JUDGMENT
Dipak Misra, J.
1. Marriage is regarded as an institution to save a civilized man from the tyranny of sex. Instances do take place where a married man becomes a slave to this tyrant and exposes his unbridled appetite and lowers himself to an unimaginable extent for gratification of his carnel desire. The case at hand graphically exposes the inferior endowments of the appellant who failed to (sic) husband his passions and committed rape on a 9 year old girl.
2. The story as unfolded by the prosecution, in brief, is that the accused and the prosecutrix are neighbours. On 22-8-83 at about 2.00 p.m. when the prosecutrix, PW 2 was watching maize crops, the accused asked her to pluck some cucumbers from the nearby field. Following the suggestion of the accused while she was proceeding he caught hold of her and carried her to a distance of 10 paces and then flung heron the ground, gagged her mouth and inspite of her protest ravished her. Hearing the alarm of the prosecutrix, Ramkalibai, PW 3 came to the spot and found that the accused had committed sexual assault on PW 2. PW 2 informed the incident to her grand-mother, PW 7 and her father, Dalchand, PW 8. The matter was reported at P. S. Sehore by her. Under Ex. P-3, she was medically examined by Dr. (Smt.) S. Tiwari PW 1. For determination of age she was examined by Dr. Sharma, PW 13. The accused was examined by Dr. Sahu, PW 5. After further investigation and recording of statements of witnesses and seizure of certain articles charge-sheet was submitted to the Court for trial of an offence Under Section 376/511 IPC. However, the trial Judge framed charge Under Section 376 IPC and eventually the appellant faced trial for the said offence.
3. The accused pleaded innocence and false implication on account of pre-existing party faction.
4. The prosecution, in order to bring home the charges, examined 13 witnesses. PW 1 is the doctor who examined the prosecutrix; PW 2 is the prosecutrix herself; PW 3 Ramkalibai, is an aunt of PW 2; PW 5 is the doctor who had examined the accused; PWs 6 and 9 were examined to further the case of the prosecution but were declared hostile; P.Ws. 4, 10 and 11 are formal witnesses; PW 7 is the grand-mother; PW 8 is the father of the prosecutrix; PW 12 is the sub-inspector who had conducted the investigation; and PW 13 is the doctor who had examined PW2 on reference of PW 1 to determine her age. Apart from the aforesaid oral evidence number of documents were marked in evidence. Defence chose not to adduce any evidence. On consideration of the oral and documentary evidence the learned Sessions Judge, Sehore found the accused guilty of the offence Under Section 376 IPC in S. T. No. 8/84 and accordingly sentenced him to undergo R. I. for 10 years and to pay a fine of Rs. 1000/-, in default of such payment, to undergo R. I. for a further period of 6 months.
5. In support of the appeal Mr. Ramesh Kumar has submitted that there has been considerable delay in lodging the FIR and on that score alone the prosecution story should have been discarded. It is also submitted that the learned Trial Judge has gravely erred in holding that the prosecution has been able to establish beyond reasonable doubt that the accused was guilty of the offence Under Section 376 IPC inasmuch as the charge-sheet was initially laid Under Section 376/511 IPC and examining doctor had opined that rape was attempted. It is his further contention that there is no acceptable evidence on record that there has been penetration to attract the ingredients of the offence of rape. It has been canvassed that the inherent inconsistencies in the version of the various prosecution witnesses have been regarded trivial and insignificant by the learned Trial Judge though they affect the -core of the prosecution case. Absence of any struggle or protest by PW 2 and non-existence of any injury on the body of the prosecutrix should have been given due weightage by the learned Trial Judge, and such non-consideration, it is submitted, makes the impugned judgment sensitively vulnerable. It is also proponed that the evidence of the prosecutrix is sketchy, incredible and does not inspire confidence and, moreover, is uncorroborated.
6. Resisting the aforesaid submissions of the learned counsel for the appellant, Shri Gangrade, panel lawyer for the State, has submitted that the materials on record have clearly provan the guilt of the accused and the discrepancies occurring in the evidence of the prosecution witnesses have been rightly ignored by the learned Trial Judge and his appreciation cannot be faulted with. It is his further submission that PW 2 has vividly narrated the sexual assault launched on her and her testimony having gained support from the medical evidence by no standard, can be regarded as incredulous and untrustworthy. The reasonings given by the learned trial Judge, contends learned counsel, are cogent, based on proper appreciation of the evidence and, therefore, the impugned judgment is unattackable.
7. To appreciate the rival contentions raised at the Bar I have carefully perused the judgment of the Court below and scrutinized the evidence in detail. The Court below has based its findings on consideration of the evidence of P.Ws. 1, 2, 3,7 and 13. The age of the prosecutrix as has been determined by Dr. Sharma, PW ,13, was not seriously disputed before the Court below nor any acceptable contention has been advanced before this Court to dislodge the said determination. That apart there is consistent evidence with regard to her age and there is no effective cross-examination of PW 13 to assail his opinion with regard to the age of the prosecutrix. Hence the age of the prosecutrix as determined by the Court below to be 9 years is accepted.
