Telangana High Court
Gurnule Namdev, vs The State Of Andhra Pradesh, on 30 August, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL APPEAL No.225 OF 2013
JUDGMENT:
This criminal appeal is preferred by the appellant-accused aggrieved by the judgment dated 06.03.2013 passed in S.C. No.414 of 2011 by the Assistant Sessions Judge, Asifabad, convicting the appellant for the offences under Sections 366A and 376 of Indian Penal Code, 1860 (for short, 'the IPC') and sentencing him to rigorous imprisonment for 10 years and also fine of Rs.1,000/-, and in default, to suffer simple imprisonment for a period of 3 years for the offence under Section 366 (A) IPC; and to rigorous imprisonment for a period of 10 years and fine of Rs.1,000/- and in default, to suffer simple imprisonment for a period of 3 years for the offence under Section 376 IPC, which were directed to run concurrently.
2. The case of the prosecution in brief was that on 04.03.2011 at 7.30 PM, the victim girl, aged about 13 years, came to P.S. Kerameri and lodged a written complaint stating that the accused, aged 26 years, who belonged to the same village i.e. Neemguda, used to follow her for the past 3 to 4 months stating that he would marry her and if she would not oblige him, he Dr.GRR,J ::2:: Crl.A. No.225 of 2013 would forcibly take her away and marry her. On 20.02.2011 at 6.00 PM, when she went to the outskirts of the village for attending nature call, the accused followed her, caught hold her hand and forcibly took her away to the cotton field at the outskirts of the village, shut her mouth with hands and threatened her with dire consequences and forcibly committed rape on her during the entire night and on the next day morning took her to Kerameri to the house of his maternal uncle from Surdapur. On knowing about her whereabouts, her parents came there and brought her to the house. When the complainant and her parents tried to report the matter to the police, the village elders stated that they would do justice to her by conducting the panchayat. They conducted panchayat, but as no justice was done to her, the victim lodged the report with delay. 2.1 Basing on the said report, the Sub-Inspector of Police, Kerameri registered a case in Crime No.12 of 2011 for the offences under Sections 366 (A) and 376 IPC, issued FIR and recorded the statements of the victim and her father. Further investigation was conducted by the Circle Inspector of Police, Asifabad. He visited Neemguda village, recorded the statement of the mother of the victim, visited the scene of offence and found it to be cotton field of one Abdul Razaq, secured the presence of mediators and Dr.GRR,J ::3:: Crl.A. No.225 of 2013 noted the details in crime detail form and drafted the rough sketch of the scene of offence. He visited Kerameri and recorded the statement of the grand-mother of the accused and also the village elders. He referred the victim girl to Government Hospital, Asifabad for examination and report and also sent her to Kakatiya Medical College, Warangal for her age determination. He apprehended the accused on 11.03.2011, brought him to the police station, effected his arrest and sent him for potency test. He forwarded the vaginal swabs, pubic hair, nails collected from the victim by the doctor and also the semen collected from the accused to the Forensic Laboratory. He also got recorded the statement of the victim by the Magistrate under Section 164 Cr.P.C. and after completing the investigation, filed charge sheet against the accused under Section 366 (A) and 376 IPC. The Inspector also stated that as per his investigation, the accused was a married man, having a female child.
3. The case was taken cognizance by the Judicial Magistrate of First Class, Asifabad, numbered it as PRC No.44 of 2011 and committed to the Sessions Court. The case was made over to the Assistant Sessions Judge, who framed charges against the accused under Section 366A and 376 IPC and conducted trial.
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4. The prosecution got examined PWs.1 to 14 and got marked Exs.P1 to P.14 on their behalf. No defence witness was examined. A contradiction in the 161 Cr.P.C. statement of PW.1 was marked as Ex.D.1 on behalf of accused.
5. On considering the oral and documentary evidence on record, the Assistant Sessions Judge, found the accused guilty for the offences under Sections 366(A) and 376 IPC and convicted and sentenced him as above.
