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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1708 OF 2010

PURAN CHAND       .. APPELLANT VERSUS

STATE OF H.P.      ..RESPONDENT  

J U D G M E N T

GYAN SUDHA MISRA, J.

1. This appeal was going unrepresented as no one  

had appeared for the appellant to contest the matter.  We,  

therefore, in the interest of justice, appointed an Amicus  

Curiae to represent the case of the appellant and assist  

the Court in reaching to a just conclusion.

2. Having heard the counsel for the parties and on  

perusal of the material on record, we have noted that this  

appeal is directed against the judgment and order dated  

29.09.2009 passed by the High Court of Himachal Pradesh  

at  Shimla  in  Criminal  Appeal  No.52/2009  whereby  the  

appeal preferred by the appellant was dismissed by the  1

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High Court.  Consequently, the conviction of the appellant  

under Section 376 read with Section 506-I of the Indian  

Penal Code was upheld and the sentence of seven years  

imposed  on  the  appellant/accused  alongwith  a  fine  of  

Rs.5,000/- in default of which he had to undergo simple  

imprisonment for a period of one year under Section 376  

IPC and further to undergo simple imprisonment for three  

months under Section 506-I IPC, was confirmed.

3. The case  of  the  prosecution  which  led  to  the  

conviction and sentence of the appellant emerges out of  

the  FIR  No.186/2006  which  was  registered  at  Police  

Station Nahan by the prosecutrix/the victim girl aged 17  

years who suffered the offence of rape at the instance of  

the  appellant.   She  has  stated  in  the  FIR  that  on  

20.08.2006 at about 12.30 p.m., she had taken her goats  

for grazing in the forest at a distance of about ½ k.m. from  

the village.  She was sitting alone on a foot path, at about  

2 p.m. when somebody caught hold of her from her back  

and then she found out that it was the accused-appellant  

who had forcibly caught hold of her.   She enquired the  

reason  for  holding  her  to  which  the  accused  did  not  

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respond.  The appellant thereafter physically abused her  

body  specially  the  chest  portion  removed  her  clothes  

made her lie on the ground and inflicted sexual assault by  

committing rape on her.  In panic, she raised alarm but  

none  came  to  her  rescue  or  for  help.   The  accused-

appellant after raping her left  the place and threatened  

her that in case she disclosed the incident to anyone, she  

will  have  to  pay  for  the  consequence  of  disclosing  the  

incident.   It  has  been  stated  by  the  victim-girl  that  on  

account of this fear, she did not disclose this incident to  

her parents for several days but she remained tense on  

account of trauma that she had been suffering due to the  

heinous incident.  However, the tension that brewed in her  

mind,  increased  so  much  that  on  02.09.2006,  she  

attempted to commit suicide by consuming some poison  

and  she  became  unconscious  after  which  she  was  

admitted into the Hospital at Dadahu and then shifted to  

Nahan and finally to the PGI,  Chandigarh.  On regaining  

her  consciousness,  she  disclosed  the  incident  to  her  

parents and brother Ramesh Chand.  She was discharged  

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from PGI,  Chandigarh on 10.09.2006 and thereafter she  

reported the case at Police Station Nahan.

4. The prosecutrix/victim girl  was then subjected  

to medical examination and the case was investigated by  

PW-9 ASI Jagdish Chand.  The accused was arrested on  

12.09.2006  and  on  completion  of  investigation,  

chargesheet was submitted in the Court of learned Chief  

Judicial Magistrate, Nahan who committed the case vide  

order dated 19.05.2007 for trial.

5. In  support  of  the  case  of  victim  girl,  the  

prosecution  examined  11  witnesses  and  also  produced  

documentary evidence.  The accused was also examined  

under  Section  313  Cr.P.C.  who  denied  the  prosecution  

case and took the plea that the witnesses have deposed  

against him due to previous enmity.  However, the learned  

Session  Judge  on  a  scrutiny  of  the  evidence  and  on  

conclusion  of  the  trial,  convicted  and  sentenced  the  

accused as noted above.

6. The  appellant  preferred  an  appeal  before  the  

High  Court  of  Himachal  Pradesh  at  Shimla  against  the  

judgment  and  order  of  the  Trial  Court,  wherein  he  

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reiterated  his  defence version that  he had been falsely  

implicated in  the case due to  previous enmity with the  

victim's  family  and the  learned Sessions  Judge had not  

appreciated  the  evidence  properly  and  in  correct  

perspective.  It was therefore urged that it was not a case  

where conviction should have been recorded on the basis  

of sole testimony of the prosecutrix so as to convict him as  

there is unexplained delay in lodging the FIR.  It was also  

contended that the medical evidence belies the case of  

the prosecution and it was sought to be explained that the  

prosecutrix was suffering from the fear of compartmental  

examination  in  which  she  had  to  appear  which  was  to  

commence  in  September  2006  and  out  of  fear  of  

examination,  the  prosecutrix  has  consumed  poison  and  

not for the reason that she had been allegedly raped by  

the accused.

