1. The appellant before us is the original accused in Sessions Case No. 11 of 1976 on the file of the Additional Sessions Judge at Pune. He was charged with having committed offence under Sections 366 and 376 of the Indian Penal Code. He pleaded 'not guilty' and came to be tried. By an order and judgment, dated 20th of April 1976, the learned Additional Sessions Judge, Pune, convicted the accused under section 376 of the I.P.C. and sentenced him to suffer R.I. for 7 years and pay a fine of Rupees 1,000/- in default to suffer further R.I. for six months. Being aggrieved by the said order and judgment, the appellant has preferred this appeal.
2. The facts, according to the prosecution, are that the accused hails from village Tamber Wadei, Taluka Ansa, District Osmanabad. That the accused was married. That on 30th of July, 1962, a child was born of this wedlock, being Kusum (the prosecutrix in this case). That when Kusum was about one year old, her mother passed away and she was then brought up by her grand-parents.
3. It is the prosecution case that thereafter, the accused shifted to Satara. That he remarried and had children from the second marriage also. It is the prosecution case that when Kusum reached the age of about 10 years, her grand-parents took her to Satara and handed her over to the accused.
4. It is the prosecution case that at a latter stage, the accused and his second wife, along with the two children of the second wife and the said Kusum, shifted to Pune and came to reside in Block No. 5, Prabhav Society at Gultekde, Pune.
5. It is prosecution case that on the 5th of November, 1975 at about 9.00 p.m., Kusum and the other members of her family had their dinner. That Kusum then went into the bedroom, which is on the east and lay down there. That her step-mother was in the kitchen which is to the west of the bed-room. That while Kusum was so in the bedroom her father, the accused, came there, caught hold of her by her arm and took her to the sitting room which is to the west of the kitchen. That at this time, the main door leading to the sitting room was closed and so was another door which abuts into the balcony of the sitting room. That her father so having brought Kusum into the sitting room, he got her to latch the third door, i.e. the door between the sitting room and the kitchen. That there was a bed already spread out in the sitting room. That he made Kusum to lie on this bed and threatened her with assault. That he, then untied the knot of her underwear and removed the underwear from her person. That he then inserted his penis into her vagina. That while he was committing this act, he threatened Kusum that should she shout, he would kill her. That while doing this act, the accused bit Kusum on her cheeks and her breasts. That Kusum was in great pain and agony. That at about this time, Kusum told her father that she wanted to answer a nature's call and she should be allowed to go to the latrine. Her father released her. That Kusum thereupon got up, went into the bedroom and then into the balcony of the bedroom and from there, jumped down into the open compound.
6. It is the prosecution case that Kusum having so made her get-away, she went to the Maharshi Nagar Police Chowkey under Swar-Gate Police Station. That she then told her story to P.S.I. Ghogare, who was there, including the fact that her underwear had remained at her residence. That P.S.I. Ghogare recorded her complaint which is Exhibit 14. That P.S.I. Ghogare also prepared an occurrence report (Exh. 18). That he sent, both Exts. 14 and 18 to the Swar-Gate Police Station for registering a crime. That thereupon, a crime came to be registered at Swar-Gate Police Station (C.R. No. 513 of 1975).
7. It is the prosecution case that P.S.I. Ghogare thereafter went to the premises of the accused, accompanied by Head Constable Bhonsale (P.W. 17). That he rang the door-bell. That the accused answered the door. That he entered into the sitting room. That he found that a bed was spread there with a rug on it. That he posted Head Constable Bhonsale at the scene of the crime with instructions to see that nothing was disturbed. That he took the accused with him to the police chowkey. That the accused was arrested about 1.30 a.m. on the 6th of November, 1975.
8. It is the prosecution case that P.S.I. Ghogare, then sent for the panchas and in the presence of the panchas, took charge of the blouse and the skirt from the person of Kusum under a panchanama. That he also took charge of the underwear of the accused under another panchanama. That he, then arranged to send the accused and Kusum to the Sasoon Hospital for examination.
9. That at the Sasoon Hospital, Dr. Anil Deshpande (P.W. 3), who was working as a Casualty Medical Officer, examined the accused at about 6.40 a.m.
