THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HONOURABLE SRI JUSTICE A. ABHISHEK REDDY
CRIMINAL APPEAL No. 741 OF 2015
JUDGMENT: { Per the Hon’ble the Chief Justice Raghvendra Singh Chauhan }
Having been convicted for offence under Section
376(2)(i) IPC, and sentenced to life imprisonment, having been
convicted for offence under Section 5(1) read with Section 6 of
the Protection of Children from Sexual Offences Act (‘POCSO
Act’, for short), and sentenced with life imprisonment, and
directed to pay a fine of Rs.50,000/- under the POCSO Act,
and to further suffer simple imprisonment for three months
in default thereof, and having been convicted for offence
under Section 366-A IPC and punished with a sentence of
three years rigorous imprisonment, to pay a fine of
Rs.1,000/-, and also to suffer simple imprisonment of one
month in default thereof, by judgment dated 01.07.2015 on
the file of the Special Judge for trial of cases under Protection
of Children From Sexual Offences Act-Cum-I Additional
Sessions Judge at Warangal, the accused, Banoth Ravi, has
approached this Court.
Briefly, the facts of the case are that on 18.10.2014
Ms. X (name withheld as she is the prosecutrix in the present
case) (P.W.1) lodged a complaint with the Sub-Inspector,
Maripeda Police Station wherein she claimed that she had
studied from Class-I to Class-V at the Government School in
Thanamcherla village. Subsequently, she left the school, and
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was staying at home. She was eking out her livelihood by
doing manual work. A person, by name Banoth Ravi, aged 30
years, caste: Lambada, a farmer by profession, has been
chasing her, telling her that he has fallen in love with her,
and wanted to marry her. “I ignored his words. Three days
ago, around 4:00 ‘O’ Clock in the evening, Banoth Ravi,
induced me and took me from my house to his maternal grand-
mother’s house at Bachodu Thanda in Bachod village, in
Thirumalayapalem Mandal of Khammam District, stating that
he would marry me and forcibly participated in intercourse
with me many times. On 18.10.2014 in the morning,
I narrowly escaped from the clutches of Banothu Ravi and
reached home and conveyed to my parents about the
happenings. I am filing this grievance petition before your
authority accompanying my parents to this police station.”
On the basis of the said complaint, the police chalked
out a formal FIR, namely FIR No. 221 of 2014 for the offences
under Sections 366, 376(2)(i) of IPC, and under Section 5 (2)
read with Section 6 of the POCSO Act; the investigation
commenced. During the course of investigation, the appellant
was arrested by the police. He was put up for trial.
In order to substantiate its case, the prosecution
examined fourteen witnesses, and submitted fourteen
documents. On the other hand, the appellant submitted
neither oral or documentary evidence in defence. After
appreciating the evidence, the learned Trial Court convicted
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and sentenced the appellant as aforementioned. Hence, this
appeal by the appellant before this Court.
Mr. P. Shashi Kiran, the learned counsel for the
appellant, has raised the following contentions:-
Firstly, the prosecutrix (P.W. 1) herself is not a
trustworthy witness. For, in the FIR (Ex. P. 9), and in her
statement recorded under Section 161 of Cr.P.C., she
nowhere states that the appellant and his father kidnapped
her from her house. In the FIR (Ex. P. 9), she nowhere
mentioned that the appellant was accompanied by his father.
But, she merely claims that three days ago, at 4:00 ‘O’ clock,
in the evening, the appellant induced her, and took her from
her home. Yet, in her testimony, she claims that it is at night
that the accused came along with his father, put a towel on
her nose, due to which, she lost consciousness. From her
house, the appellant took her to Bachod Thanda/Village and
took her to the house of his maternal grandmother.
Therefore, there are two different versions, with regard to the
time when the appellant took her from her house. Hence, it is
a glaring contradiction in her testimony.
