REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.670 OF 2003
Rajinder @ Raju .....Appellant
Vs.
State of H.P. ....Respondent
JUDGEMENT
R.M. LODHA, J.
Rapist not only violates the victim’s privacy and
personal integrity, but inevitably causes serious psychological as well
as physical harm in the process. Rape is not merely assault – it is
often destructive of the whole personality of the victim. The
murderer destroys the physical body of his victim. Rapist degrades
the very soul of the helpless female. [State of Punjab vs. Gurmit
Singh and Others1]
2. First, a brief reference to the prosecution case.
The prosecutrix (name with-held by us), a young girl about 18 years
of age, was staying with her parents in village Kothi, district Bilaspur,
(H.P.). The accused, Rajinder@Raju, resident of village Duhak,
district Bilaspur, had taken contract for laying G.I. Pipelines in
1
(1996) 2 SCC 384
village Kothi near the residence of the prosecutrix. In that
connection, he used to store his material in the house of prosecutrix’
parents. On January 16, 1996, prosecutrix had some throat pain.
When the accused came to the house of the prosecutrix and came
to know that the prosecutrix has been suffering from throat pain, he
suggested to the mother of the prosecutrix that his cousin at
Ghumarwin was a doctor and if permitted, he could show the
prosecutrix to his cousin. The mother of the prosecutrix agreed.
The accused took the prosecutrix on his scooter at about 3.00 P.M.
Instead of taking the prosecutrix to Ghumarwin, he took her to Jablu
stating that he had to collect the rent from his tenants. From Jablu,
the accused took prosecutrix to Berthin. The accused reached
Berthin at about 8.00 – 8.30 P.M. alongwith the prosecutrix. At
Berthin, the accused bought some sweets and told the prosecutrix
that he would take her to his house as it was dark. The accused
instead of taking her to his house, took the scooter to some kachha
road and made her to get down from the scooter. After spreading
his pattu on the ground and gagging the prosecutrix mouth made her
lie down; untied her salwar and committed the sexual intercourse
with her forcibly. The accused then left her leaving behind his pattu
and torch. After the accused had left, the prosecutrix saw some
light from a house down the road. She walked upto that house and
2
told the lady, Smt. Bimla Devi, (PW-2) residing there, of the
incident. The prosecutrix stayed overnight in the house of PW-2.
PW-2 told the whole incident to her husband (PW-3). In the morning
PW-3 called villagers; the statement of prosecutrix was recorded by
one of the villagers viz., Roop Singh (PW-4). The FIR was then
registered at the Ghumarwin Police Station. The prosecutrix and the
accused were got medically examined. The Investigating Officer
took the apparel of the prosecutrix in his possession and the same
was sent for chemical analysis alongwith vaginal slide and
underwear of the accused. During the investigation, it also
transpired that the prosecutrix belonged to Scheduled Caste. After
completion of the investigation, a charge-sheet was filed against the
accused under Sections 366 and 376 IPC and Section 3(XII) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
3. The Sessions Judge, Bilaspur, framed a charge against
the accused for the aforesaid offences. The prosecution examined
the prosecutrix (PW-1), Smt. Bimla devi (PW-2), Suram Singh (PW-
3), Roop Singh (PW-4), Smt. Sheela Devi (PW-5), Prem Singh (PW-
6), Dr.S.C. Kaushal (PW-7), Police Officials (PWs 8 to 12) and Dr.
Savita Mehta (PW-13).
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4. The Statement of the accused under Section 313 Cr.P.C.
was recorded. He denied his involvement in the crime and set up
the defence that the case against him has been engineered at the
behest of PW-2, PW-3 and PW-6. He also stated in his statement
under Section 313 Cr.P.C. that mother of the prosecutrix (PW-5)
had taken timber worth Rs. 5,000/- and when he demanded payment
of due amount, PW-5 demanded Rs. 50,000/- from him and said
that after payment of the aforesaid amount only she would finish the
case against him.
5. The Sessions Judge, Bilaspur on consideration of the
evidence on record, acquitted the accused of the charge under
Section 3(XII) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 but convicted the accused under
Sections 366 and 376 IPC. The accused was sentenced to rigorous
imprisonment for seven years and to pay a fine of Rs. 10,000/- with
default stipulation for the graver offence under section 376 IPC only.
6. The accused challenged his conviction and sentence
before the High Court of Himachal Pradesh. The learned Single
Judge dismissed the appeal preferred by the accused. Hence the
present appeal by special leave.
