Lokesh Mishra vs State Of Nct Of Delhi
2014 Latest Caselaw 1327 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment delivered on: March 12, 2014
+      CRL. A. 768/2010

       LOKESH MISHRA                                      ..... Appellant
                   Through             Mr. Ajay Verma, Advocate

                          versus

       STATE OF NCT OF DELHI                         ..... Respondent
                     Through           Mr. Sunil Sharma, Additional
                                       Public Prosecutor for the State

       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MS. JUSTICE SUNITA GUPTA


                             JUDGMENT

KAILASH GAMBHIR, J.

1. The present appeal has been preferred by the Appellant under

Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter

referred to as Cr.P.C), challenging the impugned judgment and order on

sentence dated 15.04.2010 and 29.04.2010 respectively passed by the

Learned Trial Court, thereby convicting the appellant for committing the

offence of rape under Section 376 of Indian Penal Code and sentencing

him to undergo Life Imprisonment and also to pay fine of Rs. 5,000/- in

default thereof to undergo simple imprisonment for a period of six

months u/s. 376 Indian Penal Code, 1860 (hereinafter referred to as IPC)

and also sentenced him to undergo rigorous imprisonment for a period of

two years for offence punishable under Section 506(1) IPC. Both the

sentences are to run concurrently.

2. It is appalling to see that rape rears its ugly facade almost every

day. 'Rape' is one such dark reality in the Indian Society that devastates a

women's soul, shatters her self-respect and for a few, purges their hope to

live. It shakes the insight of a woman who once was a 'happy person',

and had no clue of being a victim of the said horrifying and

nightmarish encounters where the daughter had been raped by none else

but her own progenitor. A daughter always looks up to her father as a

shield of her dignity and honour which is an intrinsic facet of a family

especially of father-daughter relationship. It shocks human conscience

when the sanctity of father and daughter relationship is ravaged in such a

sordid manner and the protector becomes the violator. In such a case the

offence assumes a greater degree of vulnerability which shall not go

unpunished. There can never be a graver heinous crime than the father

being charged of raping his daughter. It is the gravest sin, where the most

platonic relationship is shattered by an extreme pervert and shameful act

of nonetheless but one's own father. The moral values of individuals of

the society have gone down to such a level that every day we hear similar

news which shudders our mind and soul. We have become accustomed to

saying that females are not safe outside the house but in few cases, it is

seen that they are not even safe inside their homes, where the epitomy of

God's beautiful creation, a child is ravished by her own father for his

momentary sexual needs and pleasure which is heart-rending and odious.

3. The change would not merely come from increasing policing,

giving harsher punishments etc. but the required change lies in

upgrading the moral values inside all of us and imbibing an essential

value that women are not an object of sexual gratification. This Court

previously in Beeru vs. State, Criminal Appeal No.1079/2010 held as

under:

"31. The barbarity of the offence of rape cannot be overemphasized, especially when we have witnessed the most gruesome and horrific instances of the same in the recent past. The indifference that was created towards feral men with the quotidian reporting of rape was followed by a furor bringing the heinousness and depravity of the offence once again into the forefront, awakening the yet hitherto dormant attitude of the society. On flipping of the pages of the newspaper or the channels of the television, the only resonating sound is a new incident of rape. The argument being advanced is that the incidents of rape have increased manifold but in reality it is also due to the metamorphic change the society is undergoing, that of the new found willingness of the survivors to report the offence rather than

being hapless victims like before. However in the face of this positive development, we cannot turn a blind eye to the fact that the consequences of this monstrous act remain as devastating as ever, but may be the societal prism which shamed and blamed the survivor has changed angles. The women as a whole, cutting across status, class, culture, creed or sex are a vulnerable group but a minor child is most susceptible of the lot. The tender years of innocence where the children are taught to have faith in the goodness of humanity and nurturing relationships with trust fall apart when the same child becomes a prey in the hands of the lusty and unscrupulous men. It is also brought to light by the recent statistics that the rapists are strangers also but are more often than not people known to the family or in a position to trust with the survivor. The present case is a sordid story of both the factors at play where the minor girl was raped by her own uncle. The beastly act of ravishing a child for exerting his position of male dominance and violating her physical and mental well-being, is attitude of a savage tribe and not of a civilized society. To fathom the aftermath of the sentience of the happening of such tormenting act on the person is to add yet another monumental blow to her dignity. In most cases that this court comes across, the offender is the sole bread winner of his family with parents, wife and children etc. to take care of. The remorse that sets in after the realization of the dastard act committed by him is put on a backburner and what is vociferated are the so call mitigating circumstances. The criminal who dared to indulge into such a venomous act now wants to walk way as he has to take care of his family and provide for them. The perturbing question that bedevils us is that was he unmindful of these 'mitigating circumstances' when he committed the act. The answer is an unfortunate affirmative which brings us to the core of the problem, the mindset of the common man that the law cannot touch him and nothing will happen. This notion of the law being feeble and the offender being actually punished being remote is what needs a tectonic shift. The criminal law amendment act, 2013 has given a new ray of hope to the women and teeth to the law and should act as a deterrent. The need for every person to know the legal ramifications of his vicious acts is important, especially that of rape. The

most potent tool is to educate the public of the new law and create awareness about the rights of the victims and at the same time the severity of the punishment of the offence committed. The men folk need to be gender sensitized from the very beginning from school to colleges to treat women not as sex objects but as an equal human being. The emboldening of the law should act as a deterrent to the prevalence of flouting the law with impunity. This can only be done through mass awareness and the media has a big role to play in this movement of great change in society. The print and television media, both public and private participants have to be partisans of this change. The government has to be the torchbearer to create the fear of law in the minds of the people that they have to think a million times before committing this immoral act. The common man should be daunted by the law and it can only come by ingraining in them the repercussions of their acts. Much has been achieved by the showing of the clipping in theatres of the harmful effects of tobacco and we suggest the same should be done to apprise the people of the new law relating to sexual offences. Such programs should be run on television and radio also. Everyone today has a mobile phone. Be it a rickshaw wala or a jhuggi dweller to the top-notch people in the society and, therefore, the people can be educated about these laws through SMSs as well.

32. Hence the appropriate Government Authorities are advised to consider our aforesaid suggestions and we earnestly hope that in the larger societal interest they will take effective steps in this direction or other steps as they find suitable to sensitize people and create awareness amongst them about the latest amendments and other laws dealing with the various sexual offences and the punishments provided for such offences. The Registrar General of this Court is directed to send copy of this order to the Secretary, Ministry of Information and Broad Casting, Secretary, Ministry of Woman and Child Development and Lt. Governor of NCT of Delhi for necessary action at their end."

