Delhi High Court

Gopal Sharma vs State on 2 February, 2010

Author: V. K. Jain

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Crl. A. No. 615/2005

                               Date of Order: 2nd February 2010

#      GOPAL SHARMA                           ..... Appellant
!                              Through:   Mr. Sumeet Verma, Adv.

                         versus

$      STATE                                   ..... Respondent
^                              Through:   Mr. Jaideep Malik, APP.


*      CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

       1.      Whether the Reporters of local papers
               may be allowed to see the judgment?                Yes

       2.      To be referred to the Reporter or not?             Yes

       3.      Whether the judgment should be
               reported in the Digest?                            Yes


: V.K. JAIN, J. (Oral)

1. This is an appeal against judgment dated 27th August 2004

and the Order on Sentence dated 3rd September 2004, whereby

the appellant was convicted under Section 376 of IPC and was

sentenced to undergo R.I. for 10 years and to pay fine of

Rs.20,000/- or to undergo S.I. for one year, in default.

2. On 8th of May 2003, the prosecutrix lodged a complaint,

alleging therein that about two months ago, when she was alone

in the house with her father, he made her sleep with him in the

night and committed rape with her, after removing her clothes

as well as his own clothes. When she started weeping on

account of pain, her father (the appellant) gave 2-3 slaps to her.

After that day also, she was raped 3-4 times. She did not

disclose this incident to anyone since she was afraid that if came

to the knowledge of her father, he would give beatings to her.

On the date of lodging of the FIR, her aunt Salomi came to her

residence and the incident was narrated by her to the aunt, who

took her to the police and the incident was then reported.

3. The prosecutrix came in the witness box as PW-1 and

stated that she used to live with her father and step-mother in a

jhuggi in Gautam Puri. Her step-mother Raj Kumari left them

and went away to her Village. She further stated that when she

was sleeping, her father took her to sleep with him and

thereafter committed rape with her after removing her clothes

as well as his own clothes. He also threatened her and said that

she would be given beating if the incident was disclosed by her

to anyone. According to the prosecutrix, thereafter, she was

subjected to rape by her father 3-4 times. She narrated the

incident to her aunt Sharda and the police then came to the

school of her aunt.

4. PW-2 Sharda has stated that she was working as a Teacher

in an organization and the prosecutrix used to come there with

her sister for taking food products for them. When the

prosecutrix disclosed to her that they had no food in their house,

she suggested her to study in their school, which would also

provide food to them. The prosecutrix complained that her

father used to beat her and was not providing food to her. When

she said that there must be some mistake on her part on account

of which her father used to beat her, the prosecutrix started

crying and disclosed that her father had been doing wrong acts

with her. When she asked the prosecutrix to tell her what wrong

acts was being done by her father, she disclosed that he used to

commit rape with her after removing clothes. At that time

Salomi was also with this witness. She informed her Head Office

and the police came to the spot and recorded the statement of

the prosecutrix, who then was taken to AIIMS and was then

medically examined.

5. PW-4 Salomi Barla, who is a Field Worker in Arpana Trust,

has stated that the prosecutrix had met her in Gautam Puri and

complained about beatings and harassment by her father. She

also disclosed that her father used to make her sleep with him

and do wrong acts with her. She informed PW-2 about the

matter and then police was called and the complaint was lodged

by the prosecutrix with the police, in their presence.

6. PW-7 Sh. Bhim Singh is a Teacher in MCD Primary School

and he has stated that as per the record of the school, date of

birth of the prosecutrix was 8 th April 1991. Ex.PW-7/B is the

copy of the School Leaving Certificate, whereas Exs.PW-7/C and

7/D are the copies of admission file register and admission

which was furnished to the school at the time of admission of the

prosecution to the school. PW-8 Dr. Suman Meena examined the

prosecutrix on 8th May 2003, vide MLC Ex.PW-8/A.

7. In his statement under Section 313 of Cr.P.C. appellant

admitted that the prosecutrix was his daughter and was living

with him in a jhuggi in Gautam Nagar. He also admitted that his

second wife, who was step-mother of the prosecutrix, had left

him and had gone to her native place along with the younger

sister and brother of the prosecutrix. He, however, denied

raping the prosecutrix and giving beatings to her.

8. I see absolutely no reason to disbelieve the prosecutrix,

who is none other than the daughter of the appellant. In his

statement under Section 313 of Cr.P.C., the appellant has not

disclosed any reasons for the prosecutrix to make false

accusation of beating and rape against him. He does not even

claim that someone had instigated the prosecutrix to make false

allegation of rape against him. Even otherwise, the appellant

being the father of the prosecutrix, who was less than 12 years

of age when she was first subjected to rape, it is extremely

unlikely that she would implicate him in a false case of this

nature. The prosecutrix had nothing to gain, but everything to

lose by reporting an incident of this nature against her father.

