Royson vs State Of Kerala on 20 December, 2013

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Kerala High Court

Royson vs State Of Kerala on 20 December, 2013

Appeal against the judgment of conviction and order of sentence passed under Sections 376 and 506 (1) IPC against the appellant in Sessions Case No.219/2011, dated 20.12.2013, of the Additional Sessions Judge, Ernakulam.

2. The allegation is that a minor girl aged 13 years (hereinafter referred to as the prosecutrix) had been subjected to rape, sexual molestation and criminal intimidation by her own father, the accused, within their dwelling house at Kumbalangi Village. She had made a partial revelation before her mother, PW2, that her father pressed on her chest during night time. Subsequently, the entire incident was disclosed by her to her teacher. Her mother was summoned by the teacher and thereon laid Exhibit P1 FIS, based on which registered Exhibit P1(a) FIR, on the allegation of Section 354 and 506(1) IPC. Later on offence under Section 376 IPC was added by Crl. Appeal No.351 of 2015 2 deleting the offence under Section 354 IPC. The learned Sessions Judge, on consideration of the evidence adduced by the prosecution through PW1 to PW14, Exhibits P1 to P17 and MOs 1 and 2 and also the evidence adduced by the appellant through DW1 to DW4 and Exhibit D1 and after hearing both the parties, found the accused guilty of offence punishable under Sections 376 and 506(1) IPC and convicted him thereunder and sentenced to undergo imprisonment for life for the offence under Section 376 IPC and to undergo imprisonment for a period of two years and to pay a fine of Rs.15,000/-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 354 IPC and sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.10,000/- and, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 506(1) IPC with a direction to release an amount of Rs.20,000/- to PW1 under Section 357(1)(b) Cr.P.C., by its impugned judgment dated 20.12.2013.

3. PW1 is the victim girl aged only 13 years as on the date of commission of offence. The learned Sessions Judge Crl. Appeal No.351 of 2015 3 had given much reliance on the evidence of the prosecutrix. The shocking incident revealed through PW1 had happened at her tender age of 13 and the aggressor is none else her own father (biological father), betraying the concept of trust and guardianship of father, prima facie appears to be against the consciousness, requires strict scrutiny when resting on the sole deposition of the prosecutrix. The settled principle is that the oral testimony of a prosecutrix, especially a minor prosecutrix, stands on a high pedestal, and it can be relied on and acted upon if it inspires confidence, not tainted by any ill-will, tutoring or ill thought. The principle behind it is that there may not be other independent witnesses to the commission of either rape or sexual molestation which normally happens in secrecy. The oral testimony of the prosecutrix can be accepted even without corroboration unless there are compelling circumstances.