4. These recommendations were reiterated in the recent judgment of

this court in the case of Ramher vs. State, Criminal Appeal No.846/2010,

the relevant paragraph is as follows:

While committing an act as unsavoury as that of rape of his own minor child one not only forgets that it will destroy not only the life of the victim but his own life. The trauma attached as an aftermath of such acts not only victimises the immediate sufferer but also the offender. An act done in the moment of rage mutilates the whole family and every existing relation with the offender. The remorse that sets upon the offender subsequently cannot free the offender of the virulent act he committed. The question that perturbs us or rather desolates us by the recent alarming increase in number of rape cases how can an individual, even after the introduction of such stringent laws be ignorant of the consequences of his act. The moral obligation of repentance and self-condemnation seems to be diminishing in this era. It's high time when men folk need to be gender sensitized from the very beginning from school to colleges to treat women not as sex objects but as an equal human being. The emboldening of the law should act as a deterrent to the prevalence of flouting the law with impunity. This can only be done through mass awareness and the media has a big role to play in this movement of great change in society. Thus for the better implementation of these laws we feel that a joint endeavour is required to be made on the part of the society at large to create an awareness of the legal ramifications of their vicious acts. The most potent tool to create awareness is to educate the public of the new law and create awareness about the rights of the victims and at the same time the severity of the punishment of the offence committed. In this regard, we also gave directions in the matter of Beeru vs. State Criminal Appeal No.1079/2010. While emphasizing and reiterating the same, we advise the appropriate Government Authorities, Non Governmental Organisations, Bar council of India, various State Bar Councils, Bar Assemblies, Delhi Legal Services Authority and law colleges and institutes to take effective steps in this direction to sensitize people and create awareness amongst them about the latest amendments and other laws dealing with the various sexual offences and the punishments provided for such offences.

5. The germane of prosecution case is that on the night of 16/17 May

2008, victim/prosecutrix, a class 7th Student complained of being raped

by her father. She was living with her two sisters, father i.e. accused and

stepmother. It was after the death of her real mother about 3 years ago

that her father solemnised the second marriage with one Babita. It was on

the night of 16/17 May, 2008 that she went with her stepmother i.e.

Babita to the police post and lodged a complaint that her father has been

committing rape upon her for one year and threatened to kill her, in case,

she reported the matter to the police. She stated that on 14.05.08 her

father had given beatings to her mother, on which she left the house with

her son. On the same night, her father raped her. After arrival of her

mother after 2-3 days, the same was reported to the police by them.

6. The prosecution in total examined 12 witnesses to prove their case.

PW-1 was the victim/prosecutrix. The statement of the accused was

recorded under Section 313 Cr.P.C. and in answer to incriminating

evidence set up against him he pleaded his innocence and false

implication by his daughter as she had an illicit relationship and because

he objected to the same, she cooked up a false story against him. In his

defence the accused also adduced evidence by examining two other

witnesses namely his Brother and daughter younger to prosecutrix.

7. The Learned Counsel for the appellant fervidly argued that in the

instant case the prosecutrix has deposed in a manner which cannot be

considered to be reliable, since in each of her three different statements,

she has made material contradictions. The Counsel laid special emphasis

on the argument that Babita i.e. the step mother of the prosecutrix is the

architect of the entire conspiracy as she had accompanied the prosecutrix

during the complaint, MLC and even Court appearances. He further

argued that Babita alongwith the prosecutix visited the appellant in Jail to

extort money from him, which is most unnatural and corroborates the

defense version. Learned counsel for appellant also submitted that the

non-examination of Babita, allegedly the originator of the entire

conspiracy, is fatal and casts a shadow of doubt over the veracity of the

entire prosecution case.

8. The Learned Counsel for appellant further submitted that during

the preparation of the MLC, the vaginal swab of the prosecutrix was not

taken and it is the case of the prosecution that on 14.05.08, the appellant

had allegedly raped whereas she reported the matter to police on

16/17.05.08. The Ld. Counsel further cited Medical Jurisprudence to

argue that Semen can be detected in the vagina up to a period of 9 to

even 14 days after intercourse has taken place. He also submitted that

there is no medical evidence against the accused and the Ld. Trial Court

Judge fell in error by overlooking this factor which exonerated the

appellant from this alleged crime.

9. The Learned Counsel for the Appellant also submitted that the Ld.

Trial Court Judge has wrongly stated that the ruptured hymen of the

prosecutrix implicates the involvement of the appellant in this case. The

Counsel further stated that the prosecutrix was having an affair with one

Ramu and when the appellant objected regarding the same, the

prosecutrix along with her step mother, hatched this conspiracy against

the accused.

10. The Counsel for Appellant also submitted that the evidence of

DW-1 and DW-2 were erroneously discarded and the evidence of

Defence witnesses carries equal value as that of the prosecution

evidence. Learned counsel further placed reliance on State of Haryana v.

Ram Singh, (2002) 2 SCC 426 and Dudh Nath Pandey v. State of U. P.,

(1981) 2 SCC 166 to substantiate his argument. The Counsel specifically

relied upon the testimony of DW-2, the younger sister of the prosecutrix,

clarifying that there was neither a history of alleged rape nor sexual

molestation of prosecutrix by the appellant, otherwise it would have come

to the notice of DW-2.

11. It was also argued by the Counsel for the appellant that there are

two possible views in the present case, one in favour of the accused and

the other in favour of the prosecution and in such a case benefit of doubt

must be given to the accused.

12. In support of his arguments, Counsel for the appellant relied upon

the following judgments:

1. Rahim Beg V. State ; (1972) 3 SCC759

2. Bharwada Bhoginbhai Hirjibhai V. State of Gujarat; (1983) 3 SCC217

3. Murugesan V. State ; (2012) 10 SCC 383

13. Per contra, the Learned APP for State strongly contended that the

present case shows the most heinous offence where a father committed

rape upon her minor daughter. The Learned APP also pointed out from

the record that the prosecutrix/victim was of 12/13 years of age, her date

of birth being verified as 05.08.1996 (via Ex.PW6/A & B). He also

submitted that she encountered the first incident of sexual assault by her

father, when her real mother was alive and after her mother's death and

subsequent remarriage of her father/accused, the victimization of the

prosecutrix at the hands of her father continued undeterred.

14. The Learned APP responding to the contention of Appellant

categorically argued that the accused, whenever he found an opportunity,

continued to rape the prosecutrix on several occasions, in the year

preceding to the filing of the complaint on 17.05.2008. He further

emphasised on the fact that the statement of the victim, first at the police

post was recorded by SI Arvind Kumar (PW2), then by the Ld.

Metropolitan Magistrate Ms. Geetanjali Goel under Section 164 Cr.PC

(Ex.PW1/E), and lastly before the Hon'ble Trial court are all consistent in

material particulars and unwavering as to the role of the accused.

15. The Learned APP further submitted that the accused has taken a

flimsy ground that the prosecutrix was of promiscuous character, and was

having an affair with one Raju and the brother in law of the accused

Rakesh, which has also been asserted by the brother of the accused Brij

Nandan (DW1) in his statement in the Trial Court. The Learned APP

forcefully submitted that, the onus of proving such assertions with regard

to the character of the prosecutrix were on the defense, they have neither

called nor identified any of the said persons, with whom the prosecutrix

was alleged to be in relationship, nor brought forward any conclusive

evidence that the prosecutrix was accessible to any other person outside

her house. Therefore, it was his argument that such assertions are mere

allegations, not proved by any evidence. He also argued that the other

defense witness relied upon by the Appellant was the younger daughter of

the accused and sister of the Victim, Dolly (DW-2), who also stated that

the prosecutrix was of a promiscuous character, and that she was not told

anything about the said incident by the prosecutrix and he pointed out to

the Trial Court that he has also reasoned that DW-2 was too young at the

time of the incident and as such the prosecutrix conduct of not telling her

of the incidents of rape was not abnormal, and therefore, her deposition

was held to be of no consequence to weaken the prosecution's case.

