Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
STATE OF RAJASTHAN
Vs.
RESPONDENT:
N. K. ACCUSED
DATE OF JUDGMENT: 30/03/2000
BENCH:
S.N.Variava, R.C.Lahoti
JUDGMENT:
R.C. Lahoti, J.
The State of Rajasthan has come up in appeal feeling
aggrieved by an order of acquittal recorded by the High
Court of Rajasthan reversing the judgment of the Sessions
Court which had found the accused-respondent guilty of an
offence punishable under Section 376 Indian Penal Code and
sentenced him to undergo seven years rigorous imprisonment
with a fine of Rs.2,000/- and to a further simple
imprisonment of one year and nine months in default of
payment of fine. According to the prosecution, G, PW2, the
prosecutrix, was aged 15 years and was living in village
BhaniaYana (Jaisalmer) with her father, mother and a younger
sister. The family resided in a lonely hutment situated in
a field. On 1.10.1993 at about 12 noon, the prosecutrix was
alone in her hut busy washing clothes on a water pump. NK,
the accused-respondent was known to the prosecutrix since
before. He came to her and initially asked for water which
she provided in a lota. The accused then asked for a knife
for peeling the skin of a cucumber. The prosecutrix brought
the knife and handed it over to him. When the prosecutrix
was about to turn and go back, the accused caught hold of
her . He twisted her hand on her back and forcibly took her
to a nearby place called Bhitian, , i.e., a place surrounded
by walls. The accused forced the prosecutrix to lie down on
the ground, put his foot on her chest, closed her mouth with
his palm, removed her lehenga upwards and then forcibly
committed sexual intercourse with her. The prosecutrix
offered resistance and tried to save herself but the
respondent gagged her mouth by a towel pressed against her
mouth. Having thus raped the prosecutrix, the
accused-respondent went away to Thane, another village or
another part of the same village. The prosecutrix reached
back her home and narrated the entire incident to a woman,
described as wife of Udai Singh and to her father, PW 10,
who had returned by that time. The victim accompanied by
her father wanted to go to the police station and lodge the
first information report of the incident but they were
prevented from doing so by several village people belonging
to the community of the accused who also proposed the matter
being settled within the village by convening a panchayat.
However, report of the incident was lodged on 5.10.1993 at
11.20 a.m. The offence was registered and investigation
commenced.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
The prosecutrix was referred for medical examination
so as to find out the injuries on her person as also to
ascertain her age. Dr. V.D. Jetha, (P.W.9) the medical
officer posted at primary health centre, Jaisalmer examined
the prosecutrix on 6-10-1993 at about 12 noon upon a
requisition made by the investigating officer. Dr. Jetha
found inter alia the hymen of the prosecutrix was ruptured
in multiple radial tears, the edges of which showed healing
at most of the places and mild tenderness. The hymen hole
admittted one finger easily with mild tenderness. Sample of
vaginal swab from posterior front of vagina was taken and
smear slide was prepared which was sealed and sent to
forensic science laboratory for examination. In the opinion
of Dr. Jetha sexual intercourse with the prosecutrix was
done 5 to 7 days before the day of examination. He further
opined that after a lapse of 5 to 7 days, the examination of
vaginal smear and vaginal swab could not confirm the
presence of semen.
For the purpose of ascertaining age of the
prosecutrix, x-rays of arms and elbow joints were taken in
his presence. After examinaing x-rays he opined that the
age of the prosecutrix was 15 years.
On 4.11.1993 on a requisition made by the
investigating officer, Dr. Jetha examined NK, the
accused-respondent. He was found to be a person of average
built suffering from no disease or infirmity. His height
was 5 ft 11 inches and weight was 61 kg. He was found fit
and competent to perform sexual intercourse. No mark of
injury was found on his person.
The trial court found the incident, as alleged,
proved. In the opinion of the learned trial Judge the
testimony of the prosecutrix inspired confidence. It was
corroborated by the medical evidence as also by the
testimony of her father. The prosecutrix was held to be 15
years of age on the date of the incident. Though there was
delay in lodging the FIR but it was satisfactorily
explained. Accordingly, the accused-respondent was found
guilty of the offence punishable under Section 376 IPC and
sentenced as above.
