{"id":123412,"date":"2001-05-01T00:00:00","date_gmt":"2001-04-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-gian-chand-on-1-may-2001"},"modified":"2015-04-18T18:41:16","modified_gmt":"2015-04-18T13:11:16","slug":"state-of-himachal-pradesh-vs-gian-chand-on-1-may-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-gian-chand-on-1-may-2001","title":{"rendered":"State Of Himachal Pradesh vs Gian Chand on 1 May, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Himachal Pradesh vs Gian Chand on 1 May, 2001<\/div>\n
Author: R Lahoti<\/div>\n
Bench: Cji, R.C. Lahoti, Doraiswamy Raju<\/div>\n
           CASE NO.:\nAppeal (crl.) 649  of  1996\n\n\n\nPETITIONER:\nSTATE OF HIMACHAL PRADESH\n\n\tVs.\n\nRESPONDENT:\nGIAN CHAND\n\nDATE OF JUDGMENT:\t01\/05\/2001\n\nBENCH:\nCJI, R.C. Lahoti & Doraiswamy Raju\n\n\n\n\nJUDGMENT:\n<\/pre>\n
R.C. Lahoti, J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    The accused-respondent was charged under Section 376 IPC
\nfor  having  committed forcible sexual intercourse with\t the
\nprosecutrix,  a girl of the age of the 5 years and 6 months,
\non  29.10.1991\tat  about 6.30 p.m.  at\t Village  Baru.\t  On
\ntrial,\tthe learned Sessions Judge found the accused  guilty
\nand  sentenced\thim to undergo rigorous imprisonment  for  a
\nperiod\tof  10\tyears and to pay a fine of Rs.5,000  and  in
\ndefault\t of payment of fine to undergo rigorous imprisonment
\nfor  a\tfurther period of 6 months.  The amount of fine,  if
\nrealised,  was\tdirected  to be paid to the  mother  of\t the
\nprosecutrix.   The accused- respondent preferred an  appeal.
\nA  Division  Bench of the High Court has by  judgment  dated
\n22.12.1995  allowed the appeal, set aside the conviction and
\ndirected  the  accused-respondent to be\t released.   Feeling
\naggrieved thereby, the State of Himachal Pradesh has come up
\nin appeal by special leave which has been granted.\n<\/p>\n
    PW1\t is the mother of the prosecutrix.  Her husband\t had
\nexpired\t a  few years before the date of the incident.\t She
\nwas   residing\t in   the   family  house.    However,\t her
\nfather-in-law,\ther two brothers-in-law and she herself\t had
\nseparated  in  residence  and  they  were  living  in  three
\nseparate  portions  of\tthe house.  PW1 has a  son  and\t two
\ndaughters.   The  prosecutrix is the youngest of  the  three
\nchildren.   The\t accused  is  brother\tof  wife  of   PW1s
\nbrother-in-law,\t i.e.,\tjeth  or  her  deceased\t husbands
\nbrother.   The accused, being a relation, was often visiting
\nthe  house.  According to the prosecution on the date of the
\nincident,  PW1 had gone to the fields for collecting  grass.
\nHer  son  and the elder daughter had accompanied her.\tThey
\nreturned  to home at about 7 p.m.  PW1, on her return, found
\nher youngest daughter lying below a cot on the lintel of the
\nhouse.\t Her  salwar  and shirt were  having  blood  stains.
\nThere  was  blood on the bed sheet and a towel lying on\t the
\ncot.   She looked into the private parts of the victim child
\nand  found blood and inflammation therein.  On being  asked,
\nthe  prosecutrix told the mother, that when she was  playing
\nthe  accused  had committed Bura Kaam (a sinful act)  with
\nher.   The  mother  PW1\t told about the\t incident  the\tnext
\nmorning to her parents-in-law and co-sister (i.e.  husbands
\nbrothers wife).\t The father of the accused was summoned and
\nwas  told  of what the accused had done.  The father of\t the
\naccused\t defended  his\tson saying that he  could  not\thave
\nindulged into such a wrongful act.  On the third day, in the
\nmorning\t hours, when PW1 was going to police station,  Ruldu
\nRam,  PW9, a member of village Panchayat met her on way\t and
\nagreeing  with her advised PW1 to lodge the report with\t the
\npolice.\t  The FIR of the incident was lodged in the  morning
\nof  31.10.1991.\t  An  offence  under  Section  376  IPC\t was
\nregistered and the investigation commenced.\n<\/p>\n
    On\t31.10.1991  at 12.15 p.m.  Dr.\tMudita\tGupta,\tPW5,
\nconducted  medico-legal\t examination of the prosecutrix\t and
\nfound the following injuries on her person :\n<\/p>\n
    Local  Exam\t –  No external injury.\t On  retracting\t the
\nlabia  –  erythema  seen.   Hymen torn\t–  irregular  edges.