16. The Learned APP referring to the allegation made by the defense

that the second wife or the step mother of the prosecutrix i.e. Babita,

acted in connivance with the prosecutrix, as she wanted to extort money

from the accused, submitted that there is nothing on record to suggest that

any such demand was made to the accused, other than the mere assertion

by the accused, and the fact that she had gone to visit the accused in jail.

He also pointed out that despite Court summons, she neither appeared

before the court, nor is her whereabouts known, which seems contrary to

the conduct of a person, trying to extort money by falsely implicating

another, in which case the person will stay in contact to exert pressure on

the accused. He further argued that this ground of the defense stands on

whimsical presumption as there can be hardly a case where a step mother

will wrongly side with her step daughter to falsely implicate her husband

in such a serious and deplorable case of incestuous rape of his own

daughter and malign her family and husband's reputation.

17. The Learned APP turning to the MLC Report of the prosecutrix

(Ex. PW9/A) submitted that report shows that the hymen was found

ruptured which suggested that possibility of rape could not be ruled out,

even though no injury marks were found on the prosecutrix or the

accused (via Ex.PW10/A). The Learned APP submitted that the Trial

Court has discussed the matter at length citing judgments with regard to

absence of any injury marks on the person of either the prosecutrix or the

accused, as also the absence of the collection of any vaginal swab and

came to a conclusion that mere absence of injury cannot rule out the

possibility of rape, neither can the absence of semen or even the presence

of it, is necessary to constitute the offence of rape. He also submitted that

the statement of the prosecutrix being consistent in its narrative on all

three occasions itself suggests the victimization of the prosecutrix to the

act of rape and unless the defense could substantially show discrepancies

in the prosecution's version of events or the prosecutrix statement, the

case of prosecution cannot be dissolved merely because of the non-

conclusiveness of medical evidence. It was fervently argued by the

Learned APP that, as the defense was unable to prove any substantial

discrepancy or even adduce any other evidence highlighting some other

facts which may be presumed from the given facts and circumstances, the

case of the prosecution stands on a firm footing, and the same was also

concluded by the Hon'ble Trial Court in their favour.

18. We have heard learned counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them. We have also perused Trial Court record and the written

submissions filed by both the counsels.

19. "Above all, be the heroine of your life, not the victim."

―Nora Ephron. A very beautiful quote by the American Novelist

exemplifying the status of a woman in the society. Beautiful creation of

God, A woman who plays an array of roles in one's life, she is a

daughter, a wife, a mother , above all a human just like any other,

deserves to be respected, adored and valued. It is said and we believe

that a girl child is more close to his father and nothing can subside the

relationship shared between a daughter and a father. Researches show

that a girl's father is one of the most influential people in her life,

from infant to toddler to tween to teen. A father's influence in his

daughter's life shapes her self-esteem, self-image, confidence and

opinions of men. But behind the scenes as they say lies a harsh reality

which has become a common practise in a few houses and is majorly

noticed in lower stratum of the society, a father raping his own daughter,

shattering her faith, desolating her self esteem, her beliefs and making

her life a curse. A father who shares an equal responsibility of bringing

her to life, kills her insight at the very instance of a few minutes pleasure,

and a little girl left with no option surrenders. There cannot be a bigger

sin than the sin of raping or molesting one's own daughter. It is beyond

imagination that how any father can stoop down to a level of satisfying

his sexual lust with his own daughter? The father is considered to be the

protector, fortress and refuge of his daughter and is looked upon by the

daughter for protection from any kind of onslaughts taking place in the

outside world. No doubt that the offence of rape is grave by its very

nature but it is more horrendous and despicable when the perpetrator of

the crime is none-else but her own father ravishing the chastity of his own

daughter.

20. The appellant herein is the father of three daughters. He had first

married one Ms. Poonam and the three daughters were born out of this

wed-lock. The first wife of the appellant had died a natural death and

thereafter, he had married another lady with the name Babita. One male

child was also born out of the said second marriage. As per the

prosecutrix, her father even tried to rape her even when her biological

mother Poonam was alive. Further she stated that for the last time she was

raped by the appellant on the night of 14.5.2008. He did not repeat the

said act for two days when the prosecutrix clearly told him that if he

would repeat it, she would report the matter to the police. On 17th May,

2008, she lodged a report with the police when she was also accompanied

by her stepmother. Her statement was reduced into writing by the Sub-

Inspector Arvind Kumar and thereafter, she was sent to the hospital for

the medical examination. In her medical examination the doctor found

her hymen ruptured with no injury marks found anywhere on her person.

The MLC also records the history of patient being sexually assaulted by

her father since past one year and have had sexual intercourse 4-5 times,

last on 14.5.2008. Based on her statement and the MLC, case under

Section 376/ 506 IPC was registered by the police against the appellant.

Further investigation of the case was entrusted to SI Saroj Bala. She

went to the house of the appellant at Gujjar Diary with the prosecutrix

and seized the bed sheet on which the accused had committed rape. She

also got the statement of prosecutrix recorded under Section 164 Cr.P.C.

before the Magistrate. She also apprehended the accused and then took

him to AIIMS for his medical examination, his underwear was also seized

and his blood in gauge was also collected. As per the report of the FSL,

human blood group B was deducted on the gauge cloth piece and human

semen was detected on the bed sheet and underwear.

21. In any case of rape, the evidence of the prosecutrix is of utmost

importance. As per the settled legal position the conviction of perpetrator

of the crime can be based even on uncorroborated testimony of the

prosecutrix. The prime reason for attaching such an importance to the

testimony of the prosecutirx is that a girl or a woman in the tradition

bound non-permissive society of India would be extremely reluctant to

falsely implicate or even to admit any incident, which is likely to reflect

on her chastity or to put at risk her own image, dignity and prestige in the

society. Let us, therefore, first reproduce the testimony of the prosecutrix

before we deal with the contentions raised by the counsel for the parties.

The testimony of the prosecutrix as recorded in her examination-in-chief

which was recorded in camera, is reproduced as under:-

"Earlier I was residing at Gujjar Dairy, Gautam Nagar, house number I do not remember, at second floor alongwith, my mother Babita, my father Lokesh Mishra and my both younger sister namely Dolly and Babli and my younger brother Piyush. Babita is my second mother. My actual mother Poonam had died about three years ago and marriage of my father with Babita is second marriage. Only my brother Piyush had born from Babita and we all sisters were born from our first mother Poonam.

