Runche Damai Alias Bhim Bahadur vs State
2015 Latest Caselaw 1506 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of Decision: 23rd February, 2015

                               +CRL.A. 881/2012
        RUNCHE DAMAI alias BHIM BAHADUR             ..... Appellant
                    Through: Mr.Vivek Sood with Mr.Rakesh
                                Sharma, Mr.Prem Prakash and
                                Mr.S.Kukreja, Advs.

                            versus

        STATE                                              ..... Respondent
                            Through:      Mr.O.P.Saxena, APP for the State.

        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA

                                     JUDGMENT

: SUNITA GUPTA, J.

1. Who is a father? A father is an essential component of the

family, which, in turn, has been acknowledged as one of the most

important units of society, in relation to the wellbeing and especially

the nurturing and protection of children. We should never lose sight of

the fact that a father derives his position and power from cultural

prescriptions of manhood. Being a man and a father meant being able

to exercise self-restraint. This entailed, among other things, not

resorting to violence especially against women. Abusing women is

regarded as a cowardly act and men who engaged in such practices

should be excluded socially.

In the words of Sigmund Freud, "I cannot think of any need in

childhood as strong as the need for a father's protection. These

words of Sigmund Freud clearly show that fatherhood is a socio moral

process. It is intertwined with position and role of a father in society.

But in the instant case all these parameters of a fatherhood have been

violated by a father when he committed abominable act of rape upon

his own daughter and defiled her body for a small fling of lust.

2. 'X' was residing along with her parents, brothers and sisters at

A-2/57 Dharampura Extension, Nazafgarh, New Delhi. Her mother

PW5-Maya Devi was working as a house maid while her father, i.e.,

the accused used to work at some meat shop. On 5 th October, 2010,

'X' was alone at home with her father when he committed the

appalling act of rape upon his own daughter. When Maya returned

home, she found 'X' sweating and crying. She was informed by 'X'

about the commission of rape upon her. Accused was not at home at

that time, as such, Maya informed wife of the landlord. On 7 th

October, 2010, when the accused returned home, PW4-Smt. Anuradha

Sharma, President of Residents Welfare Association was called and

informed about the heinous act committed by the accused.

Accordingly, she informed the police at 100 number on which police

machinery swung into action. PW8-Constable Kuldeep along with SI

Surender Huda went to House No.57, A2 block, Dharampura Extn.

where statement of Maya Ex.PW5/A was recorded on the basis of

which FIR Ex.PW7/A u/s 376 IPC was registered. 'X' was taken to

DDU Hospital along with her mother by PW2-WCT Rajbala for her

medical examination. MLC of 'X', Ex.PW1/A was prepared by

PW1-Dr. Dipali and she referred the patient to the department of

Gynae for further examination. Further medical examination of 'X'

was conducted by PW15-Dr.Varuni who gave her report Ex.PW15/A.

Accused was arrested. He was also taken for his medical examination

and was examined by PW3-Dr. Alok Kumar. He prepared his MLC

Ex.PW3/A and opined that there was nothing to suggest that accused

cannot perform sexual act. During the course of investigation, the

exhibits were sent to FSL.

3. After completing investigation, charge sheet was submitted

against the accused. On charge u/s 376 IPC being framed against the

accused he abjured his guilt and claimed trial.

4. In order to substantiate its case, prosecution examined 13

witnesses. All the incriminating evidence was put to the accused

while recording his statement u/s 313 Cr.P.C. wherein he denied the

case of prosecution. According to him, he was falsely implicated in

this case at the instance of his wife with whom he was not having

cordial relations as she was having illicit relations with someone at

her work place. She had threatened to kill him and to get him falsely

implicated in some heinous case. He examined DW1-Sunil, his son in

support of his defence.

5. After evaluating the evidence adduced by the prosecution and

hearing learned counsel for the parties, vide impugned judgment dated

20th January, 2012, the accused was held guilty and convicted for

offence u/s 376 IPC and vide order dated 24th January, 2012 he was

sentenced to undergo rigorous imprisonment for 10 years and to pay a

fine of Rs.10,000/- in default of payment of fine, to undergo simple

imprisonment for six months. The fine, if realized, was to be released

to the victim as compensation.

