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Monday, December 19, 2016

Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well-considered and well- analysed judgment of the trial court on grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant.”


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO.    1231   OF 2016
                (ARISING OUT OF SLP (CRL.) NO. 5575 OF 2015)


|STATE OF HIMACHAL PRADESH                  |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|SANJAY KUMAR @ SUNNY                       |.....RESPONDENT(S)           |



                               J U D G M E N T

A.K. SIKRI, J.
                 Leave granted.

Since the matter was fixed for final disposal, counsel for both the  parties
were heard in detail.

It is a case where the respondent herein was charged  for  having  committed
an offence punishable under Sections 376 and 506 of the Indian  Penal  Code,
1860 (for short, 'IPC').  After trial, the Additional Sessions  Judge,  Fast
Track Court,  Chamba,  Himachal  Pradesh,  convicted  the  respondent  under
Section 376(2)(f) as well as under Section 506 of the IPC.

The respondent challenged the order by  preferring  the  appeal  before  the
High Court in which he succeeded as the High  Court,  after  revisiting  the
issue, has come to the conclusion that the prosecution had failed  to  prove
its case beyond reasonable doubt.    According to it there  existed  certain
circumstances  which  created  reasonable  doubt  in  the  version  of   the
prosecution.  It has resulted in setting aside the  conviction  recorded  by
the trial court thereby acquitting the respondent.   This  judgment  of  the
High Court is assailed in these proceedings.

In the impugned judgment, the High Court has taken note of  the  prosecution
case.  As there is no dispute that the said version  is  correctly  recorded
by the High Court, we reproduce the same from the said judgment.

As per the prosecution, the prosecutrix, who,  at  the  relevant  time,  was
nine years old, used to reside  at  Dalhousie  with  her  parents.  She  was
studying in VII Standard in Moti Ka Tibba school in Dalhousie.   Her  native
place is Aruwan.  Her grandparents  had  been  living  in  joint  family  at
Aruwan.  Somewhere in the month of December 2009,  during  winter  vacation,
prosecutrix visited the place of  her  grandparents.   She  had  been  taken
there by her mother Babli (PW-1).  While at the place of  her  grandparents,
the prosecutrix was  playing  with  her  younger  brother.   The  respondent
called her to the room on the first floor.  She responded  to  the  call  of
the accused.  On reaching the room, the  respondent  bolted  the  door  from
inside and made the prosecutrix lie on the bed.  Her mouth was gagged.   The
respondent stripped off salwar of the prosecutrix of her one  leg.   He  put
off his trousers.  Thereafter, he laid on the  prosecutrix  and  thrust  his
penis  inside  her  vagina.   She  fell  unconscious.   When  she   regained
consciousness, the prosecutrix found no one in  the  room.   The  respondent
also criminally intimidated the prosecutrix not  to  disclose  this  act  to
anyone, otherwise  she  would  be  killed.   After  10-15  days  again,  the
respondent took the prosecutrix  to  the  same  room  and  committed  sexual
intercourse with her.  Thereafter, the prosecutrix  returned  to  Dalhousie.
Again, after two months, the prosecutrix visited her grandparents  on  seven
days vacation.  During this period also, the respondent  took  her  forcibly
to his own room where he had sexual intercourse  with  her  and  once  again
criminally intimidated her not to disclose  the  act  to  anyone.   After  a
lapse of 2-3 months again, the prosecutrix visited her grandparents and  the
respondent yet again called her to which she did  not  respond  and  slipped
away.  Prior to September  2012,  the  prosecutrix  started  complaining  of
stomach ache and was given medicine by the local doctor.  PW-1 took her  for
treatment at Kakira Hospital on  September  03,  2012.   She  was  medically
checked up  by  Dr.  Jasbir  Kaur  (PW-8).   She  told  the  mother  of  the
prosecutrix that her daughter might have been sexually assaulted  2-3  years
back.  PW-1 enquired from the prosecutrix as to what happened with  her  2-3
years back.  The prosecutrix then  told  her  mother  about  the  respondent
committing sexual intercourse with her three  times  when  she  was  at  her
grandparents place at village Aruwan.  PW-1 shared this  incident  with  her
husband.  They went to the Police Station and lodged complaint (Exhibit  PW-
1/A) on September 06, 2012  before  the  Deputy  Superintendent  of  Police,
Dalhousie, who forwarded the same  to  the  Station  House  Officer,  Police
Station, Kihar with  endorsement  (Exhibit  PW-12/A)  along  with  OPD  Slip
(Exhibit PW-8/A).  The prosecutrix  was  sent  for  medical  examination  to
Regional Hospital, Chamba.  Dr. Arti  Sharma  (PW-9)  and  Dr.  Richa  Gupta
medically  examined  the  prosecutrix  and  issued  MLC  (Exhibit   PW-9/B).
Thereafter, date of birth of the prosecutrix was  obtained;  the  respondent
was arrested; and he was  also  medically  examined.   After  completion  of
investigation, challan was put up in the  Court  after  completing  all  the
codal formalities.

