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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1226 OF 2011

LILLU @ RAJESH & ANR. Appellants

VERSUS

STATE OF HARYANA  Respondent

O R D E R

1. This criminal appeal has been preferred against the impugned  

judgment  and  order  dated  20.9.2010  passed  by  the  High  Court  of  

Punjab & Haryana at Chandigarh in Criminal Appeal No. 243-DB of  

2002, by way of which the High Court has affirmed the judgment and  

order dated 4.3.2002 passed by the Additional Sessions Judge, Jind in  

Sessions Case No. 37 of 2001, by way of which the appellant no. 1  

has been convicted under Section 376 of the Indian Penal Code, 1860  

(hereinafter referred to as `IPC’) and awarded the sentence of seven  

years rigorous imprisonment with a fine of Rs. 5,000/- and in default

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of making payment, to further undergo imprisonment for two years.  

Further he has been convicted under Section 506 IPC and awarded the  

sentence of two years rigorous imprisonment. Both the sentences have  

been  directed  to  run  concurrently.  The  other  co-accused,  namely,  

Manoj, Satish @ Sitta and Kuldeep have been convicted separately  

under sections 376, 506, 366 and 363 IPC.  Kuldeep Singh alone has  

been  found  guilty  under  Section  376  (2)  (g)  IPC,  and  has  been  

awarded sentence of life imprisonment.  Out of these four convicts,  

Kuldeep Singh and Manoj did not prefer any appeal against the High  

Court’s judgment, while appellant nos.1 and 2 preferred the present  

appeal.  Appellant no.2  had died during the pendency of this appeal  

in jail, therefore, we are concerned only with the case of appellant  

no.1  i. e. Lillu @ Rajesh.  

2. Mr. J.P. Singh, learned counsel for the appellant, submitted that  

the prosecution has failed to prove the date of birth of the prosecutrix  

and that she was about 17-18 years of age on the date of incident.  

Thus, it was a clear cut case of consent. The statement of Raj Bala,  

prosecutrix has  not been corroborated by any of the witnesses and has  

not got corroborated by the medical evidence. Dr. Malti Gupta (PW-

1), who had examined Raj Bala, prosecutrix medically had deposed

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that there was no external mark of injury on any part of her body. The  

possibility of prosecutrix being habitual to sexual  intercourse could  

not be ruled out. There was no bleeding. Thus, in such a fact-situation,  

the statement of the prosecutrix that she was unmarried and had never  

indulged in sexual activity with any person, or was below 16 years,  

could not be relied upon.  

3. On the other  hand, the State of  Haryana,  as  usual,  remained  

unrepresented as the government counsel duly appointed by the State  

considered it  their privilege not to appear in court and become the  

burden on public exchequer. So, the court has to examine the case  

more  consciously  going  through  the  record  and  examine  the  

correctness of the findings recorded by the courts below.  

4. The  trial  court  has  examined  the  issue  on  age  and  after  

examining the school certificate (Ext. P-N), which stood duly proved  

by Lakhi Ram (PW-11),  Science teacher,  Government  High Court,  

Badhana and  Gajraj Singh, teacher, Govt. Primary School, Badhana,  

came to the conclusion that her date of birth as per the school register  

was 4.6.1987. So on the date of incident i.e.  7.3.2001, she was 13  

years 9 month and 2 days old.  She was a student of 6th standard. To

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refute  the same,  no evidence  worth the name has  been led  by the  

accused-appellant. The said finding stood affirmed by the High Court  

and  in  view  thereof,  it  remains  totally  immaterial  whether  the  

prosecutrix was a consenting party or not.  

5. So far as the medical evidence is concerned, Dr. Malti Gupta  

(PW-1), Medical Officer, Civil Hospital, Jind, has deposed that Raj  

Bala,  prosecutrix  was  habitual  in  sexual  activities  and  such  a  

statement  was  made in  view of  the medical  examination.  Relevant  

part thereof reads as under:  

"Bilateral breast were moderately developed, There was  no external mark of injury seen any where on the body.  Axillary  heir  was  not  developed.  Public  hair  were  partially developed.  

