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2013 DIGILAW 247 (CHH)

GOPAL TIWARI v. STATE OF C. G.

2013-08-26

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

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JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. :- 1. This appeal is directed against judgment dated 26-6-2008 passed by 11 th Additional Sessions Judge (FTC), Durg in Sessions Trial No. 128/2007. By the impugned judgment, accused/appellant Gopal Tiwari has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Conviction Sentence Under Section 376 IPC Imprisonment for life and to pay fine of Rs. 50,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year, Under Section 376 IPC Imprisonment for life and to pay fine of Rs. 50,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year, Under Section 376 IPC Imprisonment for life and to pay fine of Rs. 50,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year 2. The case of the prosecution, in brief, is as under:- Prosecutrix (PW-8) and Vandana Sharma (PW-1) are daughters of the appellant and Smt. Usha Tiwari (PW-9) is wife of the appellant. The prosecutrix (PW-8) was residing in the house of the appellant along with the appellant and her mother Smt. Usha Tiwari (PW-9). Prosecutrix (PW-8) was aged about 14 years on the date of incident. The appellant was working as labour in railways. On 14-06-2007, the appellant did not go on his duty and he remained stayed at home. At about 2.00 pm, the appellant sent his wife Smt. Usha Tiwari (PW9) for purchasing some utensils, at that time, the appellant and prosecutrix (PW8) were present in the house. The appellant caught prosecutrix (PW-8) and when prosecutrix (PW-8) tried to extricate her5elf from the clutches of the appellant, the appellant threatened her of life and pressed her mouth and committed sexual intercourse with her without her consent. On 15th and 16th of June, 2007 also, the appellant committed sexual intercourse with prosecutrix (PW-8). Prosecutrix (PW-8) ran away from the house and went Gundardehi where her sister Vandana Sharma (PW-1) was residing and narrated her the incident. Thereafter, prosecutrix (PW-8) along with Vandana Sharma (PW-1) went to Police Station, Gundardehi and lodged First Information Report (Ex.P/12). Prosecutrix (PW-8) was sent to Government Hospital, Durg for medical examination vide Ex. - P/13. Prosecutrix (PW-8) ran away from the house and went Gundardehi where her sister Vandana Sharma (PW-1) was residing and narrated her the incident. Thereafter, prosecutrix (PW-8) along with Vandana Sharma (PW-1) went to Police Station, Gundardehi and lodged First Information Report (Ex.P/12). Prosecutrix (PW-8) was sent to Government Hospital, Durg for medical examination vide Ex. - P/13. Doctor G. Chakraborty (PW-13) examined the prosecutrix and gave her report (Ex.-P/17), in which she found that lacerated wound of 2 x ½ inches was present on the right arm, hymen was absent and her vagina was admitting 2 fingers with pain. She prepared 2 slides of vaginal swab of prosecutrix (PW-8) and handed over to concerned Constable for chemical examination and she also referred prosecutrix (PW-8) for X-ray examination for determination of her age. Prosecutrix (PW-8) was sent to District Hospital, Durg for X-ray examination. Doctor B.N. Dewangan (PW-7) took out X-ray of prosecutrix (PW-8) and gave his report (Ex.-P/11) in which he opined that the age of prosecutrix (PW-8) was about 16 and half years. The appellant was also sent to Community Health Center (CHC), Gundardehi for medical examination vide Ex.-P/14. Doctor Harikant Singh (PW-6) examined him and gave his report (Ex.-P/10), in which he found that the appellant was capable of committing sexual intercourse. In further investigation, spot map (Ex.-P/3) was prepared by investigating officer. Underwear of prosecutrix (PW-8) was seized vide EX.-P/2. Another spot map (Ex.-P/5) was prepared by Patwari Gorelal (PW-3). A slide was seized vide EX.-P/8. Underwear of the appellant was seized vide EX.-P/9 and the appellant was arrested vide EX.-P/17. Seized articles and slide were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination vide Ex.P/23 and a report (Ex.-P/25) was received therefrom vide EX.-P/24. In Ex.P/25, it is found that article A i.e. underwear of prosecutrix (PW-8) was stained with human spermatozoa. Dakhil Kharij Panji regarding age of prosecutrix (PW8) was obtained from officiating Head Master Ful Singh Sahu (PW-13) of Primary School Sikosa. