Full Judgment Text
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PETITIONER:
STATE OF HIMACHAL PRADESH
Vs.
RESPONDENT:
RAGHUBIR SINGH
DATE OF JUDGMENT18/02/1993
BENCH:
VERMA, JAGDISH SARAN (J)
BENCH:
VERMA, JAGDISH SARAN (J)
YOGESHWAR DAYAL (J)
VENKATACHALA N. (J)
CITATION:
1993 SCR (1)1087 1993 SCC Supl. (3) 150
JT 1993 (4) 52 1993 SCALE (1)637
ACT:
Indian Penal Code, 1860.
S.376-Rape-Accused-Conviction by trial court-Acquittal by
High Court-Appeal by State to Supreme Court-Acquittal set
aside-Conviction and sentence awarded by trial court
confirmed-Held, judgment of High Court based on conjectural
findings and not on proper appreciation of evidence-Courts
must be slow to interfere with findings based on apprecia-
tion of evidence in case of child rape-Conviction can be
based on sole testimony of prosecutrix-Absence of injuries
on male organ of accused not always fatal to prosecution
case-Court cannot enhance sentence without a show cause
notice to acquitted accused
HEADNOTE:
The respondent-accused was prosecuted for committing rape on
a child of 8/9 years of age. The prosecution case was that:
while the prosecutrix (P.W.4), her father (P.W.5) and elder
sister (P.W.7) were in their fields, it suddenly started
raining and all the three ran towards their house; P.W.4 got
separated from the two kins and was following them when the
accused, then aged about 16 years, took her under a mango
tree and committed rape on her; P.W.5, who in the meantime
returned to the fields in search of P.W.4, saw the accused
lying on her, he raised an alarm whereupon P.W.7, rushed to
the spot and the accused ran away leaving P.W.4 crying and
bleeding per vagina.
The victim was got medically examined the same day and the
doctor (P.W.1), besides mentioning the injuries on the
private part of the prosecutrix, reported that she had
been subjected to sexual intercourse.
At the trial P.W.5, P.W.7 and the doctor (P.W.1) who had
medically examined the prosecutrix, supported the
prosecution case in its totality. The trial court held that
the accused had committed an offence of rape under s.376,
I.P.C. on the prosecutrix, and sentenced him to suffer R.I.
for a period of five years.
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The accused riled an appeal before the High Court which
acquitted him. The State filed the appeal by special leave
to this Court.
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Allowing the appeal, this Court,
HELD: 1.I. Courts must be wary, circumspect and slow to
interfere with reasonable and proper findings based on
appreciation of evidence as recorded by the lower courts,
before upsetting the same and acquiring an accused involved
in the commission of heinous offence of rape of hapless girl
child. [p.24B-C]
1.2. The High Court without appreciating or properly
discussing the evidence committed an error in setting aside
the findings recorded by the trial court which were based on
proper appreciation of evidence and were not unreasonable
much less perverse. The judgment of the High Court is based
on conjectural findings and cannot be sustained.[pp.22B-C;
25A]
3. The statement of prosecutrix (PW4) is clear, cogent and
specific. The Sessions Judge recorded her statement on
being satisfied that she was capable of giving evidence.
She narrated the occurrence in a simple and straight forward
manner. The prosecution case was fully supported by her
during her statement and nothing has been brought out in the
cross-examination from which any doubt could be caused about
her veracity. Her statement receives ample corroboration
from the testimony of her father (PW5) who is found to be a
truthful and reliable witness. The medical evidence of PWl
has supported the prosecutrix in all material particulars.
The evidence of PW7 who had also seen the accused running
away from the scene of crime further lands credence to the
prosecution version.
[pp.21E-H; 22A]
2.1. There is no legal compulsion to look for corroboration
of 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. [p.22D]
2.2. In the instant case the evidence of the prosecutrix is
found to be reliable and trustworthy. No corroboration was
required to be looked for, though enough was available on
the record. The medical evidence provided sufficient
corroboration. [p.22E]
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3.1. There is no inflexible axiom of law which lays down
that the absence of injuries on the male organ of the
accused would always be fatal to the prosecution case and
would discredit the evidence of the prosecutrix, otherwise
found to be reliable. Every case has to be approached with
realistic diversity based on peculiar facts and
circumstances of that case and inferences have to be drawn
from the given set of facts and circumstances. [p.24D-F]
Rahim Beg & Anr. v. State of UP., [1972] 3 SCC 759,
distinguished.