\nPosterior  vaginal  wall  tear about 0.5 cm in\tlength.\t  No
\nblood clot seen.  No evidence of healing, no pus seen – foul
\nsmell.\n<\/p>\n
Tenderness.  No sperms were seen.\n<\/p>\n
    The\t observations  noted by Dr.  Mudita Gupta were\tthat
\nthe  prosecutrix  had changed her clothes and taken  a\tbath
\nalso on the next day of the incident.  The victim had passed
\nurine  and  stool about one hour after the incident.   There
\nwas  no\t external  injury  on any part of the  body  of\t the
\nvictim.\t  Dr.\tMudita\tGupta  opined  that  possibility  of
\ncommission  of\trape on the prosecutrix on 29.10.1991  could
\nnot be ruled out.\n<\/p>\n
    The\t accused was arrested on 31.10.1991 and subjected to
\nmedico-legal  examination  on  the same day.   Dr.   Jagdish
\nGupta  P.W.6, who examined the accused, recorded the  result
\nof his medico-legal examination as under:-\n<\/p>\n
    The\t general  behaviour of the patient was normal.\t The
\nmental\tcondition  was normal.\tBath not taken for the\tlast
\nfive  days.   Urine  passed   many  times.   Passing  motion
\nnormally.\n<\/p>\n
No stains were found on the body of the patient. Clothing and
\nunder-garments.\n<\/p>\n
No injury marks were present on genitals.\n<\/p>\n
No venereal disease was found.\n<\/p>\n
    On\texamination  of genital, pubic hairs  were  present.
\nPenis  normal, prepuse retracted, frenum normal.   Testicles
\nwere  normal.  There were following injuries present on\t his
\nperson:-\n<\/p>\n
\tMultiple contusions, some of them were patterned on
\nback, buttocks posteromedial aspect of thigh. Redish in
\ncolour.\n<\/p>\n
    Dr.\t  Jagdish  Gupta  opined that there was\t nothing  to
\nsuggest\t that  the  accused was not fit\t to  perform  sexual
\nintercourse.\n<\/p>\n
    At\tthe  trial the prosecutrix appeared as PW7  and\t her
\nmother\twas examined as PW1.  The prosecutrix was 8 years of
\nage  at\t the time of her examination.  The  Court  conducted
\npreliminary examination of the witness and observed that the
\nwitness\t understood the sanctity of oath and then  proceeded
\nto  examine her after administering oath to her.  She stated
\nthat  the accused was known to her as he was the brother  of
\nher  Mausi  (Aunt) and was on visiting terms with her  Mausi
\nresiding  in her neighbourhood.\t On the date and at the time
\nof the incident the accused came to her house in the absence
\nof  her mother or any other member of the family, untied the
\nstring\tof  her\t salwar and also untied the  string  of\t his
\nkachcha\t (underwear).  Thereafter the accused put his  organ
\ninto her private part.\tThe learned Sessions Judge has noted
\nin  the\t statement  of\tthe witness  that  the\twitness\t had
\nspecifically  stated that the accused had inserted his penis
\ninto  her  private part and due to the act committed by\t the
\naccused\t blood\thad started oozing out of her.\tThe  accused
\nremained at the place of the incident for one or two minutes
\nand  thereafter disappeared.  She had felt pain when the act
\nwas  committed\tby  the accused.  The accused had  made\t the
\nprosecutrix  lie  down\ton the cot which was spread  on\t the
\nlintel\tof  the house.\tAt that time the sun had set in\t and
\ndarkness had started spreading.\t The mother returned to home
\nat  about  8  p.m.  when she narrated the incident  to\ther.