In the lifetime of my mother Poonam we were residing at Vasant Kunj and one day my father Lokesh Mishra had called me in bathroom on the pretext of rubbing his back and tried to commit rape upon me. My mother and my father had raised a quarrel due to the act of accused. My mother then sent me to the village of my grandfather for about 8 months. Thereafter my father brought me to Delhi on the promise that he will not do any wrong act with me. After the death of my mother Poonam my father had married with Babita and we started residing at Gautam Nagar. After two months of marriage with Babita my father had sent my mother Babita outside the house to get repair the pant and in her absence accused (my father Lokesh Mishra) had committed rape. Once accused sent my mother Babiba to Dehradun for the mundane of my brother Piyush and at that time he also committed rape upon me. On the next day when my mother Babita came back at our house, I told the incident to my mother. My mother asked me to lodge a complaint against my father but as my father had threatened me not to disclose to anyone and due to fear what will be the future of my other sisters I did not lodge the report. My father used to send my mother Babiba in my relative house on one pretext or the other and in her absence he used to commit rape upon me. When we were

residing at Gujjar Dairy accused had also committed rape upon me and due to the behaviour of accused my mother had gone to somewhere for three days after quarrelling with the accused. Before 3 days of 17.5.08 my mother had gone outside the house without disclosing. In the night accused committed rape upon me. I told to my father that I will do something then my father asked me not to do anything. He further told me that in my absence where my younger sister will go. In the morning my father had gone to search my mother Babita and when we came back in the evening I closed the room from inside and did not open it. On the third day my mother came back to our house. My father took me, my sister and my brother to Green Park and left there. In the evening my mother came there and took me to police station where my statement Ex.PW1/A was recorded it bears my signature at Point A. Police officials took me to some hospital where I was medically examined. Police also visited with me at our house and from there one bed sheet was seized by the police vide memo Ex.PW-1/B it bears my signature at point A. the police officials arrested the accused. I have seen memo Ex.PW1/C and Ex.PW1/D it bears my signature at point. My statement u/s 164 Cr. P.C. was also got recovered.

At this stage a sealed envelope with the seal of the court is opened and proceedings u/s 164 Cr. P.C. were taken out from it. I have seen my statement Ex. PW1/E, it bears my signature at point A on each paper.

Accused is present in the court today. Witnesses identified correctly.

Further examination in chief deferred for want of case property."

22. The prosecutrix was below 12 years of age at the time of incident

as per her date of birth recorded in the school records, which is 5.8.96.

The said testimony of PW-1 was found to be consistent with her previous

two statements i.e. one recorded at the police station and the second by

the learned MM, Ms. Geetanjali Goel. The learned Trial Court also took a

view that no daughter would like to implicate her father in such an

immoral act unless she was subjected to same. Learned Trial Court also

held that earlier the prosecutrix kept mum when she was sexually

assaulted once or twice but when the accused had beyond control, lost all

suavity and moral values, it was then that she was left with no option but

to report the matter to the police. Learned Trial Court found the medical

evidence as corroborative piece of evidence to support the version of the

prosecutrix as during her medical examination her hymen was found

ruptured. Learned Trial Court also referred to the evidence of PW9 Senior

Resident Gynaecologist AIIMS who in his deposition stated that on the

basis of the examination of the prosecutrix the possibility of rape cannot

be ruled out. Learned Trial Court also found the FSL report as another

piece of corroborative evidence as human semen was found on the bed

sheet Exhibit P1/B and on his underwear Exhibit PW-5/A. The learned

Trial Court disbelieved the defence raised by the accused that he was

falsely implicated in the case by his daughter because of her alleged illicit

relationship with Ramu and Rakesh, which were being objected to by

him, his relatives and neighbours. Learned Trial Court also did not

believe the defence evidence adduced through DW1, brother of the

accused and DW2 real sister of the prosecutrix and daughter of the

accused. Learned Trial Court also discarded the extortion theory of

defence as no satisfactory answer came forth from the defence as to why

Babita, second wife of the accused would extort money from him.

23. Most of the contentions, which have been raised by the counsel for

the appellant to assail the finding of the learned Trial Judge, have already

been convincingly dealt with by the learned Trial Judge. We find

ourselves in complete agreement with the reasoning given by him on

these contentions. Nevertheless let us again examine as to whether there

is any merit in the contentions raised by the counsel for the appellant

which can upset the reasoning given by the learned Trial Court.

24. Considering the first contention raised by counsel for the appellant

that Babita had visited the appellant in jail to extort money from him and

even the prosecturix herself had visited the appellant in jail, which is

dubbed as most unnatural conduct of the prosecutrix and such conduct

corroborates the defence version of extortion of money by Babita. We

fail to comprehend as to how the visit paid by Babita in jail to meet her

husband could give any impression that she wanted to extort money from

the appellant. So far as the visit of the prosecutirx in jail is concerned, she

in her cross-examination categorically stated that she was so instigated by

her mother to accompany her to jail to meet her father. She in her cross-

examination also deposed that her mother had spoken to her father but

she could not listen to their talks and nor she indulged into any kind of

talk with her father. It is also an undeniable fact that no evidence has been

led by the defence to prove raising of any demand by Babita at any point

of time i.e. right from the date of the registration of the said case till the

recording of the evidence of the prosecutrix. Learned Trial Court also

discarded such allegation of the defence and observed that it is an

admitted case that Babita is the mother of the male child from the accused

and the said male child was living with the accused and, therefore, there

was nothing wrong, if Babita had paid a visit to the accused in jail and

her visit to jail could not lead to an inference that she wanted to extort

money from him.

25. The next contention raised by counsel for the appellant was that

DW2, who is the real sister of the prosecutrix had categorically denied in

her evidence that any such incident, as complained by the prosecutrix,

had taken place between her sister and the father. This contention raised

by the counsel for the appellant is also devoid of any merit. Indisputably,

the prosecturix was below 12 years of age on the date of commission of

the last act of rape committed by the appellant. The prosecutrix also

complained that the appellant had tried to commit such acts even during

the life time of his first wife, who had died about three years ago from the

date of her deposition in Court. DW2 was 5 years younger to the

prosecutrix, which would mean she was of 7 years of age as on the date

of last act of rape, therefore, the prosecutrix not having shared such

obnoxious conduct of her father with the sister is not unusual, looking at

her tender age, therefore, the deposition of DW2 saying that she did not

know anything regarding the incident which had taken place between her

father and sister cannot create any dent in the prosecutrix version, which

remained consistent and unflinching throughout .

26. The next contention raised by the counsel for the appellant was that

the learned Trial Court Judge has wrongly taken the inference of the

presence of semen on the bed sheet recovered from the house of the

appellant . Counsel for the appellant also placed reliance on the judgment

of the Supreme Court in Rahim Begh V. State reported in 1972 (3) SCC

759 to support his argument that mere presence of seminal stains on the

langot of the accused does not necessarily connect the accused with the

offence of rape. There can be no dispute on the said proposition that mere

presence of seminal stains on the langot of the accused or on the clothes

of the victim of rape undoubtedly has a relevance when considered with

the other corroborative material, but certainly the presence of such

seminal stains on the clothes of accused or on the clothes of victim of

rape, can exist because of a variety of reasons and would not necessarily

connect him with the offence of rape. On the night when the said act of

rape was committed by the appellant, his wife was not available in the

house. In fact, he took advantage of the situation and committed such an

aberrant act of committing rape on his daughter. The bed sheet was

recovered immediately within a period of three days and, therefore, it is

quite natural that the said bed sheet, which was spread on the bed on the

date of commission of the act of rape, is certainly corroborative piece of

evidence to support the irrefutable version of the prosecutrix. No

explanation otherwise has come forth from the accused as to how there

were semen stains on the bed sheet more particularly when in the

intervening period the wife of the appellant was not present at the

matrimonial house.