Prosecution examined as many as twelve witnesses in all to  prove  its  case
against the respondent.  Statement of the respondent under  Section  313  of
the Code of Criminal Procedure, 1973 (Cr.P.C.) was also recorded wherein  he
pleaded innocence. According to the respondent, a false case has  been  made
out against him due to  personal  enmity  in  the  family.   The  Additional
Sessions Judge,  Fast  Track  Court,  Chamba  convicted  and  sentenced  the
respondent, which has been set aside by the High Court, as noted above.

Though the prosecution examined twelve witnesses, it may  not  be  necessary
to state the deposition of all those witnesses.  The material witnesses  are
PW-1 (mother of the prosecutrix),  PW-2  (prosecutrix  herself),  PW-8  (Dr.
Jasbir Kaur, who had examined the prosecutrix on September  03,  2012),  and
PW-9 (Dr. Arti Sharma, who had examined the prosecutrix after  the  FIR  was
lodged).

PW-1, who is the mother of the prosecutrix, got married thirteen years  back
with Mohinder Singh.  Her daughter was twelve years old  and  son  was  nine
years old.  Her daughter was studying in VII Standard  in  Moti  Tibba  High
School, Dalhousie.  Her daughter used to complain  of  having  stomach  ache
for the past 2-3 months and was taken to the  local  doctor,  who  gave  her
medicine.  The prosecutrix was then taken for treatment to  Kakira  Hospital
on September 03, 2012 where  PW-8  examined  her  and  told  PW-1  that  the
prosecutrix  might  have  been  sexually  assaulted  2-3  years  back.   The
prosecutrix was given medicine for  10-15  days.   On  returning  home,  she
enquired from her daughter as to what had happened with her 2-3 years  back.
 Her daughter told that the  respondent  had  sexual  intercourse  with  her
three years  back  when  she  was  away  at  her  grandparents  place.   The
respondent was real brother of her husband and uncle of her  daughter.   Her
daughter narrated that three years back when she was with  her  grandparents
at Aruwan, the respondent came and called her to the  room.   Her  daughter,
being niece of accused,  responded  to  his  call  and  went  to  the  room.
Thereafter, the respondent bolted the door from inside and committed  sexual
intercourse with her daughter after putting off her clothes.   Her  daughter
told that the respondent had gagged her mouth  when  started  weeping.   The
respondent had criminally intimidated her daughter not to disclose  this  to
anyone.  Her daughter also told that the  respondent  had  committed  sexual
intercourse with her three times.  PW-1 then shared this incident  with  her
husband.  They went to the Police Station to lodge  complaint  (Exhibit  PW-
1/A).  In her cross-examination, PW-1 has deposed that her husband  had  not
accompanied her to the Hospital at Kakira.  He stayed at home since  he  was
employed as Chowkidar in the local building.  On the next day,  PW-1  shared
this incident with her husband.  Her father-in-law was having  joint  family
with his two brothers.  All of them resided  together  in  the  same  house.
There were ten rooms in the house of her in-laws  consisting  six  rooms  on
the ground floor and another four rooms on the  first  floor.   Property  of
her father-in-law was joint with his brother.  She  was  not  aware  whether
there was a brawl on May 28, 2012 between her father-in-law and  the  father
of the respondent.  She was not aware whether the matter went to the  Police
and  the  proceedings  were  still   pending   before   the   Sub-Divisional
Magistrate, Churah.  She has admitted in her  cross-examination  that  there
were 20-25 persons in the joint family of her in-laws, who resided  together
in the same house at Aruwan.  Her mother-in-law also resided on  the  ground
floor.  All the rooms on the ground floor  were  occupied  by  other  family
members.  She had brought her children after two months when they  had  gone
to avail winter vacation in the month of December 2009.