The High Court has, in an appeal preferred by the
accused-respondent, held that the prosecutrix was not proved
beyond reasonable doubt to be below 16 years of age. In the
opinion of the High Court though the factum of accused-
respondent having committed sexual intercourse with the
prosecutrix was proved but the absence of injuries on the
person of the prosecutrix was a material fact not excluding
the possibility of the prosecutrix having been a consenting
party. The delay in lodging the FIR was not satisfactorily
explained. The delay coupled with the non-examination of
the wife of Udai Singh to whom the incident was first
narrated by the prosecutrix immediately after the occurrence
rendered the prosecution case doubtful. Mainly on this
reasoning the High Court has allowed the appeal and
acquitted the accused-respondent.
The learned counsel for the appellant-State has
vehemently attacked the findings arrived at by the High
Court and submitted that none of them was sustainable and
none could be a reason for doubting the prosecution case in
the given facts and circumstances and hence the acquittal
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
deserves to be set aside.
Having heard the learned counsel for the parties we
are of the opinion that the High Court was not justified in
reversing the conviction of the respondent and recording the
order of acquittal. It is true that the golden thread which
runs throughout the cob-web of criminal jurisprudence as
administered in India is that nine guilty may escape but one
innocent should not suffer. But at the same time no guilty
should escape unpunished once the guilt has been proved to
hilt. An unmerited acquittal does no good to the society.
If the prosecution has succeeded in making out a convincing
case for recording a finding as to the accused being guilty,
the Court should not lean in favour of acquittal by giving
weight to irrelevant or insignificant circumstances or by
resorting to technicalities or by assuming doubts and giving
benefit thereof where none exists. A doubt, as understood
in criminal jurisprudence, has to be a reasonable doubt and
not an excuse for finding in favour of acquittal. An
unmerited acquittal encourages wolves in the society being
on prawl for easy preys, more so when the victims of crime
are helpless females. It is the spurt in the number of
unmerited acquittals recorded by criminal courts which gives
rise to the demand for death sentence to the rapists. The
courts have to display a greater sense of responsibility and
to be more sensitive while dealing with charges of sexual
assault on women. In Bharwada Bhoginbhai Hirijibhai Vs.
State of Gujarat 1983 Crl.L.J. 1096 this Court observed
that refusal to act on the testimony of a victim of sexual
assault in the absence of corroboration as a rule, is adding
insult to injury. This court deprecated viewing evidence of
such victim with the aid of spectacles fitted with lenses
tinted with doubt, disbelief or suspicion. We need only
remind ourselves of what this court has said through one of
us (Dr. A.S. Anand, J. as His Lordship then was) in State
of Punjab Vs. Gurmeet Singh & Ors., 1996 (2) SCC 384.
..A rapist not only violates the victims
privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the
process. Rape is not merely a physical assault it is
often destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The courts,
therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such cases
with utmost sensitivity. 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.
The questions arising for consideration before us are:
Whether the prosecution story, as alleged, inspires
confidence of the court on the evidence adduced? Whether
the prosecutrix, is a witness worthy of reliance? Whether
the testimony of a prosecutrix who has been a victim of rape
stands in need of corroboration and, if so, whether such
corroboration is available in the facts of the present case?
What was the age of the prosecutrix? Whether she was a
consenting party to the crime? Whether there was
unexplained delay in lodging the F.I.R.?
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
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 without corroboration in
material particulars. Her testimony has to be appreciated
on the principle of probabilities just as the testimony of
any other witness; a high degree of probability having been
shown to exist in view of the subject matter being a
criminal charge. However, if the court of facts may find 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. Reference may be had to
a long chain of decisions, some of which are Rameshwar 1952
SCR 377, Sidheshwar Ganguly AIR 1958 SC 143, Madhoram & Anr.