27. The next contention raised by the counsel for the appellant was that

the entire case of the prosecution is based on the sole testimony of the

prosecutrix who was under pressure from her step mother Babita to

depose against the appellant and there is even not a single piece of

evidence to corroborate the prosecution story. It is a settled legal position

that conviction of the accused in a rape case can be based on the sole

uncorroborated testimony of the prosecutrix and refusal to act on the

testimony of victim of sexual assault in the absence of corroboration as a

rule would amount to adding insult to injury. In the case of Bharwada

Bhoginbhai Hirjibhai V. State of Gujarat reported in AIR 1983 SC 753

dealing with the uncorroborated testimony of a victim of sexual assault,

the Apex Court held as under:-

9. 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 ? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly. planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the Western World which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society, and its profile. The identities of the two worlds are

different. The solution of problems cannot therefore be identical. It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :

(1) The female may be a 'gold digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.

(2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.

(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.

(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.

(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self- importance in the context of her inferiority complex.

(6) She may do so on account of jealousy.

(7) She may do so to win sympathy of others.

(8) She may do so upon being repulsed.

10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because :(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 ostracised 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 an 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 over powered 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 husband's 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, acts as a deterrent.

11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. 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. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the courts in the Western World, Obeisance to which has perhaps become a habit presumably on account of the colonial hangover. We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities-factor' does not render it unworthy of credence, as a general rule, there is no

reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities- factor' is found to be out of tune.

28. In the case of Rafiq vs State of U.P. reported in AIR 1981 SC 96

the Apex Court held as under:-

5. We do not agree. For one thing, Pratap Misra's case (supra) laid down no inflexible axiom of law on either point. The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people's life-styles may fluctuate, and so, rules of prudence relevant in one fact-situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases. 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 age to age, from varying life-styles and behavioral 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.

6. There are several "sacred cows" of the criminal law in Indo-Anglian jurisprudence which are superstitious survivals and need to be re-examined. When rapists are revelling in their promiscuous pursuits and half of humankind- womankind-is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In this case, the testimony has commanded acceptance from two courts. When a woman is

ravished what is inflicted is not merely physical injury, but "the deep sense of some deathless shame".

A rape! a rape!...

Yes, you have ravish'd justice;

Forced her to do your pleasure.

7. Hardly a sensitized judge who sees the conspectus of circumstances in its totality and rejects the testimony of a rape victim unless there are very strong circumstances militating against is veracity. None we see in his case, and confirmation of the conviction by the courts below must, therefore, be a matter of course. Judicial response to human rights cannot be blunted by legal bigotry.

29. In the case of State of Punjab vs Gurmeet Singh reported in 1996

Crl.L.J. 1996 Crl. L.J. 172, the Apex Court took a view that the Courts

dealing with the rape cases shoulder a greater responsibility and they

must deal with such cases with utmost sincerity. Relevant para of the said

judgment is reproduced as under:-

.....It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. 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 Courts, 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 inspirers 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."

30. In the light of the aforesaid legal position, we find no force in the

contention raised by the counsel for the appellant that the conviction of

the accused cannot be based on the uncorroborated testimony of the

victim of a rape. The litmus test is that uncorroborated testimony must

inspire confidence of the Court and should appear to be natural and

truthful and the same should be free from any kind of suspicion or doubts.

31. The next contention raised by counsel for the appellant was that

during the preparation of the MLC the vaginal swab was not taken by the

prosecution and the learned trial judge has erroneously ruled that this

point is immaterial. Learned counsel for the appellant also placed reliance

on the guidelines laid down in Modi's Medical Jurisprudence and

Toxicology, 23rd Edition, where in it has been stated that semen can be

detected in the vagina uptil period of 9 to 14 days after intercourse has

taken place. Learned counsel for the appellant further argued that learned

trial court has ignored this very vital factor as the absence of such

evidence completely exonerates the appellant from the alleged crime.

32. Dealing with this aspect of the argument, the learned trial court

took a view that the incident in question took place on 14th May 2008

and the matter was reported on 17th May 2008 and by that time, semen if

any might have been washed out from the vagina. The trial court further

held that the seminal emission is not necessary to establish rape, but what

is necessary is that there must be penetration. Learned trial court further

referred to the MLC of the accused proved on record as Ex.PW-10/A,

which nowhere suggested that he was incapable of performing sexual

intercourse in the normal course. Learned trial court also referred to

relevant extract of Modi's Jurisprudence and Toxicology (21st Edition),

also the textbook of Medical Jurisprudence , Forensic Medicine and

Toxicology by Parikh's, wherein it has been opined that to constitute an

offence of rape, it is not necessary that there should be complete

penetration of penis with emission of semen and rupture of hymen. Partial

penetration of the penis within the Labia majora or the vulva or pudenda,

with or without emission of semen, or even an attempt at penetration is

quite sufficient for the purpose of the law. We are not in disagreement

with the reasoning given by the learned trial court although we do feel

that there is a lapse on the part of the doctor of AIIMS in not collecting

the vaginal swab. Perhaps, the doctor felt the collection of vaginal swab

of the victim would be of not much help as there was a gap of three days

between the medical examination and the rape committed by her father.

The said doctor of AIIMS on local examination of the victim found her

hymen as ruptured. The said MLC of the victim was proved on record in

the evidence of PW-9 (Dr. Arvind Vaid, Senior Gynea AIIMS and in his

examination-in-chief, he was categorical in deposing that on the basis of

examination of the victim, possibility of rape could not be ruled out. This

witness was not cross-examined by the defence on the said aspect of non

collection of vaginal swab of the victims to seek any reasons for the

same. PW-9 would have been the best person being a medical expert to

give an answer for non collection of the vaginal swab of the victim by Dr.

Shikha Sarangi, who had medially examined the victim on 17th May

2008.

33. The Counsel has placed reliance upon Modi's Medical

Jurisprudence and Toxicology, 23rd Edition, the relevant extract of the

same is reproduced below :

The presence of spermatozoa in the vagina after intercourse has been reported by Pollak (1943) from 30 minutes to 17 days and by Morrison (1972) upto 9 days in the vagina and

12 days in the cervix. However, in the vagina of a dead woman, they persist for a longer period.

34. It becomes pertinent to mention that in Modi's Medical

Jurisprudence and Toxicology, 24th Edition, Reprint 2012 the said

extract quoted above has been omitted/deleted from its place. Therefore,

the reliance placed by the counsel loses its force, especially to

substantiate the argument on non-collection of vaginal swab.