Statement of the  prosecutrix  (PW-2)  was  recorded  in-camera.  The  trial
court, after putting five questions to her, was satisfied  that  she  was  a
competent witness.  According to her,  her  native  place  is  Aruwan.   Her
grandparents were residing there  in  a  joint  family.  Three  years  back,
during winter vacation, she was at  the  place  of  her  grandparents.   Her
mother had taken her.  She was playing with her younger brother and  younger
cousin when the respondent, who is her uncle, called her to the room on  the
first floor.  She responded to his call.  On reaching the  room,  he  bolted
the door from inside and made her lie on the bed.  He gagged her mouth.   He
stripped off her salwar from her one leg and had put off his  trousers.   He
laid on her and thrust his penis inside her vagina and thereafter  she  fell
unconscious.  When she regained consciousness, she found that there  was  no
one in the room.  The respondent  had  criminally  intimidated  her  not  to
disclose this incident to anyone, otherwise she would be killed.  After  10-
15 days again, the respondent took her to  the  same  room  and  had  sexual
intercourse with her.  Thereafter, she returned  to  Dalhousie.   After  two
months again, she visited her grandparents' home  on  seven  days  vacation.
During her visit, the respondent again took her forcibly to his  room  where
he had sexual intercourse with her.  The respondent  had  again  intimidated
her not to disclose this act to anyone.  After a lapse of 2-3 months  again,
when she visited her grandparents, the respondent called  her  but  she  did
not respond and slipped away.  Thereafter,  she  went  to  the  hospital  at
Kakira with her mother when she developed  severe  stomach  ache  and  while
returning from there, she disclosed to her mother that  the  respondent  had
sexual intercourse with her on her visit to  grandparents  place.   She  was
checked up by a lady doctor.  Her  statement  was  recorded  at  the  Police
Station, Kihar.  She was medically examined.  In her cross-examination,  she
has deposed that white discharge had  commenced  10-15  days  prior  to  her
visit to the hospital at Kakira.  Stomach  ache  started  after  1-2  months
when the respondent had sexual intercourse with her.  She  used  to  have  a
lot of pain in the stomach and often she shared with her mother.   She  went
to Kakira Hospital  on  September  03,  2012.   Lady  doctor  had  medically
examined her.  She did  not  disclose  the  incident  to  her  mother  after
returning home from her grandparents place  and  only  shared  the  incident
with her while returning from the hospital at Kakira.  She did not  disclose
to her mother about the pain  since  she  was  not  aware  that  it  was  an
offshoot of sexual intercourse.  She further stated  that  her  grandparents
are having bedroom on the ground floor.  There were total six rooms  on  the
ground floor.  One room was in possession  of  her  parents  on  the  ground
floor.  The other room was given to her youngest  uncle,  Khem  Raj.   There
were two rooms on the first floor  and  in  one  room,  her  uncle  Res  Raj
resided.  Second room on the first floor was in  possession  of  her  Papa's
uncle.  She has admitted that her grandparents have joint family  consisting
of 20-25 members.  She remained confined with the  respondent  in  the  room
during the act of sexual intercourse for about 9-10 minutes.  During  sexual
intercourse, she had  bleeding.   Bed  sheet  had  blood  stains  where  the
respondent had committed sexual intercourse.  Her salwar  was  also  smeared
with blood stains.  She had a lot of pain and had also raised cries but  her
mouth was gagged by the  respondent.   She  had  not  disclosed  before  the
Police while giving statement that she had fallen unconscious.  She did  not
recall as to how long she remained  unconscious.   The  incident  had  taken
place in the  morning  hours  around  8:00  to  9:00  a.m.   Female  members
returned back to the house after one hour of  the  incident.   She  had  not
disclosed about the incident to anyone since accused had threatened to  kill
her.  She had also not disclosed to her mother out of fear  on  phone  since
she was not  conversant  how  to  make  a  call  on  the  phone.   When  the
respondent took her forcibly to the room, there was  no  one  in  the  close
vicinity.  She screamed but her mouth was gagged.  She had two real  uncles.
 The respondent was the son of her grandfather's brother.

PW-8, Dr.  Jasbir  Kaur,  has  deposed  that  on  September  03,  2012,  the
prosecutrix appeared before her as an OPD  patient  along  with  her  mother
complaining of flatus incontinence (involuntary passage  of  gas).   On  her
vaginal examination, it was found that hymen was ruptured and  her  external
anal sphincter was also torn.  In the opinion of PW-8, the prosecutrix  must
have been sexually assauled forcibly and  since  her  anal  sphincters  were
also not functioning properly, she might have been  sodomised.   She  issued
OPD Slip (Exhibit PW-8/A).  In her cross-examination, PW-8 admitted that  in
the said OPD Slip, parentage and residence proof  of  the  patient  was  not
mentioned.  She has also admitted that there was  over-writing  with  regard
to date on the OPD Slip.  According to her, this over-writing could be  done
by the person who issued the said slip.  She has admitted that she  had  not
given history with regard to internal examination of the patient in the  OPD
Slip.

PW-9, Dr. Arti Sharma, has also  examined  the  prosecutrix.   She  has  not
noticed any injury marks  on  the  whole  body  and  private  parts  of  the
prosecutrix.  She noticed that hymen was torn, vagina admitted  two  fingers
and the prosecutrix had been subjected to sexual intercourse.   It  was  not
possible to say when the said  incident  was  committed.   She  issued  MLC,
which is marked as Exhibit PW-9/B.

