REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  NO. 769 OF 2006

State of U.P.         …Appellant

Versus   Chhoteylal               …Respondent

JUDGEMENT  

R.M. LODHA, J.  

The State of Uttar Pradesh is in appeal, by special  

leave,   because  the  High  Court  of  Judicature  at  Allahabad,  

Lucknow Bench,  Lucknow reversed the  judgment  of  the  trial  

court and  acquitted the respondent.  

2. The prosecution case in brief is this:  On September  

19, 1989 the prosecutrix (name withheld by us)  had gone to

relieve herself in the evening.   Ram Kali (A-3) followed her on  

the way.  While she was returning and reached near the plot of  

one Vijai Bahadur, Chhotey Lal (A-1)  and Ramdas (A-2) came  

from behind;   A-1  caught  hold  of  her  and  when she  raised  

alarm, A-1 showed fire-arm to her and gagged her mouth.  A-1  

along with A-2 and A-3 brought the prosecutrix upto the road.  

There, A-3  parted company with  A-1 and A-2.   A-1 and A-2  

then took  the  prosecutrix  to  Village Sahora.  On the night  of  

September 19, 1989, the prosecutrix was kept in the house of  

Girish and Saroj Pandit in Village Sahora. On the next day i.e.,  

September 20, 1989, in the wee hours, A-1 and A-2 took the  

prosecutrix in a bus to Shahajahanpur  where she was kept in a  

rented room for few days. During their stay in Shahajahanpur,  

A-1  allegedly  committed  forcible  intercourse  with  the  

prosecutrix.  Whenever  prosecutrix  asked  for  return  to  her  

house,  A-1  would  gag  her  mouth  and  threaten  her.   In  the  

meanwhile,  Rampal  –  brother  of  the  prosecutrix  –  made  a  

complaint  to  the  Superintendent  of  Police,  Hardoi  on  

September 28, 1989 that A-1, A-2 and A-3 have kidnapped her  

sister  (prosecutrix)  on  September  19,  1989.   Based  on  this  

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complaint,  the First Information Report (FIR) was registered on  

September 30, 1989.    The prosecutrix was recovered by the  

police on  October 13, 1989 from Shahabad - Pihani        Road  

near Jalalpur culvert.   On that day itself,  the prosecutrix was  

sent for  medical examination to the Women Hospital, Hardoi  

where she was  examined by Dr. Shakuntala Reddy.    Ram  

Manohar Misra  to  whom the  investigation of  the case was  

entrusted then took steps for determination of the age of  the  

prosecutrix  as advised by the doctor and sent  her for X-ray  

examination.  

3. On  October  17,  1989,  the  prosecutrix   was  

produced before the Judicial Magistrate I, Hardoi,  where her  

statement  under  Section  164  Cr.P.C.  was  recorded  by  the  

Judicial Magistrate.  

4. A-1  was  arrested  on  December  2,  1989.  On  

completion  of  investigation,  A-1  was  chargesheeted  for  the  

offences punishable under Sections 363, 366, 368 and 376 of  

the Indian Penal Code (IPC);  A-2 was chargesheeted under  

Sections 363, 366 and 368, IPC  and  A-3  under Sections 363  

and 366, IPC.

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5. The  prosecution  in  support  of  its  case  examined  

five  witnesses,  namely,  complainant  –  Rampal  (PW-1),  

prosecutrix (PW-2),  Investigating Officer – Ram Manohar Misra  

(PW-3), Subhash Chandra Misra – Head Constable (PW-4) and  

Dr. Shakuntala Reddy (PW-5).   

6. A-2 had died and the trial  abated as against him.  

The III  Additional  Sessions Judge,  Hardoi  vide his  judgment  

dated September 5, 1990 acquitted A-3 as the prosecution was  

not able to establish any  case against her. However, on the  

basis of the prosecution evidence, the III  Additional Sessions  

Judge held that the prosecutrix was about 17 ½ years of age at  

the time of  occurrence of  crime and found A-1 guilty   under  

Sections 363,  366,  368 and 376,  IPC and sentenced him to  

undergo 7 years’  rigorous imprisonment under Section 376 IPC  

and  the  different  sentences  for  other  offences  which  were  

ordered to run concurrently.  