6. Aggrieved by the said conviction and sentence, the accused preferred this appeal contending that the evidence of PWs.1 and 2 was highly interested, but the trial Court failed to notice the same. There was a delay of 14 days in lodging the report and no valid explanation was given by the prosecution for the said delay. PW.1 was a consenting party. She never made any attempt to complain to anybody till she was taken away by her father. The learned Judge erred in thinking that PW.1 was a minor under the age of 18 years at the time of incident. As per Ex.P.12, age certificate issued by PW.12, third molar was found. PW.1 had 28 permanent teeth which would be formed only when the girl was 18 years and above. The trial Court failed to notice that there would be a margin of two years in determining the age of the victim as given by the doctor. The evidence of Dr.GRR,J ::5:: Crl.A. No.225 of 2013 PW.10 would falsify the evidence of PW.1. No semen or spermatozoa were detected on the material objects collected from the victim. The learned Judge failed to notice the admissions made by PW.1 in her cross examination and prayed to allow the appeal.
7. Heard Sri C. Sharan Reddy, learned counsel for the appellant and the learned Public Prosecutor.
8. The learned counsel for the appellant submitted that the offence under Section 366 (A) IPC was not attracted to the facts of the case. As per the ingredients of the said offence, the minor girl should be forced or seduced to illicit intercourse with another person, the word 'another' assumes importance as it was not the person who procured the minor, as such, the conviction of the accused under Section 366 (A) IPC by the Assistant Sessions Court was not tenable. With regard to the offence under Section 376 IPC, learned counsel submitted that as seen from the evidence of PW.1, she went to the police station Kerameri and lodged the complaint on the next day of the incident and she was sent to Government Hospital at Asifabad for examination, but the said complaint as well as the medical report of her examined by the doctor at Government hospital, Asifabad were suppressed by the prosecution as such, adverse inference need to be Dr.GRR,J ::6:: Crl.A. No.225 of 2013 taken under Section 114 (g) of the Indian Evidence Act, 1872 and that evidence which could be and was not produced shall be considered as unfavourable to the person who withholds it.
9. He further contended that there were different versions with regard to the age of the victim. As per PW.1, she got matured five or six years prior to the incident. A girl would ordinarily mature at the age of 12 or 13 years, as such she might be aged 17 or 18 years by the date of the incident. PW.2 - father of the victim, stated that his marriage was performed 30 years ago and 3 years after his marriage, he was blessed with PW.1, as such PW.1- victim was aged about 27 years by the date of incident. As per PW.12, Associate Professor of Department of Forensic Medicine, who issued the age certificate under Ex.P.12, the victim was aged between 13 and 15 years, and if applied the margin of 2 years on either side, the age of the victim, if taken on higher side could be 17 years.
10. The definition of rape prior to the amendment as was available then at the date of offence was applicable. No minimum punishment was prescribed at that time to the punishment of rape and relied upon the judgments of the Hon'ble Apex Court in Rajak Mohammad v. State of Dr.GRR,J ::7:: Crl.A. No.225 of 2013 Himachal Pradesh1 and of the High Court of Delhi in Sweta Gulati and Anr. v. The State Government of NCT of Delhi2
11. He further contended that no injuries were found on the victim and as per her evidence she made no attempt to escape. She stated about her clothes handed over to the Investigating Officer, but no such garments were produced before the Court. She also stated about her bangles broken at the scene of offence, but no such broken bangles were found at the scene by the Investigating Officer to suggest any violence on the victim and considering that the offence was pertaining to the year 2011 and the victim was also married and both the accused and the victim were living lives on their own, prayed to take a lenient view, even if the Court considers that the offence under Section 376 IPC was proved against the accused.
12. The learned Public Prosecutor, on the other hand, submitted that PWs.1 and 2 were illiterate and rustic villagers, who could not speak about their age, the absence of injuries on the victim and the delay in lodging the FIR were not fatal to the prosecution case in the offence of rape, the evidence of witnesses was cogent and trustworthy, the trial Court rightly 1 (2018) 9 SCC 248 2 Crl. Rev. P. 195 of 2018, dated 08.08.2018 Dr.GRR,J ::8:: Crl.A. No.225 of 2013 convicted the accused; and prayed to uphold the judgment of the trial Court by dismissing the appeal.
13. Now the points for consideration are:
1. Whether the prosecution proved the guilt of the accused for the offence under Section 366A IPC beyond reasonable doubt?
2. Whether the prosecution proved the guilt of the accused for the offence under Section 376 IPC?
3. Whether the trial Court committed any error in convicting the accused and sentencing him as above? and
4. To what result?
Point No.1:
14. The accused is charged for the offence under Section 366-A IPC. Section 366-A reads as under:
"366A. Procuration of a minor girl:--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine".