35. Be that as it may, in Parikh's Textbook of Medical Jurisprudence,

Forensic Medicine and Toxicology, 6th Edition, the extracts of which

have been placed on record by counsel for the appellant, the same clearly

states that normally sperms remain motile in the vagina for about 6-8

hours and occasionally 12 hours. It further states that non-motile forms

are detectable for about 24 hours with occasional reports of 48 to 72 and

very rarely 96 hours. Relevant extract of the same is reproduced as

under:-

Presence of spermatozoa and other microorganisms: Normally, sperms remain motile in the vagina for about six to eight hours and occasionally 12 hours. Non-motile forms are detectable for about 24 hours with occasional reports of 48 to 72 and very rarely 96 hours. Motility persists longer at body temperature. The sperms remain motile in the uterine cavity for 3-5 days. Nonmotile forms may be found in the female genital tract for weeks or months after death. To demonstrate the presence of sperms, the vaginal contents are aspirated by means of a blunt-ended pipette. A wet

preparation is then made on a slide and examined under a microscope for motile spermatozoa. If motile sperms are seen, it would mean that intercourse has taken place within about 12 hours. If the sperms are not motile, it is not possible to say exactly when intercourse took place except that it may be over 12 hours and within about 24 to 48 and occasionally upto 72 hours. Intact spermatozoa are rarely found in the vagina after 72 hours after coitus. In such a case, sperm heads and tails can be separately demonstrated by using picroindigocarmine which stains sperm heads red and the tails green and red. A smear is also made from the vaginal contents, fixed by gentle heat, and stained by Ziehl- Neelson's method, and examined for the presence of spermatozoa and smegma bacilli.

The absence of sperms in the vagina does not mean that sexual intercourse has not taken place. It may be due to non-emission, aspermia, previous vasectomy, very old age, or poor technique by the examining doctor. Detection of seminal fluid from vasectomised males requires the demonstration of prostatic acid phosphatise which should be qualitatively distinguished from vaginal acid phosphatise by electrophoresis. Quantitatively, the normal level of acid phosphatise in the vagina is 340 international units (IU) per litre. It rises to about3000 IU in about 2 to 3 hours after intercourse and gradually returns to normal in about 12 to 24 hours. Any level higher than 340 IU indicates seminal fluid.

As a result of the discovery of semen specific glycoprotein (P30), acid phosphatise test is used only as a screening test. P30 is present in both normal and aspermic semen. Graves et al found that in some instances P30 test was positive when acide phosphatise test was negative. P30 is detectable in vaginal fluid for a mean period of 27 hours after intercourse as comkpared to 14 hours for acid phosphatise. If semen is identified, determining of genetic markers, if need be, can be done by enzyme studies and DNA typing. \ Swabbing of mouth, vagina, and anus for sperm detection should always be performed on rape victims.

The presence of smegma bacilli is suggestive of coitus. Its absence is without any significance. Smegma bacillus is seen as an acid fast rod shaped organism thicker than the tubercle bacillus."

36. With the said medical opinion, which categorically states that

spermatozoa are rarely found in the vagina after 72 hours after coitus, the

non collection of the vaginal swab of the victim by the doctor will not

prove fatal to the case of the prosecution particularly in the background

that the testimony of the prosecutrix herself remains coherent,

spontaneous, cogent and clinching to inspire confidence of the court.

37. In Wahid Khan vs. State of M.P. reported in (2010) 2 SCC 9, the

Supreme Court reiterated the consistent view that even the slightest

penetration is sufficient to make out an offence of rape and depth of

penetration is immaterial. The Hon'ble Supreme Court made reference to

the opinion expressed by Dr. Modi in his Medical Jurisprudence and

Toxicology (22nd Edition) at page 495 as well as to Dr. Parikh's

Textbook of Medical Jurisprudence and Toxicology. Dr. Parikh defined

the term "sexual intercourse" as under :

"In law, this term is held to be mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains." For the aforesaid reason, we are not in agreement with the learned counsel for the defence that the testimony of the prosecutrix with the aid of the medical evidence, does not disclose an offence of rape. Even assuming that theory of use of condom is afterthought, absence of semen in the vaginal swab is not the evidence of absence of sexual intercourse. Absence of seminal stains on the clothes, vaginal swabs etc. merely indicates that there was no 37 apeal-485-06-i discharge nevertheless, it is not evidence of absence of rape. This is

what precisely Dr. Mody in his Medical Jurisprudence and Toxicology(22nd Edition) at page 495 clarified. "Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the Labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains."

38. It is a settled legal position that the medical evidence is also a

corroborative piece of evidence but where the medical evidence does not

support the otherwise clinching and trustworthy ocular evidence of any

material witness then, the testimony of such ocular evidence will prevail

on the medical opinion and not vice versa. In the case of Ranjit Hazarika

v. State of Assam, reported in (1998) 8 SCC 635, the opinion of the

doctor was that no rape appeared to have committed because of the

absence of rupture of hymen and injuries on the private part of the

prosecutrix, the Apex Court took a view that the medical opinion cannot

throw over board an otherwise cogent and trustworthy evidence of the

prosecutrix. Relevant paragraph of the said judgment is reproduced as

under:-

6. The evidence of the prosecutrix in this case inspires confidence. Nothing has been suggested by the defence as to why she should not be believed or why she would falsely implicate the appellant. We are unable to agree with the learned counsel for the appellant that in the absence of

corroboration of the statement of the prosecutrix by the medical opinion, the conviction of the appellant is bad. The prosecutrix of a sex offence is a victim of a crime and there is no requirement of law which requires that her testimony cannot be accepted unless corroborated. In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316 : (1996) 1 Scale 309] to which one of us (Anand, J.) was a party, while dealing with this aspect observed: (SCC pp. 395-96, para 8)

"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act 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. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self- inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."

We are in agreement with the aforesaid view.

39. The apex court in B.C. Deva v. State of Karnataka, reported at

(2007) 12 SCC 122, inspite of the fact that no injuries were found on the

person of the prosecutrix, yet finding her version to be reliable and

trustworthy, the Apex Court upheld the conviction of the accused. The

Court observed that :

"18. The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."

40. In the facts of the present case also, what we find is that the

appellant did not succeed to create any dent in the testimony of the

prosecutrix which remained cogent and trustworthy and therefore, the non

collection of vaginal swab by the doctor, AIIMS would have no effect to

disbelieve the otherwise inspiring evidence of the prosecution. The said

contention raised by learned counsel for the appellant thus lacks any

force. However, before parting with this contention, we would like to

express our angst that despite repetitive guidelines being laid in various

committee reports and various judgments of the Hon'ble Supreme

Court's, they are not being adhered to in its strict spirits. The guidelines

have been comprehensively drafted even by the department of Health

Research. These guidelines clearly lay the entire process that should be

followed while dealing with the victim of sexual assault starting from the

very instance of police investigating the crime, recording of the history of

crime by the doctor as its first prerequisite to how the doctors should

examine the victim. The guidelines very aptly deal with each and every

aspect of medical care to be given to such victims. The DHR has also

drafted a new manual to address the psycho-social impact of sexual

violence including counselling that the victims should receive to alleviate

her woes. The women being the most vulnerable in such a situation, a

doctor at this point in time can act as a huge support, as per the guidelines

doctors should record the history of alleged assault, examine the victim

physically and even treat and counsel the victim psychologically, but

90% of the practise is seen to be completely contrary, wherein the

doctors do their job for the heck of it, to finish it of with all the

recklessness and disinterest and the same is quite apparent by the way the

MLC's are prepared in almost every case of such nature. Therefore,

when such a casual and cavalier approach is adopted by the doctors or the

hospitals in treating the victims of alleged sexual assault, these doctors or

hospitals should be dealt with the heavy hand and should entail serious

consequences upon them, if they fail to follow the prescribed guidelines

in good faith. These guidelines or measures have not just exploded out of

the blue but have been brought forth over the years , after proper research

and study but they are being flouted and there is a serious gap between

their implementation and the force behind them. Medical evidence

especially in the cases of rape does play a very pivotal role. The survivors

of rape in India are humiliated and discriminated. They could not face it

in their own homes, police stations and then in the hospitals where they

undergo invasive medical tests that often end up doing little beyond

harming their case later in the legal process.