7. A-1  challenged  the  judgment  passed  by  the  III  

Additional Sessions Judge, Hardoi before the Allahabad High  

Court,  Lucknow  Bench,  Lucknow.  The  High  Court  vide  its  

judgment dated March 11, 2003 reversed  the  judgment of the  

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trial court and acquitted A-1.  While acquitting  A-1, the High  

Court gave three reasons, namely; (one)  kidnapping took place  

on September 19,  1989 whereas the report of the occurrence  

was lodged after ten days and there was no reasonable and  

plausible explanation as to why the report could not be lodged  

promptly  and  why  it  had  been  delayed  for  ten  days;  (two)  

according to medical evidence, the prosecutrix was found to be  

17 years of age and she could be even of 19 years of age at  

the time of occurrence and (three)  no internal or external injury  

was  found  on  her  body  and  she  was  habitual   to  sexual  

intercourse.   We deem it appropriate to reproduce the entire  

reasoning of the High Court  as it is which reads as follows:

“It has been submitted by the learned counsel for  the  appellant  that  according to  the prosecution,  alleged  kidnapping  took  place  on  19-9-1989  whereas the report of the occurrence was lodged  after  ten  days.  There  was  no  reasonable  and  plausible explanation forthcoming from the side of  the  prosecution  as  to  why  after  alleged  kidnapping of a  minor girl a report could not be  lodged promptly and why it has been delayed for  ten days. This by itself shows that the report had  been  lodged  after  consultation  and  after  due  deliberation  and  the  prosecution  can  be  safely  looked with doubt. I fully agree with the contention  of  the  learned  counsel  for  the  appellant  and  furthermore,  according  to  medical  evidence  on  

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record, girl in question was found 17 years of age  and she could be even 19 years of  age at  the  time of alleged occurrence. No internal or external  injury was found on her body and she was used  to  sexual  intercourse.  The  charge  of  rape  also  stands not proved. The learned court below was  thus  not  justified  in  believing  the  prosecution  theory and convicting the appellant.”  

8. We are  indeed surprised  by the  casual  approach  

with  which  the  High  Court  has  dealt  with   the   matter.  The  

judgment of the High Court is not only cryptic and perfunctory  

but  it  has    also  not  taken  into  consideration  the  crucial  

evidence on record.  On flimsy grounds, the accused convicted  

of a serious crime of kidnapping and rape has been acquitted.  

There  is  no  application  of  mind   to  the   evidence  of  the  

prosecutrix  at  all.  Having  not  been  benefited  by  the  proper  

consideration  of  the  evidence  by  the  High  Court,  we  have  

looked into the entire evidence on record carefully.  

9. Section 375 IPC  defines rape as follows :   

“S. 375.  Rape.—A man is said to commit “rape”  who, except in the case hereinafter excepted, has  sexual  intercourse  with  a  woman  under  circumstances  falling  under  any  of  the  six  following descriptions :—  

First.— Against her will Secondly.— Without her consent.

Thirdly.— With  her  consent,  when  her  consent  has  been  obtained  by  

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putting her or any person in whom  she is interested in fear of death  or of hurt.

Fourthly.— With her consent, when the man  knows that he is not her husband,  and  that  her  consent  is  given  because  she  believes  that  he  is  another  man to  whom she is  or  believes  herself  to  be  lawfully  married.

Fifthly.— With  her  consent,  when,  at  the  time  of  giving  such  consent,  by  reason of unsoundness of mind or  intoxication  or  the  administration  by  him  personally  or  through  another  of  any  stupefying  or  unwholesome  substance,  she  is  unable  to  understand  the  nature  and  consequences  of  that  to  which she gives consent.

Sixthly.— With or without her consent, when  she is under sixteen years of age.

Explanation.—Penetration  is  sufficient  to  constitute the sexual intercourse necessary to the  offence of rape.

Exception.—Sexual  intercourse  by  a  man  with his own wife, the wife not being under fifteen  years of age, is not rape.”

10. Clause Sixthly—‘with or without her consent, when  

she is under sixteen years of age’ assumes importance where a  

victim girl is under sixteen years of age.  The prosecutrix is an  

illiterate and rustic young woman.  She does not seem to have  

had  formal  education  and,  therefore,  there  is  no  school  

certificate  available  on  record.   In  the  FIR,  the  age  of  the  

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prosecutrix has been stated to be 13 years. In her statement  

recorded under Section 164, Cr.P.C., the prosecutrix stated that  

her  age  was  13  years.  PW-1,  who  is  elder  brother  of  the  

prosecutrix,   in his deposition also stated that the age of the  

prosecutrix was 13 years at the relevant time.  However, the  

doctor  -  PW-5 on the basis of  her X-ray as well  as physical  

examination opined that the prosecutrix was 17 years of age.  