On local examination labia majora and labia minora were  moderately developed.  

There  was  no  bleeding  P/V.  Whitish  discharge  was  present. Hymen was completely torn.  

Vagina admitted two fingers cervix was normal, uterus  was of null parous by lateral FF were normal.  

….Two swabs were taken from cervix vagina. Public hair  were taken and sent for examination. Salwar worn by Raj  Bala was taken and sealed following were handed over to  the police.  ….It is correct that I have given my opinion that hymen  was completely torn.  

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….It is  also correct that  the marginas were completely  heeled. I cannot give the exact time.  

….I cannot say whether it was torn one year back 2 years  back or 10 days back.  

….I cannot say whether there was any sign of semen on  the swabs taken by me.”  

She further deposed:

".... Since there was no matting of hair so  I did not opine  whether there was any semen on the public hair.  

….I do not remember whether I enquired from Raj Bala  whether she came to me for  medico legal  examination  after washing clothes and taking bath or not. However,  the salwar worn by her was taken into custody. I cannot  say from how many days Raj  Bala  was having sexual  activities. The possibility of Raj Bala of habitual sexual  intercourse cannot be ruled out.”  

6. In fact, much has been argued by Mr. J.P. Singh on two fingers  

test. Admitting very fairly that in case she was a minor, the question  

as  to  whether  she  had  been habitual  to  sexual  activities  or  not,  is  

immaterial to determine the issue of consent.   

7. So far as the two finger test is concerned, it requires a serious  

consideration by the court as there is a demand for sound standard of  

conducting and interpreting forensic examination of rape survivors.

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8. In  Narayanamma  (Kum)  v.  State  of  Karnataka  &  Ors.,  

(1994)  5  SCC 728,  this  Court  held  that  fact  of  admission  of  two  

fingers and the hymen rupture does not give a clear indication that  

prosecutrix is habitual to sexual intercourse. The doctor has to opine  

as to whether the hymen stood ruptured much earlier or carried an old  

tear.  The  factum  of  admission  of  two  fingers  could  not  be  held  

adverse to the prosecutrix, as it would also depend upon the size of the  

fingers inserted. The doctor must give his clear opinion as to whether  

it  was  painful  and  bleeding  on  touch,  for  the  reason  that  such  

conditions obviously relate to the hymen.  

 9. In  State of U.P. v. Pappu @ Yunus  & Anr.,  AIR 2005 SC  

1248, the Court held that a prosecutrix complaining of having been a  

victim of  an offence of  rape is  not  an accomplice after  the crime.  

There  is  no  rule  of  law  that  her  testimony  cannot  be  acted  upon  

without corroboration in material particulars, for the reason, that she  

stands on a much higher pedestal than an injured witness.  

 This  Court  while  dealing  with  the  issue  in  State  of  Uttar  

Pradesh v. Munshi, AIR 2009 SC 370, has expressed its anguish and  

held that  even if  the victim of  rape  was previously accustomed to  

sexual  intercourse,  it  cannot  be the determinative question.  On the

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contrary,  the  question  still  remains  as  to  whether  the  accused  

committed rape on the victim on the occasion complained of. Even if  

the victim had lost  her  virginity earlier,  it  can certainly not  give a  

licence to any person to rape her. It is the accused who was on trial  

and not the victim. So as to whether the victim is of a promiscuous  

character  is  totally  an irrelevant  issue  altogether in a  case  of  rape.  

Even a woman of easy virtue has a right to refuse to submit herself to  

sexual  intercourse  to  anyone  and  everyone,  because  she  is  not  a  

vulnerable object or prey for being sexually assaulted by anyone and  

everyone. A prosecutrix stands on a higher pedestal than an injured  

witness for the reason that an injured witness gets the injury on the  

physical  form,  while  the  prosecutrix  suffers  psychologically  and  

emotionally.     

