IMPORTANT POINT
Undue sympathy to impose inadequate sentence would do more harm to the justice system.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

There can never be more shocking, depraved and heinous crime than when the father is charged of having raped his own daughter. He not only delicts the law but, it is a betrayal of trust. The father is the fortress and refuge of his daughter in whom the daughter reposes trust to protect her. Charged of raping his own daughter under his refuge and fortress is worse than the gamekeeper becoming a poacher and treasury guard becoming a robber.

2. The appellant questioned his conviction for offence punishable under Section 376 of the Indian Penal Code, 1860 (in short the ‘IPC’) as recorded by the learned Sessions Judge, Guna and sentence of imprisonment for life and fine of Rs.1,000/- with default stipulation before the Madhya Pradesh High Court.

3. The High Court affirmed the conviction and the sentence.

4. Sans unnecessary details the background facts are as follows :

The prosecutrix is the daughter of the appellant. The mother of the prosecutrix had died about 3 years back prior to the date of incident i.e. 5.2.2004. At the time of incident, the prosecutrix was residing with her father alongwith her three brothers. On 5.2.2004 the appellant took the prosecutrix (PW-4) aged around 13 years on his cycle to Raghogarh to purchase clothes for her. At around 3 p.m., the prosecutrix was coming back with him on his cycle when on the way, the appellant stopped his cycle near “Bawdi Kheda Ashram”.

Appellant then took the prosecutrix to a dilapidated house situated there and removed the clothes of the prosecutrix. When the prosecutrix cried, the appellant slapped her and forcibly committed rape on her. At that time, three persons- witnesses Kamarjeet, Promod and Suresh who were passing by, heard the shrieks of the prosecutrix, went inside the room and separated the appellant from the prosecutrix. Then, these witnesses took the prosecutrix and the appellant to the police station Vijaypur where the prosecutrix (PW-4) lodged the first information report (Ex. P-4) against the appellant. The prosecutrix (PW-4) was sent for medical examination. Dr. Chhaya Shrama (PW-2) examined the .prosecutrix and found that her sexual character had started developing, pubic hairs were scanty and on internal examination, found old hymen ruptured at 11 o’clock position including the redness over it’s posterior side. On the basis of this examination, the doctor opined that possibility of rape could not be denied. The vaginal swab of the prosecutrix was prepared and the panty of the prosecutrix was taken by the doctor and the same was sealed and handed over to the police for chemical examination. For confirmation of the age of the prosecutrix, her x-ray was taken and as per the x-ray report (Ex.P-1) the age of the prosecutrix was found above 17 years and below 19 years. The appellant was arrested and he was also sent for medical examination. According to his medical report (Ex.P-3), the appellant was found competent to perform sexual intercourse. Thus, according to the prosecution, the appellant committed rape on the prosecutrix (PW-4), who is his own daughter. After investigation, charge-sheet was filed. After committal of the case, charge under Section 376(1) of I.P.C. was framed against the appellant. The accused took the plea of false implication which was not accepted by the trial Court. He was convicted and sentenced as aforestated. He preferred an appeal before the High Court. Before the High Court it was the stand of the appellant that his brother wanted to grab land and property and, therefore, the prosecutrix was under his influence and on being tutored had deposed falsely against the appellant. It was also stated that three other witnesses had deposed under the influence of the villagers. It was stated that it is unnatural that the father would sexually assault his daughter. It is also stated that the High Court without analyzing the evidence dismissed the appeal.

In support of the appeal, the stands ta