6. Feeling aggrieved, present appeal has been preferred by the

accused.

7. Assailing the findings of learned Trial Court, it was submitted

by Sh. Vivek Sood, Advocate for the appellant that the prosecution

case hinges on the testimony of prosecutrix who was only 5 years old

at the time of alleged incident. Possibility of tutoring the prosecutrix

cannot be ruled out, inasmuch as, she was produced before Sh. Sumit

Das, learned Metropolitan Magistrate for recording her statement u/s

164 Cr.P.C. However, as per his testimony and the proceedings

Ex.PW10/B despite repeated questioning, the prosecutrix did not

respond to the questions and kept mum. As such, the proceedings

were sent to the Additional Chief Metropolitan Magistrate for getting

the statement of prosecutrix recorded by a lady judicial officer so that

prosecutrix may be at more ease and can interact with her. However,

things did not improve and she was produced before Ms. Meenu

Kaushik, Metropolitan Magistrate and despite her efforts, the child

did not respond and, therefore, her statement could not be recorded.

Learned counsel further urged that even when the prosecutrix was

called in the witness box to record her statement on 28 th February,

2011, she remained silent and, as such, the matter was adjourned. It

was only thereafter that on 16th May, 2011, her statement was

recorded and she admitted that her mother had told her about the

statement, as such, possibility of tutoring cannot be ruled out. It was

further submitted that as per the MLC, the patient was conscious and

oriented and, therefore, why did the prosecutrix not narrate the

incident to the Metropolitan Magistrate. Furthermore, although as per

the version of her mother, she was informed about the incident by the

child on the same day but neither she reported the matter to the police

nor took the prosecutrix to hospital for examination. No scientific

evidence has come as the clothes were handed over to the police by

the mother of the prosecutrix, as per her version, after two months of

the incident when the same were duly washed. Moreover, the accused

was not absconding, inasmuch as, it has come on record that accused

used to return home after a gap of 7-10 days. DW1-Sunil has also

deposed that there used to be quarrels between the accused and his

wife. Under the circumstances, it was submitted that the prosecution

has failed to bring home the guilt of the accused beyond reasonable

doubt and, as such, the accused is entitled to be acquitted.

8. Wife of the accused was present in the Court during the hearing

of arguments and it was submitted by the counsel for the accused that

she admits that she got the accused falsely implicated in this case due

to frequent quarrels between the two. It was further submitted that she

will file her affidavit in this regard.

9. Per contra, it was submitted by the learned Additional Public

Prosecutor for the State that entire evidence was duly scrutinized by

the learned Trial Court in right perspective. Testimony of the

prosecutrix finds corroboration not only from her own mother to

whom she had narrated the incident immediately after the occurrence

but their ocular version find corroboration from the son of the

landlady as well as the president of the residents welfare association.

Furthermore, the medical evidence completely supports the testimony

of the prosecutrix. Moreover, even if there was some quarrel between

the husband and wife, the wife would not put the honour of her own

daughter at stake for that petty reason in order to falsely implicate her

husband. As such, it was submitted that the impugned order does not

suffer from any infirmity which calls for interference. As such, the

appeal is liable to be dismissed.

10. Testimonial potency of version of a victim of rape cannot be

put on par with an accomplice. She is in fact a victim of the crime.

The Evidence Act nowhere says that her evidence cannot be accepted

unless it is corroborated in material particulars. She is undoubtedly a

competent witness under section 118 of the Evidence Act and her

evidence must receive the same weight as is attached to an injured in

cases of physical violence. The same degree of care and caution must

be attached in evaluation of her evidence as in the case of an injured

complainant or a witness. What is necessary is that the Court must be

alive to and conscious of the fact that it is dealing with the evidence of

a person who is interested in the outcome of the charge levelled by

her. If the Court keeps this in mind and feels satisfied that it can act

on the evidence of the prosecutrix, there is no rule of law or practice

incorporated in the Evidence Act, which requires it to look for

corroboration. If for some reason the Court is hesitant to place

implicit reliance on the testimony of the prosecutrix it may look for

corroboration required in the case of an accomplice. The nature of

evidence required in to lend assurance to the testimony of the

prosecutrix must necessarily depend on the facts and circumstances of

each case. If the totality of the circumstances appearing on record of

the case discloses that the prosecutrix does not have a strong motive

to falsely involve the person charged, the Court should ordinarily

have no hesitation in accepting her evidence. Law to this effect was

laid by the Apex Court in State of Maharashtra vs. Chandraprakash

Kewal Chand Jain, 1990 (1) SCC 550; State of Punjab vs. Gurmeet

Singh, 1996 (2) SCC 384; Rajoo and Ors. vs. State of M.P., 2009 I

AD (S.C.); S. Ramakrishna vs. The State, 2008 (11) JT 635; Om

Prakash vs. State of U.P., AIR 2006 SC 2214.