The essential ingredients of Section 366A of IPC to be proved by the prosecution are:-
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1. that the accused induced a girl;
2. that the person induced should be a girl under the age of 18 years;
3. that the accused had induced her with an intent that the girl will be forced or seduced to illicit intercourse;
4. that such intercourse must be with a person other than the accused; and
5. that the inducement caused the girl to go to any place or to do any act.
15. The object of the Section appears to provide punishment to the persons who induce minors and drag them into prostitution.
16. The charge framed against the accused for the offence under Section 366A of IPC is as follows:
"That you, on or about 20th day of February, 2011 at 18.00 hrs at the outskirts of Neemguda village of Kerameri Mandal Dinda Village induced a minor girl under the age of twelve years to go from her parents house or to do any act or acts to enjoy her sexually with an intent that the said minor girl may be or knowing that it is likely that the said girl will be forced (or seduced) to illicit intercourse with you and thereby committed an offence punishable under Section 366-A of IPC and within the cognizance of this Court."
17. The prosecution case or the charge framed against the accused would not disclose that the accused forced her to have sexual intercourse with any other person other than him. Thus one of the essential ingredients that the intercourse must be with a person other than the accused is not satisfied in Dr.GRR,J ::10:: Crl.A. No.225 of 2013 this case. The trial court convicting the accused without observing the said detail is considered as not in accordance with the above provision of law.
19. Hence the conviction and sentence inflicted against the accused for the offence under Section 366A IPC is liable to be set aside. Point No.2:
20. Section 375 IPC, as it stood then at the time of incident in the year 2011, would read as follows:-
"375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--
(First) -- Against her will.
(Secondly) --Without her consent.
(Thirdly) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) --With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly) -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) -- With or without her consent, when she is under sixteen years of age.
Dr.GRR,J ::11:: Crl.A. No.225 of 2013 Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception --Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
21. Consent is immaterial when a person on whom rape was committed is under sixteen years of age. Age of the prosecutrix becomes relevant for determining whether she was a major to give her consent.
22. As per the complaint, the victim was aged 13 years by the date of lodging the complaint on 4-3-2011. Her age was also recorded as 13 or 14 years by the date of recording her evidence on 28-08-2012. The victim was an illiterate village girl. She appeared to have no knowledge about her date of birth. In her cross examination she stated that she got matured 5 or 6 years prior to the incident. She also stated that her marriage was performed 2 months after the incident when she got age to perform marriage. It is not understood as to what her knowledge was as to the marriageable age. Further, in some communities, the girl would be considered to have attained the age of marriage when the girl attains puberty.
23. The victim's father was examined as PW.2 and stated that his age was 41 years by the date of recording of his evidence. In his cross examination he stated that he was aged 55 years. He stated that his Dr.GRR,J ::12:: Crl.A. No.225 of 2013 marriage was performed 30 years ago and after 3 years of his marriage, he was blessed with PW1. Thus the age of PW1 should be 27 years, if his evidence is to be believed. He also admitted that he was an illiterate and uneducated person.
24. From the evidence of PW's 1 & 2, it appears that they were not having knowledge about their ages or years or the length of the time when PW11 was matured, etc. Thus, no reliance can be placed upon their evidence to consider whether P.W.1 is a minor or not by the date of incident.
25. The Investigating Officer referred the victim girl to Kakatiya Medical College, Warangal to ascertain her age. The Assistant Professor at Kakatiya Medical College, who examined the victim, who was examined as PW.12, stated that on 08-03-2011, he received a requisition from CI of Police, Asifabad to examine the victim and based on the physical, dental and radiological examination, he opined that the victim was aged about 13 to 15 years. In his cross examination, he further stated that as per the certificate issued by him marked under Ex.P.12, third molar was formed and even having regard to the same, the victim was less than 17 years of age. Generally 28 permanent teeth would be formed in between the age of Dr.GRR,J ::13:: Crl.A. No.225 of 2013 14 to 16 years and PW.1 had 28 permanent teeth at the time of his examination. He denied that the approximate age of PW.1 could be between 13 to 17 years. He also stated that Centre of Ischial Tuberocity was appearing as described in item No.6. In his cross examination, he stated that the same would be formed in between the age of 14 to 16 years.