8. Let me now deal with the contention relating to the delay in lodging the FIR. The occurrence had taken place on 22-8-83 at about 2.00 p.m. Admittedly the FIR was lodged at 11.00 a.m. on the next day i.e. 23-8-83. Thus, it has been lodged after 21 hours after the incident. It has been brought in evidence that the distance of village Badanagar from P. S. Sehore is 9 kms. Explanation has also been offered by the prosecution that after the prosecutrix narrated the incident to her aunt and grand-mother they waited for the arrival of their father Dalchand who returned in the evening. After he arrived he was apprised about the incident and on due deliberation the matter was reported next day at the police station. The learned trial Judge has accepted the explanation offered by the prosecution. In a case of rape, more so, where a girl of 9 years is involved, an atmosphere of emotional anarchy prevails and an attitude of indecisiveness reigns. The victim has to collect and compose herself, get out of the shattering experience and they go to the police station to lodge the FIR. The Apex Court in the case of Karnel Singh v. State of M.P. AIR 1995 SC 2472 : 1995 Cri LJ 4173, has observed as follows (Para 7) :-
It was said that there was considerable delay and sufficient time for tutoring, and, therefore, her evidence could not be believed. There is no merit in this contention. 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.
Keeping the facts and circumstances of the present case and the ratio laid down in the aforesaid decision I am of the considered view that the delay in lodging the FIR does not affect the prosecution case in any manner whatsoever.
9. The next submission of the learned counsel for the appellant relates to discrepancies and contradictions and the credibility of the prosecutrix and other witnesses. The counsel for the appellant has highlighted that the doctor who had examined PW 2 had opined that it was a case of attempt to rape but in her version in the Court she had deposed that the rape had been committed. It is contended that the version of such a witness should have been totally discarded. Before I proceed to the oral evidence and the discrepancies occurring therein, it is necessary to analyse the medical evidence on record. PW 1 had found on examination that labia minora was congested, hymen was completely ruptured and the said repture was 18-20 hours old. She had also found that tip of little finger introduced with difficulty caused severe pain and, therefore, P/V could not be done. She has also stated that complete internal examination could not be done due to pain. It is in her evidence that when she tried to introduce the tip of finger into the vagina, blood oozed out. Her report has been brought on record as Ex. P-2. She has denied the suggestion of the defence that rupture of hymen of the prosecutrix was possible by the introduction of the branch of ‘Babool tree’. She has categorically deposed that the rupture of hymen by self infliction is not possible. She had explained her opinion in clear cut terms. Attempt has been made to gain mileage from the initial opinion given by PW 1. It is well known that in every case corroboration by medical evidence is not a must. Instances are not rape where medical evidence does hot support the version of the prosecutrix. Non-corroboration by medical evidence is not a ground to throw away the version of the prosecutrix. In the present case such is not the situation. May be the doctor had initially opined that the attempt of rape was made but she has corrected herself in Court. The injuries were found on the private part of the prosecutrix and were duly observed by the PW 1. The said observations fully support the version of PW 2 and other witnesses which shall be dealt later on. In view of this, the submission relating to non-acceptance of version of PW 1 is liable to be rejected.
10. Before adverting to deal with the oral evidence on record it is necessary to deal with the contention of the learned counsel for the appellant that the version of the prosecutrix having not been Corroborated by PWs. 5 and 6 as well as by other witnesses, it should be discarded as unreliable. The question that falls for consideration’s whether in all circumstances it is essential that the version of the prosecutrix should be corroborated. In this regard I may refer to the decision in the case of State of Maharashtra v. Chandra Prakash Kewalchnnd Jain (1990) 1 SCC 550 : 1990 Cri LJ 889; wherein the Apex Court has laid down as under (at pp. 894-95 of Cri LJ):
A prosecutrix of sex offence cannot be put on per with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in nvsterial particulars. She is undoubtedly a competent witness Under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimoney short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality and not circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
The said view has been reiterated in a later decision in the case of Karnal Singh v. State of M.P. (1995) 6 JT (SC) 437 : 1995 Cri LJ 4173. In this regard I may also refer to the decision rendered in the case of State of Punjab v. Gurmitsingh AIR 1996 SC 1393 : 1996 Cri LJ 1728 wherein their Lordships held thus (Para 7):-
Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why would the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of- her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an used. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. 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. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimony tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a while, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
This being the position of law, if the testimony of the prosecutrix in a case of rape if acceptable; truthfull and reliable, it can be utilized without corroboration. In the instant case the version of PW 2 cannot be regarded as untruthful. On a careful scrutiny of her statement it becomes quite demonstrative that it is reliable and unimpeachable. Her testimony suffers from no infirmity or blemish whatsoever. She, a young girl of 9 years, has deposed with clarity that the accused caught hold of her hands, helped her to get down from the Babool tree and took her to a distance, flung her on the ground, raised himself on her and when she shouted, gagged her mouth, took off her clothes and ravished her. she has also stated that her aunt arrived at the spot and accused begged of her aunt not to disclose the incident to others. She has stood imbedded in all material particulars in her cross examination. Learned counsel for the appellant has high lighted before this Court certain omission in the FIR to point out the inconsistencies in her version. But I am afraid that the omissions are neither material nor vital and they do not affect the credibility of the version of the prosecutrix.