11. The victim in the instant case is a child aged about 5 years and

the question for consideration, therefore, is whether a conviction can

be recorded on the testimony of a child witness or not. This question

arose before this Court in Crl. Appeal No. 244/2011, Mithu Rai vs.

State and it was observed as under:-

12. The conviction on the sole evidence of a child witness is permissible if such witness is found competent to testify and the court after careful scrutiny of evidence is convinced about the quality and reliability of the same. It should be accepted albeit with circumspection.

13. A common sense approach was advocated by the Court in the early case of Mohamed Sugal Esa v. The King, AIR (33) 1946 PC3, where it was observed:

"Once there is admissible evidence a court can act upon it; corroboration, unless required by a statute, goes only to the weight and value of the evidence. It is a sound rule not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."

14. Later in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54, the Court held:

"The rule, which according to cases has hardened into one of law, is not that corroboration is essential before there can be a conviction, but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be

understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand."

15. This issue was also dealt by the Apex Court in [email protected] Buddhu & Anr v. State of UP, (2008) 16 SCC 582. Relevant paras are 18 to 21 and the same are reproduced as under:-

"18. The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that

"118. Who may testify- All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease, whether of mind, or any other cause of the same kind".

19. A child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon.

20. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 it was held as follows: (SCC p. 343, para 5)

"5. ...A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."

21. Subsequently, in the case of Ratansinh Dalsukhbhai Nayak v.State of Gujarat, 2004 Cri LJ 19 wherein one of us (Dr. Arijit Pasayat) was a member the bench held that:

"the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath."

12. The legal position which can be culled out from the aforesaid

decisions is that before recording conviction on the solitary testimony

of a child witness, i.e., prosecutrix herein, the Court has to ensure that

she is a reliable witness. If her testimony is found to be trustworthy

and reliable then conviction can be recorded on her sole testimony.

13. Reverting to the case in hand, since the prosecutrix was only

aged about 5 years, as such, learned Additional Sessions Judge put

various questions to her in order to ascertain her capacity to

understand the questions and to give coherent answers. After

satisfying herself, her statement was recorded without oath. She stated

before the Court that one day when her mother had gone for work and

her brother Govind had also gone to school, she and her father were at

home. Her father removed her panty and committed rape on her. She

felt pain and cried.

14. Submission of learned counsel for the appellant that the

possibility of tutoring the witness cannot be ruled out in view of her

previous conduct when despite the fact that she was produced before

two Metropolitan Magistrates for recording her statement u/s 164

Cr.P.C. she did not respond to the questions and even when she was

brought before the court for recording her statement on the first date,

she did not answer the question and it was only on the subsequent

date that she deposed before the court, has no substance. Rather it

reflects that prosecutrix was traumatized to the extent that she was

unable to record her statement u/s 164 Cr.P.C. as deposed by the

learned Metropolitan Magistrate and even she could not depose on the

first date. In that scenario if she did not give the statement before the

learned Metropolitan Magistrate or in the first instance before the

Court, it cannot be presumed that her deposition in the Court on the

second day was a result of tutoring. Moreover, in pursuance to the

Court question as to whether her mother told her to give this statement

or her father actually did the act, the witness replied that "papa did

it". Despite cross-examination, nothing material could be elicited to

discredit her statement.

15. In Radhu vs. State of Madhya Pradesh, (2007) 12 SCC 57,

Hon'ble Apex Court observed that it is unlikely that child of eight or

nine years of age can even be tutored to make allegations of rape by a

person otherwise well known to her and then repeat those allegations

before police, magistrate, doctor and then during trial.