\nPW1,  the  mother of the prosecutrix, has  corroborated\t the
\nversion of the victim.\n<\/p>\n
    The\t doctors,  who had examined the prosecutrix and\t the
\naccused respectively, appeared in the witness box and stated
\nthe  results  of  the respective  medico-legal\texaminations
\nconducted   and\t observations  made  by\t them\tas   noticed
\nhereinabove.   Ruldu  Ram, PW9 corroborated the\t version  of
\nPW1.  Smt.  Premi, co-sister of PW1, appeared in the witness
\nbox  as\t PW8  but she turned hostile and denied\t having\t any
\nknowledge  of  the occurrence.\tThe learned  Sessions  Judge
\nfound  the prosecution story having been substantiated fully
\nby  the prosecution evidence.  He found the prosecutrix\t and
\nher  mother truthful witnesses and worthy of credence.\t The
\nversion\t of  the  prosecutrix\tstood  corroborated  by\t the
\ntestimony  of  her  mother and the  latter  testimony  stood
\ncorroborated by the statement of Ruldu Ram, PW9, the village
\nPanch  and  the FIR.  The learned Sessions Judge also  found
\nthat  the medical testimony corroborates the version of\t the
\nincident  as  given by the prosecutrix.\t The clothes of\t the
\nprosecutrix  were blood-stained.  The salwar which was\tworn
\nby the prosecutrix at the time of the incident and which was
\nseized\tby  the\t police was sent for  chemical\texamination.
\nAccording  to  the report of Chemical Examiner of  State  of
\nPunjab\tspermatozoa was detected on the salwar though not on
\nthe  shirt of the prosecutrix and underwear of the  accused.
\nThe  learned  Sessions\tJudge\tconvicted  the\taccused\t and
\nsentenced him as stated hereinabove.\n<\/p>\n
    A  perusal of the judgment of the High Court shows\tthat
\ndelay  in lodging the FIR, change in the description by\t PW1
\nof  the\t exact place where the prosecutrix was\traped  (i.e.
\nshifting  of the scene of incident), and non-examination  of
\ntwo  or\t three\tlittle\tgirls  who  were  playing  with\t the
\nprosecutrix  soon  before  the incident – are  the  factors,
\nwhich have persuaded the learned Judges of the High Court in
\nforming an opinion that prosecution story was doubtful.\t The
\nlearned\t Judges have also noted that the prosecutrixs hymen
\ncould  have  been ruptured by a fall also and there  was  no
\ncorresponding  injury  on the private parts of\tthe  accused
\nwhich  factors taken together rendered the prosecution story
\ndoubtful.\n<\/p>\n
    Here  it  would  be worthwhile to mention  that  in\t his
\nstatement  under  Section  313 of the Cr.P.C.\tthe  accused
\ndenied the prosecution story and at the end of the statement
\nstated\tthat  he was suffering from mental disorder  at\t the
\ntime  of  the  incident.  While the learned  Sessions  Judge
\nfound the plea raised by the accused of no significance, the
\nlearned\t Judges of the High Court have observed that in view
\nof  the mental condition of the appellant who was  suffering
\nfrom schizophrenia before and after the occurrence there is
\na reasonable doubt as regards one or more of the ingredients
\nof  the\t offence.  In support of such observation the  High
\nCourt  has  referred  to  the  decision\t of  this  Court  in
\nDahyabhai Chhaganbhai Thakkar Vs.  State of Gujarat – (1964)
\n2 Cr.L.J.  472.\n<\/p>\n
    We have heard the learned counsel for the parties.\tShri
\nAnil  Soni,  the learned counsel appearing for the State  of
\nHimachal Pradesh has vehemently attacked the judgment of the
\nHigh  Court  submitting that on the evidence  available\t the
\nfindings  arrived at by the learned Sessions Judge were\t not
\nliable\tto  be interfered with and the judgment of the\tHigh
\nCourt verges on perversity.  An entirely unmerited acquittal
\nand that too from a serious charge where an innocent girl of
\ntender\tyears was raped by a distant relation of hers in her
\nown  house  has\t occasioned a gross failure of\tjustice\t and
\ntherefore  the judgment of the High Court deserves to be set
\naside, submitted the learned Counsel for State.\t Shri Shrish
\nKumar  Misra,  the  learned counsel for the  respondent\t has
\nsupported  the judgment of the High Court.  Having carefully