(1973) 1 SCC 533, State of Maharashtra Vs. Chandraprakash
Kewalchand Jain (1990) 1 SCC 550, Madam Gopal Kaddad (1992)
3 SCC 204 Shri Narayan AIR 1992 (3) SCC 615, Karnel Singh
1995 (5) SCC 518, Bodhisattwa Gautam 1996 (1) SCC 490 &
Gurmit Singh (supra). We may quote from the last of the
above said decisions where the rule for appreciating the
evidence of the prosecutrix in such cases has been
succinctly summed up in the following words :-
. 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.
According to Dr. V.D. Jetha, x-ray of left elbow and
arm of the prosecutrix were taken for assessing her age.
Though the technician who had actually x-rayed the
prosecutrix and prepared the x-ray plates has not been
examined in the court but the non-examination is of no
consequence. According to Dr. Jetha, x-rays were taken in
his presence. Based on the x-ray plates he had drawn
deductions, formed an opinion based on standard text books
and prepared the report on the question of age. He has
further stated that there was no need for the prosecutrix
being referred to radiologist in as much as what radiologist
could have read from the x-ray plates could also have been
done by him as he has done.
Dr. Jetha found that top radial was fully occified.
Olecranon of ulna was also fully occified. Distal end of
radial and ulna were not completely occified. On the basis
of such data he inferred the age of the prosecutrix to be
about 15 years. However, during cross-examination he
admitted that the age of the prosecutrix could be 15 or 16
years because a variation of 3 on plus or minus side as
described by Modi in his Medical Jurisprudence was possible.
The learned counsel for the State vehemently argued that
non-occification of the distal ends of radial and ulna was a
positive indicator of the prosecutrix having not crossed the
age of 15 years and in support of his submission he referred
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
to certain passages and tables from Modis Medical
Jurisprudence. However we are not satisfied that only on
the basis of Dr. Jethas testimony, a positive finding can
be recorded that the prosecutrix was less than 16 years of
age on the date of the incident. In the estimate made by
Dr. Jetha he himself admits a variation of 3 years on
either side being permissible. The prosecutrix herself and
her father are illiterate persons. The prosecutrix has not
taken any schooling. There is no other satisfactory
evidence as to her age available on record. We cannot
positively hold on the basis of material available that she
was less than 16 years of age on the date of the incident.
It is true that the incident dated 1.10.1993 was
reported to the police on 5.10.1993. The prosecutrix was a
married woman. Her muklana ceremony had not taken place.
Muklana ceremony is a rural custom prevalent in Rajasthan,
whereunder the bride is left with the parents after marriage
having been performed and is taken away by the husband
and/or the in-laws to live with them only after a lapse of
time. The origin of the custom owes its existence to
performance of child-marriages which are widely prevalent
there. The muklana was yet to take place. The prosecutrix
was a virgin prior to the commission of the crime and this
fact finds support from the medical evidence. The parents
of such a prosecutrix would obviously be chary to such an
incident gaining publicity because it would have serious
implications for the reputation of the family and also on
the married life of the victim. The husband and the in-laws
having become aware of the incident may even refuse to carry
the girl to reside with them. The incident if publicised
may have been an end of the marriage for the prosecutrix.
Added to this is the communal tinge which was sought to be
given by the community of the accused. PW-10, the father of
the prosecutrix, the prosecutrix PW-2 and other witnesses
have stated that while they were about to move to the Police
Station they were prevented from doing so by the community
fellows of the accused who persuaded them not to lodge
report with the police and instead to have the matter
settled by convening a panchayat of village people. After
all the family of the victim had to live in the village in
spite of the incident having taken place. The explanation
is not an after thought. An indication thereof is to be
found in the F.I.R. itself where the complainant has stated
the delay in lodging the report is due to village
panchayat, insult and social disrepute. Nothing has been
brought out in the cross-examination of the witnesses to
doubt the truth and reasonableness of the explanation so
offered.
We may however state that a mere delay in lodging the
FIR cannot be a ground by itself for throwing the entire
prosecution case overboard. The Court has to seek an
explanation for delay and test the truthfulness and
plausibility of the reason assigned. If the delay is
explained to the satisfaction of the Court it cannot be
counted against the prosecution. In State of Rajasthan Vs.