41. If the victim of rape is warily examined in terms of the guidelines

already laid down and reiterated time and again in various authorities by

the Hon'ble Supreme Court, by the division bench of this court in one

such case being, Virender V. State, Crl A 121 of 2008 and most recently

in the guidelines issued by the Union Health Ministry, quicker, easy and

justified resort to these cases could be attained. Due to these factors , the

MLC of the victim would resultantly be of major help and would hold an

unvaried importance to establish the case of the prosecution and would be

a strong corroborative piece of evidence to inculpate the accused of such

a horrendous crime. As seen in the facts of the present case, had the

doctor not ignored his duties and implemented the required measures

without any doubts or speculations, indeed would have added advantage

to the testimony of the prosecutrix. We should not forget that if a girl is

raped, a part of our society is let down, deprecated and insulted and it is

not always pre-planned , that who would be next, it can be anyone

amongst us who can at any point in time face such drastic and terrible

reality prevalent in our society. Therefore, we would again like to

emphasise that stern action be taken without any delay or if's and but's in

such cases, be it by the police or the doctors in various hospitals or at the

time of trial. Let the policies and the guidelines be implemented with

immediate effect to suffice the need of the hour and make our home, our

nation a better place.

42. Coming back to the case at hand, the next contention of learned

counsel for the appellant was that the prosecutrix was having an affair

with one Ramu which was objected to by the appellant and as a result the

prosecutrix alongwith her step mother hatched this conspiracy to falsely

implicate the appellant in a rape case. Learned counsel for the appellant

also argued that rupture of hymen of prosecutrix could be the result of

having relationship with said Ramu. Undoubtedly, in the statement

recorded under Section 313 of Cr. P.C., the accused had raised a defence

of the prosecutrix having relationship with Ramu and Rakesh and his

false implication because of such relationship being objected by him, his

relatives and neighbors. In the cross-examination of PW-1 also, the

suggestion was given by the defence to prosecutrix that Ramu used to

come to meet her and the accused used to object his coming and used to

beat her for this. Surprisingly, it is not known who this Ramu was and

who was the man with the name of Rakesh, nothing was proved on record

from the side of the defence. Even DW-1 and DW-2 also remained

evasive about such Ramu with whom the prosecutrix was alleged to have

illicit relationship. DW-1 who is the real brother of the accused, went to

the extent of calling the prosecutrix a girl of loose character. The learned

trial court has disbelieved the said defence raised by the accused and also

the testimonies of DW-1 and DW-2. We also cannot be oblivious of the

fact that the prosecutrix complained her sexual assault by the accused

when his first wife was alive which would mean - there was a gap of

about three years between the first sexual act and the last act of rape

committed by the father. The prosecutrix was below 12 years as on the

date of last incident and therefore, she must be of nine years of age when

she was sexually assaulted for the first time by her father. To say that she

was having some kind of illicit relationship with some person named

Ramu at the age of 9 years is totally unfathomable. Who this Ramu was

and where was he residing, how the prosecutrix or the family of the

accused knew him and how could have he accessed in the house of the

accused, nothing has been brought on record by the defence to believe the

alleged illicit relationship of the prosecutrix with some Ramu. Similarly,

introduction of some Rakesh also finds no legs in the entire defence

evidence.

43. The next contention raised by learned counsel for the appellant was

that the defence witness also carries equal value to that of the prosecution

but the learned trial judge has discarded the testimony of DW-1 and DW-

2 without giving any valid reasons. The argument raised by learned

counsel for the appellant is worth outright rejection although on legal

principle, there cannot be any dispute. DW-1 and DW-2 failed to

discredit or shatter the case of the prosecution. We also cannot loose sight

of the fact that DW-1 is real brother of the accused who is an interested

witness whose prime interest was to save his brother. He went to the

extent of demeaning his own niece by deposing her as a girl of loose

character without there being any evidence to substantiate the same. DW-

2 is the sister of the prosecutrix, who did not say much in her evidence

except denying her knowledge about the incident in question which had

taken place between her sister and her father. As already stated above,

there was a gap of three years between the DW-2 and the prosecutrix and

therefore the prosecutrix must not have shared the said treacherous acts of

her father with her sister.

44. The other argument raised by learned counsel for the appellant was

that the learned trial court had erred by ignoring the certain principles of

criminal jurisprudence that when there are two theories and one is in

favour of the accused and the other in favour of the prosecution, then the

benefit of doubt should be given to the accused especially in a case based

on circumstantial evidence. There cannot be any legal dispute with the

said proposition of law but the precise question would be whether the

defence succeeded in probabilising the other possible view in the present

case or not.

45. The Apex Court in Harijana Thirupala and Ors. Vs. Public

Prosecutor, High Court of A.P., Hyderabad reported in (2002) 6 SCC

470 held as follows :

11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the curt must be integrated not truncated or isolated. In other words, the impact of evidence in totality on the prosecution case or innocence of accused has to be kept in mind in coming the conclusion as to the guilt or otherwise of the

accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.

46. It needs no reiteration to say that in the present case the evidence of

the prosecutrix remained consistent, reliable and trustworthy and defence

did not succeed to create any doubt or suspicion on her testimony and in

fact, the accused has created the entire false story at the cost of further

attacking his daughter's chastity and honour by alleging her illicit

relationship with Ramu and Rakesh. Therefore, inasmuch as the finding

of the learned trial court is concerned, we find no infirmity in the

reasoning given by the learned trial court in holding the accused guilty of

offence of rape punishable under Section 376 IPC.

47. Now coming to the point of sentence, it is to be borne in mind

that sentencing for any offence has a social goal, it has to be imposed

regard being had to the nature of the offence and the manner in which

the offence has been committed. The purpose of punishment is to curb

the crime and protect the society from the upheaval and turmoil which

are consequence of such offences. The end goal of sentence is not only

deterrence but also correctional and reformative and the determination

and awarding of adequate sentence should always be commensurate

with the gravity of the offence.

48. The Penal Code also prescribes different punishments in cases of

rape as per act done in different situations and depending upon the

gravity of offence. Under Section 376 IPC, except in cases provided for

in sub-section (2), the punishment for the offence of rape is prescribed

as punishment for either description for a term which shall not be less

than seven years, but which may extend to imprisonment for life, or for

a term which may extend to ten years and shall also be liable for fine

and for the offences which fall under sub-section 2, the minimum

punishment prescribed is rigorous imprisonment not less than 10 years

which may extend to imprisonment for life, and shall also be liable for

fine. For better appreciation, section 376 IPC (pre-amended), is

reproduced as under:-

Whoever, except in the cases provided for by subsection (1), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

1.Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years"

(2) Whoever,--

(a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or takes advantage of his official position and commits rape or

(b) being a public servant, to a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be

less than ten years but which may be for life and shall also be liable to fine:

1. Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years,

Explanation I.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children.