\nconsidered the contending submissions, we are of the opinion
\nthat  the appeal deserves to be allowed and the judgment  of
\nthe  High Court deserves to be set aside.  We have given our
\nthoughtful  consideration  to the submission made  and\thave
\nindependently  appreciated  the\t evidence   to\tsatisfy\t our
\njudicial  conscious.   We deal with each of  the  reasonings
\nwhich  have  prevailed with the High Court in  doubting\t the
\nprosecution story.\n<\/p>\n
    Delay in lodging the FIR cannot be used as a ritualistic
\nformula for doubting the prosecution case and discarding the
\nsame  solely  on  the ground of delay in lodging  the  first
\ninformation  report.   Delay has the effect of\tputting\t the
\nCourt  in  its guard to search if any explanation  has\tbeen
\noffered\t for  the  delay,  and if  offered,  whether  it  is
\nsatisfactory   or   not.   If\tthe  prosecution  fails\t  to
\nsatisfactorily explain the delay and there is possibility of
\nembellishment  in  prosecution\tversion on account  of\tsuch
\ndelay,\tthe  delay  would  be\tfatal  to  the\tprosecution.
\nHowever,  if  the delay is explained to the satisfaction  of
\nthe  court,  the  delay\t cannot by itself be  a\t ground\t for
\ndisbelieving and discarding the entire prosecution case.  In
\nthe  present  case, PW1__the mother of the prosecutrix is  a
\nwidow.\t The accused is a close relation of brother of\tlate
\nhusband\t of  PW1.  PW1 obviously needed her  family  members
\nconsisting  of her in-laws to accompany her or at least help
\nher  in\t lodging the first information report at the  police
\nstation.   The\tincident having occurred in a  village,\t the
\napproach  of the in-laws of PW1 displayed rusticity in first
\ncalling\t upon  the father of the accused and complaining  to
\nhim  of\t what his son had done.\t It remained  an  unpleasant
\nfamily\taffair\ton  the next day of the incident  which\t was
\ntried  to  be settled, if it could be, within the  walls  of
\nfamily.\t  That\tfailed.\t  It  is thereafter  only  that\t the
\ncomplainant, the widow woman, left all by herself and having
\nno  male  family member willing to accompany her,  proceeded
\nalone  to  police  station.  She was lent moral\t support  by
\nRuldu  Ram,  the village Panch, whereupon the report of\t the
\nincident  was lodged.  The sequence of events soon following
\nthe  crime  and\t as described by the  prosecution  witnesses
\nsounds quite natural and provides a satisfactory explanation
\nfor  the  delay.   It  was found to be\tso  by\tthe  learned
\nSessions  Judge.   The\tHigh Court has not looked  into\t the
\nexplanation  offered  and  very\t  superficially\t recorded  a
\nfinding of the delay having remained unexplained and hence
\nfatal  to the prosecution case.\t It is common knowledge\t and
\nalso judicially noted fact that incidents like rape, more so
\nwhen  the perpetrator of the crime happens to be a member of
\nthe  family or related therewith, involve the honour of\t the
\nfamily\tand  therefore there is a reluctance on the part  of
\nthe  family of the victim to report the matter to the police
\nand carry the same to the court.  A cool thought may precede
\nlodging of the FIR.  Such are the observations found to have
\nbeen made by this Court in State of Punjab Vs.\tGurmit Singh
\n&  Ors.,  (1996)  2 SCC 384 and also in the case  of  Harpal
\nSingh (1981) SCC Crl.  208.  We are satisfied that the delay
\nin  making  the\t FIR has been satisfactorily  explained\t and
\ntherefore does not cause any dent in the prosecution case.\n<\/p>\n
    According  to  the\tHigh  Court,   the  FIR\t states\t the
\noccurrence  of\trape to have taken place in the room on\t the
\nfirst  floor of the building but according to the  statement
\nof  PW1 as recorded in the Court, the rape was committed  on
\nthe prosecutrix in the open on the lintel of the house thus,
\naccording  to the High Court, there was a doubt raised about
\nthe  place  of\tthe incident which was an infirmity  in\t the
\nprosecution  story.   The room and the lintel  are  situated
\nclose  to  each\t other.\t PW1 is not an\teye-witness  to\t the
\nincident.  When she reached home she found her daughter, the