10. That on 6th November, 1975, Dr. Sulabha Deshpande, (P.W. 5) examined the girl Kusum.
11. It is prosecution case that on 6th November, 1975. P.S.I. Ghogare handed over the investigation to Inspector Murgod (P.W. 8). That Inspector Murgod proceeded to the scene of the crime and recorded a spot panchanama being Exhibit 7. That during the course of this panchanama, Inspector Murgod took charge of the rug which was lying in the sitting room as also an underwear (said to be belonging to Kusum). It was rolled up in the said rug.
12. That during the course of investigation, the statements of other witnesses were recorded and the articles taken charge of by the police, were sent to the Chemical Analyser. The police also arranged to secure the extract from the birth register pertaining to Kusum. That the Chemical Analyser's report was received in respect of the articles forwarded to the Chemical Analyser. That on investigation being completed, a chargesheet was filed in the Court of the J.M.F.C. on the 28th of November, 1975. That the accused came to be committed to sessions.
13. At the trial the accused pleaded 'not guilty'.
14. The defence of the accused was that on the night of the incident, he had invited 2 persons for dinner at his house. That he asked Kusum's stepmother (i.e. his second wife) to prepare food. Then, he asked Kusum to chop onions. Kusum forgot to do so. That the 2 friends whom he invited, did not turn up. That the, the accused, sent his son to fetch them. That his son returned and told him that they would not attend the dinner since they had invited one Changa Pahelwan for dinner to their place. That the said 2 friends wanted the accused to send some curry to them. That he, the accused, accordingly sent curry to those two persons. That he, the accused, then sat down to dine. That he did not find the onions in his plate. That he therefore. became angry with Kusum. That Kusum then left his house. That later at night, the police came to his residence. That he then came to know that Kusum had left his house. That the police took him to the Chowkey. That he asked them to show his daughter Kusum but to no avail.
15. It was also the case of the accused that Changa Pahelwan and some others deal in illicit liquor. That the said Changa also runs a 'matka'. That the accused is also a 'matka King.' That there was a business rivalry between Changa and himself. That it was at the instance of Changa that Kusum had made a false complaint. That as a matter of fact, when Kusum left the house, it was Changa's driver, Mehamood, who took Kusum to the Police Station where she lodged a false complaint. That it was Changa and his people who put the pressure on the police and rocked (roped) him into a false case.
16. By an order and judgment, dated 26th April, 1976, the learned Sessions Judge held that the charge under S. 366, Indian Penal Code should merge with the charge under section 376 Indian Penal Code and in view of this, no finding was necessary as regards the offence under Section 366. The learned Sessions Judge, however, convicted the accused under Section 376 of the Indian Penal Code as stated earlier.
17. Now, at the outset, it may be stated that the evidence on record discloses that Kusum, the victim girl, was in the house. That the accused who was her father was also in the house on the night of the incident. That the offence of rape was committed in the house. In view of this, we do not see how the charge under Section 336 will be framed. The charge does not survive.
18. Now, to prove the prosecution case, the prosecution has examined in all 9 witnesses. The principal witness of the prosecution is the girl, Kusum. The extract from the birth register (Exh. 23) proves that she was born on the 16th July, 1962. It is not in dispute that on the day of the incident, Kusum was aged about 13 years and or that she was under the age of 16 years on the day of the incident.
19. The next question that arises is that the accused had a sexual relation with Kusum and was it under the circumstances falling under any of the 5 clauses mentioned in Section 375 of the Indian Penal Code.
20. Now, as stated earlier, the main evidence on which the prosecution relies is that of Kusum. Kusum was aged about 13 years at the time of the incident. In these circumstances, it would be necessary to approach her evidence with caution and (act on it) provided there is sufficient corroboration.
21. It is the evidence of Kusum (P.W. 4) that on the night of the 5th November, 1975, she was residing at Pune along with her father, the accused, her step-mother and the children by her step-mother. That at about 9.00 p.m., the family had their meals. That thereafter she retired to the bed-room which was to the east of the kitchen. That her stepmother was cleaning up the kitchen. That sometime later, her step-mother came and lay down on the bed. That she, however does not know the time as to when her step-mother came to bed.