7. The  learned  single  Judge  of  the  High  Court  

however  did  not  feel  persuaded  to  interfere  with  the  

judgment and order of conviction and, therefore, upheld  

the conviction and sentence imposed on the appellant by  

the trial Court.  The appellant therefore has preferred this  

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appeal  assailing the judgment and order  passed by the  

concurrent judgment and order of the trial court and the  

High Court.

8. The  learned  Amicus  Curiae  representing  the  

appellant practically repeated the submissions which had  

been  advanced  before  the  trial  Court  and  the  first  

appellate  court  and  urged  that  the  appellant  has  been  

falsely implicated in the present case which was lodged by  

the victim's family due to previous enmity.  He urged that  

the  defence  story  to  the  effect  that  the  girl  attempted  

suicide due to the alleged rape is not correct as she might  

have done it on account of the examination fever which  

must  have  led  her  to  consume  poison.   It  was  further  

submitted that there was a delay of 22 days in lodging the  

FIR against the appellant as the alleged occurrence took  

place  on  20.08.2006  at  about  2  p.m.  but  the  FIR  was  

registered on 11.09.2006.  It was further contended that  

there is nothing in the statement of the victim girl about  

the nature of injuries which she sustained on her right leg  

and chest at the time when the alleged rape was forcibly  

committed on her.  It was further added that it is not clear  

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from the evidence that the injuries with the prosecutrix  

has stated in her cross-examination to have sustained on  

her right leg and chest would in normal course come in  

medical  examination  conducted  after  21  days  of  the  

alleged incident.  Therefore, the prosecution/the victim girl  

cannot be permitted to take benefit of the statement of  

the  prosecutrix  that  some  injuries  were  caused  on  the  

person and those injuries were not noticed by the Doctor  

and reflected in the medical report.

9. It  was  still  further  contended  that  the  Courts  

should not act on the solitary evidence of the prosecutrix  

and it should be extremely careful in accepting the sole  

testimony  of  the  prosecutrix  when  the  entire  case  is  

improbable and unlikely to happen.   

10. The counsel  for  the respondent-State however  

supported the reasons relied upon by the High Court as  

also the Sessions Court for upholding the conviction and  

took us to the evidence led by the prosecution viz. PW-2  

Daulat Ram-father of the victim girl who stated that when  

the  prosecutrix  became  unconscious  on  consuming  

poison, they took her to the Hospital at Dadahu and from  

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there she was taken to Nahan and then to PGI, Chandigarh  

where she remained admitted till 10.09.2006.  The victim  

girl  on  regaining  consciousness  at  PGI,  Chandigarh  was  

asked by the witness PW1 - father and his son-brother of  

the  victim girl  as  to  why  she  had  consumed  poison  to  

which  the  prosecutrix  stated  that  on  20.08.2006,  the  

accused had committed rape on her in the Jungle and he  

had threatened her not to disclose the incident to anyone  

and as she could not bear the suffering and trauma of the  

incident,  she  consumed  poison  as  she  was  feeling  

ashamed due to the offence committed upon her by the  

accused.   After  discharge  from  PGI,  Chandigarh  on  

10.9.2006, FIR was lodged and the witness PW2- Daulat  

Ram  -  father  of  the  girl  was  subjected  to  cross-

examination on this  aspect  at  the stage of  trial  but  he  

withstood  the  same  by  stating  that  there  was  no  civil  

litigation with the family of the accused so as to implicate  

the accused falsely.  PW-3 Ramesh Chand – brother of the  

girl corroborated the statement of the victim prosecutrix  

and PW-2 Daulat Ram – Father as to the date and time  

when the prosecutrix disclosed the fact that the accused –  

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appellant  committed  rape  upon  her.   PW-4  Prem  Pal,  

Panchayat Sahayak had proved the birth certificate and  

stated that as per record, the date of birth of the victim  

girl is 06.01.1987 indicating that she was a minor on the  

date of the incident.

