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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.         1231       OF 2016 (ARISING OUT OF SLP (CRL.) NO. 5575 OF 2015)

STATE OF HIMACHAL PRADESH .....APPELLANT(S)

VERSUS

SANJAY KUMAR @ SUNNY .....RESPONDENT(S)

J U D G M E N T A.K. SIKRI, J.

Leave granted.

2) Since the matter was fixed for final disposal, counsel for both the parties

were heard in detail.

3) It  is  a  case  where  the  respondent  herein  was  charged  for  having

committed an offence punishable under Sections 376 and 506 of  the

Indian  Penal  Code,  1860 (for  short,  'IPC').   After  trial,  the  Additional

Sessions  Judge,  Fast  Track  Court,  Chamba,  Himachal  Pradesh,

convicted  the  respondent  under  Section  376(2)(f)  as  well  as  under

Section 506 of the IPC.   

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4) The respondent challenged the order by preferring the appeal before the

High Court in which he succeeded as the High Court, after revisiting the

issue,  has come to  the conclusion that  the prosecution had failed to

prove its case beyond reasonable doubt.    According to it there existed

certain circumstances which created reasonable doubt in the version of

the prosecution.  It has resulted in setting aside the conviction recorded

by the trial court thereby acquitting the respondent.  This judgment of the

High Court is assailed in these proceedings.

5) In  the  impugned  judgment,  the  High  Court  has  taken  note  of  the

prosecution case.  As there is no dispute that the said version is correctly

recorded  by  the  High  Court,  we  reproduce  the  same  from  the  said

judgment.

6) As per the prosecution, the prosecutrix, who, at the relevant time, was

nine years old, used to reside at Dalhousie with her parents. She was

studying in  VII  Standard in  Moti  Ka Tibba school  in  Dalhousie.   Her

native place is Aruwan.  Her grandparents had been living in joint family

at Aruwan.  Somewhere in the month of December 2009, during winter

vacation,  prosecutrix visited the place of  her  grandparents.   She had

been taken there by her mother Babli (PW-1).  While at the place of her

grandparents, the prosecutrix was playing with her younger brother.  The

respondent called her to the room on the first floor.  She responded to

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the call of the accused.  On reaching the room, the respondent bolted

the door from inside and made the prosecutrix lie on the bed.  Her mouth

was gagged.  The respondent stripped off  salwar of the prosecutrix of

her  one  leg.   He  put  off  his  trousers.   Thereafter,  he  laid  on  the

prosecutrix and thrust his penis inside her vagina.  She fell unconscious.

When she regained consciousness, the prosecutrix found no one in the

room.  The respondent also criminally intimidated the prosecutrix not to

disclose this act to anyone, otherwise she would be killed.  After 10-15

days again, the respondent took the prosecutrix to the same room and

committed  sexual  intercourse  with  her.   Thereafter,  the  prosecutrix

returned to Dalhousie.  Again, after two months, the prosecutrix visited

her grandparents on seven days vacation.  During this period also, the

respondent  took  her  forcibly  to  his  own  room  where  he  had  sexual

intercourse with  her  and  once  again  criminally  intimidated her  not  to

disclose  the  act  to  anyone.   After  a  lapse  of  2-3  months  again,  the

prosecutrix visited her grandparents and the respondent yet again called

her to which she did not respond and slipped away.  Prior to September

2012,  the  prosecutrix  started  complaining  of  stomach  ache  and  was

given  medicine  by  the  local  doctor.   PW-1 took  her  for  treatment  at

Kakira Hospital on September 03, 2012.  She was medically checked up

by Dr. Jasbir Kaur (PW-8).  She told the mother of the prosecutrix that

her daughter might have been sexually assaulted 2-3 years back.  PW-1

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enquired from the prosecutrix as to what happened with her 2-3 years

back.   The  prosecutrix  then  told  her  mother  about  the  respondent

committing sexual intercourse with her three times when she was at her

grandparents place at village Aruwan.  PW-1 shared this incident with

her husband.  They went  to the Police Station and lodged complaint

(Exhibit  PW-1/A)  on  September  06,  2012  before  the  Deputy

Superintendent  of  Police,  Dalhousie,  who forwarded the same to  the

Station House Officer, Police Station, Kihar with endorsement (Exhibit

PW-12/A) along with OPD Slip (Exhibit PW-8/A).  The prosecutrix was

sent  for  medical  examination to Regional  Hospital,  Chamba.   Dr. Arti

Sharma (PW-9) and Dr. Richa Gupta medically examined the prosecutrix

and  issued  MLC  (Exhibit  PW-9/B).   Thereafter,  date  of  birth  of  the

prosecutrix was obtained; the respondent was arrested; and he was also

medically examined.  After completion of investigation, challan was put

up in the Court after completing all the codal formalities.

