shows that on medical examination, signs are found on the body of the victim which are consistent with the history given to the doctor. The certificate as well as report prepared by the doctor are duly exhibited at Exh. 13 & Exh. 14. In the cross-examination of this witness, she has denied that the history was given by the lady who had come with the victim girl.
The teacher Sangitaben Shaileshbhai is examined as PW-10 Exh. 31, who in her testimony stated that she is working with Balwadi since last 10 years and in the evening she also works in "Saksharta Abhiyan", wherein, the children who are going for labour work or are doing household during day time, are coming for education and on that project, she was working since about 8 years. The victim girl also used to come for study there and at the relevant time, she was studying in standard three. As per her testimony, the age of the victim girl was approximately 12 years. She deposed that Vidhyaben, the neighbour of the victim girl, informed this witness that she may enquire from the girl, what she is undergoing. On this, the victim girl had explained in details to this witness. On this, this witness informed the other office bearers of the Women's Association working in that area, and in turn, police complaint was filed. The defence had tried to extract the theory of love affairs of the girl with one boy Ramu. In the cross examination of this witness, this witness has deposed that the victim had denied the same. No material contradictions were found in the deposition of this witness.
Dr.
Pranav Vinodchandra Prajapati, PW-14, Exh. 38, is examined by the prosecution who was working in the Forensic Medicine Department. In his deposition, he has deposed to the effect that as per the history given to him by the victim, father of the victim girl had committed rape on the victim girl. In his deposition, he has deposed that on medical examination/occification test, in his opinion, the age of the girl appeared to be around 15 years.
Rakesh Baldevkrishna Sharma, PW-15, Exh. 41, Police Inspector and I.O., in his deposition, has explained in detail the complaint and has stood by the prosecution theory. In his cross-examination, there is no contradiction on any material part.
Ratnaben Ramubhai Hingade, PW-4, Exh.18, who in her deposition has deposed that on 6.4.2007, teacher Sangitaben had explained her about the suffering of the victim girl. On this, she who is working as Secretary of the Santoshi Mahila Mandal in the local area, went to the victim girl along with teacher Sangitaben and Laxmiben Borde, the President and Treasurer Chandaben Pawar of the said Mahila Mandal. The victim girl had explained to them about her suffering at the hands of her own father and after this, all had gone to the police station with the victim girl and the complaint came to be filed.
Victim Pritiben herself is examined as PW-5 Exh. 19. In her deposition, she has explained in detail the same which she has stated in her complaint. In the cross examination, on any material aspect, there is no contradiction.
On the basis of the above evidences which has come on record, the learned Sessions Judge came to the conclusion that the charge of accused having committed the offence under section 376 of IPC, is duly proved, and therefore, recorded the conviction and imposed the sentence of 10 years R/I with the fine, as aforesaid.
Learned counsel Ms. Sadhna Sagar for the appellant has contended that except the say of the victim herself, there is no other evidence which links the present appellant with the commission of the offence. This contention cannot be accepted, since there cannot be any other evidence when the offence is being committed in the house on a girl by her own father. Further, even if the relationship of father and daughter is not there, then also, the sole testimony of the victim under such circumstances, is sufficient to maintain the conviction if the deposition of the victim inspires the confidence. In this regard, it is pertinent to refer the decision of the Hon'ble Supreme Court in the case of Vishnu alias Undrya vs. State of Maharashtra, reported in (2006) 1 SCC 283. In the said case, the Hon'ble Supreme Court has observed, thus:
"25. The statement of the prosecutrix, in our view, is quite natural, inspires confidence and merits acceptance. In the traditional non-permissible bounds of society of India, no girl or woman of self-respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect of getting married with a suitable match. Not only would she be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracised and cast out from the society she belongs to and also from her family circle. From the statement of the prosecutrix, it is revealed that the accused induced her to a hotel by creating an impression that his wife was admitted in the hospital and that he would see her first and then drop the prosecutrix at her residence whereas, in fact, she was not admitted in the hospital. On the pretext of going to Nanawati Hospital, he took her to a hotel, took her inside a room, closed the door of the room, threatened to finish her if she shouted and then forcibly ravished her sexually. In our view, a clear case of rape, as defined under Section 375 clause thirdly IPC has been established against the accused. It is now a well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence."
