This is an unfortunate matter and in addition to
the various issues on fact and law which have been
raised by the learned counsel for the parties, a very
human issue also arises.
The appellant before us, M. Ayoob, was charged
for an offence punishable under Section 376 of the IPC
for having committed rape on P.W. 1 aged about 15 years
on the 15th March, 1990. It appears that the factum of
rape was not revealed by the prosecutrix to anybody
including her parents till a medical examination
several months later showed that she had been
impregnated on account of the rape. It also appears
that at this stage the prosecutrix divulged the entire
story to her parents. Attempts were thereafter made by
them as also by members of the Panchayat including P.W.
2 – Abdul Qadir, to see if some settlement could be
arrived at including a proposal that the prosecutrix
and the appellant be married. P.W. 2 – Abdul Qadir
also suggested, that as the appellant was denying his
paternity of the child, he should undergo a DNA test
which would settle the matter once and for all either
ways. When all these proposals bore no result, an FIR
was lodged after a delay of about eleven months. On
the completion of the investigation, the matter was
committed for trail. During the trial, several
prosecution witnesses including the prosecutrix, her
parents, P.W. 2- Abdul Qadir, and several others
appeared and gave their depositions. The prosecutrix
in order to fix the time of incident, deposed that the
rape had been committed on 15th March, 1990 i.e. on the
day she was to attend an examination in her school.
The trial court relying on the statement of the Head
Master of the School that no examination/test was to be
held on the 15th March, 1990 held that the prosecutrix
had put up a false story and almost exclusively on this
basis acquitted the appellant. The State thereupon
filed an appeal before the High Court which was allowed
by the impugned judgment dated 4th March, 2007. The
High Court observed that there was absolutely no reason
whatsoever to disbelieve the prosecutrix in particular,
and also the other prosecution evidence and that the
delay of about eleven months in the lodging of FIR had
been adequately explained as efforts were being made in
the interregnum to arrive at a compromise and to
persuade the appellant to take the prosecutrix as his
wife. Having held as above, the High Court sentenced
the appellant to undergo seven years rigorous
imprisonment and to pay a fine of Rs. 40,000/- and in
default of payment of fine to undergo simple
imprisonment for a period of one year for the offence
punishable under Section 376 of the IPC. The present
matter is before us by way of special leave.
We have gone through the evidence with the help
of the learned counsel for the parties and have heard
them out on the various issues raised. We find no
infirmity in the judgment of the High Court as the
delay in the lodging of FIR has been adequately and
reasonably explained and the prosecution evidence
clearly reveals that it was the accused-appellant who
was guilty of having committed the rape on 15.03.1990.
The statement of the Headmaster that no test was held
in the School on 15th March, 1990 does not, to our
mind, advance the defence story as the test had been
held 3 days later and the prosecutrix, who was
recording her statement after a delay of three years,
had understandably got confused. We also notice that
the High Court had again made an offer to the appellant
that in case he was willing to undergo the DNA test he
could do so even now and that the same could be
arranged but the appellant had again declined the test
on a technical plea.
We, therefore, confirm the findings against the
appellant.
Mr. M.K. Sreegesh, the learned counsel for the
appellant, has, further, pointed out on the basis of
the record that the incident had happened twenty years
ago and that the prosecutrix, was, as of now, happily
married with children as well as the child born out of
the rape and likewise the appellant was married with
three children and that if the sentence was reduced to
one already undergone, the appellant would be ready to
monetarily help out the unfortunate child. In this
connection, the learned counsel has placed reliance on
State of Punjab v. Gurmit Singh and Ors. (1996) 2 SCC
384 and State of Rajasthan v. N.K. (2000) 5 SCC 30. In
Gurmit Singh's case (supra) this Court observed as
under:-
“The respondents were aged
between 21-24 years of age at the time
when the offence was committed. We are
informed that the respondents have not
been involved in any other offence after
they were acquitted by the trial court
on 1.6.1985, more than a decade ago.
All the respondents as well as the
prosecutrix must have by now got married
and settle down in life. these are some
of the factors which we need to take
into consideration while imposing an
appropriate sentence on the respondents.
We accordingly sentence the respondents
for the offence under Section 376 IPC to
undergo five years' RI each and to pay a
fine of Rs. 5000 each and in default of
payment of fine to 1 year's RI each.
For the offence under Section 363 IPC we
sentence them to undergo three years' RI
each but impose no separate sentence for
the offence under Sections 366/368 IPC.
The substantive sentences of
imprisonment shall, however, run
concurrently.”
Likewise in N.K.'s case (supra) while taking
into consideration the huge time gap between the
conviction and the hearing of the appeal, the Court
came to the conclusion that the ends of justice would
be met if the sentence was reduced to that already
undergone. Both the matters above referred were under
Section 376 of the IPC.
Coming to the facts of the present case, we find
that prosecutrix was less than 16 years and the
appellant about 20 years of age on the date of the
incident. More than 20 years have since elapsed which
would mean that the prosecutrix would be about 35
years and the appellant 40 years of age. Both are said
to be happily married with families of their own. We
are, therefore, of the opinion that keeping in view the
above circumstances and on the principles referred to
in the above cited judgments of this Court, we reduce
the sentence on the appellant to that already undergone
by him (which we are informed is 1 year and 8 months)
and to increase the fine to Rs. 2,00,000/- (Rupees Two
lacs only) to be paid to the child fathered by the
appellant and in the custody of the mother-
prosecutrix. The aforesaid sum shall be payable by way
of a bank draft made out in the name of the child
within a period of three months from today. We make it
clear that in case the aforesaid amount is not defrayed
as directed, the appeal will be deemed to have been
dismissed in toto. Information about the payment or
otherwise be conveyed to this Court by the trial court
immediately after the expiry of three months.
The appeal is disposed of in the aforesaid
terms.