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7. Mr. Ashok Mehta, the learned Counsel for the accused
did not dispute before us that the accused had sexual intercourse
with the prosecutrix at the time and place of occurrence. The thrust
of his contention was that the accused did not commit the alleged
act forcibly; rather such act was committed by the accused with the
consent and free will of the prosecutrix. The aforesaid contention
was argued before the High Court as well and the following
circumstances were pressed into service viz., that the prosecutrix at
the relevant time was 18 years of age and thus capable of
consenting to the act of sex; that the absence of injury/injuries on the
person of the prosecutrix is suggestive of her consent which is
further fortified by the fact that the act of sex is said to have been
done after the accused had laid the pattu on the ground and that the
prosecutrix accompanied the accused voluntarily from the very
beginning; and that the aspect of the accused having threatened
the prosecutrix at the point of dagger is palpably false as this does
not find mention in the FIR.
8. Since the act of sexual intercourse by the accused on
the prosecutrix is admitted, we do not deem it necessary to
consider the medical evidence at great length. Suffice it to say
that Dr. Savita (PW-13) examined the prosecutrix on January 18,
1996. At that time her clothes were found soiled with blood. PW-13
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opined that sexual intercourse was committed with the prosecutrix
within 48 hours of her examination. She also conducted the vaginal
test to ascertain the presence of spermatozoa. According to PW-13,
the prosecutrix was not habitual to sexual intercourse and, in her
opinion, the prosecutrix was sexually assaulted for the first time
before she examined her. She was not in a position to opine whether
the sexual act was with consent of the prosecutrix or it was
committed forcibly. In the circumstances, it admits of no doubt that
the accused had sexual intercourse with the prosecutrix on the date
and place of occurrence. The core area of debate is whether such
act was committed with the consent of the prosecutrix or not.
9. The prosecutrix in her deposition has been categorical,
clear and unequivocal that the accused committed forcible sexual
intercourse with her. She testified:
“While going, the accused stopped the scooter at a
lonely place on the road and thereafter he dragged me
by holding me from my arm at some distance from the
road and gagged my mouth and after placing `pattu’
on the ground, he untied my salwar and committed the
sexual intercourse with me. I had felt a pain in my
private part and the blood started oozing.”
10. It is true that in her cross examination she stated that the
accused had threatened her with a dagger before Jablu when she
refused to go with him and this aspect was neither stated in her
statement under Section 161 Cr.P.C. nor in the FIR but does this
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contradiction make her evidence unreliable. We do not think so. The
trial court as well as High Court has accepted her evidence. We find no
justifiable reason to take a different view.
11. The circumstances which have been pointed out by the
learned counsel neither individually nor collectively lead to any
plausible inference that the sexual intercourse with the prosecutrix by
the accused was done with her tacit consent.
12. The learned counsel for the appellant relied upon few
decisions of this Court, namely, (1) Pratap Misra and Ors. vs. State
of Orissa2, (2) Sadashiv Ramrao Hadbe vs. State of Maharashtra and
Anr.3,(3) Narayan alias Naran vs. State of Rajasthan4 and (4) Radhu
vs. State of Madhya Pradesh5.
13. That the accused is not bound by his pleading and that it is
open to him to prove his defence even from the admissions made by
the prosecution witness or the circumstances proved in the case admits
of no doubt. However, so far as decision in the case of Pratap Misra
is concerned, this Court on consideration of the evidence let therein
held that the appellants had sexual intercourse with the prosecutrix with
her tacit consent and the connivance of her husband. This Court held
2
(1977) 3 SCC 41
3
(2006) 10 SCC 92
4
(2007) 6 SCC 465
5
(2007) 12 SCC 57
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that there was no material at all to prove the allegation of rape. Even
the medical evidence therein did not support the prosecution case. We
are afraid the decision of this Court in Pratap Misra turned on its own
facts and is of no help to the appellant herein.
14. In Sadashiv Ramrao Hadbe, this Court while reiterating that
in a rape case, the accused could be convicted on the sole testimony of
prosecutrix if it is capable of inspiring the confidence in the mind of the
Court, put a word of caution that the Court should be extremely careful
while accepting the testimony when the entire case is improbable and
unlikely to have happened. This is what has been stated:
“9. It is true that in a rape case the accused could
be convicted on the sole testimony of the prosecutrix, if
it is capable of inspiring confidence in the mind of the
court. If the version given by the prosecutrix is
unsupported by any medical evidence or the whole
surrounding circumstances are highly improbable and
belie the case set up by the prosecutrix, the court shall
not act on the solitary evidence of the prosecutrix. The
courts shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire case is
improbable and unlikely to happen.”