26. Thus, the evidence of PW.12 would disclose that the victim was aged between 13 to 15 years and she was less than 17 years of age. Hence, the upper limit of the age of the victim, as stated by PW.12, could be maximum 16 years.
27. Learned counsel for the appellant relied upon the decision of the Hon'ble Apex Court in Jaya Mala vs. Home Secretary, Government of Jammu Kashmir3, which was a Writ of Habeas Corpus for the release of a detenue, wherein it was alleged that the detenue was a minor, aged about 17 years at the time of arrest, it was held that:
"9. Detenu was arrested and detained on October 18, 1981. The report by the expert is dated May 3, 1982, that is nearly seven months after the date of detention; Growing in age day by day is an involuntary process and the anatomical changes in the structure of the body continuously occur. Even on normal calculation, if seven months are deducted from the approximate age opined by the expert in October, 3 AIR 1982 SC 1297 Dr.GRR,J ::14:: Crl.A. No.225 of 2013 1981 detenu was around 17 years of age, consequently the statement made in the petition turns out to be wholly true. However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the educational institutions. This, young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bounds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly misdirected, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed."
28. This judgment is relied upon by the learned counsel for the appellant on the aspect that the margin of error in age ascertained by radiological examination could be taken as two years on either side. His contention was that as PW.12 had stated that the victim was aged between 13 to 15 years, the margin of error could be around 11 to 17 years on either side; and if the margin of error was considered as 17 years, it would not come under the 6th description of Section 375 of I.P.C., and it had to be seen that whether the act of sexual intercourse was done with her consent.
29. Learned counsel for the appellant further relied on the decision of the Delhi Court in Swetha Gulati (2 supra) wherein it was held that since no Dr.GRR,J ::15:: Crl.A. No.225 of 2013 document of age was available, the age of the victim was determined by the Child Welfare Committee as 17 years basing on the ossification report. The bone ossification report has estimated the age as 17 to 19 years. Applying the margin of error principle of two years on either side, it was held that the age of the victim therein could be between 15 to 21 years. Even if the margin of error was not taken on the higher side, it was held that upper limit of the age estimated by the ossification test was 19 years, and the benefit of doubt was given to the accused considering the age of the victim as 19 years setting aside the order passed by the Child Welfare Committee and that of the Appellate Court determining the age of the victim as 17 years.
30. Learned counsel for the appellant further relied on the decision of the Hon'ble Apex Court in Rajak Mohammad vs. State of Himachal Pradesh (1 supra), wherein it was held that while determining the age of a person, radiology examination might not be an accurate determination and sufficient margin either way has to be allowed, and yet the totality of the facts stated above read with the report of the radiological examination would leave room for ample doubt with regard to the correct age of the Dr.GRR,J ::16:: Crl.A. No.225 of 2013 prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.
31. In the present case, the victim is an illiterate and rustic village girl. No school certificate was available to determine her age. The evidence of PWs.1 and 2 would disclose that they could not give the age of the victim. The doctor, who examined the victim, recorded in Ex.P.9 - Medical Certificate that the victim attained menarche one year back. The doctor, who conducted the ossification test, opined the victim's age as only between 13 to 15 years. He denied the suggestion that the age of PW.1 could be between 13 to 17 years. Even considering the fact that the 28 permanent teeth were formed, and as per the evidence of PW.12 they would be formed in between the age of 14 to 16 years, she could not be considered as aged 17 years at the time of the incident, since PW.12 emphatically stated that the victim was less than 17 years of age, therefore it should be treated that the age of victim is less than 17 years.
32. In the decisions relied by the learned counsel for the appellant, considering the totality of the circumstances of the cases, the margin of error was allowed to the benefit of the accused. The facts of these cases also would not disclose that they were rape cases against a minor child and Dr.GRR,J ::17:: Crl.A. No.225 of 2013 the facts of the present case would not disclose that the victim is a consenting party or had the age to give consent.
33. In the present case also, the totality of circumstances should be taken into consideration to see whether the accused is entitled to any benefit of doubt.