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Durg, who, in turn, committed the case to the Com1 of Session, Durg, from where it was received on transfer by the 11th Additional Sessions Judge (FTC), Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. 3. In support of its case, the prosecution has examined Vandana Shanna (PW-1), Sunil Sharma (PW-2), Patwari Gorelal (PW-3), Manbodhram (PW-4), Bhujiyar Singh (PW-5), Doctor Harikant Singh (PW-6), Doctor B.N. Dewangan (PW-7), prosecutrix (PW-8), Smt. Usha Tiwari (PW-9), Govindram (PW-10), Head Constable Virsingh Thakur (PW-11), ASI S.R. Suryakar (PW-12), Doctor G.Chakravarti (PW-13), Head Master Ful Singh (PW-13), SHO I. R.Sahu (PW-14) and Scientific Officer and Assistant Chemical Examiner Doctor S.P.Ray (PW-17). 4. Shri Mirza Kaiser Baeg, learned counsel for the appellant argued that the evidence of prosecutrix (PW-8) does not inspire confidence. The trial Court has grossly erred in holding the appellant guilty for the offence punishable under Section 376 IPC. He further argued that the prosecution story is highly improbable. It is impossible for anyone to commit forcible sexual intercourse with her daughter in presence of his wife. Therefore, the conviction of the appellant is not sustainable and he deserves acquittal. 5. On the other hand, Shri Suryakant Mishra, learned Panel Lawyer appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not call for any interference by this Court. 6. Prosecutrix (PW-8) deposed that she was studying in class 7 (on the date of recording of her court deposition) and her age was mentioned as 14 years on the date of deposition in deposition sheet. Ful Singh (PW-13) deposed that he was posted as officiating Head Master in Primary School Sikosa. He further deposed that he brought Date of Birth Register of the said school. In the said register at serial no. 3382, date of birth of prosecutrix (PW-8) is mentioned as 26th April, 1993. He further deposed that he had also brought original Dakhil Kharij Register and in Dakhil Kharij Register at pages no. 54 and 55 at serial no. 3382, date of birth of prosecutrix (PW-8) is mentioned as 26-04-1993. He further deposed that prosecutrix (PW-8) was admitted in the school on 06-7-1999 in class 1 and transfer certificate was issued on 84-2003., Photocopy of the register is Ex.-P/26. 7. From the evidence of prosecutrix (PW-8), officiating Head Master. Ful Singh (PW-13) and Ex.-P/26, it appears that the date of birth of prosecutrix (PW-8) is 26-4-1993 and the date of incident was 14-06-2007. 8. In Alamelu and another Vs. State, Represented by Inspector of Police, AIR 2011 SC 715 , the Hon'ble Supreme Court observed thus: "38. 7. From the evidence of prosecutrix (PW-8), officiating Head Master. Ful Singh (PW-13) and Ex.-P/26, it appears that the date of birth of prosecutrix (PW-8) is 26-4-1993 and the date of incident was 14-06-2007. 8. In Alamelu and another Vs. State, Represented by Inspector of Police, AIR 2011 SC 715 , the Hon'ble Supreme Court observed thus: "38. ...... The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. ......." 9. In State of Chhattisgarh Vs. Lekhram, (2006) 5 SCC 736 , the Hon'ble Supreme Court observed thus: "A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence in this case as the same was recorded on the basis of the statement of the mother of the prosecutrix." 10. In Shekara Vs. State of Karnataka, (2009) 14 SCC 76 , the Hon'ble Supreme Court observed as follows: "6. It is to be noted that PW 1 had produced the transfer certificate (Ext.P-9) and has stated that it pertains to the victim and her name has been entered in the certificate. Nothing has been elicited in her cross-examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. PW 12 had issued the transfer certificate and also stated in his evidenced that he was working as headmaster of the school in question. Nothing has been elicited in her cross-examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. PW 12 had issued the transfer certificate and also stated in his evidenced that he was working as headmaster of the school in question. He remembered to have seen her when she came for applying for the transfer certificate for her children and had issued the transfer certificate to her and that Ext. P-9, the transfer certificate was issued by him. It also bears the signature of the headmaster. He categorically stated that Ext. P-9 was issued on the basis of the entries made in the admission register and Ext. P-10(a) as the relevant entry on the basis of which Ext. P-9 was issued." 11. In Arjun Singh Vs. State of H.P., 2009 Cri.L.J. 1332 (SC), the Hon'ble Supreme Com1 observed as follows: "7. In State of Chhattisgarh v. Lekhram [ 2006(5) SCC 736 ] it was held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). It may be true that the entry of the school register is not conclusive but it has evidentiary value." 