Narayan AIR 1992 SC 2004 this Court observed True it is
that the complaint was lodged two days later but as stated
earlier Indian society being what it is the victims of such
a crime ordinarily consult relatives and are hesitant to
approach the police since it involves the question of
morality and chastity of a married woman. A woman and her
relatives have to struggle with several situations before
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
deciding to approach the police. In State of Punjab
Vs. Gurmit Singh & Ors. (supra), this Court has held
The Courts cannot overlook the fact that in sexual offences
delay in the lodging of the FIR can be due to variety of
reasons particularly the reluctance of the prosecutrix or
her family members to go to the police and complain about
the incident which concerns the reputation of the
prosecutrix and the honour of her family. It is only after
giving it a cool thought that a complaint of sexual offence
is generally lodged. So are the observations made by this
Court in in Karenel Singh Vs. State of M.P. (1995) 5 SCC
518 repelling the defence contention based on delay in
lodging the FIR. In the present case, in our opinion the
delay in lodging the F.I.R. has been satisfactorily
explained.
Absence of injuries on the person of the prosecutrix
has weighed with the High Court for inferring consent on the
part of the prosecutrix. We are not at all convinced. We
have already noticed that the delay in medical examination
of the prosecutrix was occasioned by the factum of the
lodging of the F.I.R. having been delayed for the reasons
which we have already discussed. The prosecutrix was in her
teens. The perpetrator of the crime was an able bodied
youth bustling with energy and determined to fulfill his
lust armed with a knife in his hand and having succeeded in
forcefully removing the victim to a secluded place where
there was none around to help the prosecutrix in her
defence. The injuries which the prosecutrix suffered or
might have suffered in defending herself and offering
resistance to the accused were abrasions or bruises which
would heal up in ordinary course of nature within 2 to 3
days of the incident. The absence of visible marks of
injuries on the person of the prosecutrix on the date of her
medical examination would not necessarily mean that she had
not suffered any injuries or that she had offered no
resistance at the time of commission of the crime. Absence
of injuries on the person of the prosecutrix is not
necessarily an evidence of falsity of the allegation or an
evidence of consent on the part of the prosecutrix. It will
all depend on the facts and circumstances of each case. In
Sheikh Zakir 1983 Crl.L.J. 1285, absence of any injuries on
the person of the prosecutrix, who was the helpless victim
of rape, belonging to a backward community, living in a
remote area not knowing the need of rushing to a doctor
after the occurrence of the incident, was held not enough
for discrediting the statement of the prosecutrix if the
other evidence was believable. In Balwant Singh & Ors.
1987 Crl.L.J. 971 this court held that every resistance
need not necessarily be accompanied by some injury on the
body of the victim; the prosecutrix being a girl of 19/20
years of age was not in the facts and circumstances of the
case expected to offer such resistance as would cause
injuries to her body. In Karenel Singh 1995 (5) SCC 518 the
prosecutrix was made to lie down on a pile of sand. This
court held that absence of marks of external injuries on the
person of the prosecutrix cannot be adopted as a formula for
inferring consent on the part of the prosecutrix and holding
that she was a willing party to the act of sexual
intercourse. It will all depend on the facts and
circumstances of each case. A Judge of facts shall have to
apply common sense rule while testing the reasonablity of
the prosecution case. The prosecutrix on account of age or
infirmity or overpowered by fear or force may have been
incapable of offering any resistance. She might have
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
sustained injuries but on account of lapse of time the
injuries might have healed and marks vanished.
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 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. The prosecutrix before
us had just crossed the age of 16 years. She has clearly
stated that she was subjected to sexual intercourse forcibly
by the accused. She was not a consenting party. She
offered resistance to the best of her ability but she
succumbed and fell victim to the force employed by the
accused. She has narrated how she was approached by the
accused while she was busy washing clothes near her hut.