We may also mention at this stage that PW-3 proved the date of birth of  the
prosecutrix as April 21, 2000, as per the Birth and  Death  Register.   This
fact is not disputed.   Likewise,  PW-7  Dr.  Ajay  Nath  had  examined  the
respondent and in his opinion  the  respondent  was  capable  of  performing
sexual intercourse.  This fact is  also  not  disputed  by  the  respondent.
Relationship of parties is also not in dispute, i.e., the respondent is  the
son of prosecutrix's grandfather's brother.  In this manner, prosecutrix  is
the niece of the respondent.  It is also not in dispute that the  respondent
was living in the same  house  where  the  grandfather  of  prosecutrix  was
staying.   Insofar  as  the  respondent  is  concerned,  his  statement  was
recorded under Section 313 of the Cr.P.C. wherein he  deposed  that  he  was
falsely implicated because of some family dispute over the property.

The trial court, after analysing the evidence, found  that  there  were  few
contradictions in the statement of PW-1 and her daughter  PW-2  with  regard
to the period of stomach  ache  and  the  duration  for  which  she  was  on
medication by the local doctor/private chemist.  However, in the opinion  of
the Sessions Court, these  were  very  minor  discrepancies.   The  Sessions
Court noted that the prosecutrix was only nine  years  old  child  when  the
incident happened and she was only twelve years of age when she  deposed  in
the Court and, therefore, it could not be expected of  her  to  report  each
and every fact by giving minute details.  The trial court  further  observed
that both the witnesses withstood the test  of  credibility  as  even  after
undergoing detailed cross-examination their  depositions  on  vital  aspects
remained firm and could not be shaken.

The main argument advanced by the defence before the trial  court  was  that
it was a case of inordinate delay where reporting to the  Police  was  three
years after the incident.  The trial court, however, was  not  convinced  by
this argument.  In the judgment given by the trial court,  detailed  reasons
are given, which will be discussed at the appropriate stage  by  us,  as  to
how, in the given circumstances, the prosecution was  able  to  explain  the
delay.  Taking aid of various pronouncements of this Court on  this  aspect,
the trial court concluded that the said delay had not  dented  the  case  of
the prosecution.  Other argument of the defence that  PW-1,  mother  of  the
prosecutrix, had filed  false  complaint  to  implicate  the  respondent  on
account of family feud was also not found to be convincing.

In the ultimate analysis, the trial court  believed  the  statement  of  the
prosecutrix as true since it was supported by medical  evidence  on  record.
It was found to be trustworthy and not shrouded with any doubt.   The  trial
court pointed out that the statement of  PW-8  clearly  suggested  that  the
prosecutrix was forcefully raped by the respondent and as a result  of  that
her hymen was ruptured and her external anal sphincter was also torn.   Even
internal sphincter was not continence.  She found  that  anal  sphincter  of
the prosecutrix was not functioning properly.  In the opinion  of  PW-8,  on
account of injury to the  prosecutrix's  anal  sphincter,  she  might  be  a
sufferer throughout her life.

Another argument of the defence before the  trial  court  was  that  it  was
impossible that such an incident would have occurred in the house  where  so
many family members lived.  In such circumstances, it could not be  believed
that the respondent would have taken the prosecutrix  to  the  room  on  the
first floor and  committed  sexual  intercourse.   This  argument  was  also
brushed  aside  by  the  trial  court  pointing  out  that,  in  her  cross-
examination, the prosecutrix has stated that the incident  had  taken  place
in the morning hours, around 8:00 a.m. to 9:00 a.m.  Female members  of  the
family returned back to the house  after  one  hour  of  the  incident.  The
prosecutrix had stated that she had not  disclosed  about  the  incident  to
anyone since the respondent had threatened to kill  her  and  also  did  not
disclose to her mother on phone, out of fear.   She was not  conversant  how
to make a call on phone.  The Sessions Court found  that  the  testimony  of
the prosecutrix appeared to be true.  It could not have been expected  of  a
child of tender age to narrate the incident or share the happening with  her
to anyone when she had been put under fear by the accused.  Even  she  could
not disclose this incident to her mother.  Her testimony that  she  did  not
disclose to her mother out  of  fear  on  phone  appeared  probable  to  the
Session Court, keeping in view her tender age.

Concluding that the deposition of the prosecutrix was found to  be  credible
and trustworthy, which was sufficient to convict the accused person even  in
the absence of any corroboration, insofar as the present case is  concerned,
the medical evidence supported her version.  On this  basis,  conviction  of
the respondent was recorded under Sections 376(2)(f) and 506 of the IPC.