Keeping this principle in mind, we find that the say of the prosecutrix need not be discarded or discounted to any extent and based on the say of the prosecutrix herself, the conviction could be maintained. In the present case, however, we find that over and above the say of the prosecutrix, even the medical evidence supports the case of the prosecution. The history given to two doctors is also consistent with the case of the prosecution as reflected in the complaint itself.
Learned counsel appearing for the appellant, in support of this contention, has heavily relied on that part of the medical certificate which reads to the effect that on medical examination of private part, two doctors opined that even one finger insertion in vaginal part was painful and on this basis learned counsel for the appellant submitted that rape could not have been committed at all. We are of the view that the medical evidence cannot be read in pieces. If we examine the said medical certificate itself, in next very line, it is recorded that the conclusion of the medical examination, in the opinion of the said doctor was that the findings are consistent with the history given by the patient, that is, prosecutrix. Under these circumstances, the submission of learned counsel for the appellant to the effect that no offence could be committed at all, or that there is no other corroborative material to the deposition of the prosecutrix cannot be accepted and therefore, these arguments are rejected.
The learned counsel for the appellant next submitted that it is unbelievable that in one room when three other children are also there, father would do this. This argument of learned counsel for the appellant also does not deserve favourable consideration for the reason that it is quite possible that these children who were aged less than 11 years may be in deep sleep. Even if they are not sleeping, they could not have done anything. If the say of the prosecutrix is taken into consideration, she was eldest amongst four and when she could not resist the father, there was no question of other three younger sisters and brother resisting this situation. Under these circumstances, the argument that in presence of other three siblings this was not possible also needs to be rejected.
Learned counsel for the appellant next submitted that the ocification test had revealed that the girl was around 15 years age. In our view, this argument of learned counsel would not take her case any further for the reason that the age of the victim, be it 12 years or 15 years would not change the scenario in any manner. In our view, the age of the victim in the facts of the case, is not weighing in any way in favour of the appellant, and therefore, this argument also needs to be rejected.
Learned counsel for the appellant next contended that younger sister who was aged about 11 years is not examined and neighbours who were examined have not supported the case of the prosecution. In this regard, it is required to be noted that, as observed hereinabove, absence of any other material over and above the say of the prosecutrix, in the facts of this case, would not make the prosecution case weaken or the prosecution theory unbelievable. The prosecutrix had an occasion to inform her teacher, and the teacher, in turn, had an occasion to inform the same to other female who could do something in the matter. These things are already done in the present case and only then the police complaint could be filed. Under these circumstances, only on the ground that the younger sister is not examined, in our view, is not fatal to the prosecution case.
Learned APP Mr. Pandya appearing for the respondent-State has supported the judgment and order of the learned Sessions Judge. He has specifically pointed out that as per the settled position of law, when there is documentary proof available on record in support of the date of birth of victim girl, there is no question of resorting to any other material in this regard. The date of birth as recorded in the school register of the victim was 19.6.1995 which is on record at Exh. 21. The complaint is given on 9.4.2007. Thus, on the date of complaint, the victim girl was below 12 years and she had undergone the suffering for about 1 ½ years prior thereto.
In our view, based on the evidence which has come on record, it cannot be said that learned Sessions Judge has committed an error in recording conviction of accused under section 376 of IPC.
Learned counsel for the appellant had made an alternative submission that the sentence of 10 years rigorous imprisonment is on higher side and the same may be reduced to 7 years. In our view, in the peculiar facts and circumstances of the case, the sentence could be even more than 10 years, however, since the State is not in appeal for enhancement of sentence, we leave the matter there. But, in our view, certainly it is not the case where sentence awarded by the learned Sessions Judge could be said as on higher side.
For the reasons and findings recorded above, we find that learned Sessions Judge has not committed any error while recording conviction or awarding sentence. Hence, we hold that the appeal is merit less and the same is required to be dismissed and is hereby dismissed.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) mandora/ Top