7) Prosecution examined as many as twelve witnesses in all to prove its

case  against  the  respondent.   Statement  of  the  respondent  under

Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was also

recorded wherein he pleaded innocence. According to the respondent, a

false case has been made out against him due to personal enmity in the

family.   The  Additional  Sessions  Judge,  Fast  Track  Court,  Chamba

convicted and sentenced the respondent, which has been set aside by

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the High Court, as noted above.

8) Though  the  prosecution  examined  twelve  witnesses,  it  may  not  be

necessary to state the deposition of all those witnesses.  The material

witnesses  are  PW-1  (mother  of  the  prosecutrix),  PW-2  (prosecutrix

herself), PW-8 (Dr. Jasbir Kaur, who had examined the prosecutrix on

September 03, 2012), and PW-9 (Dr. Arti Sharma, who had examined

the prosecutrix after the FIR was lodged).

9) PW-1, who is the mother of the prosecutrix, got married thirteen years

back with Mohinder Singh.  Her daughter was twelve years old and son

was nine years old.  Her daughter was studying in VII Standard in Moti

Tibba High School, Dalhousie.  Her daughter used to complain of having

stomach ache for the past 2-3 months and was taken to the local doctor,

who gave her medicine.  The prosecutrix was then taken for treatment to

Kakira Hospital on September 03, 2012 where PW-8 examined her and

told PW-1 that the prosecutrix might have been sexually assaulted 2-3

years back.  The prosecutrix was given medicine for 10-15 days.  On

returning  home,  she  enquired  from  her  daughter  as  to  what  had

happened  with  her  2-3  years  back.   Her  daughter  told  that  the

respondent had sexual intercourse with her three years back when she

was away at her grandparents place.  The respondent was real brother

of her husband and uncle of her daughter.  Her daughter narrated that

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three years back when she was with her grandparents at Aruwan, the

respondent came and called her to the room.  Her daughter, being niece

of accused, responded to his call and went to the room.  Thereafter, the

respondent  bolted  the  door  from  inside  and  committed  sexual

intercourse with her daughter after putting off her clothes.  Her daughter

told that the respondent had gagged her mouth when started weeping.

The respondent had criminally intimidated her daughter not to disclose

this  to  anyone.   Her  daughter  also  told  that  the  respondent  had

committed sexual intercourse with her three times.  PW-1 then shared

this incident with her husband.  They went to the Police Station to lodge

complaint  (Exhibit  PW-1/A).   In  her  cross-examination,  PW-1  has

deposed that her husband had not accompanied her to the Hospital at

Kakira.  He stayed at home since he was employed as Chowkidar in the

local  building.   On the  next  day, PW-1 shared  this  incident  with  her

husband.  Her father-in-law was having joint family with his two brothers.

All of them resided together in the same house.  There were ten rooms

in the house of her in-laws consisting six rooms on the ground floor and

another four rooms on the first floor.  Property of her father-in-law was

joint with his brother.  She was not aware whether there was a brawl on

May  28,  2012  between  her  father-in-law  and  the  father  of  the

respondent.  She was not aware whether the matter went to the Police

and  the  proceedings  were  still  pending  before  the  Sub-Divisional

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Magistrate,  Churah.   She has admitted in  her  cross-examination that

there were 20-25 persons in the joint family of her in-laws, who resided

together in the same house at Aruwan.  Her mother-in-law also resided

on the ground floor.  All the rooms on the ground floor were occupied by

other family members.  She had brought her children after two months

when they had gone to avail winter vacation in the month of December

2009.   