3.2. The doctor (PW3), who had examined the respondent,
found him to be capable of sexual intercourse and according
to him the absence of injury on the male organ of the
accused was not suggestive of the fact that he had not
indulged in sexual intercourse with the prosecutrix, then of
tender years of age. His evidence was not at all challenged
on this aspect by the defence. [p.24F-G]
4.1. The judgment of the High Court acquitting the accused
is set aside. The accused is convicted under S.376 IPC for
having committed rape on the prosecutrix and sentenced to
suffer regorous imprisonment for a period of five years.
[pp. 25H; 26A]
4.2. Though for such an offence a more severe sentence would
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have been desirable but neither the State sought enhancement
of the sentence by filing an appropriate petition nor any
notice in this regard had been issued to the accused, and
without putting him on such a notice, the Court ’cannot
enhance the sentence. ’Me provision prescribing more
stringent minimum sentence under Section 376 was also
incorporated in the Code by an amendment only with effect
from December, 1982, after the offence in the instant case
had been committed. [p.25D-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 398 of
1984.
From the Judgment and Order dated 16.11.83 of the Himachal
Pradesh High Court in Crl. A. No. 32 of 1983.
Ms. Kusum Choudhury and Ms. Bina Gupta for the Appellant.
Dr. N.M. Ghatate and S.V. Deshpande for the Respondent.
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The following Order of the Court was delivered:
On special leave being granted, the State of Himachal
Pradesh has preferred this appeal against the judgment and
order dated 16.11.1983, acquitting the respondent of an
offence under Section 376, IPC earlier recorded by the
learned Sessions Judge.
Briefly stated the prosecution case is that on 2.8.1982, the
prosecutrix, Raksha Devi PW4 alongwith her father Nikkoo Ram
PW5 and an elder sister by name Samti were in their fields.
It started to rain all of a sudden and the prosecutrix, her
father and her sister, ran towards their house. The
prosecutrix got separated from her father and elder sister
and was following them when the respondent Raghubir Singh,
then aged about 16 years, came to her and caught hold of her
hand and took her under a mango tree. The prosecutrix, who
was 7/8 years old at that time was wearing a frock and
having a shawl with her. The respondent spread the shawl on
the ground and making the prosecutrix lie on that shawl
committed rape on her. Since, the prosecutrix had not
reached her home, Nikkoo Ram her father after waiting for
about half an hour returned towards the field and saw the
respondent lying on top of the prosecutrix, Raksha Devi,
under the mango tree. He raised alarm and the respondent
ran away carrying with him his underwear. The prosecutrix
was crying and was bleeding per vagina. The occurrence took
place at about 2.30 p.m. and the First Information Report
Ex. PE was lodged at the Police Station at 5.50 p.m. The
prosecutrix was got examined by the doctor, who found her
hymen ruptured and slight bleeding coming out of the vaginal
edges. Blood clott was also present and the external
genitals of the prosecutrix were found to be tender and red.
The vagina admitted one finger with difficulty, which got
smeared with blood. The doctor who had examined the
prosecutrix, namely, Dr. Urmil Gupta, Medical Officer, Rural
Hospital Nalagarh at about 7 p.m. on the same day, appearing
as PWI at the trial had also testified that when the
prosecutrix was brought to her by her father, he had also
brought with him a shawl, which was found to be having some
mud and bloodstains. According to the opinion of Dr. Urmil
Gupta PWI, the prosecutrix had been subjected to sexual
intercourse and the probable duration of the injuries on her
private parts., including the vagina, was about 6 to 12
hours. During the cross-examination, a suggestion was put
to the doctor that the injuries found on the prosecutrix
could have been caused by a fall on some bushes or on the
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stem of a ’beree’ tree but the doctor had categorically
denied the suggestion. It was also suggested to her that
the venginal in jury could also be caused by inserting
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a finger in the vagina. The X-Ray, the skiagrams and the
examination of her teeth by Dr. Subhash Chandra Aggarwal PW2
established the age of the prosecutrix to be between 6 to 8
years. The respondent was also examined by doctor C.L.
Sharma PW3, medical officer at the Rural Hospital, Nalagarh.
He had found the respondent to be potent and capable of
sexual intercourse. He denied the suggestion that injuries
would necessarily be caused to the penis in case of sexual
intercoures by a grown up male with a virgin when during the
act her hymen gets torn.
The father of the prosecutrix Nikkoo Ram PW5, the
prosecutrix Raksha Devi PW4 and Taru PW7, who had rushed to
the scene of occurrence on hearing the alarm and had also
seen the respondent running away therefrom carrying with him
his underwear supported the prosecution case in its
totality.
The learned Sessions Judge after a careful appraisal of the
evidence on record found that the respondent had committed
the offence of rape and sentenced him to suffer R.I. for a
period of five years for the offence under Section 376 IPC.