22. It is her evidence that while she was so lying on the bed, her father, the accused, came into the bed-room, caught hold of her by her arm and took her to sitting room (which is to the west of the kitchen). That there was a rug there. That he put her on the rug, untied the knot of her underwear. That at this time, her father threatened her and asked her not to shout and threatened her with assaults. That her father, then took off her underwear and himself came into the bed. That he, then inserted his penis into her vagina. That she did not raise any shouts because she was frightened and because her father, the accused, threatened her to silence saying that he would kill her, if she shouted. That because of this act of her father, she had pain. That her father, the accused, also bit her breasts and cheeks. That she thereupon told her father that she wanted to answer a nature's call. Her father, the accused. thereupon released her. That she, therefore, went to the bed-room and then into the balcony attached to the bed-room. From the balcony, she lumped down into the open ground. That she went to the Police Chowkey situated nearby. That she narrated her story to the Police Sub-Inspector, who was present there. That her statement came to be recorded. That at this time, she had told the police that, she was not wearing her underwear as that had remained at home. That later at night, the police took charge of the clothes she had on her person, viz., the blouse and the skirt. That she was sent to Sasoon Hospital, where she was examined. That she was taken ill and was confined to Sasoon Hospital for four days. Thereafter, she was discharged from the hospital.
23. Shri Patil, the learned Counsel appearing for the accused/appellant, has in criticising Kusum's evidence, urged that in the F.I.R. (Exh. 14), it was Kusum's story that her father caught hold of her hand and took her to the sitting room. Her step-mother was in the kitchen. However, in her evidence, she has changed her story and stated as follows :-
'We all had our dinner together. After dinner, I went to the bed-room and laid on the cot. My step-mother was then busy in cleaning the kitchen. I have no knowledge as to when she came to the bed-room and laid off the bed'.
Shri Patil further submitted that not only had Kusum made a departure from her statement but this must also demonstrate that Kusum, who was an illiterate unsophisticated witness was capable of improving upon her story, and in view of this, her evidence must now be discarded.
24. Now, as regards the criticism, it may be stated that even if there is a contradiction as pointed out by Shri Patil, what is the significance is that the attention of Kusum was not drawn to this contradiction, nor has she been given an opportunity to offer any explanation. Then again, the argument overlooks another part of F.I.R. (Exh. 14) which reads as follows :-
'Thus, yesterday, on 5th November, 1975, at night between 9.00 and 12.00 p.m., my father Gorakh Daji Ghadge, resident of Prabhav Society, Pune. dragged me into the sitting room and compelled me to bolt the room from inside, pushed me flat on the mattress on floor, threatened with life if screamed, untied the tape of my panties, and removed it from my feet, forced me to bend down my feet and put with his hand his penis into my vagina and did this over again. I suffered much pain and without the panties, I escaped saying that I would go to the latrine and return.'
This must go on to show that the incident must have taken place between 9.00 and 12.00 p.m. and it can be that Kusum's step-mother, after cleaning the kitchen. had come to lie down in the bed-room by that time. However neither side has thought it necessary to seek any clarification on this point and in view of this, the comment cannot survive.
25. Shri Patil, the learned Counsel for the accused/appellant, next urged that if the story of Kusum (P.W. 4) was true, the first thing that she would have done would be to run to her step-mother, who was in the house and report the matter to her, and that it would be inconceivable that instead of reporting the matter to her step-mother, Kusum would make a dash and leave the house. That Kusum's conduct in not reporting the matter to her step-mother must detract from her evidence.
25A. In reply to this criticism, Shri Phanse, the learned Advocate for the respondent, argued that what is recorded in the F.I.R. is as follows :-
'My father had on the past twice or thrice similarly taken liberties with me. MY father also threatened me and my mother with life. Therefore, I nor my mother had blurted out this piece of information to anyone at all'.