10) Statement of the prosecutrix (PW-2) was recorded in-camera. The trial

court, after putting five questions to her, was satisfied that she was a

competent witness.  According to her, her native place is Aruwan.  Her

grandparents  were residing there in  a joint  family. Three years  back,

during winter vacation, she was at the place of her grandparents.  Her

mother had taken her.  She was playing with her younger brother and

younger cousin when the respondent, who is her uncle, called her to the

room on the first floor.  She responded to his call.  On reaching the room,

he bolted the door from inside and made her lie on the bed.  He gagged

her mouth.  He stripped off her salwar from her one leg and had put off

his trousers.  He laid on her and thrust his penis inside her vagina and

thereafter she fell unconscious.  When she regained consciousness, she

found that there was no one in the room.  The respondent had criminally

intimidated her  not  to  disclose this incident  to anyone, otherwise she

would be killed.  After 10-15 days again, the respondent took her to the

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same  room  and  had  sexual  intercourse  with  her.   Thereafter,  she

returned  to  Dalhousie.   After  two  months  again,  she  visited  her

grandparents'  home  on  seven  days  vacation.   During  her  visit,  the

respondent  again  took her  forcibly  to  his  room where he had sexual

intercourse with her.  The respondent had again intimidated her not to

disclose this act to anyone.  After a lapse of 2-3 months again, when she

visited  her  grandparents,  the  respondent  called  her  but  she  did  not

respond and slipped away.  Thereafter, she went to the hospital at Kakira

with her mother when she developed severe stomach ache and while

returning from there, she disclosed to her mother that the respondent

had sexual intercourse with her on her visit to grandparents place.  She

was checked up by a lady doctor.  Her statement was recorded at the

Police  Station,  Kihar.   She  was  medically  examined.   In  her

cross-examination,  she  has  deposed  that  white  discharge  had

commenced  10-15  days  prior  to  her  visit  to  the  hospital  at  Kakira.

Stomach ache started after 1-2 months when the respondent had sexual

intercourse with her.  She used to have a lot of pain in the stomach and

often  she  shared  with  her  mother.   She  went  to  Kakira  Hospital  on

September 03, 2012.  Lady doctor had medically examined her.  She did

not disclose the incident to her mother after returning home from her

grandparents place and only shared the incident with her while returning

from the hospital at Kakira.  She did not disclose to her mother about the

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pain  since  she  was  not  aware  that  it  was  an  offshoot  of  sexual

intercourse.   She  further  stated  that  her  grandparents  are  having

bedroom on the ground floor.  There were total six rooms on the ground

floor.  One room was in possession of her parents on the ground floor.

The other room was given to her youngest uncle, Khem Raj.  There were

two rooms on the first floor and in one room, her uncle Res Raj resided.

Second room on the first floor was in possession of her Papa's uncle.

She has admitted that her grandparents have joint family consisting of

20-25  members.   She remained confined  with  the  respondent  in  the

room during the act of sexual intercourse for about 9-10 minutes.  During

sexual intercourse, she had bleeding.  Bed sheet had blood stains where

the respondent had committed sexual intercourse.  Her salwar was also

smeared with blood stains.  She had a lot of pain and had also raised

cries  but  her  mouth  was  gagged  by  the  respondent.   She  had  not

disclosed before the Police while giving statement that she had fallen

unconscious.   She  did  not  recall  as  to  how  long  she  remained

unconscious.  The incident had taken place in the morning hours around

8:00 to 9:00 a.m.  Female members returned back to the house after one

hour of the incident.  She had not disclosed about the incident to anyone

since accused had threatened to kill her.  She had also not disclosed to

her mother out of fear on phone since she was not conversant how to

make a call on the phone.  When the respondent took her forcibly to the

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room, there was no one in the close vicinity.  She screamed but her

mouth was gagged.  She had two real uncles.  The respondent was the

son of her grandfather's brother.

11) PW-8, Dr. Jasbir Kaur, has deposed that on September 03, 2012, the

prosecutrix  appeared  before  her  as  an  OPD  patient  along  with  her

mother complaining of flatus incontinence (involuntary passage of gas).

On her vaginal examination, it was found that hymen was ruptured and

her external anal sphincter was also torn.  In the opinion of PW-8, the

prosecutrix  must  have been sexually  assauled forcibly  and since her

anal sphincters were also not functioning properly, she might have been

sodomised.   She  issued  OPD  Slip  (Exhibit  PW-8/A).   In  her

cross-examination, PW-8 admitted that in the said OPD Slip, parentage

and residence proof of the patient was not mentioned.  She has also

admitted that there was over-writing with regard to date on the OPD Slip.