4. The sequence of incident narrated by the prosecutrix is that her father started sexual molestation while she was sleeping in her house along with her mother and younger brother. They used to sleep in the house in one room on the floor over a country mat. On one occasion about six months Crl. Appeal No.351 of 2015 4 back, while she was under deep sleep, her father sexually assaulted her by pressing on her chest. He used to insert his fingers on her private part after lowering her underwear (sheddy). It was resisted by the victim at the initial stage, but subsequently he proceeded further by committing rape on her during night time. She was not in a position to disclose the same to her mother as her father threatened her with evil consequences. The said version given by the victim has its own inconsistencies and improbabilities which are writ large on its face on the grounds that: (1) She did not disclose the alleged act of her father till she was manhandled by him on account of her alleged visit to the house of one of her friends Aparna and her elopement with Aparna during day time without attending the School and came back to her house only by 7.00 p.m. (2) The father had manhandled her mother several times and picked up quarrel with her mother on the ground that she had permitted the daughter to visit the house of Aparna and also on the ground of elopement of the victim during day time till the evening by 7.00 p.m. on that day. (3) He took the prosecutrix to a nearby hospital so as to ascertain her virginity immediately after her elopement with Crl. Appeal No.351 of 2015 5 Aparna. (4) She had disclosed the entire episode before her teacher, including fingering, sexual molestation and rape committed on her by her father on several times, but did not disclose the same in the FIS which was given subsequent to the revelation made by her before her teacher, at whose instance, they went to the police station and lodged FIS. (5) The FIS was given by the victim at the immediate presence of her mother PW2 and uncle PW3. The FIS, which was given subsequent to her revelation before PW2 and PW3, did not contain any such allegation though it was recorded and prepared at their immediate presence. (6) The story of sexual molestation and rape committed on the victim by her father during night time while she was sleeping along with her mother and younger brother has its own improbability and inconsistency. (7) The sexual molestation and rape committed on the victim by her father, even according to the victim, was continued for a period of six months. It is quite unbelievable and improbable that it was not noticed either by her younger brother, aged 11, and her mother though she was subjected to sexual molestation and rape for a period of six months while she was sleeping along with her mother and younger brother Crl. Appeal No.351 of 2015 6 within the same room, same place and on the same floor. (8) PW1 did not disclose what actually happened to her while she was in the company of Aparna during day time on 24.1.2010 and where did they go and spent their day time. (9) The allegation that she was subjected to rape by her father on 24.1.2010 is quite unbelievable and improbable because of the reason that her father picked up quarrel with PW1 and her mother PW2 on that day on noticing her elopement with Aparna without attending the school and came back to her house only by 7 p.m. on that day and that he had manhandled her several times and brought her to a hospital to test her virginity and to find out whether she had undergone sexual intercourse while she was in the company of Aparna. (10) The further version given by the victim - prosecutrix - that she had been subjected to rape by her father during the night of 24.01.2010 when read along with the detection of human semen and spermatozoa on her under garments (sheddy and underskirt) would be an indication that she had been subjected to rape on that particular day. (11) The medical evidence adduced showing the admission of two fingers loosely to the vagina and rupture of hymen Crl. Appeal No.351 of 2015 7 probabilises the case advanced by the appellant rather than the victim. (12) The oral evidence tendered by DW1 that the prosecutrix had eloped two times earlier has not been challenged.

5. The settled position of law in the matter of S.376 IPC is that the conviction can be founded on the sole testimony of the prosecutrix, unless there are compelling reasons for seeking corroboration. The legal position was settled in State of Himachal Pradesh v. Asha Ram (2006 KHC 157 = AIR 2006 SC 381 = 2006 SCC (Crl.) 296 = 2005 (13) SCC

766). The Apex Court had taken note of the shocking increase of sexual assault on minor girls and have given more reliability to the evidence of a prosecutrix than that of an injured witness. The relevant portion of paragraph 2 of the judgment in Asha Ram's case (supra) is extracted below for reference:

".... It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual Crl. Appeal No.351 of 2015 8 assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting 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. It is also well settled principle of law that 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. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."

6. The Apex Court had also considered various decisions on the point in paragraph 17 to 21 which are extracted below for reference:

"17. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, this Court pointed out that 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 Crl. Appeal No.351 of 2015 9 doubt, disbelief or suspicion? It was further pointed out that on principle the evidence of a victim of sexual assault stands on a 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 sexual offence is entitled to great weight, absence of corroboration notwithstanding. The aforesaid observation was made by this Court because of the following factors: (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 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 overpowered by a feeling of shame on account of the Crl. Appeal No.351 of 2015 10 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.

18. In the case of Rafiq v. State of U.P. (1980 (4) SCC 262), V.R. Krishna Iyer, J. speaking for the Court observed at SCC p. 265, para 5 as under:

"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 lifestyles and behavioural 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 Crl. Appeal No.351 of 2015 11 the presence or absence of injuries on the person of the aggressor or the aggressed."

