Jitendra Chauhan, J.@mdashThe present appeal is directed against the judgment/order of sentence dated 8.7.2009, passed by the Court of the learned Sessions Judge, Gurgaon, whereby the appellant was convicted and sentenced as under:
All the sentences were ordered to run concurrently.
The facts necessary for adjudication of the matter as narrated in para. No. 2 of the impugned judgment are as under:-
Complainant Pehlad alongwith his wife and five children was residing as tenant in the house of Sanjay Pandit situated in village Wazirabad. He was a carpenter by profession. His eldest daughter Lalita aged 15 years was studying in 8th standard in village Wazirabad. On 23.3.2008, in the evening when he returned from village Tigra after finishing his work, his wife Maya Devi told him that Lalita had gone out of the house in the noon but has not returned so far. On enquiry he came to know that accused Manoj and Arvind, residing as tenants on first floor of the same house had enticed her away. He accordingly moved application to the police on the next date i.e. 24.3.2008, on the basis of which, the present case was registered initially under Sections 363 and 366-A IPC and the police swung into action.
On 25.3.2008, accused Manoj, Arvind and Rajesh were apprehended from IFFCO Chowk, Gurgaon and from their custody Lalita was recovered. She in her statement u/s 164 Cr.P.C. disclosed that on 23.3.2008, when her parents were away from home, she went upstairs to watch T.V. in the room of accused Manoj, who was alone there as his wife was not present at that time. He shut the door of the room and committed rape on her and thereafter, threatened her to kill in case she would disclose the occurrence to anybody. He then left her at A-one Hotel and asked accused Arvind to leave her at Delhi, who also threatened and took her to the house of accused Rajesh, where she was kept for two days. On 25.3.2008 her father alongwith police reached there and apprehended them. On the basis of this statement, Sections 376, 120-B and 506 IPC were added and after completion of investigation, report u/s 173 Cr.P.C. was submitted before the learned Illaqa Magistrate.
2. The accused were charged under Sections 376, 363, 366, 120-B and 506 of IPC, to which they did not plead guilty and claimed trial.
3. In order to substantiate the charge, the prosecution has examined the following witnesses:-
PW1, Jaipal, the owner of the building, where the families of the prosecutrix and accused Arvind and Manoj had been residing stated that Pehlad told him that his daughter Lalita is missing and the accused enticed her away.
PW2, The Prosecutrix deposed that Manoj committed rape upon her. He extended threat to kill her if she disclosed the factum of rape to her parents.
PW3, Pehlad, father of the prosecutrix, deposed that her daughter had been enticed away by accused Manoj and Arvind, who were the tenant in the same premises.
PW4, Dr. Sunita Rathi, Medical, officer, GH Gurgaon, examined the prosecutrix and deposed that Vaginal mucosa was reddish, hymen torn, allowing two fingers easily. She opined that the possibility of sexual intercourse cannot be ruled out.
PW5, Manoj Kumar, Draftsman, prepared scaled site plan Ex. PH on the demarcation of the prosecutrix.
PW6, Kavita Sharma, Incharge Govt. Girl High School Wazirabad, brought the record of the students admission and withdrawal.
PW7, HC Jai Parkash, with whom the case property was deposited.
PW8, EHC Siri Niwas, deposited the sealed envelope and one sealed vial in the office of FSL, Madhuban.
PW9, ASI Suraj Bhan, prepared the final report u/s 173 Cr.P.C.
PW10, Dr. B.B. Aggarwal, Senior Medical Officer, GH Gurgaon, conducted the medico legal examination of Manoj; Arvind and Rajesh, tendered his affidavit in evidence Ex. PM, wherein he opined that there was nothing to suggest that they cannot perform sexual intercourse.
PW11, SI Ram Kumar, Investigating Officer, who recorded the FIR Ex. PC/1, on the compliant moved by Pehlad Singh, father of the prosecutrix. He deposed that on 25.3.2008, he apprehended the accused Manoj, Arvind and Rajesh alongwith the prosecutrix.
PW12, Sh. Pawan Kumar, JMIC, Gurgaon. He recorded the statement of the prosecutrix on 26.3.2008, being the Duty Magistrate on that day. He proved Ex. PB, the statement of the prosecutrix recorded u/s 164 Cr.P.C.