While awarding the sentence, the learned Sessions Judge took
into account the age of the prosecutrix, the age of the
accused and the other attending circumstances and directed
that it would be appropriate if the accused was kept in the
open air jail in Bilasput during the term of five years R.I.
The respondent appealed to the High Court of Himachal
Pradesh and on 16.11.1983. The High Court acquitted him.
We have heard learned counsel for the parties at length and
have gone through the evidence on the record. The statement
of the prosecutrix, Raksha Devi PW4 is clear, cogent and
specific. The learned Sessions Judge before recording her
statement was conscious of her age and had, therefore, taken
all the precautions required by law to ascertain whether she
was capable of giving evidence or not and on being satisfied
that she was so capable, recorded her, statement. She
narrated the occurrence in a simple and straight forward
manner. The prosecution case as noticed in the earlier part
of the judgment was fully supported by her during her
statement and nothing has been brought out in the cross-
examination from which any doubt could be caused about her
veracity. Her statement receives ample corroboration from
the testimony of Nikkoo Ram PW5, her father who even
otherwise would be the last person to come forward with a
false accusation of the type of rape on his young unmarried
daughter.
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His testimony has impressed us and we find him to be a
truthful and reliable witness. The medical evidence of Dr.
Urmil Gupta has supported the prosecutrix in all material
particulars. She has also testified to the presence of mud
and blood-stain,-, on the shawl. The evidence of Taru PW7
who had also seen the accused running away from the scene of
crime carrying his underwear, further lends credence to the
prosecution version. The learned Sessions Judge, in our
opinion, was therefore justified in relying upon the
prosecution evidence and recording an order of conviction
against the respondent for an offence under Section 376 IPC.
His findings were based on proper appreciation of evidence
and were not unreasonable much less perverse. The learned
single Judge of the High Court in our opinion, without
appreciating or properly discussing the evidence set aside
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the findings recorded by the Sessions Judge. The High Court
appears to have- embarked upon a course to find some minor
contradictions in the oral evidence with a view to
disbelieve the prosecution version. In the opinion of the
High Court, conviction on the basis of uncorroborated
testimony of the prosecutrix was not safe. We cannot agree.
There is no legal compulsion to look for corroboration of
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. In the present case the evidence of the
prosecutrix is found to be reliable and trustworthy. No
corroboration was required to be looked for, though enough
was available on the record. The medical evidence provided
sufficient corroboration. The High Court, however, while
dealing with the medical evidence observed as follows:
"Lady doctor Urmil Gupta PW1, who had examined
the prosecutrix, had admitted in so many words
towards the end of her cross examination that
the injury found on the private part of the
prosecutrix and which is the only injury found
in the instant case, could be caused by
insertion of a finger by a grown up person
like the parents of the prosecutrix It is true
that normally no parents would not do so but
in the peculiar circumstances of this case,
this possibility may not be ruled out
altogether. In any case the mere fact that
the hymen of the prosecutrix had been found
ruptured, would not prove the prosecution
version
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and connect the appellant with the offence
charged against him."
The above approach to say the least was highly improper.
What were the ’peculiar circumstances’ of the case from
which the learned single Judge of the High Court thought
that the possibility could not be ruled out that the parents
of the prosecuted would have themselves caused injury to the
prosecutrix by inserting finger in her vagina rupturing her
hymen is not at all understandable. There is no suggestion
that on account of any enmity, the parents of the girl would
go to that length to falsely implicate the respondent. Dr.
Ghatate, the learned senior counsel was also unable to point
out any such ’circumstances’ from the record which could
show that there was any possibility of the hymen of the
prosecutrix having been ruptured in the manner suggested by
the High Court or any reason to falsely implicate the
respondent. In fairness to Dr. Ghatate it must be recorded
that he did not support the observations of the High Court
noticed above.
The learned single Judge of the High Court also drew an
inference against the prosecution from the fact that only
two blood-stains had been found on the shawl by the Chemical
Examiner and doubted the prosecution version on that
account. According to the learned single Judge:
"In natural course if this shawl had been used
under the prosecutrix at the time of the
alleged offence, the same should have been
drenched with blood in the meddle. Moreover,
this shawl should have been full of mud as it
remained lying on the ground under the
prosecutrix for such a long time and when it
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had rained throughout."