15. It is pertinent to notice that in Sadashiv Ramrao Hadbe,
this Court found that the prosecution evidence suffered from many
contradictions and the whole incident seemed to be highly
improbable. It is true that in Sadashiv Ramrao Hadbe, this Court
observed that the absence of injuries on the body of the prosecutrix
improbabilise the prosecution version but the aforesaid observation
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has to be understood in the context of the insufficiency of evidence
even to establish sexual intercourse. This is what this Court said:
“10. In the present case there were so many
persons in the clinic and it is highly improbable that the
appellant would have made a sexual assault on the
patient who came for examination when large number of
persons were present in the near vicinity. It is also highly
improbable that the prosecutrix could not make any
noise or get out of the room without being assaulted by
the doctor as she was an able-bodied person of 20 years
of age with ordinary physique.”
The decision in Sadashiav Ramrao Hadbe does not help
the accused at all.
16. In the Case of Narayan, it was held by this Court that the
evidence of prosecutrix was full of contradictions. In the back-drop
of the allegations made in the FIR that the accused committed rape
with prosecutrix thrice, this Court held that absence of injuries
either on her body or private parts ruled out the prosecution case of
forcible sexual intercourse. Suffice it to say that the case of
Narayan turned on its own facts. Insofar as legal position is
concerned, this Court reiterated that evidence of prosecutrix can
alone sustain conviction of the accused.
17. This Court in Radhu considered the matter thus:
“12. Dr. Vandana (PW 8) stated that on examination of
Sumanbai, she found that her menstrual cycle had not
started and pubic hair had not developed, and that her
hymen was ruptured but the rupture was old. She stated
that there were no injuries on her private parts and she
could not give any opinion as to whether any rape had9
been committed. These were also recorded in the
examination report (Ext. P-8). She, however, referred to an
abrasion on the left elbow and a small abrasion on the arm
and a contusion on the right leg of Sumanbai. She further
stated that she prepared two vaginal swabs for
examination and handed it over along with the petticoat of
Sumanbai to the police constable, for being sent for
examination. But no evidence is placed about the results
of the examination of the vaginal swabs and petticoat.
Thus, the medical evidence does not corroborate the case
of sexual intercourse or rape.
13. We are thus left with the sole testimony of the
prosecutrix and the medical evidence that Sumanbai had
an abrasion on the left elbow, an abrasion on her arm and
a contusion on her leg. But these marks of injuries, by
themselves, are not sufficient to establish rape, wrongful
confinement or hurt, if the evidence of the prosecutrix is
found to be not trustworthy and there is no corroboration.
14. Lalithabai says that when Sumanbai did not return, she
enquired with Gyarsibai. Sumanbai also says that she
used to often visit the house of Gyarsibai. She says that
Radhu’s parents are kaka and baba of her mother and
Radhu was her maternal uncle. The families were closely
related and their relationship was cordial. In the
circumstances, the case of the prosecution that Gyarsibai
would have invited Sumanbai to her house to abet her son
Radhu to rape Sumanbai and that Gyarsibai was present
in the small house during the entire night when the rape
was committed, appears to be highly improbable in the
light of the evidence and circumstances.
15. The FIR states that one Dinesh was sent by Lalithabai
to fetch her husband. Lalithabai and Mangilal have stated
that they did not know anyone by the name Dinesh.
Sumanbai stated in her evidence that on 29-1-1991, as her
father was away, her brother-in-law went to bring back her
father, that the name of her brother-in-law is Ramesh, but
the SHO wrongly wrote his name as “Dinesh”. But none
else mentioned about such a mistake. Neither Ramesh nor
Dinesh was examined.
16. The evidence of the prosecutrix when read as a whole,
is full of discrepancies and does not inspire confidence.
The gaps in the evidence, the several discrepancies in the
evidence and other circumstances make it highly
improbable that such an incident ever took place. The
learned counsel for the respondent submitted that the
defence had failed to prove that Mangilal, father of the
prosecutrix was indebted to Radhu’s father Nathu and
consequently, defence of false implication of the accused
should be rejected. Attention was invited to the denial by
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the mother and father of the prosecutrix of the suggestion
made on behalf of the defence that Sumanbai’s father
Mangilal was indebted to Radhu’s father Nathu and
because Nathu was demanding money they had made the
false charge of rape to avoid repayment. The fact that the
defence had failed to prove the indebtedness of Mangilal
or any motive for false implication does not have much
relevance as the prosecution miserably failed to prove the
charges. We are satisfied that the evidence does not
warrant a finding of guilt at all, and the trial court and the
High Court erred in returning a finding of guilt.”
18. Again in the case of Radhu, the evidence of prosecutrix
was found full of discrepancies and not worthy of credence. The
medical evidence also did not corroborate the case of sexual
intercourse or rape. In Radhu this Court reiterated the legal position
thus:
“6. It is now well settled that a finding of guilt in a case
of rape, can be based on the uncorroborated evidence
of the prosecutrix. The very nature of offence makes it
difficult to get direct corroborating evidence. The
evidence of the prosecutrix should not be rejected on
the basis of minor discrepancies and contradictions. If
the victim of rape states on oath that she was forcibly
subjected to sexual intercourse, her statement will
normally be accepted, even if it is uncorroborated,
unless the material on record requires drawing of an
inference that there was consent or that the entire
incident was improbable or imaginary. Even if there is
consent, the act will still be a “rape”, if the girl is under
16 years of age. It is also well settled that absence of
injuries on the private parts of the victim will not by
itself falsify the case of rape, nor construed as
evidence of consent.”