19. In the case of Madan Gopal Kakkad v. Naval Dubey (1992 (3) SCC 204), it was pointed out at SCC p. 218 that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the "probabilities factor" does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. In the case of Ranjit Hazarika v. State of Assam (1998 (8) SCC 635), this Court held that non- rupture of hymen or absence of injury on victim's private parts does not belie her testimony. This Court further held that the opinion of the doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. This Court held that the evidence of the prosecutrix was amply corroborated by her mother and father whom she immediately informed about the occurrence.

20. In the case of State of Punjab v. Gurmit Singh (1996 (2) SCC 384), this Court pointed out at SCC p. 403:

"Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A Crl. Appeal No.351 of 2015 12 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 inspires 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."

21. In the case of State of Rajasthan v. N.K. the accused, (2000 (5) SCC 30), the observation made in Gurmit Singh case (supra) was reiterated. The Court further observed in para 9 at SCC p. 38 as under:

"Having heard the learned counsel for the parties we are of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. It is true that the Crl. Appeal No.351 of 2015 13 golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women."

7. Going by the principles laid down in the above said decisions, the courts are duty bound to give more reliability to the oral testimony of a prosecutrix, especially when she is a minor, and it is not at all permissible to have a study with the aid of spectacles fitted with lenses tinged with doubt, Crl. Appeal No.351 of 2015 14 disbelieve or suspicion. But, when there is inherent material abnormalities or vital improbabilities or material inconsistencies, it is permissible to seek for corroboration before acting on the sole testimony of the prosecutrix. The improbabilities/inconsistencies brought out should be of that nature to make the version of the prosecutrix unacceptable due to inherent abnormality tainted with either enmity or tutoring.

8. PW1 while in box had given a vivid picture what she had suffered in the hands of her father while she was sleeping in her house along with her mother and younger brother. Initially her father attempted to press on her chest and tried to remove her sheddy by lowering it. It was resisted by her and hence he had withdrawn from his attempt. But subsequently, he attempted to sexually assault her by inserting his fingers on her private part and then committed rape on her. She had also specified the way in which he had committed rape on her. It was initially disclosed before her mother on 29.1.2010. She did not disclose the entire episode, but the complaint of fingering alone was brought to the notice of her mother. It is thereafter, she had disclosed the entire episode before her Crl. Appeal No.351 of 2015 15 teacher who in turn summoned her mother. It is at the instance of her teacher, the mother took her to the house of her uncle and then proceeded to the police station and gave Ext.P1 FIS by the victim, PW1. Before that, she had disclosed the entire episode before her mother also. The FIS given by PW1 after her revelations before her teacher as well as her mother did not contain any such allegation against her father. Admittedly, the FIS was given by PW1 at the immediate presence of PW2 and PW3 and it was given before the police at the instance of her teacher before whom she had disclosed the entire episode of commission of rape as well as fingering by her father while she was sleeping within her house along with her mother and younger brother. She had also disclosed the entire episode before her mother (PW2) and her uncle (PW3). But, the FIS recorded at the immediate presence of PW2 and PW3 did not contain what she had disclosed before her teacher, mother (PW2) and uncle (PW3). The allegation levelled against her father in Ext.P1 FIS is confined only to the act of her father pressing on her chest and his attempt to remove and lower her sheddy. No allegation of any other sexual assault, either by fingering or by commission of rape Crl. Appeal No.351 of 2015 16 was raised or even whispered at the time of giving Ext.P1 FIS.

9. A first information report is the most immediate and first version of the incident and has great value in ascertaining the truth. A prompt FIR diminishes the chances of an informant being tutored and the false implication of the accused. Great importance is attached to a prompt FIR as it reduces the chances of improvement in the prosecution story. But, at the same time, it is not a piece of substantive evidence. It has its own importance as it gives the earliest information regarding the occurrence. In Thulia Kali v. State of Tamil Nadu (AIR 1973 SC 501), the Apex Court observed that an FIR is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial, the importance whereof can hardly be overestimated. The object behind it is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye witnesses present at the scene of occurrence. Further, the FIR is a very valuable document and the accused is entitled to know what was said in that report to connect him with the offence, so that Crl. Appeal No.351 of 2015 17 he may be in a position to protect his interest by cross examining the prosecution witnesses with respect to any addition or alteration in the story of the prosecution, which may subsequently be made in evidence.