In making the above observations, obviously the High Court
ignored the testimony of Doctor Urmil Gupta who had found
the presence of blood-stains and the mud on the shawl and
who had opined that the bleeding from the edges of the
vagina was slight and that some amount of clotted blood was
also present. The prosecutrix was a girl of tender age and
on account of the rape committed on her, there was bleeding
from her vagina but to expect that the shawl should have got
"drenched with blood" as if the large blood arteries had
been cut, is letting the imagination run wild and ignoring
the circumstances of the case. The absence of spermatoza on
the vaginal slide, which was also pressed into aid by the
High
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Court to acquit the respondent, was not based on proper
scrutiny of the evidence. The prosecution case itself was
that on being surprised while the respondent was in the act
of committing sexual intercourse on the prosecutrix, he ran
away carrying his underwear. The absence of spermatoza
under the circumstances could not be said to be a
circumstance in favour of the respondent at all. The
judgment of the High Court, in our opinion, is based more on
surmises and conjectures than on proper appreciation of
evidence. It exposes the insensitivity of the learned Judge
to the serious crime committed against human dignity. We
are not impressed by the manner in which the High Court
dealt with the case. Courts must be wary, circumspect and
slow to interfere with reasonable and proper findings based
on appreciation of evidence as recorded by the lower courts,
before upsetting the same and acquitting an accused involved
in the commission of heinous offence of rape of hapless girl
child.
Dr. Ghatate, learned senior counsel for the respondent
submitted, by reference to Rahim Beg & Anr. v. State of
U.P., [1972] 3 SCC 759, that the absence of injuries on the
penis of the respondent should be treated as sufficient to
the negative prosecution case. We are afraid we cannot
agree. Inferences have to be drawn in every case from the
given set of facts and circumstances. There is no
inflexible axiom of law which lays down that the absence of
injuries on the male organ of the accused would always be
fatal to the prosecution case and would discredit the
evidence of the prosecutrix, otherwise found to be reliable.
The presence of injuries on the male organ may lend support
to the prosecution case, but their absence is not always
fatal. Rahim Beg’s case (supra) was based on its peculiar
facts and the observations mate therein were in a totally
different context and cannot advance the case of the
respondent. The observations in Rahim Beg’s case (supra)
cannot be mechanically pressed into aid in every case
regardless of the specific circumstances of the crime and
absence of the fact situation as existing in that case.
Every case has to be approached with realistic diversity
based on peculiar facts and circumstances of that case.
Doctor Sharma who had examined the respondent had found him
to be capable of sexual intercourse and according to his
opinion the absence of injury on his male organ was not
suggestive of the fact that he had not indulged in sexual
intercourse with the prosecutes then of tender years of age.
His evidence was not at all challenged on this aspect by the
defence.
Thus, considered on the whole. we are of the opinion that
the
25
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judgment of the High Court is based on conjectural findings
and cannot be sustained. The same deserves to be set aside
and is hereby set aside. The reasoning given by the learned
Sessions Judge and the findings recorded by him on
appreciation of evidence have appealed to us and we find no
reason to take a view different than the one taken by the
learned Sessions Judge.
We, accordingly, set aside the acquittal of the respondent
and hold him guilty of the offence under Section 376 IPC for
having committed rape on the prosecutrix, Raksha Devi, on
the date and in the manner alleged by the prosecution.
Having recorded the conviction of the respondent for the
offence under Section 376 IPC, the next question is about
the awarding of proper sentence. The occurrence took place
on 2.8.1982, more than a decade ago. The learned Sessions
Judge after recording the conviction under Section 376 IPC
had sentenced the respondent to suffer RI for five years.
The State did not move the High Court for any enhancement of
the sentence. We, therefore, feel that the ends of justice
would be met if the sentence to be imposed on the respondent
is confined to five years RI as was awarded by the learned
Sessions Judge for cogent reasons recorded by him. We may
emphasise that though for such an offence a more severe
sentence would have been desirable but we have restricted
ourselves to the maintenance of the sentence as imposed by
the learned Sessions Judge for the reason that the State did
not seek any enhancement of the sentence by filing an
appropriate petition in the High Court or in this Court and
for over a period of seven years, while the case has
remained pending here, no notice had been issued to the
acquitted respondent to show cause as to why in the event of
his acquittal being set aside, a more deterrent sentence,
than the one imposed by the Sessions Judge, be not imposed
upon him and without putting him on such a notice, the Court
cannot enhance the sentence. If the notice were to issue
now, it would further delay the disposal of the case and we
do not consider that to be a proper course to be adopted.
The more stringent minimum sentence prescribed for an
offence under Section 376 IPC was also incorporated in the
Code by an amendment only with effect from December, 1982,
after the offence in the present case had been committed.
The appeal is consequently allowed and the judgment of the
High
26
Court is set aside. The respondent is held guilty of an
offence under Section 376 IPC and sentenced to suffer
rigorous imprisonment for a period of five years. The
respondent shall be taken into custody to suffer the term of
imprisonment.
R.P.
Appeal allowed.
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