She knew very well that if the incident was reported to the

police, her father would be arrested and she would then have no

one to give shelter and to look her after, her step-mother and

younger brother and sister having already left the appellant and

having gone to the native place of her step-mother. In fact, had

the prosecutrix not come in contact with PW-2 and PW-4, in all

probabilities her exploitation at the hands of the appellant would

have continued and thus this heinous act would not even have

come to surface. The statement made by the prosecutrix firstly

to PW-2 and PW-4 and then to the Doctor who examined her in

the hospital also corroborates her testimony given in the Court.

The previous statement of the prosecutrix would be

corroborative evidence within the meaning of Section 157 of

Evidence Act. This proposition of law was recognized by the

Hon‟ble Supreme Court in Sheikh Zakir vs. State of Bihar

1983 Criminal Law Journal, 1285.

9. It was contended by the learned counsel for the appellant

that the medical evidence does not support the allegations of

rape. I have perused the MLC of the prosecutrix. It shows that

at the time of her examination in the hospital, her vagina easily

admitted index finger. PW-8 stated in the cross-examination that

under normal circumstances a person of 12 years would not

admit one finger. According to the prosecutrix, she was raped a

number of times by the appellant. That explains why her vagina

could easily admit the index finger, when she was examined in

hospital. Therefore, it cannot be said that the prosecutrix had

not been subjected to rape has claimed by her. The Court

cannot be oblivious to the fact that the appellant being none

other than the father of the prosecutrix, she being a small child

aged less than 12 years at that time and being alone in the

house alongwith the appellant, it would be unrealistic to expect

her to give a tough resistance to sexual assault by the appellant.

It has also come in the deposition of the prosecutrix that when

she resisted, the appellant slapped her and also threatened to

give more beatings to her in case the incident was disclosed by

her to anyone. Thus, besides being of tender age and all alone in

the house, the prosecutrix was also terrified on account of the

beatings and threat given to her by the appellant. If the

prosecutrix was not in a position to put up a tough resistance,

there won‟t be physical marks of violence on her private parts,

when she is examined in hospital. The first incident of rape

occurred about two months before the prosecutrix was examined

in a hospital. The prosecutrix was again subjected to rape 3-4

times thereafter. Hence, no mark of injury was likely to be found

on her private parts when she had examined in the hospital on

8th May, 2003. As noted by the Hon‟ble Supreme Court in State

of H.P. vs. Gian Chand, (2001) 6 SCC 71, in case of children

who are incapable of offering any resistance external marks of

violence may not be found. (See Modi's Medical Jurisprudence,

22nd Edn., P. 502). The prosecutrix has very clearly stated in her

deposition that the appellant had penetrated into her vagina.

Even slightest penetration is sufficient to constitute rape. The

description of the act committed by the appellant, as given by

the prosecution in the Court as well as to PW-2 and PW-4, leaves

no reason to doubt that the appellant had subjected the

prosecutrix to rape and he did it on a number of occasions.

10. There has been some delay on the part of the prosecutrix in

reporting the incident as, according to her, she was for the first

time subjected to rape about two months before she reported the

matter. As regards delay in reporting the matter to the police,

the Hon‟ble Supreme Court noted in Ravinder Kumar vs. State

of Punjab, 2001 (VII) AD (SC) 2009, that the law has not fixed

any time limit for lodging FIR and delayed FIR is not illegal.

Though prompt lodging of FIR is ideal, that by itself does not

guarantee the genuineness of the version given in it. Whenever

there is delay in lodging FIR, the Court ought to look for

reasons, if any. But, delay by itself cannot be the sole ground to

doubt and discard the entire case of the prosecution though it

does put the Court, on guard, to look for explanation, if any.

11. In State vs. Gurmeet Singh, AIR 1996 SC 1393, the

Hon‟ble Supreme Court, inter alia observed as under:

"The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."

12. In the case of Gian Chand (supra), the Hon‟ble Supreme

Court observed that incidents like rape, more so when the

perpetrators of the crime happens to be a member of the family

or related therewith, involve the owner of the family and

therefore, there is a reluctance on the part of the victim to

report the matter to the police and carry the same to the Court.

The Hon‟ble Supreme Court was of the view that mere delay in

filing FIR is no ground to doubt the case of the prosecution and

not believing the testimony given by the prosecutrix in the

Court. It was held that delay in lodging FIR cannot be used as a

ritualistic formula for doubting the prosecution case and

discarding the same solely on that ground.