34. P.W.1 stated in her evidence that the accused was known to her. She knew the accused (who belonged to a neighbouring village) following her for about three to four months, and was asking her to marry him. On one Sunday, when she went to attend the calls of nature to the outskirts of village at about 06:00 P.M., the accused, upon observing her, came to her and caught hold her hand and asked her to marry him; when she started raising cries, he put his hand on her mouth and threatened her that he would kill her and took her to a cotton filed by dragging her and ravished her; he committed rape on her. Thereafter, at about 04:00 A.M. he took her to Kerameri village in a lorry to the house of his maternal uncle. Later, her parents came to know about her presence at Kerameri and brought her back to the house.
35. In her cross-examination, she stated that when the accused caught hold her hand, her bangles were broken and caused injuries. The accused Dr.GRR,J ::18:: Crl.A. No.225 of 2013 closed her mouth till reaching the cotton fields and dragged her for about 2 kms, she sustained injuries on her back and legs. The accused threatened her by showing a knife. There was a standing crop at the scene of offence and they were in the fields from 06:00 P.M. to morning 04:00 A.M. At the time of incident, there was cutting of cotton stems where the accused forced her for intercourse, but she did not receive any injury on her back or on her hands and legs. She also stated that she did not try to escape from the hands of the accused at the time of the incident. She raised hue and cry but nobody came. She tried to escape from the hands of the accused, but the accused prevented her from escaping. The Surdapur village was at a distance of 2 kms. from the scene of offence, and one has to cross a stream to go to Surdapur village. She along with the accused went to Surdapur village by crossing the stream at about 04:00 A.M. There were her caste people in that village. She again raised hue and cry when she reached the Surdapur village. They reached Keramari village main road from Surdapur Village at 04:30 A.M. They travelled in a lorry; there were four to five villages in between Surdapur Village and Keramari village. She also informed the driver of the lorry about the incident and she could not say the name of the owner of the house where she was taken and she also informed the incident to the owner of the house where the accused took her. There Dr.GRR,J ::19:: Crl.A. No.225 of 2013 also, she tried to escape. She stated that no report was given in Kerameri Police Station on that day and on the next day they went to P.S. Kerameri and lodged the complaint, she had shown injuries on her body to the Medical Officer. She stated that police did not seize her clothes.
36. Her father, who was examined as P.W.2, stated that one year ago, the accused took his daughter P.W.1, on the next morning he came to know that the accused took away P.W.1, when he searched for PW.1 he came to know that PW.1 was at Kerameri village; the accused took PW.1 to his maternal uncle's house at Kerameri village; they met PW.1 and brought her back to the house. PW.1 informed them that when she went to attend calls of nature, the accused took her forcibly to the village outskirts and ravished her.
37. The Medical Officer, who examined the victim, was examined before the Court as PW.10. She stated that she was working as Civil Assistant Surgeon in Community Health Center at Tiryani, Asifabad. On 07.03.2011, at about 12:00 P.M., she examined the victim. On her examination, she found no external and internal injuries on her private parts; hymen was not intact; she collected valval swabs, vaginal swabs, pubic hair and nails and sent them for examination to Forensic Science Dr.GRR,J ::20:: Crl.A. No.225 of 2013 Laboratory and also sent PW.1 for determination of age for Ossification Test at Kakatiya Medical College, Warangal. As per the Forensic Science Laboratory report, no spermatozoa was found on valval swabs and vaginal swabs, and no foreign hair was found on the pubic hair collected by her; no foreign material was found in the nail clippings; no semen was detected on item Nos.1 to 4. She also further stated that as her physical examination revealed the vagina admitted two fingers, there was a possibility of intercourse. She also stated that semen and spermatozoa could not be found (48) hours after the incident as the life of semen and spermatozoa was only (48) hours.
38. As per the prosecution case, the date of incident was on 20.02.2011. the report was given to the police on 04.03.2011 at 07:30 P.M. As per the evidence of PW.10- Doctor, she examined the victim on 07.03.2011. Thus, there was a delay of twelve days in lodging the First Information Report and the victim was examined by the doctor after (15) days. The injuries that might have caused due to breaking of the bangles or on her back and legs, as stated by the victim, could have been healed by then in the intervening gap as such, the doctor might not have noticed them. The absence of injuries on the body of the victim itself would not suggest that Dr.GRR,J ::21:: Crl.A. No.225 of 2013 the sexual intercourse was done with her consent and would not raise suspicion that the victim was speaking falsehood about the incident. No suggestion was even given to PWs.1 and 2 to show that they had any enmity against the accused to speak falsehood against him.