12. In the instant case, looking to the evidence of prosecutrix (PW-8), officiating Head Master Ful Singh (PW-13) and Ex.-P/26, it is established that the date of birth of prosecutrix (PW-8) is 26-04-1993 and the date of incident was 14-6-2007. It reveals that on the date of incident the age of prosecutrix (PW-8) was below 16 years. 13. Now, I shall examine whether the statement of prosecutrix (PW8) is sufficient to convict the appellant or not? Evidence of prosecutrix 14. In Mohd. Imran Khan Vs. State (Govt. of NCT of Delhi) 2012 Cri.L.J. 693 (SC), the Hon'ble Supreme Court observed as follows: "15. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called 'Evidence Act'), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act 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. 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 testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecuttix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must he alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889); State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248 : (2004 AIR SCW 6563); and Vijay @ Chinee v. State of M.P, (2010) 8 SCC 191 ) : (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510). (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 : (1990 Cri LJ 889); State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248 : (2004 AIR SCW 6563); and Vijay @ Chinee v. State of M.P, (2010) 8 SCC 191 ) : (AIR 2011 SC (Cri) 940 : 2010 AIR SCW 5510). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix." 15. In Vijay alias Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191 , the Hon'ble Supreme Court observed thus: "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 , this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on par 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 material 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 coul1 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 the coul1 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 testimony 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 on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the 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." 10. In State of U.P. v. Pappu, (2005) 3 SCC 594 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (See p. 597, para 12) "12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do." 11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR or sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) "8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ...Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. ... 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. ...... * * * 21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look or any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9 , placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 ." 16. In the instant case, prosecutlix (PW-8) deposed that she was residing along with her parents and younger brother Abhishek at Village Sikosa. Name of her father is Gopal Tiwari (the accused). Name of her mother is Smt. Usha Tiwari (PW-9). Her mother works at houses. She further deposed that on 14-6-2007, at about 2 P.M., she was at home. Her mother was also at home. Her father (the accused) had also not gone on duty and was at home. At about 2 P.M., her father sent her mother to a shop for purchasing some article. Thereafter, he shut the door of the house and asked her to press his legs and hands. Thereafter, he gagged her mouth, removed her underwear and clothes and committed wrong with her. At this stage, weeping, the witness narrated the commission of wrong with her by her father (the accused). She deposed that her father laid down over her. He pressed her breasts, legs and hands. He committed wrong with her. The act which is performed after marriage was done by him with her. He inserted his penis into her vagina. At this stage, weeping, the witness narrated the commission of wrong with her by her father (the accused). She deposed that her father laid down over her. He pressed her breasts, legs and hands. He committed wrong with her. The act which is performed after marriage was done by him with her. He inserted his penis into her vagina. On her trying to shout, he roped in her hands and legs and gagged her mouth. On her resistance, he threatened her of life and pressed her neck. 17. Vandana Sharma (PW-1) deposed that prosecutrix (PW-8) is her younger sister. She was residing at Village Sikosa along with the appellant and her mother Smt. Usha Tiwari (PW-9). She further deposed that prosecutrix (PW-8) came to her house and weeping, narrated her that the appellant committed sexual intercourse with her on 14th, 15th and 16th of June, 2007. She further deposed that prosecutlix (PW-8) told her that the appellant restrained her in the house and did not permit her to go out from the house and tried to assault her with a sickle. 