The trial court on consideration of the  entire evidence recorded  

a categorical finding that the prosecutrix was about 17 ½ years  

of age at the time of occurrence. This is what  the trial court  

said:

“According to the complainant Rampal, PW-2 was  aged 13 years at the time of the occurrence, but  during  the  cross-examination,  the  complainant  has stated in para 7 of her cross examination that  he  was  aged  about  24  years  and  PW-2  was  younger to him by 8-9 years. Thus, the age of the  prosecutrix,  according  to  the  statement  of  the  complainant  appearing  in  para  7  of  his  cross  examination, comes to about 15 or 16 years. PW- 2, the prosecutrix, gave her age as 13 years at  the  time  of  the  occurrence.  According  to  the  supplementary  report,  Ext.  Ka.  12  on  record,  prepared by Lady Dr. Shakuntala Reddy, P.W. 5,  PW-2 was aged about 17 years. During the cross- examination, Lady Dr. Shakuntala Reddy, P.W. 5,  has  stated  in  para  9  of  cross-examination  that  there could be a difference of 6 months both ways  

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in the age of PW-2. Thus PW-2 can be said to be  aged 17 ½ years at the time of the occurrence.”  

11. We find ourselves in agreement with the view of the  

trial court regarding the age of the prosecutrix.  The High Court  

conjectured that the age of the prosecutrix  could be even 19  

years. This appears to have been done by adding two years to  

the age opined by PW-5.  There is no such rule much less an  

absolute  one  that  two  years  have   to  be  added  to  the  age  

determined by a doctor. We are  supported by a 3-Judge Bench  

decision  of  this  Court  in  State  of  Karnataka v.  Bantara  

Sudhakara @ Sudha & Anr.1 wherein this Court at page 41 of  

the Report stated as under:

“Additionally,  merely  because  the  doctor’s  evidence showed that  the victims belong to the  age group of 14  to 16, to conclude that the two  years’ age has to be added to the upper age-limit  is without any foundation.”

12. Learned counsel for the respondent relied upon a  

decision  of  this  Court  in  the  case  of  Mussauddin  Ahmed v.  

State  of  Assam2 in  support  of  his  submission  that  the  best  

1 (2008) 11 SCC 38 2 (2009) 14 SCC 541

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evidence  concerning  the  age  of  prosecutrix  having  been  

withheld, the finding of the High Court that the prosecutrix could  

be 19 years of age cannot be said to erroneous.  In the present  

case, the brother of the prosecutrix has been examined as PW-

1 and, therefore, it cannot be said that best evidence has been  

withheld.  The decision of this Court in  Mussauddin Ahmed 2  

has no application at all.  In our view, the High Court  fell in  

grave error in observing  that the prosecutrix could be even 19  

years of age at the time of alleged occurrence.    

13. Be that  as it  may, in our view,  clause Sixthly of  

Section 375 IPC is not attracted since the prosecutrix has been  

found to be above 16 years (although below 18 years).  In the  

facts of the case what is crucial to be considered is whether  

clause  First  or   clause  Secondly   of  Section  375  IPC  is  

attracted. The expressions ‘against her will’  and  ‘without her  

consent’ may overlap sometimes but surely the two expressions  

in clause First and clause Secondly have different connotation  

and  dimension.  The  expression  ‘against  her  will’  would  

ordinarily mean that the  intercourse was done by a man with a  

woman  despite  her  resistance  and  opposition.  On  the  other  

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hand, the expression ‘without her consent’ would  comprehend  

an act of reason accompanied by deliberation. The concept of  

`consent’ in the context of Section 375 IPC has come up for  

consideration  before  this  Court  on  more  than  one  occasion.  

Before  we deal  with   some of  these decisions,  reference  to  

Section 90 of the IPC may be relevant which reads as under :

“S. 90.  Consent known to be given under  fear  or  misconception.—A  consent  is  not  such  a  consent  as  it  intended  by  any  section of this Code, if the consent is given  by a person under fear of injury, or under a  misconception  of  fact,  and  if  the  person  doing  the  act  knows,  or  has  reason  to  believe,  that  the  consent  was  given  in  consequence  of  such  fear  or  misconception; or Consent of insane person.—if the consent  is  given  by  a  person  who,  from  unsoundness  of  mind,  or  intoxication,  is  unable  to  understand  the  nature  and  consequence of that to which he gives his  consent; or Consent  of  child.—unless  the  contrary  appears from the context, if the consent is  given  by  a  person  who  is  under  twelve  years of age.”  