13. In the facts and circumstances of the case, the delay in

reporting the incident cannot be said to be fatal to the

prosecution. The appellant was none other than the father of the

prosecutrix. After raping her, he used to give beatings to her

and also used to threaten her that she will be subjected to

further beating in case the incident will be disclosed by her to

anyone. The prosecutrix at that time being a girl aged less than

12 years and the appellant being her father, who was providing

food and shelter to her, it was not expected of the prosecutrix to

rush to a police station all alone and report an incident of this

nature to the police. As noted earlier, the prosecutrix, at that

time, was living all alone with the appellant in his jhuggi, her

step-mother having already gone to her native place, along with

her other children after deserting the appellant. Had there been

some other member of the family living with the prosecution in

that jhuggi, she might have gathered courage to take him/her

into confidence and share her plight with him/her. She did

disclose the incident at the very first opportunity when she met

PW-4 and found someone in whom she could confide. Once the

prosecutrix had met PW-4, there was no delay in reporting the

incident to the police.

14. As regards the age of the prosecutrix, a perusal of Ex.Pw-

7/A, which is the copy of the birth certificate of the prosecutrix,

submitted at the time of her admission in the school would show

that she was born on 8th April 1991. A perusal of the School

Leaving Certificate Ex.PW-7/B would show that same was the

date of birth of the prosecutrix recorded in her school record.

There is absolutely no reason for not accepting date of birth of

the prosecutrix given not only in her birth certificate, but also in

her school leaving certificate and other record of the school. In

fact, when the appellant was examined under Section 313 of

Cr.P.C. even he did not claim that she was not born on 8 th April

1991. He simply expressed his ignorance in the matter. I,

therefore, have no hesitation in concluding that the date of birth

of the prosecutrix is 8th April 1991.

15. In view of the above discussion, I am of the considered

view that the appellant has rightly been convicted under Section

376 of IPC and his conviction is accordingly maintained.

16. The learned counsel for the appellant sought reduction of

sentence awarded to the appellant on the ground that since the

prosecution was not less than 12 years of age at the time she

was subjected to rape, the provisions of Section 376(2)(g)

prescribing a minimum sentence of 10 years would not apply. In

my view the contention is totally misconceived. The FIR was

lodged on 8th of May 2003 and according to the prosecution she,

for the first time, was subjected to rape about 2-3 months before

she reported the matter to the police. It would mean that the

prosecutrix for the first time was subjected to rape on or around

8th March 2003. Since the date of birth of the prosecutrix is 8 th

April 1991, she was less than 12 years of age when she was first

subjected to rape. Hence, the provisions of Section 376(2)(g) of

Indian Penal Code squarely apply in the matter of awarding the

sentence to the appellant.

17. The appellant being father of the prosecutrix was expected

to protect and safeguard her. Instead of doing that he chose to

become a demon and had no compunction in subjecting his own

daughter to repeated acts of rape. He took no pity on his own

daughter, who at that time was less than 12 years of age. Such

a person deserves no leniency and any sympathy for such a

person would be entirely misplaced. The prosecutrix would

never, in her life, forget the trauma experienced by her at the

hand of her own father and the heinous and abhorable act

committed by him will keep „haunting her throughout her life.

18. In State of Andhra Pradesh vs. Bodem Sundara Rao

1995 (6) SCC 230, the Hon‟ble Supreme Court observed as

under:

"Public abhorrence of the crime needs a reflection through the Court‟s verdict in the measure of the punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape of a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane."

19. In State of Karnataka vs. Krishnappa AIR 2000 SC

1470, the respondent before the Hon‟ble Supreme Court had

raped a girl aged about 7-8 years at that time. The Trial Court

awarded sentence of rigorous imprisonment for 10 years to him.

The High Court, however, reduced the sentence to 4 years on

the ground that accused was illiterate and belonged to a weaker

section of society besides being addicted to drinking and had

committed offence in the state of intoxication. Setting aside the

order of the High Court, the Hon‟ble Supreme Court, inter alia

observed as under:

"Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years R.I. though in exceptional cases "for special and adequate reasons" sentence of less than 10 years R.I. can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principle matter to which it stands as a proviso particularly in such like penal provisions. The Courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reason" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application.

12. The approach of the High Court in this case, to say the least, was most casual and inappropriate. There are no good reasons given by the High Court to reduce the sentence let alone "special or adequate reasons". The High Court exhibited lack of sensitivity towards the victim of rape and the society by reducing the substantive

sentence in the established facts and circumstances of the case. The Courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commissions of like offences by others."

20. In Kamal Kishore Vs. State 2000 (2) SCC 706, which again

was a case of rape, the Hon‟ble Supreme Court observed that

normally the court has no discretion to award a sentence less than the

prescribed sentence and a lesser sentence can be awarded only in

extreme rare contingencies. The Courts, therefore, need to respect

the legislative mandate, which is loud and clear, that the person, who

indulges in such a heinous and deplorable crime, deserves no leniency

and should not escape adequate punishment. I, therefore, see

absolutely no reason for reducing the sentence awarded to the

appellant. There is no merit in the appeal. The same is hereby

dismissed.

One copy of this order be sent to the appellant through