16. Moreover, it has come in the statement of PW5-Smt. Maya

Devi, mother of prosecutrix that on the fateful day when she returned

home at about 6:00-7:00 pm from her work, she found her daughter

crying out of pain and, on inquiry, she was informed by the

prosecutrix that accused committed rape upon her, and when the

daughter of tenant came, accused fled away. The factum of making

the complaint and the terms thereof becomes relevant as subsequent

conduct u/s 157 r/w Section 8 of the Indian Evidence Act.

17. In Emperor vs. Phagunia Bhuran, AIR 1926 Pat. 58, it was

observed as under:-

"If the girl went to her relatives straight after the occurrence and complained on her own initiative, there is no doubt that her conduct would have a direct bearing upon and connection with the occurrence itself".

18. In Rameshwar Kalyan Singh (supra) also, it was observed that

where the raped girl instinctively ran home to her mother, but not

finding her there, she went to sleep and when the mother returned four

hours later, the girl told her what had happened, the statement made to

the mother fell within the ambit of Section 157 read with Section 8

illustration (J) of the Evidence Act.

19. Nagam Gangadhar vs. State, 1998 Crl. L.J. 2220 considered

the similar situation, where a child of four years was raped. Hon'ble

Apex Court observed as under:-

"It is then contented that PW3 is a child witness and no importance can be attached to that evidence. It is true that the evidence of PW3 cannot be given the same weight as a grown up victim in a case of rape, the reason being that she is aged four years at the time of occurrence. However, she appears to have communicated to her parents that the revision petitioner has committed an act due to which she was getting pain in her private part. PW-1 as well as PW-2 have sworn to the fact that PW-3 disclosed the said act, even if the testimony of PW-3 is to be ignored, the circumstances set out supra are, in view of Hon'ble Apex Court, sufficient to bring home the guilt of the revision-petitioner."

20. In Syed Pasha vs. State of Karnataka, 2004 Cr. L.J. 4123 also

the child informed her mother about the incident and the person, who

had committed rape upon her. It was held this information was

admissible in evidence and it points out to the guilt of the accused.

21. Similar view was taken by this Court in, Nannu Gupta @

Bablu v. State, 2010 II AD (Delhi) 117 and in Hari Om v. State 2010

Cr.L.J.1281, where it was held that previous statement of prosecutrix

are admissible in evidence under Section 157 of the Evidence Act and

this proposition of law was recognized by Hon'ble Apex Court in

Madan Lal vs. State of J&K, AIR 1998 SC 386, where statement

made by the prosecutrix to her mother soon after the incident was

accepted to be corroborative piece of evidence.

22. Applying the ratio of the aforesaid cases to the evidence of

PW5-Smt. Maya Devi, there is no hesitation to arrive at the

conclusion that her statement indicating that the prosecutrix told her

immediately after the incident that she was subjected to rape by

accused is admissible under Section 8 of the Evidence Act.

23. As per the version of Smt. Maya Devi, she informed about the

commission of rape by the accused to the wife of her landlord. On 7 th

October, 2010, when the accused returned back to the house, she

called wife of the landlord who caught hold of the accused and

informed the police. Police came and the accused was handed over to

the police. Her testimony in this regard finds corroboration from

PW9-Jitender who is the son of the landlady in whose house the

accused along with his family was residing. This witness has also

deposed that on 5th October, 2010, when he returned from his office,

mother of the prosecutrix was talking to his mother and was weeping

at that time. She had told his mother that her husband i.e. accused had

committed rape upon her daughter X. She had further told that

accused had run away from the room after the incident. On 7th

October, 2010 when he returned from his office in the evening, he

was informed by the wife of the accused that accused had returned

home and had been handed over to the police. Police was called by

PW4-Mrs. Anuradha Sharma, President of the Residents Welfare

Association. She has corroborated their version by deposing that on

7th October, 2010 at about 8:30 pm, she was called at the house of

Smt. Maya Devi and was informed by her that her husband raped her

five years old daughter. She talked to the prosecutrix and she also

confirmed this fact. She checked her private part which seems to be

having a cut and some bleeding. She immediately informed the police

at 100 number. Both PWs Jitender and Anuradha Sharma are

independent witnesses and have no axe to grind to falsely implicate

the accused in such a heinous crime.