39. The Trial Court also rightly pointed out that the evidence of PW.1 would clearly establish that when she started raising cries, the accused closed her mouth and dragged her till reaching the cotton field and the reason for not resisting the accused by the victim could be due to her helpless condition, as even if she raised cries, no one would be able to hear her cries, since the scene of offence was about 2 kms away from the village; and the evidence of PW.1 established that due to compelling circumstances, force and threatening of the accused, she was put into a helpless condition and suffered the act of the accused as there was no go to her. The evidence of PW.1 would further reveal that she tried to escape from the hands of the accused several times, but the accused stopped her and finally ravished her forcibly. Thus, the absence of injuries on the body of the victim by the date of the examination by the Doctor, or the evidence of PW.1 that she did not resist the act of the accused are not sufficient to hold that it was a consensual act. When PW.1 stated that the accused Dr.GRR,J ::22:: Crl.A. No.225 of 2013 committed rape on her without her consent by forcibly taking her, there is no reason to disbelieve her. No corroboration is required for the evidence of the victim, as her evidence is cogent and trustworthy. Conviction of sentence can be based on the sole evidence of the prosecutrix if it inspires confidence. On a careful analysis of the statement of the prosecutrix, it appears to be reliable and trustworthy. Her testimony suffers from no infirmity or blemish whatsoever.
40. Further, the delay in lodging the First Information Report was also not fatal to the case of the prosecution, as the said delay would not affect the credibility of the victim in a rape case. The evidence of PW.2 would disclose that he informed the incident to the villagers and the villagers assured him that they would settle the matter in the panchayat. But, as the matter was not settled in the panchayat, finally they went to the Police Station, Kerameri Village and lodged a complaint. PW.1 also stated in her report (marked as Ex.P.1) that she and her parents wanted to file a police complaint, but the village elders stopped them from lodging a complaint by stating that they would conduct a panchayat, but no such panchayat was conducted; and therefore, she lodged the complaint before the Police. Thus, a plausible explanation was given by PWs.1 and 2 with regard to Dr.GRR,J ::23:: Crl.A. No.225 of 2013 delay in lodging the complaint. The said explanation appears to be reasonable. It is natural for the villagers to agree for the proposal to settle up the matter in the village itself before approaching the concerned Police. That apart, in a sexual offence, delay could not be a ground to view the version of the prosecutrix with suspicion. Hence, the contentions raised by learned counsel for the appellant with regard to delay in lodging the report; the absence of injuries on the body of the victim; the victim not making any attempt to escape, need not be viewed with suspicion.
41. Furthermore, the contention of the learned counsel for the appellant that the evidence of PW.1 would disclose that they went to the Police Station Kerameri village on the next day of the incident and lodged a complaint; and PW.2 also stated that on the next day of the incident, he came to C.I. Office, Asifabad and gave report and handed over the clothes of his daughter to the police, but the same was suppressed by the prosecution, cannot be given undue importance, as the witnesses were unable to keep track of the date and time of the incident. The evidence of PW.13 - S.I. of Police of Police Station Kerameri would disclose that PWs.1 and 2 came to the Police Station and lodged a report on 04.03.2011 at 19:30 hours. PW.13 had not stated about collecting the clothes of the Dr.GRR,J ::24:: Crl.A. No.225 of 2013 victim. PW.1 also had also not stated about handing over the clothes which she was wearing at the time of the incident to the police. Therefore, it was a lapse on the part of the Investigating Officer not to collect the clothes of the victim and not sending them to Forensic Science Laboratory for examination; but, however, the prosecution case cannot be suspected due to investigation lapses.
42. The Trial Court rightly relied upon the evidence of PW.1 and also the decision of the Hon'ble Apex Court in Shri Bodhisattwa Gautam vs Ms. Subhra Chakraborty4, wherein the Hon'ble Apex Court held at para Nos.13 and 16 as under :
"13. In State of Himachal Pradesh vs. Raghubir Singh5, this Court observed as under :-
"There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record. The medical evidence provided sufficient corroboration."4
AIR 1996 SC 922 5 1993 (2) SCC 622 Dr.GRR,J ::25:: Crl.A. No.225 of 2013 .........