\nvictim\tof  rape lying on the lintel of the house below\t the
\ncot.   A perusal of the site plan shows the distance between
\nthe  two  places  is  insignficant.   Moreover,\t such  minor
\ninconsistency  coming  from the mouth of PW1, who is not  an
\neye- witness, was of no significance and caused no infirmity
\nin  the\t prosecution case when the overall narration of\t the
\nincident   given  by  her  is\tfound  to  be  natural\t and
\ntrustworthy.   It  is  pertinent to note that PW1  was\tonly
\ncorroborating the statement of PW7, the young victim of rape
\nand  the latters testimony was found to be very natural and
\ninspiring  confidence by the learned Sessions Judge who\t had
\nrecorded  her  statement.   The learned Sessions  Judge\t had
\nhimself\t inspected the site of the incident and noted in his
\ninspection  note  inter\t alia  that the\t other\thouses\twere
\nsituated at a distance and another house situated nearest to
\nthe  house where incident had taken place was about 50 yards
\naway.\tThe main road was at a distance of 100 or 150  yards
\nfrom  the house as shown in the site plan and there was also
\na tree which blocked the vision to some extent from the main
\nroad  towards the first floor and rooms as shown in the site
\nplan  on  the first floor.  Thus, the place of the  incident
\nwas  secluded  one and not visible from\t distance.   Similar
\nfacts  were  deposed to by the investigating  officer.\t The
\nlearned\t Sessions  Judge had rightly noted in his  judgment,
\nrelying on the evidence adduced and the observations made at
\nthe  time  of spot inspection, that the room and the  lintel
\nare  situated near to each other and therefore the so-called
\ninconsistency  was  immaterial and insignificant.  The\tHigh
\nCourt  was  not right in ignoring this finding of the  trial
\ncourt\tor   even  otherwise   making\tthis   insignificant
\ndiscrepancy,  if at all it is a discrepancy, a major  lacuna
\nin the prosecution case.  It is not so.\n<\/p>\n
    So\tfar  as\t non-examination of other witnesses  and  an
\nadverse\t inference  drawn  by the High\tCourt  therefrom  is
\nconcerned,  here  again we find ourselves not  persuaded  to
\nsubscribe  to  the  view  taken\t by  the  High\tCourt.\t The
\nprosecutrix PW7 has stated that soon before the incident she
\nwas  playing with three girl-children of the same age as  of
\nhers  and they were present when the accused committed\trape
\non her.\t One of the girls picked up a broom and had tried to
\nscar  away  the accused by striking the broom on him.\tThis
\nlittle\tfriend\tof the victim had also raised a hue and\t cry
\nbut  none  from the neighbourhood came to the  spot.   These
\ngirls  were none else than daughters of her uncle.  What the
\nHigh  Court  has failed to see is that these girls  were  of
\ntender\tage and could hardly be expected to describe the act
\nof  forcible sexual intercourse committed by the accused  on
\nPW7.   Secondly,  these girls would obviously be  under\t the
\ninfluence  of  their  parents.\tWe have\t already  noted\t the
\nco-sister  of  PW1  turning hostile and not  supporting\t the
\nprosecution  version.\tHow  could  these  little  girls  be
\nexpected  to be away from the influence of their parents and
\ndepose\tfreely and truthfully in the Court?  Non-examination
\nof  a  material witness is again not a mathematical  formula
\nfor  discarding\t the  weight of the testimony  available  on
\nrecord\thowsoever natural, trustworthy and convincing it may
\nbe.   The charge of withholding a material witness from\t the
\nCourt levelled against the prosecution should be examined in
\nthe background of facts and circumstances of each case so as
\nto  find  whether  the witnesses were  available  for  being
\nexamined  in  the  Court  and\twere  yet  withheld  by\t the
\nprosecution.\tThe   Court   has   first  to\tassess\t the
\ntrustworthiness\t of  the evidence adduced and  available  on
\nrecord.\t  If the Court finds the evidence adduced worthy  of
\nbeing  relied  on then the testimony has to be accepted\t and
\nacted  on though there may be other witnesses available\t who
\ncould  also  have  been\t examined  but\twere  not  examined.