11. PW-5 Dr. Nirmala Vaish who had examined the  

victim  girl  had  deposed  that  before  examining  the  

prosecutrix-victim,  she  narrated  the  history  which  was  

noted down by the Doctor.  The Doctor further deposed  

that  there  was  no  fresh  evidence,  bleeding  or  tear  or  

scratch over the vulva outside and inner mucosa.  There  

was slightly reddened area over outer mucosa lower side  

which could  be due to discharge not likely a tear or injury  

to mucosa.  The Doctor further recorded that hymen of the  

girl  was intact.   There was no evidence of  any forceful  

action on the other parts of the body.  The victim girl was  

thereafter  subjected  to  radiologist  for  x-ray  for  

ascertaining her age and was sent to ultrasonography for  

pelvic  problem  as  also  dental  surgeon  for  the  

determination of her age.  The Doctor further noted that  

the  attempt  of  rape  could  not  be  proved  because  of  

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examination  done  after  21  days  of  the  occurrence.  

Extensive cross-examination was done on the question as  

to whether the offence of rape could be held to have been  

proved when there was no evidence regarding the offence  

of rape specially when the hymen of the girl was intact.  

The  other  evidence  in  regard  to  proof  of  age  of  the  

prosecutrix  was  also  adduced  including  matriculation  

examination certificate of the victim girl showing her date  

of birth as 06.11.1987 and other evidence relating to her  

entry  into  the  various  Hospitals  where  she  had  been  

admitted.

12. We have taken note of and considered all  the  

arguments advanced by the counsel for the appellant in  

support  of  the  plea,  that  the  incident  in  fact  did  not  

happen at all  and the FIR was registered merely due to  

enmity.   In  this  respect,  the  most  important  evidence  

assailing  the  prosecution  case  is  the  evidence  of  the  

doctor in which serious infirmities have been pointed out  

by  the  defence.    However,  on  a  close  scrutiny  of  the  

deposition of PW-5 Dr. Nirmala Vaish, all the courts below  

have taken note of the fact with respect to non rupture of  

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hymen that it is not clear from the statement of the doctor  

PW-5  which  could  reveal  or  prove  that  on  actual  

examination,  she  found  the  hymen  of  the  prosecutrix  

intact.  Thus, reliance placed on behalf of the appellant-

accused that the hymen of the victim girl was intact could  

not be accepted by the High Court and in view of the time  

gap between the sexual assault and the examination of  

the prosecutrix, the medical report of the prosecutrix not  

reflecting sexual act is not of much significance, as per the  

view taken by the Courts below.  The prosecutrix victim  

has  stood  the  test  of  cross  examination  as  she  has  

specifically  stated  that  the  accused  forcibly  committed  

sexual  assault/rape  on  her  against  her  wish  on  

20.08.2006.  The defence however has tried to rely on the  

medical report in order to create a doubt about the actual  

assault on the victim girl.   

13. While we have noted that  the Doctor  has not  

categorically denied the rupture of hymen of the victim  

girl,  we  also  take  note  of  the  fact  that  the  version  is  

supported by other attending circumstances and evidence  

adduced by the prosecution through the victim girl which  

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is supported by her father and brother.  Even if we were to  

doubt the prosecution version due to alleged infirmity in  

the medical  evidence,  it  cannot  be overlooked that  the  

case of this nature will have to be examined with the aid  

of the accompanying circumstantial evidence in order to  

test the veracity of the prosecution case.   The delay in  

lodging  the  FIR  has  been  clearly  explained  by  the  

prosecution relating the circumstance and the witnesses  

supporting the same have stood the test of scrutiny of the  

cross examination as a result of which the version of the  

victim girl cannot be doubted.  The delay in lodging the  

FIR thus stands fully explained.

14. In  fact,  in  an  incident  of  this  nature  where  a  

doubt is sought to be created by the defence relying upon  

the  lacuna  in  the  medical  evidence  which  could  not  

establish the incident in view of non-committal statement  

of  the  doctor  regarding  the  hymen  being  intact,  the  

prosecution version cannot be brushed aside totally and  

will  have  to  be  judged  by  the  other  attending  

circumstances brought on record.  The defence no doubt  

has taken the plea that the girl had attempted suicide due  

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to the examination fear and not on account of the rape  

alleged to have been committed on her but the same does  

not stand the test of scrutiny.  This defence version, in our  

view,  is  not  worth  placing  reliance  for  the  victim  girl  

immediately on regaining consciousness had narrated the  

story to the Doctor, father and her brohter at which stage  

it was not possible to indulge in concoction of the story of  

this  nature  in  such  a  mental  state.   It  is  equally  not  

possible to overlook or ignore the trauma that the victim  

girl  must  have  suffered  for  22  days  after  the  sexual  

assault/rape committed on her specially when she could  

not divulge the incident to anyone.  We find the defence of  

the  appellant  extremely  unworthy  of  reliance  so  as  to  

demolish  the  version  of  the  prosecutrix  supported  by  

circumstantial  evidence.   The  version  of  the  victim girl  

who was suffering the trauma of rape and was provoked  

to take the extreme step of consuming poison, cannot be  

doubted  ignoring  even  the  fact  that  a  girl  would  put  

herself to disrepute and go to the extent of supporting her  

parents to lodge a false case merely due to some enmity  

with the family of the accused putting her honour at stake  

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in a precarious mental state.  In fact, we are prone to infer  