26. Shri Phanse further stated that this must show that although the father was subjecting this girl to a crime, the step-mother of this girl was incapable of either intervening in this matter or preventing the crime. That in the circumstances, Kusum obviously felt that she would not get any assistance from her step-mother, and her conduct in dashing out of the house and jumping out of the balcony, into the open ground below and rushing to police for help was wholly natural.
27. Now, as regards the rival contentions on this aspect, it may be stated that although Kusum has in the F.I.R. (Exh. 14) stated that she was subjected to this crime on two or three prior occasions and that her step-mother knew about this, this fact has not been elicited during the course of her evidence, possibly because the prosecution had confined its case to the happenings on the night of 5th of November, 1975. In any event, her statement in the F.I.R. (Exh. 14) can only be used for the purposes of corroboration and in view of this, Shri Phanse's argument would be of little avail.
28. In any case, Kusum's evidence makes it clear that her father, the accused, dared to commit the crime whilst her step-mother was in the house and her step-mother did not intervene in the matter. This clearly goes to show that Kusum did not expect any assistance from her step-mother. In view of this, her conduct in not rushing to her step-mother to report the matter, but rather in rushing out of the house to seek assistance would be natural. In view of this, Shri Patil's contention must be negatived.
29. Shri Patil has next argued that if Kusum was subjected to the crime as she seeks to spell-out, she would have cried for help. That the absence of the cries must establish that no such incident as sought to be made out had taken place.
30. Now, in this connection, it would be necessary to look to what Kusum has said in her evidence. In her evidence, she has deposed as follows :-
'There was a bed spread on the ground. I was having underwear, a skirt and blouse on my person then. Excepting myself and the accused none else was there. I was fear stricken then. My father then pulled me on the bed'.
She has gone out to say as follows :-
'The accused who is my father inserted his penis into my vagina. I did not shout for help because I was frightened and the accused threatened me to silence saying that he would be killing me if I were to shout'. She has then gone to say as follows :- 'In the past, I did not serve my father with water. He was, therefore, angry and was out to beat me when I took refuge in the neighbour's house. My father gave me a good thrashing when on the following day I went home. It is true that I am very much scared of my father and a feeling of fear has been instilled in my mind. It is also true that even now I have my father's fright in my mind'.
All this must clearly show that Kusum who was a girl of tender age was in fear of her father the accused and was clearly subdued by his threats. Kusum was clearly a defenceless person overawed by the brute force of her father, and it is in these circumstances, Kusum did not raise any cries. In view of this, the contention cannot survive.
31. Shri Patil next urged that it is Kusum's story that she jumped from the balcony into the open ground below. That the spot panchanama shows that the balcony was situated about 15 feet away from the ground. That the ground itself was rough. That, if Kusum had jumped from the balcony, she would have sustained some injuries on her person, or at least bruises. That although Kusum, in her evidence states that she suffered some pain because of this jump, the evidence of Dr. Sulabha Deshpande (P.W. 5) shows that Kusum had not made any complaint about any pain to her face, legs or palms. That this must clearly detract from Kusum's evidence. Now, what is significant is that it is possible that Kusum may not have mentioned these factors to the doctor at that stage, possibly because what was uppermost in her mind was the traumatic experience of her own father forcing himself on her. Even if there is an omission on Kusum's part to make a mention to the doctor, there is no reason to discard her evidence on this point.
32. Shri Patil, next urged that the evidence of Dr. Sulabha Deshpande (P.W. 5) on examining Kusum, is as follows :-
'1. She appeared to be a girl in the neighbourhood of 13 and she told me that she had not started the menses.
2. I found abrasion on both the cheeks and breasts of Kusum. Her public hair and auxiliary hairs were poorly developed. I made the local examination. No stains of blood or semen were present. Two finger P.V. was possible. Old tear of hymen was present. She had temperature. She was in the hospital for 4 days and then was discharged. I signed the certificate now shown to me. Contents are correct. It is at Exh. 16. There were teeth marks on the cheeks and there were scratches. on the breasts'.
33. That this must show that Kusum (P.W. 4) was habituated to sexual intercourse. That a person of such a nature would not be averse to make a false complaint involving her father. That the evidence of this witness must hence be discarded.