Before the High Court, the respondent made same arguments in order to  shake
the case of the  prosecution  and  argued  that  the  trial  court  did  not
consider these arguments in the right perspective.   The  High  Court  found
the arguments of the defence as convincing, inasmuch as,  according  to  the
High Court:
(a)   FIR was lodged much belatedly, which  was  fatal  to  the  prosecution
when the delay was not satisfactorily explained;
(b)   there were 20-25 persons in the joint family who resided  together  in
the same house in Aruwan.   As  per  the  prosecution,  since  the  incident
happened at 8:00 a.m. to 9:00 a.m., it was not believable that  where  there
is a joint family consisting of 20-25 members, such an incident  could  take
place;
(c)   even if some of the members of the family were not found to be in  the
house at the time of incident, the  prosecutrix  was  supposed  to  disclose
this incident to the other members of  the  family,  including  her  mother,
when she met her;
(d)   according to the  prosecutrix,  her  salwar  was  smeared  with  blood
stains and it could not have gone unnoticed;
(e)   in a house of ten rooms occupied by 20-25 persons, if the  prosecutrix
had screamed, it would not have gone unnoticed;
(f)   there was a dispute between the parties, which was apparent  from  the
contents of Exhibit DW-1/A, which could have been  the  reason  for  lodging
the complaint belatedly on September 06, 2012;
(g)   even when the incident was narrated by the prosecutrix to  her  mother
on September 03, 2012, the complaint was lodged three days thereafter,  i.e.
on September 06, 2012, which was also fatal.

Learned counsel for  the  State  made  an  endeavour  to  tear  through  the
reasoning given by the High  Court  with  the  submission  that  these  were
hardly any reasons to give benefit of doubt to the respondent having  regard
to the impeccable testimony of the prosecutrix  herself,  more  particularly
when that is to be read along with the deposition of PW-1  (her  mother)  as
well as medical evidence.  He submitted that the High Court did  not  go  in
the right direction while analysing the evidence on record, inasmuch as,  it
totally ignored the principles on which such depositions are to be  analysed
and adjudged.  It was also argued that the delay  in  reporting  the  matter
was satisfactorily explained, which was  accepted  by  the  trial  court  on
sound reasoning.  He also submitted that presence  of  other  persons  in  a
joint family in such a big  house  was  totally  inconsequential  which  was
given undue importance by the High Court.  It  was  also  submitted  by  him
that the alleged dispute between the parties could not have  been  a  reason
for the mother of the prosecutrix to make a false FIR thereby  exposing  her
minor daughter of tender age in a  charge  of  this  kind  and  putting  her
future in jeopardy.  He read out from the reasons given by the  trial  court
discussing all these aspects in detail and submitted that  the  High  Court,
in the impugned judgment, has not at all stated as to how  the  trial  court
went wrong in its analysis of the evidence.

Learned counsel for the respondent, on the other hand,  submitted  that  the
reasons given by the High Court were strong  and  formidable  reasons  which
are sufficient to put considerable dent on the veracity of  the  prosecution
case and, therefore, the High Court rightly held  that  the  charge  against
the respondent could not be proved beyond reasonable doubt  thereby  rightly
giving the benefit of doubt to the respondent.   He  also  relied  upon  the
discussion contained in the judgment of  the  High  Court  and  the  reasons
given by the High Court in quashing the verdict of  conviction  against  the
respondent.

We have already narrated  the  case  of  the  prosecution  as  well  as  the
testimonies of the prosecutrix, her mother PW-1 and  the  medical  evidence.
After going through the evidence of the prosecutrix and her mother, we  find
that apart from some minor and trivial  discrepancies  with  regard  to  the
period  of  stomach  ache  or  about  the  medicine  taken  from  the  local
doctor/chemist,  insofar  as  material  particulars  of  the  incident   are
concerned, version of both these witnesses  is  in  sync  with  each  other.
Here is a case where charge of sexual assault on a girl aged nine  years  is
leveled.  More pertinently, this is to be  seen  in  the  context  that  the
respondent, who is accused of the crime, is the uncle in  relation.   Entire
matter has to be examined in this perspective taking into consideration  the
realities of life that prevail in Indian social milieu.