Secondly, although the prosecutrix (P.W. 1) claims that
she was forced by the appellant to have intercourse for three
days, although she claims that he had bitten her all over the
body, but neither the Preliminary Report (Ex. P. 12), nor the
Final Opinion (Ex. P. 13) indicate that she was subjected to
any sexual intercourse. According to the Preliminary Report
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(Ex. P. 12), there were no external injuries except for
excoriation over inner part of thigh, and that there was no
indication that the hymen had been ruptured. Even
according to the Final Opinion (Ex. P. 13), “there was nothing
indicative to show that there was a sexual intercourse in the
recent past”. Therefore, the Medical Report belies the
testimony of the prosecutrix (P.W. 1).
Lastly, although the clothes of the prosecutrix, the
vaginal swab of the prosecutrix were sent to the F.S.L. for its
report, but according to the F.S.L. Report (Ex. P. 14), neither
semen, nor spermatozoa was detected on any of these
articles. This clearly proves that there was no sexual
intercourse between the appellant and the prosecutrix.
Therefore, the prosecution has miserably failed to establish
its case for offences under Section 376(2)(i) of IPC, and under
Section 5(1) read with Section 6 of the POCSO Act. Therefore,
the appellant deserves to be acquitted of the said offences.
On the other hand, Ms. J. Sridevi, the learned
Additional Public Prosecutor, contended that a complaint is
not meant to be encyclopedic in its content. As long as the
gist of the prosecution is revealed in the complaint, the
complainant cannot be faulted.
Secondly, whether the appellant’s father was involved in
the kidnapping or not, is immaterial. For, from day one, the
investigation was against the appellant, and the charge-sheet
was filed by the police only against the appellant. Therefore,
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it is a minor contradiction in her testimony which would not
destabilize the substratum of the case of the prosecution.
Thirdly, for the offence under Section 376 IPC, it is not
essential that there should be complete penetration, or
ejaculation; even the slightest penetration is sufficient to
convict a person for offence under Section 376 IPC, and
under Section 5(1) read with Section 6 of the POCSO Act.
Moreover, the testimony of the prosecutrix that she had bite
marks, or injuries on other parts of her body is established by
her medical record. For, even in the Preliminary Report (Ex.
P. 12), it is clearly indicated that she had injuries on her
inner thigh. Furthermore, even in the Final Opinion (Ex. P.
13), it is clearly indicated that her hymen was ruptured.
Therefore, even if neither the semen, nor the spermatozoa was
discovered in her clothes, or in the vaginal swab of the
prosecutrix, even then, it would not dilute the veracity of the
prosecutrix’s testimony.
Lastly, the appellant has taken the defense of a total
denial. He has nowhere pleaded that he has been falsely
implicated in the present case by the prosecutrix. Therefore,
just the testimony of prosecutrix is sufficient to convict the
appellant for the aforementioned offences. Hence, the learned
Additional Public Prosecutor has supported the impugned
judgment.
Heard the learned counsel for the parties, perused the
impugned judgment, and examined the record.
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In her testimony, the prosecutrix (P.W. 1) clearly states
in her examination-in-chief that “I know the accused, who is
also a resident of my village. About six months back, at about
5:00 p.m., while I was returning from Coolie works to the
Thanda, the accused met me on the way and began stating
that he was loving me and wants to marry me. But I did not
care for his words. Again after three days, the accused came
to me and informed that he was loving me and wants to marry
me, for which I grew wild and slapped him with my chappal.
The accused threatened me with dire consequences during the
said night. On that day, while I was sleeping in front of my
house, the accused came to me and kept towel against my
nose due to which I lost consciousness. The accused had
applied some power (sic) to the said Towel. Thereafter, the
accused took me to Bachoda Village and took me to the house
of his maternal grandmother where the accused “nannu
Aagam Chesindu and Pandukunnadu” (He ruptured me and
slept) continuously for three days. The accused had also bite
(sic) me all over my body and also inflicted injuries with nails.