According to her, this  over-writing could be done by the person who

issued the said slip.  She has admitted that she had not given history

with regard to internal examination of the patient in the OPD Slip.

12) PW-9, Dr. Arti Sharma, has also examined the prosecutrix.  She has not

noticed any injury marks on the whole body and private parts  of  the

prosecutrix.   She noticed  that  hymen  was  torn,  vagina  admitted  two

fingers and the prosecutrix had been subjected to sexual intercourse.  It

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was not possible to say when the said incident was committed.  She

issued MLC, which is marked as Exhibit PW-9/B.

13) We may also mention at this stage that PW-3 proved the date of birth of

the prosecutrix as April 21, 2000, as per the Birth and Death Register.

This fact is not disputed.  Likewise, PW-7 Dr. Ajay Nath had examined

the  respondent  and  in  his  opinion  the  respondent  was  capable  of

performing  sexual  intercourse.   This  fact  is  also  not  disputed by  the

respondent.   Relationship  of  parties  is  also  not  in  dispute,  i.e.,  the

respondent  is  the  son  of  prosecutrix's  grandfather's  brother.   In  this

manner, prosecutrix  is  the niece of  the respondent.   It  is  also not  in

dispute that  the respondent  was living in  the same house where the

grandfather  of  prosecutrix  was staying.   Insofar  as the respondent  is

concerned, his statement was recorded under Section 313 of the Cr.P.C.

wherein he deposed that  he was falsely  implicated because of  some

family dispute over the property.

14) The trial court, after analysing the evidence, found that there were few

contradictions in  the statement  of  PW-1 and her daughter PW-2 with

regard to the period of stomach ache and the duration for which she was

on  medication  by  the  local  doctor/private  chemist.   However,  in  the

opinion of  the Sessions Court,  these  were  very  minor  discrepancies.

The Sessions Court noted that the prosecutrix was only nine years old

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child when the incident happened and she was only twelve years of age

when she deposed in the Court and, therefore, it could not be expected

of her to report each and every fact by giving minute details.  The trial

court  further  observed  that  both  the  witnesses  withstood  the  test  of

credibility  as  even  after  undergoing  detailed  cross-examination  their

depositions on vital aspects remained firm and could not be shaken.

15) The main argument advanced by the defence before the trial court was

that it was a case of inordinate delay where reporting to the Police was

three  years  after  the  incident.   The  trial  court,  however,  was  not

convinced by this argument.  In the judgment given by the trial court,

detailed reasons are given, which will be discussed at the appropriate

stage by us, as to how, in the given circumstances, the prosecution was

able to explain the delay.  Taking aid of various pronouncements of this

Court on this aspect, the trial court concluded that the said delay had not

dented the case of the prosecution.  Other argument of the defence that

PW-1, mother of the prosecutrix, had filed false complaint to implicate

the  respondent  on  account  of  family  feud  was also  not  found  to  be

convincing.

16) In  the  ultimate analysis,  the trial  court  believed the statement  of  the

prosecutrix  as  true  since  it  was  supported  by  medical  evidence  on

record.  It was found to be trustworthy and not shrouded with any doubt.

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The trial court pointed out that the statement of PW-8 clearly suggested

that the prosecutrix was forcefully raped by the respondent and as a

result of that her hymen was ruptured and her external anal sphincter

was also torn.  Even internal sphincter was not continence.  She found

that anal sphincter of the prosecutrix was not functioning properly.  In the

opinion of PW-8, on account of injury to the prosecutrix's anal sphincter,

she might be a sufferer throughout her life.

17) Another argument of the defence before the trial court was that it was

impossible  that  such  an  incident  would  have  occurred  in  the  house

where so many family members lived.  In such circumstances, it could

not be believed that the respondent would have taken the prosecutrix to

the  room  on  the  first  floor  and  committed  sexual  intercourse.   This

argument was also brushed aside by the trial court pointing out that, in

her cross-examination, the prosecutrix has stated that the incident had

taken place in the morning hours, around 8:00 a.m. to 9:00 a.m.  Female

members of the family returned back to the house after one hour of the

incident. The prosecutrix had stated that she had not disclosed about the

incident to anyone since the respondent had threatened to kill her and

also did not disclose to her mother on phone, out of fear.   She was not

conversant how to make a call on phone.  The Sessions Court found that

the testimony of the prosecutrix appeared to be true.  It could not have

been expected of a child of tender age to narrate the incident or share

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the happening with her to anyone when she had been put under fear by

the accused.  Even she could not disclose this incident to her mother.