As per the prosecutrix, she was called by the respondent to his room,  which
is on the first floor of the house.  Unmindful of what could be  the  motive
of an uncle  to  call  her,  she  obliged  as  a  dutiful  child.   However,
according to the prosecution, unfortunate incident  happened.   It  happened
with a nine year old child who was totally unaware of the catastrophe  which
had befallen her.  Her mental faculties had not developed fully; she was  in
the age of innocence; unaware of the dreadful consequences. Further, at  the
time when she was being sexually assaulted, her mouth  was  gagged  so  that
she was not able to scream and after the incident she was threatened not  to
disclose this incident to anybody.  In fact, she kept mum out of this  fear.
 It is quite understandable that a nine year  old  child,  after  undergoing
traumatic experience and inflicted with threats, would be frozen  with  fear
and she could not find voice to  speak  against  her  uncle.   In  cases  of
incestuous abuse, more often, silence is  built  into  the  abuse.  Incident
came to light and tragedy struck on the prosecutrix  only  when  her  mother
noticed that she was continuously  suffering  from  stomach  ache  and  was,
therefore, taken to a Gynecologist for her treatment.  But  for  the  above,
matter may not have come to light.  It is only after  she  was  examined  by
Dr. Jasbir Kaur (PW-8), who had medically examined and  formed  the  opinion
that the prosecutrix had been sexually assaulted forcibly  about  2-3  years
ago, since her hymen was ruptured and her external and  internal  sphincters
were also torn, that PW-1 queried  the  prosecutrix  and  she  revealed  the
incident, hitherto hidden by her from the entire  world  out  of  fear,  not
only as a result of the threats extended by the respondent  but  for  varied
other reasons.

When the matter is examined in  the  aforesaid  perspective,  which  in  the
opinion of this Court is the right perspective, reluctance on  the  part  of
the prosecutrix in not narrating the incident to anybody  for  a  period  of
three years and not sharing the same  event  with  her  mother,  is  clearly
understandable.  We would like to extract the  following  passage  from  the
judgment of this Court in Tulshidas Kanolkar v. State of Goa[1]:
“5.   We  shall  first  deal  with  the  question  of  delay.  The   unusual
circumstances satisfactorily explained the delay in  lodging  of  the  first
information report.  In  any  event,  delay  per  se  is  not  a  mitigating
circumstance for the accused when accusations of rape  are  involved.  Delay
in lodging the first information report cannot  be  used  as  a  ritualistic
formula for discarding the prosecution case and doubting  its  authenticity.
It only puts  the  court  on  guard  to  search  for  and  consider  if  any
explanation has been offered for the delay. Once it is  offered,  the  court
is to  only  see  whether  it  is  satisfactory  or  not.  In  case  if  the
prosecution  fails  to  satisfactorily  explain  the  delay  and  there   is
possibility of embellishment or exaggeration in the prosecution  version  on
account of such  delay,  it  is  a  relevant  factor.  On  the  other  hand,
satisfactory explanation of the delay is weighty enough to reject  the  plea
of false implication or  vulnerability  of  the  prosecution  case.  As  the
factual scenario shows, the victim was totally unaware  of  the  catastrophe
which had befallen her. That being so, the mere  delay  in  lodging  of  the
first information report does not in any way render the prosecution  version
brittle.”

In Karnel Singh v. State of Madhya Pradesh[2], this Court observed that:
“7...The submission overlooks the fact that in  India  women  are  slow  and
hesitant to complain of such assaults and if the prosecutrix happens  to  be
a married person she will not do anything  without  informing  her  husband.
Merely because the complaint was lodged less than promptly  does  not  raise
the inference that the complaint was false. The  reluctance  to  go  to  the
police is because of society's attitude towards such women; it  casts  doubt
and shame upon her rather than comfort and sympathise with  her.  Therefore,
delay in lodging complaints in such  cases  does  not  necessarily  indicate
that her version is false...”

Likewise, in State of Punjab v. Gurmit Singh & Ors.[3], it was observed:
“8...The courts cannot overlook the fact that in sexual  offences  delay  in
the lodging of the FIR can be due to variety  of  reasons  particularly  the
reluctance of the prosecutrix or her family members to go to the police  and
complain  about  the  incident  which  concerns  the   reputation   of   the
prosecutrix and the honour of her family. It is only after giving it a  cool
thought that a complaint of sexual offence is generally lodged...”

Notwithstanding the fact that the trial court accepted the  explanation  for
delay as satisfactory by giving detailed reasons, we are  dismayed  to  find
that the High Court has been swayed by this delay in  reporting  the  matter
with omnibus statement that it is not satisfactorily explained without  even
an  iota  of  discussion  on  the  explanation  that  was  offered  by   the
prosecution in the form of testimonies of PW-1 and PW-2.