When I cried after regaining consciousness, he threatened to
kill me over a point of knife. The accused had also took (sic)
my photographs through his cell phone, when I slept. I came
out of the hosue on the pretext of attending calls of nature and
escaped from there and went to my parent’s house at 10:00
a.m. I narrated the entire incident to my parents. Thereafter, I
along with my parents went to P.S., Maripeda and presented a
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complaint. Ex.P.-1 is the complaint presented by me. A lady
police constable examined me and recorded my statement. The
police also sent me to the Government Hospital at Warangal.”
In her cross-examination, she tells the Court that the house
of the accused is situated two houses away from her house.
Although certain contradictions have been pointed out in her
testimony, after comparing it with her complaint and with her
statement recorded under Section 161 of Cr.P.C., these
contradictions are minor in nature. Therefore, they do not
dislodge the veracity of her testimony.
Although the learned counsel for the appellant has
pleaded that there is a contradiction with regard to the time
when the prosecutrix was taken from her house, even the
said contradiction is not a major one, but is a minor one.
For, in order to appreciate the testimony of the prosecutrix, it
is essential to consider her age, and the impact of the
traumatic experience of having been ravished by a man.
Therefore, even if there were some contradiction between the
time mentioned in the FIR, and the time mentioned in her
examination-in-chief, such a contradiction does not dislodge
the major premise of the prosecution case that it is the
appellant who had committed rape on the prosecutrix.
It is, indeed, a settled principle of law that for the
commission of an offence under Section 376 IPC, or under
Section 5(1) read with Section 6 of POCSO Act, there need not
be a complete penetration; even a minor penetration into the
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vagina of a prosecutrix would be sufficient to constitute the
offence under Section 376 IPC, and under Section 5(1) read
with Section 6 of the POCSO Act.
Moreover, the testimony of the prosecutrix is further
corroborated by the fact that according to the Preliminary
Report (Ex. P. 12), the prosecutrix had suffered injuries on
her inner thighs. According to the Final Opinion (Ex. P. 13),
her hymen was found to be ruptured. Therefore, her
testimony is certainly supported by the medical evidence.
Hence, the contention raised by the learned counsel that
there is a clear cut contradiction between the oral testimony
of the prosecutrix (P.W. 1), and the documentary medical
evidence, is clearly untenable.
Neither for the offence under Section 376 IPC, nor for an
offence under Section 5 read with Section 6 of the POCSO
Act, is it essential that there should be ejaculation by the
culprit. Therefore, even if the F.S.L. Report (Ex. P. 14) clearly
indicates that neither any spermatozoa, nor any semen is
detected on the clothes of the prosecutrix, or in her vaginal
swab, yet the said finding does not dilute the case of the
prosecution.
Although the learned counsel for the appellant has
vehemently contended that the prosecutrix has foisted a false
case upon the appellant inter alia on the ground that there is
some land dispute between her father and the appellant, the
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said suggestion has been denied by the prosecutrix in her
cross-examination.
Moreover, considering the adverse impact of an
allegation of rape would have on the reputation of the
prosecutrix, neither the prosecutrix, nor her parents would
force her to make such an allegation against a total stranger,
or against the appellant himself. In the case of Rajinder v.
State of H.P1, the Hon’ble Supreme Court has clearly opined
as under:
In the context of Indian culture, a woman–victim of sexual
aggression–would rather suffer silently than to falsely implicate
somebody. Any statement of rape is an extremely humiliating
experience for a woman and until she is a victim of sex crime, she
would not blame anyone but the real culprit. While appreciating
the evidence of the prosecutrix, the courts must always keep in
mind that no self-respecting woman would put her honour at stake
by falsely alleging commission of rape on her and therefore,
ordinarily a look for corroboration of her testimony is unnecessary
and uncalled for. But for high improbability in the prosecution
case, the conviction in the case of sex crime may be based on the
sole testimony of the prosecutrix. It has been rightly said that
corroborative evidence is not an imperative component of judicial
credence in every case of rape nor the absence of injuries on the
private parts of the victim can be construed as evidence of consent.