Her testimony that  she did not  disclose to her  mother out  of  fear  on

phone appeared probable  to  the Session  Court,  keeping in  view her

tender age.

18) Concluding  that  the  deposition  of  the  prosecutrix  was  found  to  be

credible  and  trustworthy, which was sufficient  to  convict  the accused

person even in the absence of any corroboration, insofar as the present

case is concerned, the medical evidence supported her version.  On this

basis, conviction of the respondent was recorded under Sections 376(2)

(f) and 506 of the IPC.

19) Before the High Court, the respondent made same arguments in order to

shake the case of the prosecution and argued that the trial court did not

consider these arguments in the right perspective.  The High Court found

the arguments of the defence as convincing, inasmuch as, according to

the High Court:

(a) FIR was lodged much belatedly, which was fatal to the prosecution when

the delay was not satisfactorily explained;

(b) there were 20-25 persons in the joint family who resided together in the

same  house  in  Aruwan.   As  per  the  prosecution,  since  the  incident

happened at 8:00 a.m. to 9:00 a.m., it  was not believable that where

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there is a joint  family consisting of  20-25 members,  such an incident

could take place;

(c) even if some of the members of the family were not found to be in the

house at the time of incident, the prosecutrix was supposed to disclose

this incident to the other members of the family, including her mother,

when she met her;

(d) according to the prosecutrix, her salwar was smeared with blood stains

and it could not have gone unnoticed;

(e) in a house of ten rooms occupied by 20-25 persons, if the prosecutrix

had screamed, it would not have gone unnoticed;

(f) there was a dispute between the parties, which was apparent from the

contents  of  Exhibit  DW-1/A,  which  could  have  been  the  reason  for

lodging the complaint belatedly on September 06, 2012;

(g) even when the incident was narrated by the prosecutrix to her mother on

September 03, 2012, the complaint was lodged three days thereafter, i.e.

on September 06, 2012, which was also fatal.

20) Learned counsel for the State made an endeavour to tear through the

reasoning given by the High Court with the submission that these were

hardly any reasons to give benefit  of  doubt to the respondent having

regard  to  the  impeccable  testimony  of  the  prosecutrix  herself,  more

particularly when that is to be read along with the deposition of PW-1

(her mother) as well as medical evidence.  He submitted that the High

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Court did not go in the right direction while analysing the evidence on

record,  inasmuch  as,  it  totally  ignored  the  principles  on  which  such

depositions are to be analysed and adjudged.  It was also argued that

the delay in reporting the matter was satisfactorily explained, which was

accepted by the trial court on sound reasoning.  He also submitted that

presence of  other  persons in  a joint  family  in  such a big house was

totally inconsequential which was given undue importance by the High

Court.  It was also submitted by him that the alleged dispute between the

parties could not have been a reason for the mother of the prosecutrix to

make a false FIR thereby exposing her minor daughter of tender age in a

charge of this kind and putting her future in jeopardy.  He read out from

the reasons given by the trial court discussing all these aspects in detail

and submitted that the High Court, in the impugned judgment, has not at

all  stated as to  how the trial  court  went  wrong in  its  analysis  of  the

evidence.

21) Learned counsel for the respondent, on the other hand, submitted that

the reasons given by the High Court were strong and formidable reasons

which  are  sufficient  to  put  considerable  dent  on  the  veracity  of  the

prosecution  case  and,  therefore,  the  High  Court  rightly  held  that  the

charge against the respondent could not be proved beyond reasonable

doubt thereby rightly giving the benefit of doubt to the respondent.  He

also relied upon the discussion contained in the judgment of the High

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Court and the reasons given by the High Court in quashing the verdict of

conviction against the respondent.