It seems that the main reason which has influenced  the  mind  of  the  High
Court is that there were 20-25 persons in the joint family and some of  them
were bound to be in the house at the time of the  incident  and,  therefore,
it was not possible that such an incident  would  go  unnoticed  if  it  had
actually happened.  This is coupled with the fact that  the  salwar  of  the
prosecutrix was smeared  with  blood  stains,  which  could  not  have  gone
unnoticed. Here again, the High Court has gone by the  aforesaid  two  facts
without going into the details and the discussion  is  totally  perfunctory.
The aforesaid two facts are simply noted and on that basis  the  prosecution
version is discarded as unbelievable. These may have been  relevant  factors
only if there was absence of any explanation by  the  prosecution  on  these
aspects.  In the first instance, it may be noticed  that  the  room  of  the
respondent was  on  the  first  floor  where  the  prosecutrix  was  called.
Defence has nowhere  stated  that  on  the  first  floor  there  were  rooms
adjacent to the room of the respondent and there were other members  of  the
family.  What is smoke-screened  in  the  process  is  that  in  the  cross-
examination the prosecutrix  categorically  stated  that  the  incident  had
taken place in the morning hours around 8:00  a.m.  to  9:00  a.m.  and  the
female members returned back to the house after one hour  of  the  incident.
It also came  in  her  cross-examination  that  during  the  act  of  sexual
intercourse, she remained confined in the room for about 9-10 minutes.   She
raised screams but her mouth was gagged.  Her confinement by the  respondent
on the first floor for about 9-10 minutes was insignificant  and  would  not
have been taken note of by the other family  members  who  might  have  been
present there.  Further, nobody could notice as her screams were  doused  by
gagging her  mouth.   Her  statement  also  suggests  that  she  had  fallen
unconscious and on regaining consciousness she did not find  anyone  in  the
room.  After she  came  out  of  the  room,  she  obviously  refrained  from
disclosing the incident to anyone because of the threat extended to  her  by
the respondent.  In such a situation, obviously the prosecutrix had  ensured
that her salwar which was smeared with blood  stains  is  not  seen  by  any
person.

Likewise, delay of three days in lodging the FIR by  PW-1,  after  eliciting
the information from her daughter PW-2, is inconsequential in the  facts  of
this case.  It is not to  be  forgotten  that  the  person  accused  by  the
prosecutrix was none else than her  Uncle.   It  is  not  easy  to  lodge  a
complaint of this nature exposing prosecutrix to the risk of  social  stigma
which unfortunately still prevails in our society.  A decision to lodge  FIR
becomes more difficult and hard when accused happens to be a family  member.
 In fact, incestuous abuse is still regarded as a taboo to be  discussed  in
pubic.  This reticence  hurts  the  victims  or  other  family  members  who
struggle to report.  After all, in such a situation, not only the honour  of
the family is at stake, it may antagonize other relations  as  well,  as  in
the first blush, such other members of family would not take charge of  this
nature very kindly.  We also find that the  so-called  dispute  between  the
parties was so trivial in nature that it would not  have  prompted  PW-1  to
lodge a false complaint, putting her minor daughter  of  impressionable  age
to risks of serious kinds, as pointed out above.

By no means, it is suggested that whenever such  charge  of  rape  is  made,
where the victim is a child, it has to be treated as a gospel truth and  the
accused person has to be convicted.  We have  already  discussed  above  the
manner in which testimony of the prosecutrix is to be examined and  analysed
in order to find out the truth therein and to ensure that deposition of  the
victim is trustworthy.  At the same time, after taking all  due  precautions
which are necessary, when it is found that the prosecution version is  worth
believing, the case is to be dealt with all sensitivity that  is  needed  in
such cases.  In such a situation one has to take stock of the  realities  of
life as well.  Various studies show that in more  than  80%  cases  of  such
abuses,  perpetrators  have  acquaintance  with  the  victims  who  are  not
strangers.  The danger is more  within  than  outside.  Most  of  the  time,
acquaintance rapes, when the culprit  is  a  family  member,  are  not  even
reported for various reasons, not difficult to fathom. The  strongest  among
those is the fear of attracting social  stigma.   Another  deterring  factor
which many  times  prevent  such  victims  or  their  families  to  lodge  a
complaint is that  they  find  whole  process  of  criminal  justice  system
extremely intimidating coupled with absence of victim protection  mechanism.
 Therefore, time is ripe to bring about significant reforms in the  criminal
justice system as well.  Equally, there is  also  a  dire  need  to  have  a
survivor centric approach towards victims of sexual violence,  particularly,
the children, keeping in view the traumatic long  lasting  effects  on  such
victims.