\nHowever,  if  the  available   evidence\t suffers  from\tsome
\ninfirmity  or  cannot  be accepted in the absence  of  other
\nevidence  which\t tough available has been withheld from\t the
\nCourt  then  the  question of drawing an  adverse  inference
\nagainst\t  the  prosecution  for\t  non-examination  of\tsuch
\nwitnesses may arise.  It is now well-settled that conviction
\nfor an offence of rape can be based on the sole testimony of
\nprosecutrix  corroborated  by  medical\tevidence  and  other
\ncircumstances  such  as the report of  chemical\t examination
\netc.   if  the same is found to be natural, trustworthy\t and
\nworth  being relied on.\t If the evidence of the prosecutrix
\ninspires  confidence, it must be relied upon without seeking
\ncorroboration  of her statement in material particulars.  If
\nfor  some  reason  the\tcourt finds it\tdifficult  to  place
\nimplicit reliance on her testimony, it may look for evidence
\nwhich  may  lend  assurance  to\t  her  testimony,  short  of
\ncorroboration  required\t in the case of an accomplice.\t The
\ntestimony  of  the  prosecutrix must be appreciated  in\t the
\nbackground  of\tthe entire case and the trial court must  be
\nalive  to its responsibility and be sensitive while  dealing
\nwith  cases  involving sexual molestations. ___ is the\tlaw
\ndeclared in State of Punjab Vs.\t Gurmit Singh & Ors.  (1996)
\n2  SCC 384.  [Also see State of Rajasthan Vs.  N.K.  -(2000)
\n5  SCC\t30, State of Himach Pradesh Vs.\t Lekh Raj & Anr.   –
\n(2000)\t1  SCC 247, Madan Gopal Kakkad Vs.  Naval Dubey\t and
\nAnr.   –  (1992)  3 SCC 204].  In the present  case  we\t are
\nclearly\t of the opinion that in view of the accused being  a
\nrelation of the in-laws of the mother of the prosecutrix and
\nthe  other  young  girls who are alleged to  have  been\t not
\nexamined being from the family of such in-laws, it is futile
\nto  expect that such girls would have been allowed by  their
\nparents\t to be examined as witnesses, and if allowed,  could
\nhave  freely  deposed  to  in the Court.   The\tquestion  of
\ndrawing\t an  adverse inference against the  prosecution\t for
\nsuch non-examination does not arise.\n<\/p>\n
    The\t observations  made and noted by Dr.   Mudita  Gupta
\nduring\tmedico legal examination of PW7 clearly make out the
\nprosecutrix  having been subjected to rape.  The prosecutrix
\nhas spoken of penetration in her statement.  The discovery
\nof  spermatozoa\t in the private part of the victim is not  a
\nmust  to  establish penetration.  There are several  factors
\nwhich  may  negative  the presence of spermatozoa.   [See  –
\nNarayanamma  Vs.   State of Karnataka – (1994) 5  SCC  728].
\nSlightest penetration of penis into vagina without rupturing
\nthe  hymen would constitute rape.  [See – Madan Gopal Kakkad
\nVs.   Naval Dubey – (1992) 3 SCC 204].\tThe suggestion\tmade
\nin the cross examination of Dr.\t Mudita Gupta that injury of
\nthe  nature found on hymen of prosecutrix could be caused by
\na  fall\t does  not  lead  us  anywhere.\t  Firstly,  no\tsuch
\nsuggestion  was\t given to prosecutrix or her  mother  during
\ncross  examination.   Secondly,\t why would the girl  or\t her
\nmother implicate the accused, charging him with rape, if the
\ninjury\twas caused by a fall?  There is nothing to draw such
\nan  inference not even a suggestion, to be found on  record.