34. Now, as regards this criticism; it may be stated that the argument of Shri Patil only establishes what Kusum (P.W. 4) has stated in the F.I.R. (Exh. 14), viz., that her father the accused, had on two or three previous occasions taken similar liberties with her. Then again, it may be that Kusum (P.W. 4) may have had some relations with someone else but when her own father subjected her to this crime, she rebelled and went to lodge a complaint. The argument that she would want to rope in her father by lodging a false complaint must now be discarded.
35. Shri Patil, the learned Counsel for accused/appellant, next contended that Dr. Deshpande (P.W. 5) had examined Kusum (P.W. 4). That the examination shows that there was no trace of blood. That she found no semen on the person of Kusum. That this medical evidence must clearly fail Kusum (P.W. 4) when she states that she was subjected to sex relations by her father.
35-A. Now, insofar as this argument is concerned, it may be stated that Kusum (P.W. 4) is a child of about 13 years. Her evidence shows that she was in mortal fear of her father. Her evidence further shows that her father had silenced her at the time of committing the crime. She was clearly incapable of putting up any resistance and hence there may have not been any marks of violence which were perceptible. Furthermore, the medical evidence shows that Kusum had an old tear in the vagina P.V. 2 fingers. 'This must mean that in the absence of any resistance, the penetration would be smooth and no blood may have come about.
36. As regards there being no semen found on the person of Kusum is concerned, it may be stated that Kusum's evidence shows that when her father, the accused, subjected her to the sex act, she pleaded with him to allow her to go and answer a nature's call. That her father thereupon released her and she went out of the room. This must show that the entire sex act was not complete. Hence, whilst her evidence shows that there was penetration, there may not have been any seminal emission. But then seminal emission is not necessary to establish rape. What is necessary is that there must be penetration. Hence, the absence of blood or non-finding of any semen on the person of Kusum cannot detract from her evidence.
37. In this context, it may be added that in the F.I.R. (Exh. 14), Kusum has stated that after her father, the accused, had brought her to the sitting room, he pushed her down into the mattress spread on the floor and admonished her. That he untied her panties and removed the same. That he told her to bend her feet and he inserted his penis into her vagina. Kusum (P.W. 4) has gone on to say.
'After some time he took out. But his penis had not become emptied of water. Therefore he held me in his grip again and slept flat with me with his underwear on. Thereafter, he again pulled out his penis and put it in my vagina. He put it inside and again took it out which act was done over and over'.
Now whilst she has in her evidence deposed to penetration only once, the F.I.R. (Exh. 14) shows that the accused has withdrawn his penis at least twice during the course of the act. Be that as it may, this discrepancy does not detract from the fact that there was penetration. Moreover, even the contents of the F.I.R. shows that the sexual act was not completed and that there was no seminal emission. In view of all this, the absence of semen on the person of Kusum (P.W. 4) cannot detract from her evidence.
38. Shri Patil, the learned Counsel for accused/appellant, next urged that if penetration had taken place, the doctor would have found spermatozoa present but this is not the doctor's evidence. That in view of this Kusum's evidence that she was a victim of a rape must be rejected.
39. Now, insofar as this submission is concerned, it may be stated that no question was asked to any of the two doctors as to whether if there was a small degree of penetration, spermatozoa would necessarily be present. Thus, there is no foundation to the argument canvassed and the contention must now be negatived.
40. Shri Patil has next contended that it is the evidence of Kusum (P.W. 4) that her father, the accused bit her on her cheeks and on her breasts. That this is also the story in the F.I.R. (Exh. 14). However, it is the evidence of Dr. Deshpande (P.W. 5) that what she found on examination of Kusum was abrasion on both cheeks and breasts. That is also the certificate (Exh. 16) which is on record. That it is only during the course of her examination-in-chief that Dr. Deshpande (P.W. 5) made an improvement by saying that -
'there was teeth-marks on the cheeks and there was scratches on the breasts. I have described all this by the word 'abrasion'. While the teeth-marks on the cheeks were clear. I am not certain whether the scratches on the breasts were because of fondling with hands or by teeth marks. All these injuries were recent'.