In the present case, the victim was aged fourteen years
old, when she claimed that it is the appellant, and only the
appellant, who had intercourse with her. Considering the fact
that the prosecutrix is a minor, obviously, the question of
consent does not even arise. Therefore, the contentions
raised by the learned counsel for the appellant are
unacceptable.
In the alternative, the learned counsel for the appellant
has pleaded that even if this Court were of the opinion that
1
(2009) 16 SCC 69
10
the offences under Section 376(2)(i) IPC, and under Section
5(1) read with Section 6 of the POCSO Act were made out
against the appellant, even then, the sentence should be
reduced from life imprisonment to ten years. The learned
counsel submits that before the maximum punishment of life
imprisonment can be inflicted by the learned Trial Court, the
case must fall within the “rarest of the rare case”. Whereas,
the present case does not fall within the said category. But
for the fact that it is alleged that the appellant had physical
relationship with the prosecutrix, there are no aggravating
circumstances which would warrant the imposition of life
imprisonment upon the appellant. Therefore, at least, the
sentence should be reduced in the present case.
On the other hand, the learned Additional Public
Prosecutor has argued that in the cases of crime against
women in general, and crime against children in particular,
should be dealt with harshly by the Courts. For, such crimes
tend to shock the conscious of the society. Therefore, she has
vehemently contended that the sentence should not be
reduced by this Court.
While sentencing an offender, the Court is required to
do a balancing act between the interests of the society on the
one hand, and the rights of the accused on the other hand.
While it is true that the Courts are the conscience keeper of
the society, it is equally true that the Courts are the
upholders of the rights of an offender. Moreover, the Courts
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have to be keenly aware of the fact that the punishment must
commensurate with the nature of the offence alleged to be
committed by an offender. Therefore, the Court has to
examine whether in the peculiar facts and circumstances of a
case, the offender deserves to be punished with a gravest
form of punishment, or with the lightest form of punishment?
Before an offender can be subjected to the harshest
punishment, the case should fall within the category of being
the “rarest of the rare case”. For, the harshest punishment
cannot be inflicted as a knee-jerk reaction to an incident.
In the present case, it has been proven by the
prosecution that the prosecutrix was violated by the accused.
However, the medical evidence does not indicate that she has
been violated with a great force, or under aggravated
circumstances. Even after the alleged act, the appellant has
not maltreated the prosecutrix. Hence, the case certainly
does not fall within the category of being the “rarest of the
rare case”. Therefore, to sentence the appellant with life
imprisonment would be rather unjust.
But, keeping in mind that the life of a child has been
traumatized, the appellant certainly deserves to be punished
by the Court.
Therefore, while upholding the conviction of the
appellant, both for offences under Section 376(2)(i) IPC, and
for offence under Section 5(1) read with Section 6 of the
POCSO Act, this Court reduces the sentences from life
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imprisonment to rigorous imprisonment for ten years, under
both the counts. The sentence of fine amount imposed is not
interfered with. Since the appellant is already in jail, he shall
continue to serve the sentence as modified by this Court. The
period already undergone by the appellant shall be given set
off. However, it is clarified that during the remaining part of
the sentence, he shall not be granted the benefit of parole by
the jail authorities, or by the court. He is, in fact, required to
serve the remaining part of the sentence till the sentence is
totally completed. His conviction for offence under Section
366-A IPC is also upheld by this Court.
Thus, the appeal is partly allowed as indicated above.
Miscellaneous petitions, if any, pending shall stand
dismissed.
__
(RAGHVENDRA SINGH CHAUHAN, CJ)
__
(A. ABHISHEK REDDY, J)
10th March, 2020
Tsr
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THE HON’BLE THE CHIEF JUSTICE RAGHVENDRA SINGH CHAUHAN
AND
THE HONOURABLE SRI JUSTICE A. ABHISHEK REDDY
CRIMINAL APPEAL No. 741 OF 2015
(Per Hon’ble the Chief Justice Raghvendra Singh Chauhan)
-03-2020
Tsr