\nAnswer to the suggestion made to Dr.  Gupta cannot discredit
\nthe prosecution case in the absence of any other material to
\nsupport\t the  suggestion.   So is the case with\t absence  of
\nexternal  marks\t of violence on the body of the victim.\t  In
\ncase  of  children  who\t are   incapable  of  offering\t any
\nresistance  external  marks  of violence may not  be  found.
\n(See Modis Medical Jurisprudence, 22nd Edn., p.502).  It is
\ntrue  that  marks of external injury have not been found  on
\nthe person of the accused but that by itself does not negate
\nthe prosecution case.  Modi has opined (see, Modi ibid, page\n<\/p>\n
509)  that even in the case of a child victim being ravished
\nby  a grown up person it is not necessary that there  should
\nalways\tbe  marks  of injuries on the penis in\tsuch  cases.
\nFurther,  it is to be noted that about two days had  elapsed
\nbetween\t the time of the incident and medical examination of
\nthe  accused  within  which  time minor\t injuries,  even  if
\ncaused, might have healed.\n<\/p>\n
    Lastly,  remains  the  observation\tof  the\t High  Court
\nregarding  mental state of the accused-respondent.  The plea
\ntaken  by  the accused was that he was suffering from  some
\nmental\tdisorder and not that he was insane at the time\t of
\nincident.   In\this defence the accused examined  Dr.\tR.S.
\nDalwalia, DW2.\tHe had examined the accused on 9.6.1992 on a
\nrequisition  made  by jail authorities for  his\t psychiatric
\nexamination.  He was diagnosed to be a case of schizophrenia
\nand  necessary treatment was prescribed for him.  Before the
\ncommencement  of  trial the learned Sessions Judge had\talso
\nheld  an  enquiry under Section 329 of the Code of  Criminal
\nProcedure  to find out if the accused-respondent was fit and
\ncapable\t to defend himself.  Vide order dated 24.6.1993\t the
\nlearned\t Sessions Judge recorded a finding that the  accused
\nwas  fit  to make his defence and accordingly the trial\t was
\nproceeded  ahead.  The only provision of law relevant to the
\nplea  of the accused is Section 84 of the Indian Penal Code,
\n1860 which provides that nothing is an offence which is done
\nby  a  person  who, at the time of doing it,  by  reason  of
\nunsoundness  of mind, is incapable of knowing the nature  of
\nthe  act,  or  that  he is doing what  is  either  wrong  or
\ncontrary  to  law.   Such is neither the plea  nor  evidence
\nadduced\t by the accused.  In Dahyabhais case (supra) relied
\non  by the High Court, this Court has held – when a plea of
\nlegal  insanity is set up, the Court has to consider whether
\nat  the\t time of commission of the offence the\taccused,  by
\nreason\tof unsoundness of mind, was incapable of knowing the
\nnature of the act or that he was doing what was either wrong
\nor  contrary  to  law.\t The   crucial\tpoint  of  time\t for
\nascertaining  the  state of mind of the accused is the\ttime
\nwhen  the offence was committed.  Whether the accused was in
\nsuch  a\t state of mind as to be entitled to the\t benefit  of
\nSection\t 84  of the Penal Code can only be established\tfrom
\nthe  circumstances which preceded, attended and followed the
\ncrime.\t The  High Court has picked up and  quoted  another
\npassage\t from  the  judgment dealing with  burden  of  proof
\naccording  to which the burden of proof on the accused is no
\nhigher\tthan  that  which  rests   upon\t a  party  to  civil
\nproceedings  and it is sufficient if the evidence adduced by
\nthe  accused  raises a reasonable doubt in the mind  of\t the
\nCourt  as  regards  one or more of the\tingredients  of\t the
\noffence\t including  mens  rea  of  the\taccused\t though\t not
\nestablishing  conclusively the plea of insanity at the\ttime
\nof  commission\tof the offence.\t We fail to  understand\t and
\nappreciate how the passage quoted by the High Court advanced
\nthe plea of the accused or raised any doubt about his guilt.