16. We may, at this stage, refer to a decision of this Court in Delhi Domestic Working Women's Forum vs. Union of India6, in which Court observed as under :-
"It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such crimes eclipse the real plight of the victim. Rape is an experience which shakes the foundations of the lives of the victims. For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour values and generating and less fears. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings." This Court further observed as under :- "The defects in the present system are : Firstly, complaints are handled roughly and are not even such attention as is warranted. The victims, more often than not, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly, the court proceedings added to and prolonged the psychological stress they had had to suffer as a result of the rape itself."6
1995 (1) SCC 14 Dr.GRR,J ::26:: Crl.A. No.225 of 2013
43. Thus, this Court does not find any infirmity in the decision of the Trial Court for relying upon the evidence of PW.1 in convicting the accused for the offence punishable under Section 376 of I.P.C.
44. The evidence of PW.2 also corroborates with the evidence of PW.1 The investigation conducted by PW.14 also supports the evidence of PWs.1 and 2. Hence, this Court does not find any infirmity in the decision of the Trial Court in convicting the accused for the offence punishable under Section 376 of I.P.C.
45. Learned counsel for the petitioner further relied upon the decision of the Hon'ble Apex Court in Ravindra vs. State of Madhya Pradesh7 on the aspect that the Legislature has empowered the Court under proviso to Section 376 Sub-Clause (2) (g) of I.P.C. to award lesser sentence where adequate and special reasons exist, in the instant case, the incident in question took place long ago and both the victim and accused were married (not to each other) and settled in life; and therefore, it could be considered as an adequate and special reason for awarding lesser sentence.
46. Basing on the above factual position, learned counsel for the appellant contended that since the incident in question had taken place in 7 (2015) 4 SCC 491 Dr.GRR,J ::27:: Crl.A. No.225 of 2013 the year 2011, i.e., eleven years ago, and both the prosecutrix as well as the accused were married and settled in their lives, he prayed this Court to take a lenient view on the appellant / accused.
47. However, considering that this is a case of rape of a minor child aged between 13 to 15 years, no lenient view can be taken against the accused. The appellant / accused was a married man having children by the date of the offence itself. Though the marriage of the victim was also performed with another person by the date of giving her evidence, she chose to appear before the Court and to depose about the incident. The courage and boldness shown by her cannot be diluted. As rightly observed by the Hon'ble Apex Court in Shri Bodhisattwa Gautam (4 supra), though a large number of women fail to report rapes to the police fearing embarrassment and insensitive treatment by the law enforcement personnel, doctors and cross-examining defence attorneys, and in rape cases the victimised women were put on trial rather than the rapists, and in the present case on hand also, the cross-examination of the victim was made to the effect to show that she was a consenting party and many embarrassing questions were put to her, and she faced the same boldly by undergoing the Dr.GRR,J ::28:: Crl.A. No.225 of 2013 ordeal of trial, it is considered not a fit case to take any lenient view on the appellant / accused, and to reduce the sentence imposed on him.
48. Hence, the appeal is partly allowed:
(a) by setting aside the conviction and sentence inflicted against the appellant for the offence under Section 366-A I.P.C.; but
(b) confirming the conviction and sentence inflicted against the accused for the offence punishable under Section 376 I.P.C.
It is considered fit to modify the default sentence inflicted against the appellant / accused on his failure to pay the fine amount. The default sentence of three years is modified to "simple imprisonment for a period of three (03) months" if the appellant / accused fails to pay the above said fine of Rs.1000/-. The rigorous imprisonment awarded for ten (10) years for the offence under Section 376 IPC stands confirmed. The bail granted by this Court stands cancelled. Hence, the appellant / accused is directed to surrender before the Court below within a period of fifteen (15) days from the date of receipt of a copy of this order; and if he fails to surrender, the trial court is directed to take necessary steps for taking him into custody.
Dr.GRR,J ::29:: Crl.A. No.225 of 2013 As a sequel, miscellaneous applications pending if any in this Appeal, shall stand closed.
______________________ Dr. G. RADHA RANI, J Date : 30.08.2022 Ktl / Ndr Dr.GRR,J ::30:: Crl.A. No.225 of 2013 THE HON'BLE Dr. JUSTICE G. RADHA RANI CRIMINAL APPEAL No.225 OF 2013 Date : .08.2022 Ktl / Ndr