14. This Court in a long line of cases has given wider  

meaning to the word ‘consent’  in the context of sexual offences  

as  explained   in  various  judicial  dictionaries.  In  Jowitt’s  

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Dictionary of English Law (Second Edition), Volume 1 (1977) at  

page 422 the word ‘consent’ has been explained as an act of  

reason accompanied with deliberation, the mind weighing, as in  

a balance, the good or evil on either side. It is further stated that  

consent  supposes  three  things—a physical  power,  a  mental  

power,   and a free and serious use of them and if consent be  

obtained  by  intimidation,  force,  meditated  imposition,  

circumvention, surprise, or undue influence, it is to be treated  

as a delusion, and not as a deliberate and free act of the mind.

15. Stroud’s Judicial Dictionary (Fourth Edition), Volume  

1 (1971) at page 555  explains the expression ‘consent’, inter  

alia, as under :-

“Every ‘consent’ to an act, involves a submission;  but it by no means follows that a mere submission  involves consent,” e.g. the mere submission of a  girl to a carnal assault, she being in the power of  a strong man, is  not  consent (per Coleridge J.,  R.v. Day, 9 C. & P. 724).”

Stroud’s Judicial Dictionary  also refers to decision in the case  

of  Holman  v.  The  Queen ([1970]  W.A.R.  2)  wherein  it  was  

stated:   ‘But there does not necessarily have to be complete  

willingness  to  constitute  consent.  A  woman’s  consent  to  

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intercourse may be hesitant,  reluctant or grudging, but if  she  

consciously permits it there is “consent”.’

16. In Words and Phrases, Permanent Edition, (Volume  

8A) at  pages 205-206,   few American decisions wherein the  

word ‘consent’ has been considered and explained with regard  

to the  law of rape have been referred. These are as follows :

“In order to constitute “rape”, there need not be  resistance to  the  utmost,  and a woman who  is  assaulted need not resist to the point of risking  being beaten into insensibility, and, if she resists  to  the  point  where  further  resistance  would  be  useless or until  her  resistance is overcome by  force  or  violence,  submission  thereafter  is  not  “consent”.  People  v.  McIlvain (55  Cal.  App.  2d  322).”

. . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . . .  

“ “Consent,” within Penal Law,  § 2010, defining  rape, requires exercise of  intelligence based on  knowledge  of  its  significance  and  moral  quality  and there must be a choice between resistance  and assent. People v. Pelvino, 214 N.Y.S. 577”

. . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . .  

“ “Consenting” as used in the law of rape means  consent  of  the  will  and  submission  under  the  influence of fear or terror cannot amount to real  consent. Hallmark v. State, 22 Okl. Cr. 422”    . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . ..  

“Will  is  defined  as  wish,  desire,  pleasure,  inclination, choice, the faculty of conscious, and  especially  of  deliberate,  action.  It  is  purely  and  

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solely a mental  process to be ascertained,  in a  prosecution  for  rape,  by  what  the  prosecuting  witness may have said or done. It being a mental  process there is no other manner by which her  will can be ascertained, and it must be left to the  jury  to  determine  that  will  by  her  acts  and  statements, as disclosed by the evidence. It is but  natural, therefore, that in charging the jury upon  the  subject  of  rape,  or  assault  with  intent  to  commit  rape,  the  courts  should   have  almost  universally,  and,  in  many  cases,  exclusively,  discussed “consent” and resistance. There can be  no better evidence of willingness is a condition or  state of mind no better evidence of unwillingness  than  resistance.  No  lexicographer  recognizes  “consent” as a synonym of willingness, and it is  apparent  that  they  are  not  synonymous.  It  is  equally apparent, on the other hand, that the true  relation between the words is that willingness is a  condition or state of mind and “consent” one of  the  evidences  of  that  condition.  Likewise  resistance  is  not  a  synonym  of  unwillingness,  though  it  is  an  evidence  thereof.  In  all  cases,  therefore, where the prosecuting witness has an  intelligent will,  the court should charge upon the  elements  of  “consent”  and  resistance  as  being  proper  elements  from which  the  jury  may  infer  either a favourable or an opposing will.  It  must,  however, be recognized in all cases that the real  test is whether the assault was committed against  the  will  of  the  prosecuting  witness.  State  v.  Schwab,  143 N.E. 29”

17. Broadly, this Court has accepted and followed the  

judgments  referred  to  in  the  above  judicial  dictionaries  as  

regards  the  meaning  of  the  word  `consent’  as  occurring  in  

Section 375 IPC.  It is not necessary to refer to all the decisions  

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and  the reference to two decisions of this Court shall suffice. In  