10-A. I have perused the evidence of Ramkalibai PW. 3 who was available with the prosecutrix at the earliest point of time. She had clearly stated with regard to the presence of accused, his departure and condition of the prosecutrix. Her presence at the spot has also been mentioned in the FIR Ex. P-3, the learned counsel for the appellant has urged that the fact that accused had requested PW. 3 from disclosing the incident, has not been stated in the FIR. Even if this fact has been omitted in the FIR that would not be a material omission, more so, when the presence of Ramkalibai has been stated at the earliest point of time. Even assuming this is an exaggeration or embelishment the same does not affect the entire version of this witness and her statement in other aspects cannot be discarded. I may now refer to the evidence of PW. 7, the grant-mother of the prosecutrix. She has stated that the prosecutrix was bleeding from her private parts. The father of the prosecutrix has also deposed that he learnt about the incident after he came back from the jungle. Learned counsel for the appellant has seriously criticised the evidence of the father and the grand-mother on the ground that their version are get up as they had not stated in regard to the oozing of the blood from the private part of the prosecutrix. In their statements before the police, on the ground alone their version cannot be discarded in entirety. That apart from the medical evidence it is apparent that there was oozing of blood on introduction of tip of little finger any hymen was completely ruptured. Juxtaposed with this evidence if the testimony of PWs. 7 and 8 are analysed their version cannot be regarded as untruthful.
11. Learned counsel for the appellant has submitted that there was a party faction in the village and the accused belonged to one group and the father of the prosecutrix belonged to another. This suggestion has been disputed by PW 8. Nothing has been brought on record that the enmity was to the extent that the grandmother, father and aunt would expose a 9 year old girl of the family at the cost of her future to get the accused prosecuted for an offence of rape. On close scrutiny of the evidence of PW 2 it does not give an impression for a moment that she is a tutored witness. The entire family for no reason would combine to demolish their social reputation and shatter the future marriage prospects of their child to rope the accused in a crime of this nature. It is contrary to human nature. A self-respecting family would not come forward to make a derogatory statement against their honour. Studying the background on the anvil of materials I am of the considered view that the defence plea of false implication due to pre-existing animosity is absolutely unacceptable.
12. As the contentions raised by the learned counsel for the appellant are devoid of merit, the judgment of conviction does not warrant interference.
13. Now to the question of sentence. During the pendency of the appeal an application was filed Under Section 320(5) Cr. P.C. for grant of leave to compound the offence and to take the factum of compromise into consideration while awarding sentence. This Court by order dated 29-10-96 had directed that the said application shall be heard at the time of final hearing. Apart from the fact that such an offence is not compoundable I am of the firm view that compromise of this nature cannot be a factor for consideration in a case of rape for reduction with regard to quantum of punishment. It is to be borne in mind that the appellant was a married person at the time of commission of rape. He not only betrayed the faith reposed in him by his wife but also destroyed the dreams of a child. The childhood is very dear to everyone. The appellant has created a situation by which the prosecutrix has been compelled not to charish the tranquil pleas and memorise of the childhood but would be forced to carry the traumatic experience was imposed on her in the blossam of adolescence, it is to be remembered that a crime of rape is not a crime against an individual but a crime which destroys the basic equilibrium of the social atmosphere. An offence against the body of a women lowers her dignity and mars her reputation. It is said that every one’s physical frame is his or her temple. No one has any right of encroachment. In this regard I may refer to the judgment passed in Bholaram v. State of M.P. Cr. A. No. 119/87 disposed of on 15-5-97 reported in (1997) 2 MPLJ 504 wherein this Court has held as follows :-
While dealing with accused for commission of offence of rape it is to be borne in mind that the monetary pleasure of one causes devastating effect in another. Apart from the individual suffering the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the milieu. The cry of the collective has to be answered and respected while imposing a sentence.
Keeping the aforesaid principles in view, it can be decidedly said that the accused/appellant does not deserve lenient delineation.
14. Consequently, the appeal fails and the same is accordingly dismissed.