It has, thus, been held in Radhu that absence of injuries
on the private parts of the victim cannot be construed as evidence of
consent.
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19. In State of Rajasthan vs. N.K. 6, this Court held thus:
“19. For the offence of rape as defined in Section 375
of the Indian Penal Code, the sexual intercourse
should have been against the will of the woman or
without her consent. Consent is immaterial in certain
circumstances covered by clauses thirdly to sixthly, the
last one being when the woman is under 16 years of
age. Based on these provisions, an argument is usually
advanced on behalf of the accused charged with rape
that the absence of proof of want of consent where the
prosecutrix is not under 16 years of age takes the
assault out of the purview of Section 375 of the Indian
Penal Code. Certainly consent is no defence if the
victim has been proved to be under 16 years of age. If
she be of 16 years of age or above, her consent cannot
be presumed; an inference as to consent can be drawn
if only based on evidence or probabilities of the case.
The victim of rape stating on oath that she was forcibly
subjected to sexual intercourse or that the act was
done without her consent, has to be believed and
accepted like any other testimony unless there is
material available to draw an inference as to her
consent or else the testimony of prosecutrix is such as
would be inherently improbable.”
20. This Court, in the case of Gurmit Singh1, made the
following weighty observations in respect of evidence of a victim of
sexual assault:
“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. The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression
are
6
(2000) 5 SCC 30
12
factors which the courts should not overlook. The
testimony of the victim in such cases is vital and unless
there are compelling reasons which necessitate looking
for corroboration of her statement, the courts should
find no difficulty to act on the testimony of a victim of
sexual assault alone to convict an accused where her
testimony inspires confidence and is found to be
reliable. Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should the
evidence of a girl or a woman who complains of rape or
sexual molestation, be viewed with doubt, disbelief or
suspicion? The court while appreciating the evidence
of a prosecutrix may look for some assurance of her
statement to satisfy its judicial conscience, since she is
a witness who is interested in the outcome of the
charge levelled by her, but there is no requirement of
law to insist upon corroboration of her statement to
base conviction of an accused. The evidence of a
victim of sexual assault stands almost on a par with the
evidence of an injured witness and to an extent is even
more reliable. Just as a witness who has sustained
some injury in the occurrence, which is not found to be
self-inflicted, is considered to be a good witness in the
sense that he is least likely to shield the real culprit, the
evidence of a victim of a sexual offence is entitled to
great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every
case of rape. 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. It must not be overlooked that a
woman or a girl subjected to sexual assault is not an
accomplice to the crime but is a victim of another
person’s lust and it is improper and undesirable to test
her evidence with a certain amount of suspicion,
treating her as if she were an accomplice. Inferences
have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule of
law is introduced through a new form of testimonial
tyranny making justice a casualty. Courts cannot cling
to a fossil formula and insist upon corroboration even if,
taken as a whole, the case spoken of by the victim of
sex crime strikes the judicial mind as probable.”
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21. 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. Insofar as the present case is concerned, the
circumstances referred to and pointed out by the learned counsel
are neither sufficient nor do they justify discarding the evidence of
the prosecutrix. There is nothing on record that creates any
doubt/disbelief or a suspicion about the evidence of the prosecutrix.
In a case, such as this, where the prosecutrix was misrepresented
by the accused that he would show her to his cousin (a doctor) as
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she was suffering from some throat pain and she accompanied him
but the accused took her to other places and when it became dark,
took her to a lonely place and committed sexual intercourse, the
prosecutrix was not expected to put any resistance lest her life
would have been in danger. In the facts and circumstances, the
absence of injuries on the person of the prosecutrix does not lead to
an inference that she consented for sexual intercourse with the
accused. The young girl became victim of lust of the accused who
was more than double her age and yielded to sexual intercourse
against her will.
22. In all, we find that the judgment of the High Court
affirming the judgement of the trial court convicting the accused
under Sections 366 and 376 IPC does not suffer from any legal
flaw. The sentence awarded to the appellant does not call for any
interference by this Court. The appeal having no merit must fail and
is dismissed. The appellant will surrender to his bail bond and will
be taken into custody to serve out the sentence as awarded.
………………….J
(V.S.Sirpurkar)
………………….J
(R.M. Lodha)
New Delhi,
July 7, 2009.
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