with  reason that  if  the  prosecution  had  an  intention  of  

really planting a false story of rape, it is highly improbable  

that they would have created a story having a huge time  

gap  between  the  date  of  incident  and  the  date  of  

lodgement of the FIR leaving the scope of weakening the  

prosecution case.  If it were a well thought out concocted  

story so as to lodge a false case, obviously the prosecution  

would not have taken the risk of giving a time gap of more  

than 20 days between the incident and the lodgement of  

the FIR.  This clinching circumstantial evidence demolishes  

the defence version and inspires much confidence in what  

has been stated by the victim girl.   

15. In fact, at this stage, the amendment introduced  

in the Indian Evidence Act, 1872 in Section 114-A laying  

down as follows is worthwhile to be referred to:-

“Presumption  as  to  absence  of  consent  in  certain  prosecutions  for  rape.-  In  a  prosecution  for  rape  under  clause  (a)  or  clause (b) or clause (c) or clause (d) or clause  (e) or clause (g) of sub- section (2) of section  376 of the Indian Penal Code, where sexual  intercourse by the accused is proved and the  question  is  whether  it  was  without  the  consent of the woman alleged to have been  raped and she states in her evidence before  

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the Court that she did not consent, the Court  shall presume that she did not consent.”

Section 114-A no doubt addresses on the consent part of  

the woman only when the offence of rape is proved but it  

also  impliedly  would  be  applicable  in  a  matter  of  this  

nature where the victim girl  had gone to the extent of  

committing suicide due to the trauma of rape and yet is  

sought to be disbelieved at the instance of the defence  

that she weaved out a concocted story even though she  

suffered the risk of death after consuming poison.  If this  

were to be accepted, we fail to understand and lament as  

to what is the need of incorporating an amendment into  

the  Indian  Evidence  Act  by  incorporating  Section  114A  

which clearly has been added to add weight and credence  

to  the  statement  of  the  victim woman who  suffers  the  

offence of rape and a claustrophobic interpretation of this  

amended  provision  cannot  be  made  to  infer  that  the  

version of the victim should be believed relating merely to  

consent in a case where the offence of rape is proved by  

other  evidence on record.   If  this view of  the matter is  

taken into account relying upon the amended Section 114-

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A of the Indian Evidence Act which we clearly do,  then  

even  if  there  had  been  a  doubt  about  the  medical  

evidence regarding non rupture of hymen the same would  

be of no consequence as it is well settled by now that the  

offence of rape would be held to have been proved even if  

there is an attempt of rape on the woman and not the  

actual  commission of  rape.   Thus,  if  the version  of  the  

victim  girl  is  fit  to  be  believed  due  to  the  attending  

circumstances that she was subjected to sexual assault of  

rape and the trauma of this offence on her mind was so  

acute which led her to the extent of committing suicide  

which she miraculously escaped, it would be a travesty of  

justice if we were to disbelieve her version which would  

render the amendment and incorporation of Section 114A  

into the Indian Evidence Act as a futile exercise on the  

part  of  the  Legislature  which  in  its  wisdom  has  

incorporated the amendment in the Indian Evidence Act  

clearly implying and expecting the Court to give utmost  

weightage to the version of the victim of the offence of  

rape which definition includes also the attempt to rape.    

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16. In the instant matter, in view of the evidence led  

by  the  witnesses,  supported  by  the  circumstantial  

evidence, the prosecution version is fit to be relied upon  

brushing aside the theory of improbability of the offence  

and  holding  the  prosecution  case  proved  beyond  

reasonable  doubt,  leading  to  the  conclusion  that  the  

incident  in fact did happen in the manner in which it has  

been described by the victim girl who was only 17 years  

and hence a minor at the time of the incident supported  

by  the  medical  evidence  which  although  might  be  

somewhat  weak,  gains  strength  from  other  attending  

circumstantial evidence wherein there is no missing link in  

the chain of events.  

17. In view of the aforesaid scrutiny and analysis of  

the  evidence  on  record,  we  find  no  substance  in  this  

appeal  and  hence  uphold  the  conviction  and  sentence  

imposed  on  the  appellant.   Accordingly  the  appeal  is  

dismissed.

……………………… J. (T.S. Thakur)

………………………J. (Gyan Sudha Misra)

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New Delhi April 23, 2014

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