18. Prosecutrix (PW-8) deposed that the appellant had also committed sexual intercourse with her elder sister. 19. Smt. Usha Tiwari (PW-9) deposed that on 14-6-2007, the appellant committed sexual intercourse with prosecutrix (PW-8). She further deposed that earlier the appellant had also committed sexual intercourse with her elder daughter Vandana Sharma (PW-1). 20. When the accused/appellant was examined under Section 313 Cr.P.C., the appellant out rightly denied that he committed any sexual intercourse with prosecutrix (PW-8) and when questions no. 16 to 19 were put to him about the statement of prosecutrix (PW-8) regarding forcible sexual intercourse with her, he replied that the statement was false and when question no. 43 was put to him as to whether he was to say anything more in his defence, he replied as under :- ^^esjh cM+h yM+dh oanuk vkSj esjs lxs Hkkats ds chp voS/k laca/k LFkkfir gks x;k Fkk] ftls esjs }kjk euk djus ij os nksuksa ?kj ls Hkkxdj mTtSu esa ‘kknh dj fy;s( rc ls os yksx eq>ls nq’euh j[krs gSaA chrs gksyh R;kSgkj ds nks fnu igys fldkslk esa esjs ?kj ij vk;s FksA jkr dks ‘kjkc ihdj lquhy gqM+nax djus yx x;k] rks eSa mUgsa mlds ifjokj lfgr okil Hkst fn;kA** 21. In Prithi Chand Vs. In Prithi Chand Vs. State of Himachal Pradesh, AIR 1989 SC 702 , the Hon'ble Supreme Court held thus: "9. It was next contended that the appellant was falsely involved due to a long standing enmity between the father of the appellant and the girl's father. The prosecutrix has in her deposition stated that the two families were not on talking or visiting terms, since their relations were strained. It was suggested in the course of cross-examination that Ratna, the son of PW-8 Phulan Devi was intimate with the prosecutrix and he had raped the girl. In his statement under Section 313 of the Code of Criminal Procedure, he put forth the case that when he returned to his village in the evening, he saw some ladies at the girl's house and heard the girl saying that she was subjected to rape by Ratna. It is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission of the crime. Except for the suggestion made in the cross-examination of PW-8 Phulan Devi, Ratna's mother and the statement under Section 313 of the Code of Criminal Procedure there is no other material on record which can give credence to the suggestion." 22. In Vishnu alias Undrya Vs. State of Maharashtra, (2006) 1 SCC 283 , the Hon'ble Supreme Court observed thus: "24. The accused in Section 313 CrPC statement has completely denied that he had any sexual intercourse with the prosecutrix. Question 19 (p. 154 of the original record) was put to him about the statement of the prosecutrix regarding forcible intercourse with her on the fateful day, to which he replied, "This is false." Question 64 (p. 167 of the original record) was put to him as to whether he wished to say anything more in his defence, to which he replied, "I am innocent and falsely involved in this case." How he was falsely implicated has not been explained." (See also Pramod Mahto and others Vs. State of Bihar, AIR 1986 SC 1475) 23. In the instant case, the appellant is father of prosecutrix (PW-8). There was a fiduciary relationship between the accused and the prosecutrix and the father is a legal guardian and trustee of the prosecutrix. Therefore, a presumption under Section 114-A of the Evidence Act is attracted. 24. State of Bihar, AIR 1986 SC 1475) 23. In the instant case, the appellant is father of prosecutrix (PW-8). There was a fiduciary relationship between the accused and the prosecutrix and the father is a legal guardian and trustee of the prosecutrix. Therefore, a presumption under Section 114-A of the Evidence Act is attracted. 24. Section 114-A of the Evidence Act runs as under:- "114-A. Presumption as to absence of consent in certain prosecutions for rape. - In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent." 25. In the instant case, prosecutrix (PW-8) and Vandana Sharma (PW1) are daughters of the appellant and Smt. Usha Tiwari (PW-9) is, wife of the appellant. They all deposed against the appellant. They specifically deposed that the appellant committed sexual intercourse with prosecutrix (PW-8). On the date of incident, prosecutrix (PW-8) was unmarried. In normal circumstances, it is not possible to believe that daughter and wife would allow, the real culprit to escape and falsely involve father/husband and it is also not possible that Vandana Sharma (PW-1) and Smt. Usha Tiwari (PW-9) would falsely involve prosecutrix (PW-8) in a case of rape by her father i.e. the appellant. 