41. Shri Patil has urged that the improvement introduced by Dr. Deshpande (P.W. 5) must be discarded and if abrasions are only found on the cheeks of Kusum, then Kusum's evidence must fail.
42. Now, as regards this contention, it may be stated that Dr. Deshpande (P.W. 5) has of course recorded the injuries found on the cheeks and breasts of Kusum as abrasions. But in her evidence, she has clarified the position and the circumstances in which she had written the word 'abrasions'. We see no reason to reject the explanation given by Dr. Deshpande (P.W. 5), more particularly when these injuries are on the part of the person of Kusum as deposed to by Kusum in Court and as also recorded in the F.I.R. (Exh. 14).
43. Shri Patil, the learned Counsel for the accused-appellant, next contended that the evidence on record shows that the police took charge of the underwear belonging to Kusum, being article No. 2 as also the underwear belonging to the accused, being article No. 3 and a rug, being article No. 1. That all these articles were sent to the Chemical Analyser. That the Chemical Analyser's report (Exh. 22) shows that he found no stains of semen on any of these articles. That this must now negative the story of Kusum (P.W. 4).
44. Now, in connection with this argument, it may be stated insofar as the act is concerned, the evidence of Kusum (P.W. 4) shows that her underwear (article 2) was removed from her person at the time of the crime. There can, hence, be no question of any semen stains being found on her underwear. Insofar as the underwear (article 3) of the accused is concerned, it may be that no semen stains were located on this underwear by the Chemical Analyser but this fact itself cannot detract from the evidence of Kusum (P.W. 4). On the other hand, the absence of semen stains on the underwears of these two persons only supports the story of Kusum that there was penetration and shows that the sexual act was not completed and inasmuch as there was no seminal emission.
45. What supports the story of Kusum (P.W. 4) is the recovery of the underwear (article 2). It is the evidence of P.S.I. Ghogare (P.W. 6) that after Kusum (P.W. 4) has lodged her F.I.R. (Exh. 14), he went to the house of the accused. That he posted Head Constable, Bhonsale (P.W. 7) there to ensure that nothing was disturbed. That he, then brought the accused to the police station. Police Constable Bhonsale (P.W. 7) has supported P.S.I. Ghogare on this aspect of the matter. Then again, it is the evidence of Police Inspector Murgod (P.W. 8) that in the morning of 6th November 1975, he went to the residence of the accused. That at that time, he sent for panchas, one of them being Abasaheb Ganpatrao Gore (P.W. 1). That he then, drew-up a panchanama, being Exhibit 7. That during the course of the panchanama, he took charge of the rug (article No. 1). That he found the underwear of the girl (Art. 2) in this rug. That he took charge of this article also under the panchanama (Exh. 7). Gore. (P.W. 1) has supported Inspector Murgod on this point. Police Constable Bhonsale (P.W. 7) has also stated that in morning, under the blanket (Article No. 1), the underwear was found.
46. Shri Patil, the learned Advocate for the accused/appellant, contended that it is the case of the accused that this underwear was not there and that it was planted. That the evidence on this part of the matter must now be discarded.
47. We are unable to accept this contention. In the first instance, it has not been put to P.S.I. Ghogare (P.W. 6) or to Police Constable Bhonsale (P.W. 7.) that they had planted this underwear. For that matter, this is not a case put to Inspector Murgod (P.W. 8). What has been put to Inspector Murgod (P.W. 8) is that he called for the article later. Inspector Murgod has of course refuted this suggestion. We see no reason to reject the evidence of Inspector Murgod (P.W. 8) more specially in view of the evidence of the pancha Gore (P.W. 1), who has also deposed that this article was found on the bed and taken charge of by the police. The evidence of these witnesses stands corroborated by the contents of panchanama, dated 6th November, 1975 (Exh. 7). This finding of the underwear (Article 2) belonging to Kusum (P.W. 4) on the bed clearly corroborates Kusum's evidence. In this context, it may be added that Kusum's evidence shows that she had told P.S.I. Ghogare at the time when her statement (Exh. 14) was recorded that she had come without her underwear. The finding of this article on the bed on the next day morning only further corroborates her story.