10. In  Narender Kumar v. State (NCT of Delhi), AIR 2012 SC  

2281, this Court dealt with a case where the allegation was that the  

victim of rape herself was an unchaste woman, and a woman of easy  

virtue.  The court held that so far as the prosecutrix is concerned, mere  

statement  of  prosecutrix  herself  is  enough  to  record  a  conviction,  

when  her  evidence  is  read  in  its  totality  and  found  to  be  worth  

reliance. The incident in itself causes a great distress and humiliation

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to the victim though, undoubtedly a false allegation of rape can cause  

equal distress, humiliation and damage to the accused as well.  The  

Court further held as under:

“Even in cases where there is some material to show  that the victim was habituated to sexual intercourse, no   inference of the victim being a woman of “easy virtues”   or a women of “loose moral character” can be  drawn.   Such a  woman has  a  right  to  protect  her  dignity  and   cannot be subjected to rape only for that reason. She has   a right to refuse to submit herself to sexual intercourse to   anyone  and everyone  because  she  is  not  a  vulnerable   object  or  prey  for  being sexually  assaulted  by  anyone   and everyone. Merely because a woman is of easy virtue,   her evidence cannot be discarded on that ground alone   rather it is to be cautiously appreciated. (Vide: State of   Maharashtra & Anr. v. Madhukar Narayan Mardikar,   AIR 1991 SC 207;  State of Punjab v. Gurmit Singh &  Ors., AIR 1996 SC 1393; and State of U.P. v. Pappu @  Yunus & Anr., AIR 2005 SC 1248).

  In view of the provisions of Sections 53 and 54 of the   Evidence  Act,  1872,  unless  the  character  of  the   prosecutrix  itself  is  in  issue,  her  character  is  not  a   relevant factor to be taken into consideration at all”.

11. In State of Punjab v. Ramdev Singh, AIR 2004 SC 1290,  this  

court dealt with the issue and held that rape is violative of victim’s  

fundamental right under Article 21 of the Constitution. So, the courts  

should  deal  with such cases  sternly  and severely.  Sexual  violence,  

apart from being a dehumanizing act, is an unlawful intrusion on the  

right of privacy and sanctity of a woman. It is a serious blow to her

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supreme honour and offends her self-esteem and dignity as well. It  

degrades and humiliates the victim and where the victim is a helpless  

innocent child or a minor, it leaves behind a traumatic experience. A  

rapist not only causes physical injuries, but leaves behind a scar on the  

most  cherished  position  of  a  woman,  i.e.  her  dignity,  honour,  

reputation and chastity. Rape is not only an offence against the person  

of a woman, rather a crime against the entire society. It is a crime  

against  basic  human  rights  and  also  violates  the  most  cherished  

fundamental right guaranteed under Article 21 of the Constitution.  

12. In view of  International  Covenant  on Economic,  Social,  and  

Cultural Rights 1966; United Nations Declaration of Basic Principles  

of  Justice  for  Victims  of  Crime  and  Abuse  of  Power  1985,  rape  

survivors are entitled to legal recourse that does not retraumatize them  

or violate their physical or mental integrity and dignity. They are also  

entitled to medical  procedures conducted in a manner that respects  

their right to consent. Medical procedures should not be carried out in  

a manner that constitutes cruel, inhuman, or degrading treatment and  

health  should  be  of  paramount  consideration  while  dealing  with  

gender-based violence. The State is under an obligation to make such  

services  available  to survivors of  sexual  violence.  Proper measures

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should be taken to ensure their safety and there should be no arbitrary  

or unlawful interference with his privacy.  

13. Thus, in view of the above, undoubtedly, the two finger test and  

its  interpretation  violates  the  right  of  rape  survivors  to  privacy,  

physical and mental integrity and dignity.  Thus, this test, even if the  

report is affirmative, cannot  ipso facto, be given rise to presumption  

of consent.  

14. In view of the above, the facts and circumstances of the case do  

not present special features warranting any interference by this Court.  

The appeal lacks merit and is accordingly dismissed.   

….……………………………...................................J.                 (Dr. B.S. CHAUHAN)

…..……………………………...................................J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI; April 09, 2013.