22) We have already narrated the case of the prosecution as well as the

testimonies  of  the  prosecutrix,  her  mother  PW-1  and  the  medical

evidence.  After going through the evidence of the prosecutrix and her

mother, we find that apart from some minor and trivial discrepancies with

regard to the period of stomach ache or about the medicine taken from

the local doctor/chemist, insofar as material  particulars of the incident

are concerned,  version of  both  these witnesses is  in  sync with  each

other.  Here is a case where charge of sexual assault on a girl aged nine

years is leveled.  More pertinently, this is to be seen in the context that

the respondent, who is accused of the crime, is the uncle in relation.

Entire  matter  has  to  be  examined  in  this  perspective  taking  into

consideration the realities of life that prevail in Indian social milieu.

23) As per the prosecutrix, she was called by the respondent to his room,

which is on the first floor of the house.  Unmindful of what could be the

motive of an uncle to call her, she obliged as a dutiful child.  However,

according  to  the  prosecution,  unfortunate  incident  happened.   It

happened with a nine year  old child  who was totally  unaware of  the

catastrophe  which  had  befallen  her.   Her  mental  faculties  had  not

developed  fully;  she  was  in  the  age  of  innocence;  unaware  of  the

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dreadful  consequences.  Further,  at  the  time  when  she  was  being

sexually assaulted, her mouth was gagged so that she was not able to

scream and after the incident she was threatened not to disclose this

incident to anybody.  In fact, she kept mum out of this fear.  It is quite

understandable  that  a nine year  old  child,  after  undergoing traumatic

experience and inflicted with threats, would be frozen with fear and she

could not find voice to speak against her uncle.  In cases of incestuous

abuse, more often, silence is built into the abuse. Incident came to light

and tragedy struck on the prosecutrix only when her mother noticed that

she was continuously suffering from stomach ache and was, therefore,

taken to a Gynecologist for her treatment. But for the above, matter may

not have come to light.  It is only after she was examined by Dr. Jasbir

Kaur (PW-8), who had medically examined and formed the opinion that

the prosecutrix  had been sexually  assaulted forcibly  about  2-3  years

ago,  since  her  hymen  was  ruptured  and  her  external  and  internal

sphincters were also torn, that PW-1 queried the prosecutrix and she

revealed the incident, hitherto hidden by her from the entire world out of

fear, not only as a result of the threats extended by the respondent but

for varied other reasons.

24) When the matter is examined in the aforesaid perspective, which in the

opinion of this Court is the right perspective, reluctance on the part of the

prosecutrix in not narrating the incident to anybody for a period of three

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years  and  not  sharing  the  same  event  with  her  mother,  is  clearly

understandable.  We would like to extract the following passage from the

judgment of this Court in Tulshidas Kanolkar v. State of Goa1:

“5.   We shall  first  deal  with  the  question  of  delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per  se is  not  a mitigating circumstance for  the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is  satisfactory  or  not.  In  case if  the  prosecution  fails  to satisfactorily explain the delay and there is possibility  of embellishment or exaggeration in the prosecution version on account of such delay, it  is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough  to  reject  the  plea  of  false  implication  or vulnerability  of  the  prosecution  case.  As  the  factual scenario  shows,  the  victim  was  totally  unaware  of  the catastrophe  which  had  befallen  her.  That  being  so,  the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.”

25) In Karnel Singh v. State of Madhya Pradesh2, this Court observed that:

“7...The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not  do  anything  without  informing  her  husband.  Merely because  the  complaint  was  lodged  less  than  promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it  casts doubt and shame upon  her  rather  than  comfort  and  sympathise  with  her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false...”

26) Likewise, in State of Punjab v. Gurmit Singh & Ors.3, it was observed: 1 (2003) 8 SCC 590 2 (1995) 5 SCC 518 3 (1996) 2 SCC 384

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“8...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...”

27) Notwithstanding the fact that the trial court accepted the explanation for

delay as satisfactory by giving detailed reasons, we are dismayed to find

that  the  High  Court  has  been  swayed by  this  delay  in  reporting  the

matter  with  omnibus  statement  that  it  is  not  satisfactorily  explained

without even an iota of discussion on the explanation that was offered by

the prosecution in the form of testimonies of PW-1 and PW-2.