Explanation 3.--"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

49. It would thus be seen that the offence of ' rape ' if falls under any

of the clauses of sub-section 2 of Section 376of IPC, it becomes more

stringent as instead of seven years, the minimum prescribed sentence is

rigorous imprisonment not less than ten years. There is thus a clear

demarcation of the category of cases which fall under sub-section 2 of

Section 376 of IPC and those cases, which fall in the remainder. Under

the unamended provision the although minimum sentence of

imprisonment that can be awarded is 7 years under section 376(1) and

10 years, under Section 376(2) IPC, however even a lesser sentence

can be passed, subject, to the condition that the Court has to record

adequate and special reasons in the judgment. This proviso of Section

376 (1) & (2) of IPC as the same existed earlier stands repealed after

Criminal Law Amendment, Act of 2013. Although the rape of a victim

in any form or in any manner deserves condemnation in strongest terms

and deserves award of severe punishment, especially looking into the

phenomenal increase in rape cases in the recent past, but so far as the

awarding of sentence is concerned, the Statute itself has made a

distinction.

50. Thus, even the legislative intent is also that only in the extreme

cases of rape sentence to be imposed should be of imprisonment for life

and consequently, in cases of less severity, the sentence has to be less

severe. To choose whether the sentence shall be imprisonment for life

or otherwise, is left on the judicial prudence of the judge. The Hon'ble

Apex Court in plethora of judgments has enunciated principles which

the Court shall consider while assessing as to what could be an

appropriate sentence especially in cases where rape is committed upon

a minor child. In State of Rajasthan v. Vinod Kumar AIR 2012 SC

2301, the Hon'ble Apex Court while dealing with the issue held:

"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence."

51. In the matter of Khem Chand vs. State of Delhi, ILR (2008)

Supp. (5) Delhi 92, the Hon'ble Division bench of this court laid down

the following parameters for assessing the quantum of punishment in

cases of rape upon a child:

"• Criminal and the crime are both important for the purposes of sentence.

• Manner of commission of the crime being with meticulous planning or one on the spur of the moment;

• Violence, If any, accompanying the crime whether injuries suffered were serious and required extensive treatment or have caused any permanent damage to the child bearing capacity or otherwise;

• Whether the offender or accused was in a position of fiduciary trust or exploited a social or family relationship;

• State of the victim, impact of the crime on the victim,

• The antecedents of the accused, his age, whether a first time offender or repeat offender, possibility of recidivism.

• Social backwardness or offender being a poor, illiterate labourer not found to be adequate reason by Courts.

• Passage of time since offence committed by itself considered inadequate reasons for reprieve.

• rape victim's marriage or rehabilitation may be considered as a mitigating factor."

52. In yet another matter of State of Himachal Pradesh vs. Gian

Chand reported in AIR 2001 SC 2075, the Hon'ble Apex Court while

dealing with a case involving a rape committed by a close relative on a

minor, awarded the sentence of rigorous imprisonment for a period of

ten years along with fine.

53. Further in the matter of Dildar Singh Vs. State AIR 2006 SC

3084, wherein a girl below sixteen years was raped by her teacher, the

Hon'ble Supreme Court upheld the decision of High Court and awarded

the sentence of seven years rigorous imprisonment.

54. In the light of the aforesaid legal position and also considering

that in the case at hand the accused is a father to three daughters and

one son, we are of the view that his sentence can be altered. These

unfortunate daughters were already deprived of their mother late Mrs.

Poonam at the time when they required her the most for their proper

and healthy growth but the destiny gave another blow to these children

when their own father did not spare his elder daughter and ravished her

body and soul to satisfy his lust for sex. If we look at the heinous,

barbaric and sinful crime which the appellant had committed with his

own daughter, undoubtedly, he deserves severest of punishment but the

court has to examine the facts of the case in all equanimity, it cannot be

confuted that the imposition of punishment would be decided on the

basis of entire factual matrix, the court has to draw a line to segregate

the severity of the offence, the law demarcates in the punishment clause

beginning from 7 years of punishment at the least to life imprisonment

at the most and the same has to be adopted in the light of facts of an

individual case.

55. Accordingly, while upholding the judgment on conviction, the

order of the learned trial court on sentence is modified to the extent of

reducing the sentence imposed upon the appellant from imprisonment

for life to imprisonment for a period of 10 years together with fine as

imposed upon the appellant. In addition, this Court directs that the State

shall pay to the victim a sum of Rs. 3,00,000/- as victim compensation

in terms of Rule 3 & 5 read with Entry 2 to the Schedule to the Delhi

Victims Compensation Scheme, 2011 (notified on 2-2-2012) read with

Section 357A of the Criminal Procedure Code. The terms of the scheme

entitle every rape victim to minimum compensation of Rs. 2,00,000/-

and a maximum compensation of Rs. 3,00,000/-. Having regard to the

facts of the case and the tender age of the victim, the Government of

NCT is directed to pay the said maximum amount of Rs. 3,00,000/- to

the victim. 75% of the amount shall be deposited in a fixed deposit, for

a period of three years in terms of Rule 7 of the Scheme, in a

nationalized bank. Interest accruing on the said deposit shall be

deposited in a separate account to be opened for the benefit of the

minor victim for this purpose. The balance 25% shall be deposited

directly in the said account. These directions shall be complied within

six weeks. The Delhi Legal Services Authority, which is the designated

body under the said Scheme, shall oversee the implementation of these

directions. The State shall ensure that the victim is duly informed

through her mother/parents, within three weeks. The victim's parents or

guardians and the concerned authority or official of the Govt. of NCT

shall appear before the Delhi State Legal Services Authority, for this

purpose, on 30.04.2014 for compliance.

56. Before we part with this judgment, we would like to know

whether the suggestions given by this court while disposing of criminal

appeal no.846/ 2010 and Criminal appeal no.1079/ 2010, have been

considered which in our view were made to take a step forward and

sensitize people and create awareness amongst them about the latest

amendments and other laws dealing with the various sexual offences

and the punishments provided for such offences. Let notice be issued to

the Lt. Governor (Govt. of NCT of Delhi) through Standing Counsel

(Crl.), Govt. of NCT of Delhi, to Ministry of Women & Child

Development, Ministry of Home Affairs, and to the Ministry of

Information and Broad Casting, through Mr. Rajeeve Mehra,

Additional Solicitor General, to apprise this court regarding the steps

taken by them in this regard, returnable on 30th April 2014.

57. A copy of this order be also sent to the Secretary, Delhi Legal

Services Authority, which is the designated body under the Delhi

Victims Compensation Scheme, 2011 (notified on 2.2.2012) to oversee

the implementation of directions issued under the said scheme and file

compliance report in the present case within two weeks from the date of

this order.

58. Registry is directed to supply/send copy of this order to the

parties as well as to the Ministry of Home Affairs and Law

Departments and the Commissioner of Police, Government of NCT of

Delhi and to comply with the directions in terms of paragraph 53 of the

above judgment.

59. The appeal filed by the appellant is partly allowed to the extent

indicated above. A copy of this order be sent to the Jail Superintendent

for compliance and the appellant be informed accordingly.

KAILASH GAMBHIR, J.

SUNITA GUPTA, J.

MARCH 12, 2014 rkr/pkb