The accused initially asked for water in a lota. Then the
accused asked for a knife on the pretext that it was needed
for peeling cucumber. The accused was gaining time to
ascertain if the prosecutrix was alone. No sooner the
prosecutrix turned her back unmindful of what laid ahead,
her hand was caught hold of by the accused and twisted on
her back. The accused pushed her to bhitian, a secluded
place. She was thrown on the ground. The accused put his
knee on her chest so as to over power her. Her shouting was
throttled by the accused who placed his palm on her mouth
and later covered her mouth by a towel pressed against her
lips. She was then raped. Blood oozed out from her private
parts. Having finished his act the accused left her alone
and took to his heels. The prosecutrix was weeping. She
narrated the incident to a woman described as the wife of
Udai Singh and to her father in quick succession. The
statement of the father of the prosecutrix corroborates her
in all material particulars and is admissible in evidence
and relevant under Section 157 as her former statement
corroborating her testimony as also under Section 8 of the
Evidence Act as evidence of her conduct. In spite of delay
in medical examination in the circumstances already
discussed the medical evidence corroborates the testimony of
the prosecutrix. According to Dr. Jetha, he had found the
hymen ruptured in multiple radial tears, the edges of which
showed healing at most of the places and mild tenderness.
The prosecutrix was not used to sexual intercourse. Pieces
of broken bangles were found at the place of the incident
and seized. The Forensic Science Laboratory has found (vide
report Ex.P/9) presence of human semen on the Lehenga seized
from the prosecutrix. It is true that wife of Udai Singh
has not been examined. It would have been better it she
would have been examined. However, no dent is caused in the
case of the prosecution by her non-examination. She would
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
have repeated the same story as has been narrated by the
father of the prosecutrix. We have found the testimony of
prosecutrixs father (PW 10) trustworthy and unembellished.
The prosecutrix and her father have both been subjected to
lengthy cross-examination. The trial court has found both
the witnesses reliable. We too find no reason to disbelieve
their testimony. A father would not ordinarily subscribe to
a false story of sexual assault involving his own daughter
and thereby putting at stake the reputation of the family
and jeopardizing the married life of the daughter. We find
the testimony of prosecutrixs father reliable and lending
support to the narration of the incident by the prosecutrix.
No reason has been proved, not even suggested during
cross-examination of any of the witnesses why the
prosecutrix or any member of her family would falsely
implicate the accused roping him in false charge of rape.
We are surprised to note how an inference as to consent
could have been drawn against the prosecutrix and to hold
that she was a willing party to the sexual assault made by
the accused. Upon an evaluation of evidence available on
record we are satisfied to hold that the prosecutrix is a
witness of truth. Her testimony inspires confidence. Other
evidence available on record lends assurance to her
testimony. The Trial Court had rightly held that sexual
assault amounting to rape was committed on her by the
accused-respondent. In spite of her having not been proved
to be under 16 years of age the High Court was not justified
in holding her to be a consenting party to the sexual
assault on her.
For the foregoing reasons, we are of the opinion that
the High Court has committed a clear error of law in
interfering with the judgment of the trial court regarding
proof of guilt of the accused. The appeal is allowed. The
judgment of the High Court is set aside. We hold the
accused/respondent guilty of the offence charged i.e. under
Section 376 of the I.P.C..
Now remains the question of sentence. The incident is
of the year 1993. The accused was taken into custody by the
police on 3.11.1993. He was not allowed bail. During the
trial as also during the hearing of the appeal by the High
Court he remained in jail. It is only on 11.10.1995 when
the High Court acquitted him of the charge that he was
released from jail. Thus he had remained in jail for a
little less than two years. Taking into consideration the
period of remission for which he would have been entitled
and the time which has elapsed from the date of commission
of the offence, we are of the opinion that the
accused-respondent need not now be sent to jail. It would
meet the end of justice if he is sentenced to undergo
imprisonment for the period already undergone by him and to
a fine of Rs.2000/- with further simple imprisonment of one
year and nine months in default of payment of fine as passed
by the Triial Court. The appellant is allowed time till 1st
May, 2000 for payment of fine. The accused-respondent is on
bail. The bail bonds shall stand discharged on payment of
fine as directed. Ordered accordingly.