24. Further the ocular testimony of these witnesses find

corroboration from the medical evidence which reflect that the victim

was taken to DDU Hospital where after preparing her MLC

Ex.PW1/A by Dr. Dipali she was referred to the Department of Gynae

for further examination. PW15-Dr. Varuni, OBS and Gynae

Department, DDU Hospital, Delhi examined the patient who was

brought to the hospital for medical examination with "alleged history

of sexual assault by the father". On examination, she found her

hymen to be torn and patient was advised admission for examination

under anaesthesia. On examination under anaesthesia, vault found

healthy, first degree perineal tear present, no other active laceration or

bleeding was seen. Superficial erythema on labia majora was present.

Perineal tear was repaired with chromic catgut no.1. In cross-

examination, she further deposed that on the basis of examination, she

can say that the patient was sexually assaulted recently, i.e., upto 48

hours before the examination. The incident had taken place on 5th

October, 2010 and Gynae examination was done on 8th October, 2010.

Under the circumstances, the factum of hymen being torn, presence of

first degree perineal tear which had to be repaired coupled with the

observation of the doctor that the patient was sexually assaulted

recently is further strong corroborative piece of evidence to the ocular

testimony of the prosecution witnesses.

25. Although the scientific evidence did not yield any fruitful result

but that is precisely for the reason that the prosecutrix was medically

examined after three days of the incident and her clothes were

washed. Therefore, there was no possibility of detection of any

semen or blood but that at best is only a corroborative piece of

evidence and does not cast any dent on the prosecution version.

26. Coming to the plea of the accused that he was falsely

implicated in this case at the instance of his wife with whom he was

having strained relations as she was having illicit relations with some

person at her workplace, the same does not inspire confidence as

PW5-Maya Devi has categorically denied the suggestion that she was

having illicit relation with anybody. Moreover, DW1-Sunil was

examined by the accused to prove that relation between the accused

and his wife were not very cordial. However, even this witness does

not improve the case of accused, inasmuch as, he has merely deposed

that there used to be some dispute between his father and mother for

the last 2-3 years. However, in cross-examination, he admitted that

no report was lodged anywhere regarding disputes between his

parents. He used to come to know about the quarrel and the 'cause of

quarrel'. He admitted that there used to be only minor disputes

between his parents once or twice in 4-6 months and no physical force

was ever used by either side. These minor disputes that too once or

twice in 4-6 months are natural wear and tear in anybody's married

life. Moreover, although according to this witness he used to come to

know about the cause of quarrel also but he does not say that the

cause of quarrel was regarding his mother having illicit relation with

someone else. Rather he admitted that his mother wanted to live with

his father and never wanted to send him out of the house.

Furthermore, from the testimony of this witness, presence of the

accused at his house on the relevant day also stands proved as he

deposed that on the date of incident, he was at home up till 4:00 pm

and thereafter he had gone to watch Commonwealth Games. He

specifically deposed that his father, i.e., the accused was at home

when he left for Commonwealth Games. When he returned at about

10:00 pm, his father was not at home and he returned after 2-3 days.

Under the circumstances, firstly it is not proved that the mother of the

prosecutrix was having illicit relation with some other person even

otherwise it has no bearing on the present case. Moreover, on petty

quarrels, it is unlikely that the mother would level such false

allegations against her own husband by putting the honour of her own

daughter at stake.

27. The delay in reporting the matter to the police may be due to

the fact that the prosecutrix and her mother belonged to lower strata of

society as it has come on record that she was working as a maid

servant. However, she had informed about the incident to the land

lady. Moreover, after the incident, the accused had left the house and

returned only on 7th October, 2010. Immediately thereafter she

informed the landlady and the President of the Welfare Association

who then informed the police and then the police machinery was set

in motion. Moreover, Hon'ble Supreme Court in Bharwada

Bhoqinbhai Hirjibhai vs. State of Gujrat, 1983 (2) Recent Criminal

Report 192, had noticed peculiar conditions and circumstances in

which a girl or woman, who happens to be victim of rape, in Indian

conditions would find herself and so will be reluctant to disclose such

incident to anyone and it is observed as under :

"Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or woman in India make false allegations of sexual assault... 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 nonpermissible 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 upon 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 invariably result in mental torture suffering to herself. (7) The fear of being taunted by others will

always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame and 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 fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross examination by counsel for the culprit, and the risk of being disbelieved, act as deterrent".