10. The prompt and early reporting of the occurrence to the police with all its vivid details gives an assurance regarding truth of the prosecution version. (see State of U.P. v. Harban Sahai (1998 SCC (Cri) 1412 (1416) = (1998) 6 SCC 50); Girish Yadav v. State of M.P. ((1996) 8 SCC 186 = 1996 SCC (Cri) 552); Hardev Singh v. Harbej Singh (AIR 1997 SC 1487 = 1997 SCC (Cri) 5 = (1997) 1 SCC 80); Jarmail Singh v. State of Haryana (1993 CrLJ 1656 = 1993 SCC (Cri) 869 = (1993) Supp (3) SCC 91.) A prompt FIR eliminates chances of embellishments and false implication of accused persons (Krishnan v. State (AIR 2003 SC 2978 = (2003) 7 SCC 50), greatly diminishes the chances of false implication as well as that of the informant being tutored (Jagannath Narayan Nikam v. State of Maharashtra (1995 CrLJ 795 (Bom)), eliminates chances of embellishment in prosecution case and also false implication of accused persons (Sayed Ahmed v. State of Maharashtra Crl. Appeal No.351 of 2015 18 (1995 CrLJ 3585 (Bom - DB). It is also settled legal position that material omission in FIR affecting the prosecution case renders the FIR unacceptable (Mitter Sen v. State of U.P. (AIR 1976 SC 1156 = (1976) 1 SCC 723).

11. There is lot of difference between a revelation of new offence during the course of investigation/collection of evidence by the investigating agency and it is permissible to investigate the new offences, if any, revealed during the course of investigation by incorporating or deleting any penal provision. But, at the same time, it has to be borne in mind that the first information statement being the earliest version of a cognizable offence given to police which sets the law into motion has its own importance and suppression of a material information which is known to the informant at the time of giving FIS is so crucial and has to be viewed very seriously when there is a substitution or addition either at the subsequent stage of investigation or at the time of trial which would be fatal to the prosecution unless there are compelling reasons for the first informant for not disclosing the same at the time of giving FIS. It is so crucial when the conviction is resting on the sole testimony of the person who had given the Crl. Appeal No.351 of 2015 19 FIS suppressing material facts unless there are compelling reasons for suppression of those material facts at the time of giving FIS.

12. In Devaiya v. State of Coorg (AIR 1956 Mys. 51,

54) it was held that a complete variance between the FIR and the subsequent case of the prosecution, not in regard to minor details or unimportant matters or side issues but in regard to main charges, would be enough to throw out the case as unreliable. The object of the FIR was also considered by the Apex Court in Hasib v. State of Bihar (AIR 1972 SC 283) and held that the principle object of the FIR, from the point of view of the informant, is to set the criminal law in motion and, from the point of view of the investigating authorities, to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party.

13. The principle object of the FIR is to set the criminal law in motion on a complaint. It is the initial step for putting the criminal law in motion against a culprit and as such it acquires importance as to its content and when there is material omissions, which would touch upon its relevant Crl. Appeal No.351 of 2015 20 aspects, it would be fatal to the prosecution regarding any substituted or added version during trial. It is not at all necessary that the FIR should narrate all the details of commission of offence. But omission as to material facts is so relevant. In the instant case, what is alleged in the FIS is only pressing on the chest of the victim girl by her father and his further attempt to outrage her modesty. No allegation of rape or unnatural offence (by fingering) was either advanced or raised or even whispered in the FIS and it would vitiate the entire prosecution case resting on the oral testimony of first informant, the prosecutrix, regarding the commission of rape and unnatural offence (sexual assault by fingering) on her.