26. Looking to the evidence of Vandana Sharma (PW-1), prosecutrix (PW-8) and Smt. Usha Tiwari (PW-9), it appears that the appellant committed sexual intercourse with prosecutrix (PW-8) and earlier with Vandana Sharma (PW -1) also. 27. On the date of incident, the age of prosecutrix (PW-8) was below 16 years and she was unmarried. Prosecutrix (PW-8) deposed that she was sent for medical examination and Doctor G. Chakraborty (PW-13) deposed that she examined prosecutrix (PW-8), prepared slides of vaginal swab of prosecutrix (PW-8) and handed over the same for chemical examination and also advised for X-ray examination for determination of age. She further deposed that 2 fingers were admitting with pain. 28. Prosecutrix (PW-8) deposed that she was sent for medical examination and Doctor G. Chakraborty (PW-13) deposed that she examined prosecutrix (PW-8), prepared slides of vaginal swab of prosecutrix (PW-8) and handed over the same for chemical examination and also advised for X-ray examination for determination of age. She further deposed that 2 fingers were admitting with pain. 28. EX.-P/25 is FSL report, in which article A, underwear of prosecutrix (PW-8) was found stained with human spermatozoa. 29. Prosecutrix (PW-8) was an unmarried girl on the date of incident. From perusal of the FSL report (Ex.-P/25), it is evident that intercourse was done with her. It is difficult for us to accept that prosecutrix (PW-8) has falsely implicated her father. Therefore, the defence taken by the appellant that he has been falsely implicated by prosecutrix (PW-8) at the instance of Vandana Sharma (PW-1) and Sunil Sharma (PW-2, husband of Vandana Sharma (PW1)) is not acceptable. 30. We have perused the evidence of prosecutrix (PW-8), snit. Usha Tiwari (PW-9) and Vandana Sharma (PW-1) with utmost circumspection. They are younger daughter, wife and elder daughter of the accused/appellant, respectively. Smt. Usha Tiwari (PW-9) and Vandana Sharma (PW-1) have corroborated the evidence of prosecutrix (PW-8). All these three witnesses have deposed that the accused/appellant was also committing forcible sexual intercourse with his elder daughter Vandana Sharma (PW-1). The evidence of these three witnesses clearly falsify the defence of false implication taken by the accused/appellant. In such a case as the present one, wife and daughters shall not make false implication at the cost of their respect in the society. 31. In view of the above, we are of the considered opinion that it is a fit case where the provisions of Section 114-A of the Evidence Act are attracted and no attempt had ever been made by the appellant to rebut the presumption. In the instant case, we do not see any reason to interfere with the finding based on proper appreciation of evidence available on the record. 32. The rape was committed by the appellant with prosecutrix (PW-8) thrice, i.e., on 14-06-2007, 15-06-2007 and 16-06-2007, therefore, the learned Additional Sessions Judge has convicted and sentenced the appellant thrice for offence under Section 376 lPC, which is incorrect. The appellant is liable for conviction and sentence under Section 376 IPC once only. 33. 32. The rape was committed by the appellant with prosecutrix (PW-8) thrice, i.e., on 14-06-2007, 15-06-2007 and 16-06-2007, therefore, the learned Additional Sessions Judge has convicted and sentenced the appellant thrice for offence under Section 376 lPC, which is incorrect. The appellant is liable for conviction and sentence under Section 376 IPC once only. 33. In the result, the conviction awarded to the appellant by the trial Court is set aside; instead thereof, the appellant is convicted under Section 376 IPC once only. So far as sentence is concerned, the appellant had committed sexual intercourse with her daughter, therefore, it is a fit case where imprisonment for life could have been awarded to the appellant. Therefore, the sentence of imprisonment for life for the offence under Section 376 IPC awarded to the appellant does not call for any interference and is, thus, affirmed. The sentence of payment of fine of Rs.50000/- is also affirmed. 34. With the above modifications, the appeal is dismissed. Appeal Partly Allowed.