28) It seems that the main reason which has influenced the mind of the High

Court is that there were 20-25 persons in the joint family and some of

them were bound to be in the house at the time of the incident and,

therefore, it was not possible that such an incident would go unnoticed if

it had actually happened.  This is coupled with the fact that the salwar of

the prosecutrix was smeared with blood stains, which could not have

gone unnoticed. Here again, the High Court has gone by the aforesaid

two  facts  without  going  into  the  details  and  the  discussion  is  totally

perfunctory.  The aforesaid two facts are simply noted and on that basis

the prosecution version is discarded as unbelievable. These may have

been relevant factors only if there was absence of any explanation by

the prosecution on these aspects.  In the first instance, it may be noticed

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that  the  room  of  the  respondent  was  on  the  first  floor  where  the

prosecutrix was called.  Defence has nowhere stated that on the first

floor there were rooms adjacent to the room of the respondent and there

were  other  members  of  the  family.  What  is  smoke-screened  in  the

process  is  that  in  the  cross-examination  the  prosecutrix  categorically

stated that the incident had taken place in the morning hours around

8:00 a.m. to 9:00 a.m. and the female members returned back to the

house  after  one  hour  of  the  incident.   It  also  came  in  her

cross-examination  that  during  the  act  of  sexual  intercourse,  she

remained  confined  in  the  room for  about  9-10  minutes.   She  raised

screams  but  her  mouth  was  gagged.   Her  confinement  by  the

respondent on the first floor for about 9-10 minutes was insignificant and

would not have been taken note of by the other family members who

might have been present there.  Further, nobody could notice as her

screams  were  doused  by  gagging  her  mouth.   Her  statement  also

suggests  that  she  had  fallen  unconscious  and  on  regaining

consciousness she did not find anyone in the room.  After she came out

of  the  room,  she  obviously  refrained  from  disclosing  the  incident  to

anyone because of the threat extended to her by the respondent.  In

such a situation, obviously the prosecutrix had ensured that her  salwar

which was smeared with blood stains is not seen by any person.

29) Likewise, delay of three days in lodging the FIR by PW-1, after eliciting

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the information from her daughter PW-2, is inconsequential in the facts

of this case.  It is not to be forgotten that the person accused by the

prosecutrix was none else than her Uncle.   It  is  not  easy to lodge a

complaint of this nature exposing prosecutrix to the risk of social stigma

which unfortunately still prevails in our society.  A decision to lodge FIR

becomes more difficult and hard when accused happens to be a family

member.  In fact, incestuous abuse is still  regarded as a taboo to be

discussed  in  pubic.   This  reticence  hurts  the  victims  or  other  family

members who struggle to report.  After all, in such a situation, not only

the honour of the family is at stake, it may antagonize other relations as

well, as in the first blush, such other members of family would not take

charge of this nature very kindly.  We also find that the so-called dispute

between  the  parties  was  so  trivial  in  nature  that  it  would  not  have

prompted PW-1 to lodge a false complaint, putting her minor daughter of

impressionable age to risks of serious kinds, as pointed out above.   

30) By  no means,  it  is  suggested that  whenever  such charge of  rape is

made, where the victim is a child, it has to be treated as a gospel truth

and  the  accused  person  has  to  be  convicted.   We  have  already

discussed above the manner in which testimony of the prosecutrix is to

be examined and analysed in order to find out the truth therein and to

ensure that deposition of the victim is trustworthy.  At the same time,

after taking all due precautions which are necessary, when it is found

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that the prosecution version is worth believing, the case is to be dealt

with all sensitivity that is needed in such cases.  In such a situation one

has to take stock of the realities of life as well.  Various studies show that

in  more  than  80%  cases  of  such  abuses,  perpetrators  have

acquaintance with the victims who are not  strangers.   The danger  is

more within than outside. Most of the time, acquaintance rapes, when

the culprit is a family member, are not even reported for various reasons,

not difficult to fathom. The strongest among those is the fear of attracting

social stigma.  Another deterring factor which many times prevent such

victims or  their  families  to  lodge a  complaint  is  that  they  find  whole

process of criminal  justice system extremely intimidating coupled with

absence of victim protection mechanism.  Therefore, time is ripe to bring

about significant reforms in the criminal justice system as well.  Equally,

there is also a dire need to have a survivor centric approach towards

victims of sexual violence, particularly, the children, keeping in view the

traumatic long lasting effects on such victims.   