4. When examined u/s 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against them and pleaded false implication. Without adducing any evidence, they closed their evidence.
5. Before the learned trial Court, the argument raised by the defence was that there was an inordinate delay in lodging the FIR, the proof of age of the prosecutrix was not authentic and no semen was detected on vaginal swab.
6. After analysing the entire evidence and hearing the learned counsel for the parties, the learned Trial Court discarded the arguments of the defence counsel and convicted and sentenced accused-appellant Manoj as noticed at the outset, whereas co-accused Arvind and Rajesh were acquitted.
7. Aggrieved against the judgment and order, the accused appellant preferred this appeal, which was admitted on 7.8.2009.
8. Learned counsel for the appellant contends that the learned trial Court has committed a grave error while convicting and sentencing the appellant. He farther submits that there was delay of six days in lodging the complaint and the prosecutrix was major. No ossification test was carried out of the prosecutrix. He further submits that no semen was detected on her vaginal swabs and there are material contradictions in the statement of the prosecution witnesses.
9. On the other hand, the learned State counsel has contended that the prosecution case is amply proved and therefore, the learned trial Court has rightly convicted and sentenced the appellant. He prays for dismissal of the appeal.
10. I have heard the learned counsel for the parties and perused the record carefully.
11. As regards the delay, it is noticed that the prosecutrix was kidnapped on 23.3.2008, while her parents were away. Immediately upon the return of the father in the evening from his place of work, his wife told him about the incident. On the next day, he moved an application with regard to missing of his daughter and on the basis of the same, the FIR was lodged.
12. In the opinion of this Court, the delay, in such cases, is of no consequence, as the honour of the family and reputation of the prosecutrix are at stake. In our society, the parents of a victim, particularly of a tender age, would always be reluctant to report the matter to the Police on account of fear of social stigma and shame.
13. At the time of incident, the prosecutrix was a student of 8th standard. As per students admission and withdrawal register, maintained by the Govt. High School, Wazirabad, she was enrolled at Sr. No. 613 on 6.7.2005, wherein her age has been shown as 7.7.1994. Moreover, in her middle examination certificate issued by the Board of School Education, Haryana and Transfer Certificate Ex. DC, issued by Govt. Primary School, Indira Colony Gurgaon, her age has been shown as 7.7.1994, according to which at the time of occurrence, she was thirteen years and nine months of age and hence, she was a minor. In view of the same, no adverse inference can be drawn for not conducting the Radiology and Dental tests.
14. In her statement before the Court, she has specifically deposed that "on 22.3.2008 Manoj had called her in his room on the pretext of watching TV when her parents were away from house and he committed rape upon her in his kitchen. He extended threat to kill her if she disclose the factum of rape to her parents. On 23.3.2008 when her parents were not at home, he took her to Avon Hotel after extending threat to kill her and temptation of payment of some amount.
15. In para No. 15, the Hon''ble Supreme Court in
Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The Court may convict the accused on the sole testimony of the prosecutrix.
In the present case, the statement of the prosecutrix is worthy of credence and can be relied upon.
16. In
12. In the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence or corroboration as a rule, is adding insult to injury. 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, She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. 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 sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in the rape case....
17. Dr. Sunita Rathi, who conducted medical examination of the prosecution opined that the possibility of sexual intercourse cannot be ruled out. Accused Manoj has stated nothing in his statement u/s 313 Cr.P.C. with regard to false implication.
18. Thus, there is no scope to interfere in the well reasoned judgment of the learned trial court, which is affirmed. The conviction of the accused appellant is maintained.
19. At this stage, the learned counsel for the appellant argued that the incident pertains to the year 2008. The appellant is 32 years of age and married. He is having two minor children. He is the only bread earner of the family. In addition, his parents are old and infirm and the entire responsibility of looking after the family has fallen upon his wife. The family is thus virtually on the verge of starvation. He is not a previous convict, therefore a lenient view may be taken with regard to the sentence. Keeping in view the facts and circumstances of the case, and also keeping in mind that no aggravating circumstances have come on record warranting a strict view, the sentence of the appellant was modified and reduced from ten years to seven years RI u/s 376 of the Indian Penal Code, whereas, the fine and its default clause will remain the same. However, the sentences under various other sections and fine shall remain intact. In view of the above modification in the order of sentence, the present appeal is dismissed.