After thorough analysis of all relevant and attendant  factors,  we  are  of
the opinion that none of the grounds, on which the High  Court  has  cleared
the respondent, has any merit. By now it is well settled that the  testimony
of a victim in cases of sexual  offences  is  vital  and  unless  there  are
compelling  reasons  which  necessitate  looking  for  corroboration  of   a
statement, the courts should find no difficulty to act on the  testimony  of
the victim of a sexual assault alone to convict the accused.  No doubt,  her
testimony has to inspire confidence.  Seeking corroboration to  a  statement
before relying upon the same as a  rule,  in  such  cases,  would  literally
amount to adding insult to injury.  The deposition of the  prosecutrix  has,
thus, to be taken as a whole.  Needless to  reiterate  that  the  victim  of
rape is not an accomplice  and  her  evidence  can  be  acted  upon  without
corroboration.  She stands at a higher  pedestal  than  an  injured  witness
does.  If the court finds it difficult to accept her version,  it  may  seek
corroboration from some evidence which lends assurance to her  version.   To
insist on corroboration, except in the rarest of rare cases,  is  to  equate
one who is a victim of the lust of another with an  accomplice  to  a  crime
and thereby insult womanhood.  It would be adding insult to  injury to  tell
a woman  that  her  claim  of  rape  will  not  be  believed  unless  it  is
corroborated in material particulars, as in the case of an accomplice  to  a
crime.  Why should the evidence of the girl or the woman  who  complains  of
rape or sexual molestation be viewed with the aid of spectacles fitted  with
lenses tinged with doubt, disbelief or suspicion?  The plea  about  lack  of
corroboration has no substance {See Bhupinder Sharma v.  State  of  Himachal
Pradesh[4]}.  Notwithstanding this legal position, in the instant  case,  we
even  find  enough  corroborative  material  as  well,  which  is  discussed
hereinabove.

From the evaluation of the  prosecution  material  discussed  above,  it  is
abundantly clear that the  evidence  brought  on  record  contains  positive
proof, credible sequence of events and factual truth linking the  respondent
with rape of the prosecutrix and had  criminally  intimidated  her.   Hence,
respondent is found to be guilty for offence under  Sections  376(2)(f)  and
506 of IPC since he committed rape with a minor girl aged  nine  years.   It
is pertinent to point out at this stage that at the time  of  deposition  of
the prosecutrix in the Court, the trial court had an opportunity to see  her
demeanor.  On that basis, the trial court in the judgment had  commented  as
under:
“66.  The statement of prosecutrix inspires confidence even though  a  child
witness since while deposing in the Court her demeanor  appeared  like  that
of competent witness and no likelihood  of  tutor.   I  find  her  testimony
reliable since she was found competent to depose after  preliminary  inquiry
as she understood questions and to  give  rational  answers.   I  have  gone
through her  statement  with  extra  caution  and  full  of  circumspection.
Therefore, I have no hesitation to believe her statement.”

At this juncture, we would also like  to  reproduce  the  following  passage
from the judgment of this Court in State of Rajasthan v. Om Prakash[5]:
“19. Child rape cases  are  cases  of  perverse  lust  for  sex  where  even
innocent children are not  spared  in  pursuit  of  sexual  pleasure.  There
cannot be anything more obscene than this. It is a crime  against  humanity.
Many such cases are not even brought to light because of the  social  stigma
attached thereto. According to some surveys, there has been a steep rise  in
child rape cases. Children need special care and protection. In such  cases,
responsibility on the shoulders of the courts  is  more  onerous  so  as  to
provide proper legal  protection  to  these  children.  Their  physical  and
mental immobility  call  for  such  protection.  Children  are  the  natural
resource of our country. They are the country's  future.  Hope  of  tomorrow
rests on them. In our  country,  a  girl  child  is  in  a  very  vulnerable
position and one of the modes of her  exploitation  is  rape  besides  other
modes of sexual abuse. These factors  point  towards  a  different  approach
required to be adopted. The  overturning  of  a  well-considered  and  well-
analysed judgment of the trial court  on  grounds  like  non-examination  of
other witnesses, when  the  case  against  the  respondent  otherwise  stood
established beyond any reasonable  doubt  was  not  called  for.  The  minor
contradiction  of  recovery  of   one   or   two   underwears   was   wholly
insignificant.”

In the result, we allow this appeal, set aside  the  judgment  of  the  High
Court  and  restore  the  conviction  recorded  by  the  trial  court.   The
respondent shall undergo rigorous imprisonment for a period of twelve  years
for the offence under Section  376(2)(f)  and  shall  also  pay  a  fine  of
?50,000, failing which he shall undergo further sentence of  one  year.   He
is also convicted for committing offence under Section 506 IPC for which  he
is sentenced to rigorous imprisonment for two  years.   Both  the  sentences
shall run concurrently.  The respondent be taken into custody  forthwith  to
serve out his remaining sentence.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                       (ABHAY MANOHAR SAPRE)
NEW DELHI;
DECEMBER 15, 2016.
-----------------------
[1]   (2003) 8 SCC 590
[2]   (1995) 5 SCC 518
[3]   (1996) 2 SCC 384
[4]   (2003) 8 SCC 551
[5]   (2002) 5 SCC 745

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