14. Further, the oral evidence tendered by the prosecutrix that she could not reveal what had done to her by her father for a long period of six months because of the threat unleashed by her father may be a sufficient reason, especially when the victim is under the control and custody of her parents including her father. But, the instant case is standing on a different footing as the time chosen by her to reveal the alleged incident has its own importance as she was under the fire of grave allegations in connection with her Crl. Appeal No.351 of 2015 21 elopement with one Aparna without attending the school on 24.01.2010 and she came back to the house only by 7.00 p.m. as spoken by PW2, her mother. This has resulted in severe attack on the victim by her father by manhandling and she was taken to a hospital in an autorickshaw and on the way again he manhandled her and pushed her to the road from the autorickshaw. She had been subjected to a medical examination at the instance of her father so as to ascertain what happened to her during the day time on 24.01.2010 and whether she was subjected to any sexual assault while she was in the company of Aparna. Her elopement along with Aparna from morning to evening on 24.01.2010 also came to the notice of the school authorities. She was severely manhandled by her father and picked up quarrel with her mother, PW2, and ultimately she was taken to a hospital so as to ascertain whether she had undergone any sexual assault. A minor girl aged 13 years was brought before a hospital so as to ascertain whether she had undergone any sexual assault at the company of one of her friends who admittedly took her away from her residence and came back only by evening. PW1 had admitted that she went to the house of Aparna from Crl. Appeal No.351 of 2015 22 there and they had gone out of the house and came back only by evening. All these incidents came to the notice of even the school authorities. This would cause high mental pain and suffering to a girl aged 13 years and chances of false accusation against her father under the given circumstances cannot be ruled out especially when there was no chance for having a rape on the victim by her father during the night of 24.01.2010. The advancement of a version by the victim that on that night also, 24.01.2010, her father committed rape on her is highly vitiated and improbable. The nature of allegation levelled against her father that it was lastly on 24.01.2010 he committed rape on her assumes importance when it is found to be highly improbable even by the admission made by PW1 and PW2, the victim and the mother, that she was taken to the hospital by her father for conducting a medical check up and manhandled her severely even during their journey to the hospital and brought her back to the house after medical examination and on their way back to their house also he had manhandled her and picked up quarrel with PW2. The anxiety of a father regarding the welfare of an unmarried minor girl aged 13 years who had eloped two times earlier as spoken by Crl. Appeal No.351 of 2015 23 DW1 in the given circumstances is well evident. Both PW1 and PW2 are in agreement that her father, the accused, did not like her company with Aparna, who is a person of easy virtues, according to the appellant, against whom another case is pending alleging sexual assault on the victim. The allegation of elopement on two earlier occasions, as deposed by DW1, was not challenged. A strict scrutiny of the oral evidence tendered by PW1 would reveal that she had given inconsistent versions with respect to various dates. But, she is so particular that it was on 24.01.2010 her father lastly committed rape on her, admittedly, the day on which she eloped with her friend Aparna and semen and spermatozoa were detected in her underskirt and underwear. In the said circumstances, chances of false accusation cannot be ruled out, especially when she did not have any specific case where she had gone along with Aparna and how and with whom she had spent her day time.

15. If at all the version given by PW1, the prosecutrix, is true, there may not be any occasion for her father to pick up quarrel or to manhandle the victim simply on the reason that she eloped with one of her friends Aparna and stayed away Crl. Appeal No.351 of 2015 24 during day time without attending the school and he would not take up the victim for a medical check up for testing her virginity or to ascertain whether she had undergone any sexual assault. The person who took the victim for a medical check up would be aware of the consequences if he had done rape on the victim on any earlier occasion. She was taken to hospital on the same day, i.e. on 24.01.2010, after 7.00 p.m. This would make the entire version of the prosecutrix that she had been subjected to rape by her father on 24.01.2010 as a total falsehood. The non disclosure of commission of rape and unnatural offence (fingering) at the time of FIS is so crucial and the victim might be aware of the consequences of such a false statement, if it was revealed before the police at the time of FIS.