48. Another factor that supports Kusum's story is her immediate conduct. As stated earlier, for obvious reasons, she did not go to her step-mother. On the other hand, her evidence shows that in sheer desperation, she jumped out of the balcony into the open space below and from there, made a bee-line for the police chowkey, where her statement (Exh. 14) came to be recorded. A suggestion was however, made to her, that at this time, she was accompanied by some persons, implying thereby that she had made a complaint at the instance of some other person, more particularly Changa Pahelwan and implying thereby that in giving her version to the police, she was tutored to give a particular version. Kusum denied this and so did P.S.I. Ghogare (P.W. 6). We have no reason to disbelieve these two witnesses on this count. The F.I.R. clearly corroborates Kusum (P.W. 4) in all material particulars.
49. To further establish that it was the accused who had a sex relation that night, the prosecution has also relied upon the evidence of Dr. Anil Digamber Deshpande (P.W. 3). It is his evidence that he had examined the accused on 6th November 1975 at 6.40 a.m. That on examination, he found the following :-
'1. No scratch marks found on the face and neck.
2. Clothes not torn.
3. Presence of semen stains over the underwear present.
4. External genitalia well developed.
5. No injury to external genitals.
6. Pubic hairs not matted.
7. No blood stains over the external genital, scrotum or thighs.
8. Presence of semen over glans and preusal skin present and inner part of the preusal skin wet.
9. Smegma absent.'
50. He has stated that he was of opinion that 'there was the possibility of a recent intercourse' and that he accordingly had given the certificate (Exh. 12). In cross-examination, Dr. Deshpande of course went on to say that the presence of semen might be as a result of masturbation or a wet-dream, etc. Be that as it may. Dr. Deshpande's evidence further contributes to the prosecution story.
51. Then again, it is the evidence of Dr. Sulabha Deshpande (P.W. 5) that when she examined Kusum, she found her to be ill and was running temperature. That Kusum was hence admitted to the hospital and confined there for a period of 4 days. This running of temperature and illness only goes to show that Kusum was subjected to a traumatic experience and this would also be consistent with her story.
52. The sum total of the discussions is that there is no controversy that Kusum was aged about 13 years at the time when the incident took place. There is no reason to reject Kusum's evidence, more specially, when it stands corroborated in material particulars by the other evidence led by the prosecution. The prosecution has clearly established that on the night of the incident, Kusum was the victim of her father's lust. The prosecution has also established beyond reasonable doubt that the accused had forced himself and inserted his penis in her vagina and had thereby committed rape.
53. As regards the defence is concerned, the same has been set-out earlier. The learned Sessions Judge has dealt with this defence and has pointed out the contradiction in the stand taken. We are in agreement with the learned Sessions Judge on this aspect of the matter and this need not detain us any further, suffice to state that the defence must be held to be false.
54. On the question of what is the offence committed, we would (sic) that the prosecution has established the offence committed by the accused is one under S. 376 of the Indian Penal Code and find him guilty under section 376 of the I.P.C. and confirm the conviction.
55. On the question of sentence, Shri Patil, the learned Counsel for the accused/appellant, has urged that the accused has already undergone a sentence of about 4 years and he has been asked to pay a fine of Rs. 1,000/-. That this must be held to be sufficient. Shri Phanse, the learned Advocate for the respondent has submitted to the orders of this Court.
56. Now, the measure of punishment must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim female. In the present case, we have a sordid episode of a father, whose sacred duty is to ensure the welfare of his own child, subjecting his own daughter, Kusum, who is of the tender age of 13 years to the heinous offence of rape. Crimes in which women are victims need to be severely dealt with and in extreme cases such as this where the accused, who is the father of the victim girl has thought it fit to deflower his own daughter of tender years to gratify his lust, then only a deterrent sentence can meet the ends of justice.
57. In the result, we confirm the finding of the learned Sessions Judge and hold the accused guilty under section 376 of the Indian Penal Code. We confirm the conviction. We also confirm the sentence. The appeal must fail.
58. Appeal dismissed.