\nOn the contrary, the passage reproduced hereinabove from the
\njudgment  of this Court in Dahyabhais case (supra) supports
\nthe   prosecution.    In  the\tcase  of  Dahyabhai   itself
\nwantonness, vengeful mood or determination of the accused to
\nsee  that the victim did not escape was held not  sufficient
\nto  prove  that\t the accused was doing the  act\t under\tsome
\nhallucination.\t The  plea raised before and entertained  by
\nthe  High Court, in the present case, was one of the accused
\nsuffering  from\t schizophrenia.\t Schizophrenia is one  of  a
\ngroup  of  severe emotional disorders, usually of  psychotic
\nproportions,  characterized by misinterpretation and retreat
\nfrom   reality,\t delusions,   hallucinations,\tambivalence,
\ninappropriate  affect, and withdrawn, bizarre, or regressive
\nbehavior;    Popularly\t and\terroneously   called   split
\npersonality.   [See  –\tMedical- Legal\tDictionary,  Sloane-
\nDocland,  p.  628].  We are not persuaded to hold even prima
\nfacie, on the material available on record, that the accused
\nwas  suffering\tfrom unsoundness of mind and that too  of  a
\nnature\twhich  would have rendered him incapable of  knowing
\nthe  nature  of the act which he was doing or  incapable  of
\ndistinguishing\tbetween\t wrong\tor right as  per  law.\t The
\nentire\tdiscussion  by the High Court on this aspect of\t the
\ncase  was  irrelevant and meaningless.\tThe learned  counsel
\nfor the respondent has very fairly not persisted in pressing
\nthis plea before us.\n<\/p>\n
    In\tState  of Punjab Vs.  Gurmit Singh & Ors., (1996)  2
\nSCC  384, one of us, Dr.  A.S.\tAnand, J.  (as His  Lordship
\nthen  was)  has\t thus spoken for the court  __\tA  murderer
\ndestroys  the physical body of his victim, a rapist degrades
\nthe  very  soul\t of  the   helpless  female.   The   courts,
\ntherefore,  shoulder a great responsibility while trying  an
\naccused\t on charges of rape.  They must deal with such cases
\nwith  utmost  sensitivity.   The courts should\texamine\t the
\nbroader\t probabilities of a case and not get swayed by minor
\ncontradictions\t or  insignificant   discrepancies  in\t the
\nstatement  of  the  prosecutrix, which are not\tof  a  fatal
\nnature,\t to  throw  out an  otherwise  reliable\t prosecution
\ncase.  The approach adopted by the High Court runs into the
\nteeth  of law so stated and hence stands vitiated.  For\t the
\nforegoing  reasons  we hold the judgment of the\t High  Court
\nwholly\tunsustainable in law.  We are unhesitatingly of\t the
\nopinion\t that the Division Bench of the High Court ought not
\nto  have  interfered  with the well-reasoned,  detailed\t and
\nwell-articulated  judgment of the Sessions Court wherein  we
\nfind  no infirmity.  For the foregoing reasons the appeal is
\nallowed.   The\tjudgment of the High Court is set aside\t and
\nthe  judgment  of  the Sessions Court  holding\tthe  accused
\nguilty\tof an offence punishable under Section 376 IPC along
\nwith the sentence passed is restored.  The bail bonds of the
\naccused-respondent  are\t cancelled.  He shall be taken\tinto
\ncustody to serve out the sentence passed by the trial court.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Himachal Pradesh vs Gian Chand on 1 May, 2001 Author: R Lahoti Bench: Cji, R.C. Lahoti, Doraiswamy Raju CASE NO.: Appeal (crl.) 649 of 1996 PETITIONER: STATE OF HIMACHAL PRADESH Vs. RESPONDENT: GIAN CHAND DATE OF JUDGMENT: 01\/05\/2001 BENCH: CJI, R.C. Lahoti & Doraiswamy Raju JUDGMENT: R.C. Lahoti, J. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-123412","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Himachal Pradesh vs Gian Chand on 1 May, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-vs-gian-chand-on-1-may-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Himachal Pradesh vs Gian Chand on 1 May, 2001 - 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