16. The various dates as spoken by PW2, the mother of the victim, is also relevant as she was taken to the police station on 01.02.2010. She had made a revelation before her teacher and mother only on 29.01.2010, i.e. three days after her elopement with Aparna on 24.01.2010. By that time, the entire episode of her elopement with Aparna without attending the school during the entire day time and manhandling of her Crl. Appeal No.351 of 2015 25 father and the medical check up done on her at the instance of her father had come to the notice of even the school authorities. It is after that when she went to the school she made a revelation before her teacher against her father. Till that time it was not revealed even before her mother or even at the time of alleged manhandling of the victim by her father or during the course of medical check up conducted on her by the hospital authorities. But, she had unleashed all these allegations against her father only on the fourth day on realizing that the entire episode in connection with her elopement came to the notice of even the school authorities. An attempt on the part of the victim to wreck vengeance against her father and put blame on his shoulder in the said attending circumstances cannot be ruled out. The day as spoken by the victim as the last day of rape as 24.01.2010 night by her father, as discussed earlier, is a falsehood when tested with the attending circumstances. Then comes the question, what prompted her to select 24.01.2010 as the day of last rape committed on her by her father assumes importance when read along with the fact that she eloped on the said day with Aparna during day time and came back to Crl. Appeal No.351 of 2015 26 her house only by 7.00 p.m. The presence of semen and spermatozoa in her under garments - sheddy and under skirt, would be relevant and an indication that she had been subjected to rape on that particular day and the chances of sexual assault/intercourse during the day time of 24.01.2010 while testing under the given circumstances cannot be ruled out.

17. Yet another circumstance is also relevant that the commission of rape and unnatural offence (fingering) were done by her father while she was sleeping along with her younger brother and her mother, PW2. It is quite unbelievable and unacceptable that it has not come to the notice of either her brother or mother who used to sleep in the same room, same place and same floor during night time. She did not have any case that any sexual assault was committed by her father during day time. The further version that it was continued for a long period of six months and she did not make any attempt to attract the attention of either her brother or her mother seemed to be highly strange enough, especially when she used to sleep on all these occasions along with her younger brother and mother on the same room, place and floor. She did not Crl. Appeal No.351 of 2015 27 make any protest to the act of rape and unnatural offence (fingering) for a long period of six months and never attempted to attract the attention of either her brother or mother for a pretty long period of six months further shakes the credibility of the oral testimony of the prosecutrix. PW2 mother had admitted that in almost all nights they (PW2 and her husband, the accused) used to have sexual intercourse. This would also stand against the genuineness of the version given by PW1 regarding the frequent attack on her by committing rape by her father during night time. No DNA test has been conducted on the semen and spermatozoa detected on the under skirt and sheddy of the victim and no other corroborative piece of evidence was adduced by the prosecution. The version of PW1 is highly tainted and does not inspire confidence either as to its genuineness or truthfulness. Hence, we are of the considered view that the finding of guilt of accused on the sole testimony of the prosecutrix cannot be sustained. Hence, the finding of guilt of accused under Sections 376, 354 and 506(1) IPC, the conviction thereunder and sentence ordered are hereby set aside by allowing this appeal.

Crl. Appeal No.351 of 2015 28

In the result, appeal is allowed. The finding of guilt of accused under Sections 376, 354 and 506(1) IPC and the conviction thereunder and the sentence ordered are hereby set aside. The accused is found not guilty of any offence and hence acquitted. He shall be released forthwith, if his presence is not required in connection with any other case. The Registry shall communicate the operative portion of this judgment to the concerned jail authorities for immediate compliance.

A.M.SHAFFIQUE (JUDGE) P. SOMARAJAN (JUDGE) DMR/AHZ

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