28. In this regard observations made by Hon'ble High Court in

Hari Om (supra) may be reproduced with advantage:-

"Prosecutrix being a young girl aged about 7 years at the time of incident, it is not likely that her parents would have implicated the accused in a false case of rape of their daughter, conscious as they would be that reporting of such a matter to police, particularly, when parents of prosecutrix as well as the accused were living in the jhuggies situated in the same locality, was bound to expose their daughter to scrutiny and questions not only by the police and the Court, but also by their neighbour and relatives. They could not have been ignorant of the fact that they may even have difficulty in finding a suitable match for their daughter once it is known that she has been subjected to rape in her childhood. Therefore, if they, despite realising these consequences do report the matter to police, it would be only if what they were reporting was absolutely true and correct. In fact, some of the parents even refrain from reporting such incident lest their child not face embarrassment on account of incident becoming public and her marriage being jeopardised on account of prospective in laws becoming aware of the incident, at the time of her marriage. The parents of prosecutrix knew that if they report the matter to the police, they will have to take their child first to police station, then to the hospital and ultimately in the Court, and the child will be made to repeat the worst incident of her life at every place at considerable discomfort and embarrassment to her. Therefore, unless the incident of this nature actually happened with their child, no parents would take such step".

29. In view of these authoritative pronouncements, coupled with

the fact that accused is none else but the real father of prosecutrix,

there is absolutely no reason for her to falsely implicate him in such a

serious and heinous case.

30. The submission of learned counsel for the appellant during the

course of argument that the mother of the prosecutix has levelled false

allegations against her husband and she was ready to file an affidavit

to this effect, although, no such affidavit has been filed even

otherwise, it is a matter of record that Smt. Maya has seven children.

The accused is now lodged in jail to serve the sentence awarded to

him and his wife may be finding it difficult to maintain such a large

family out of her meagre income and that may have prompted her to

come to the Court to say that her husband was innocent so that he may

be set free. Had there been any iota of truth in this submission,

nothing prevented her to bring this fact to the notice of the Court right

from 2011 when the trial was going on. It is only after the conviction

of the accused and when this appeal was being heard that such a

submission was made during the course of arguments, which to my

mind has no ring of truth.

31. That being so, the impugned judgment convicting the appellant

u/s 376 IPC does not suffer from any infirmity which calls for

interference.

32. Even as regards quantum of sentence, there is no warrant for

interference as an act of rape is a gruesome and abhorring act. But

when this act is committed by a father upon his own daughter, then it

leaves a permanent scar on the personality of the child, inhibiting

growth and development. It instils the feeling of fear, insecurity and a

brooding sense of shame and guilt for no fault of the victim. The

gruesome act committed by the convict has not only defiled the body

of the prosecutrix but also put an indelible mark on her person which

shall haunt throughout her life that she is a victim of rape committed

upon her person by her own father, as such the convict does not

deserve any leniency in punishment. Moreover Hon'ble Supreme

Court in Madan Gopal Kakkad vs. Naval Dubey & Anr.,(1992) 3

SCC 204 pointed out with deep concern that though all sexual assaults

on female children are not reported and do not come to light yet there

is an alarming and shocking increase of sexual offences committed on

children. This is due to the reasons that children are ignorant of the

act of rape and are not able to offer resistance and become easy prey

for lusty brutes who display the unscrupulous, deceitful and insidious

art of luring female children and young girls. Therefore, such

offenders who are menace to the civilized society should be

mercilessly and inexorably punished in the severest terms.

33. The learned Additional Sessions Judge has awarded the

sentence of 10 years which is the minimum sentence prescribed u/s

376 2 (f), as such, there was no discretion vested in the Court to

impose a lesser sentence which the facts and circumstances of the case

even otherwise did not warrant.

34. Under the circumstances, the appeal being bereft of merit, is

dismissed. Trial Court record along with copy of the judgment be sent

back.

Accused/appellant be informed through Superintendent Jail.

( SUNITA GUPTA) JUDGE February 23, 2015 rs