31) After thorough analysis of all relevant and attendant factors, we are of

the  opinion  that  none  of  the  grounds,  on  which  the  High  Court  has

cleared the respondent, has any merit. By now it is well settled that the

testimony of a victim in cases of sexual offences is vital and unless there

are compelling reasons which necessitate looking for corroboration of a

statement, the courts should find no difficulty to act on the testimony of

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the victim of a sexual assault alone to convict the accused.  No doubt,

her  testimony has  to  inspire  confidence.   Seeking  corroboration to  a

statement before relying upon the same as a rule, in such cases, would

literally  amount  to  adding  insult  to  injury.   The  deposition  of  the

prosecutrix has, thus, to be taken as a whole.  Needless to reiterate that

the victim of rape is not an accomplice and her evidence can be acted

upon without corroboration.  She stands at a higher pedestal than an

injured witness does.  If the court finds it difficult to accept her version, it

may seek corroboration from some evidence which lends assurance to

her  version.   To insist  on  corroboration,  except  in  the  rarest  of  rare

cases, is to equate one who is a victim of the lust of another with an

accomplice  to  a  crime  and  thereby  insult  womanhood.   It  would  be

adding insult to  injury to tell a woman that her claim of rape will not be

believed unless it is corroborated in material particulars, as in the case of

an accomplice to a crime.  Why should the evidence of the girl or the

woman who complains of rape or sexual molestation be viewed with the

aid  of  spectacles  fitted  with  lenses  tinged  with  doubt,  disbelief  or

suspicion?  The plea about lack of corroboration has no substance {See

Bhupinder Sharma v. State of Himachal Pradesh4}.  Notwithstanding

this legal position, in the instant case, we even find enough corroborative

material as well, which is discussed hereinabove.    

4 (2003) 8 SCC 551

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32) From the evaluation of the prosecution material discussed above, it is

abundantly clear that the evidence brought on record contains positive

proof,  credible  sequence  of  events  and  factual  truth  linking  the

respondent with rape of the prosecutrix and had criminally intimidated

her.  Hence, respondent is found to be guilty for offence under Sections

376(2)(f) and 506 of IPC since he committed rape with a minor girl aged

nine years.  It is pertinent to point out at this stage that at the time of

deposition  of  the  prosecutrix  in  the  Court,  the  trial  court  had  an

opportunity to see her demeanor.  On that basis, the trial court in the

judgment had commented as under:

“66.   The  statement  of  prosecutrix  inspires  confidence even though a child witness since while deposing in the Court  her  demeanor  appeared  like  that  of  competent witness and no likelihood of  tutor.  I  find her  testimony reliable since she was found competent  to depose after preliminary  inquiry  as  she  understood  questions  and  to give rational answers.  I have gone through her statement with extra caution and full of circumspection.  Therefore, I have no hesitation to believe her statement.”

 33) At this juncture, we would also like to reproduce the following passage

from the judgment of this Court in State of Rajasthan v. Om Prakash5:

“19.  Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached thereto.  According  to  some surveys,  there has been  a  steep  rise  in  child  rape  cases.  Children  need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide  proper  legal  protection  to  these  children.  Their physical  and  mental  immobility  call  for  such  protection.

5 (2002) 5 SCC 745

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Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes  of  sexual  abuse.  These  factors  point  towards  a different approach required to be adopted. The overturning of  a  well-considered  and well-analysed  judgment  of  the trial  court  on  grounds  like  non-examination  of  other witnesses,  when  the  case  against  the  respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant.”

 34) In  the result, we allow this appeal, set aside the judgment of the High

Court  and  restore  the  conviction  recorded  by  the  trial  court.  The

respondent shall undergo rigorous imprisonment for a period of twelve

years for the offence under Section 376(2)(f) and shall also pay a fine of

50,000, failing which he shall undergo further sentence of one year.  He₹

is also convicted for committing offence under Section 506 IPC for which

he  is  sentenced  to  rigorous  imprisonment  for  two  years.   Both  the

sentences shall run concurrently.  The respondent be taken into custody

forthwith to serve out his remaining sentence.

.............................................J. (A.K. SIKRI)

.............................................J. (ABHAY MANOHAR SAPRE)

NEW DELHI; DECEMBER 15, 2016.

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