State of H.P. v.  Mango Ram3 , a 3-Judge Bench of this Court  

while dealing with the aspect of ‘consent’ for the purposes of  

Section 375 IPC held at page 230 of the Report as under:

“Submission of the body under the fear of terror  cannot be construed as a consented sexual act.  Consent for the purpose of Section 375 requires  voluntary participation not only after the exercise  of  intelligence  based  on  the  knowledge  of  the  significance and moral quality of the act but after  having  fully  exercised  the  choice  between  resistance  assent. Whether there was consent or  not, is to be ascertained only on a careful study of  all relevant circumstances.”

18. In  the  case  of  Uday v.  State  of  Karnataka4,  this  

Court  put a word of caution that there is no straitjacket formula  

for  determining  whether  consent  given  by  the  prosecutrix  to  

sexual intercourse is voluntary, or whether it is given under a  

misconception  of  fact.  The  Court  at  page  57  of  the  Report  

stated :

“…….In the ultimate analysis, the tests laid down  by  the  courts  provide  at  best  guidance  to  the  judicial  mind  while  considering  a  question  of  consent,  but  the  court  must,  in  each  case,  

3 (2000) 7 SCC 224 4 (2003) 4 SCC 46

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consider  the  evidence  before  it  and  the  surrounding  circumstances,  before  reaching  a  conclusion,  because  each  case  has  its  own  peculiar facts which may have a bearing on the  question whether  the consent was  voluntary,  or  was given under a misconception of fact..  . .  . ..”.

19. In  the  backdrop  of  the  above  legal  position,  with  

which  we  are  in  respectful  agreement,  the  evidence  of  the  

prosecutrix needs to be analysed and examined carefully. But,  

before we do that,  we state, as has been repeatedly stated   by  

this Court, that a woman  who is  victim of sexual assault is not  

an accomplice to the crime.  Her evidence cannot be tested with  

suspicion as that of an accomplice.  As a matter of fact,   the  

evidence  of  the  prosecutrix  is  similar  to  the  evidence  of  an  

injured complainant or witness.  The testimony of prosecutrix, if  

found to be reliable, by itself,  may be sufficient to convict the  

culprit  and no corroboration of her evidence is necessary.   In  

prosecutions  of  rape,  the  law does  not  require  corroboration.  

The evidence of the prosecutrix may sustain a conviction.  It is  

only by way of abundant caution that court may look for some  

corroboration so as to satisfy its conscience and rule out any  

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false accusations. In  State of Maharasthra  v.  Chandraprakash  

Kewalchand Jain5, this Court at page 559 of the Report said:  

“A prosecutrix of a sex-offence cannot be put on  par with an accomplice. She is in fact a victim of  the crime. The Evidence Act nowhere says that  her  evidence  cannot  be  accepted  unless  it  is  corroborated  in  material  particulars.  She  is  undoubtedly a competent witness under Section  118 and  her  evidence  must  receive  the  same  weight as is attached to an injured in cases of  physical violence. The same degree of care and  caution  must  attach  in  the  evaluation  of  her  evidence  as  in  the  case  of  an  injured  complainant  or  witness  and  no  more.  What  is  necessary is that the Court must be alive to and  conscious of the fact that it  is dealing with the  evidence of  a  person who  is  interested  in  the  outcome  of  the  charge  levelled  by  her.  If  the  court keeps this in mind and feels satisfied that it  can act on the evidence of the prosecutrix, there  is no rule of law or practice incorporated in the  Evidence Act similar to illustration (b) to Section  114 which requires it to look for corroboration. If  for  some reason the court  is  hesitant  to  place  implicit  reliance  on  the  testimony  of  the  prosecutrix it may look for evidence which may  lend  assurance  to  her  testimony  short  of  corroboration  required  in  the  case  of  an  accomplice. The nature of evidence required to  lend  assurance  to  the  testimony  of  the  prosecutrix must necessarily depend on the facts  and  circumstances  of  each  case.  But  if  a  prosecutrix is an adult and of full understanding  the court is entitled to base a conviction on her  evidence unless the same is shown to be infirm  and  not  trustworthy.  If  the  totality  of  the  circumstances  appearing  on  the  record  of  the  case disclose that the prosecutrix does not have  

5 (1990) 1 SCC 550

17

a  strong  motive  to  falsely  involve  the  person  charged,  the  court  should  ordinarily  have  no  hesitation in accepting her evidence.”

20. In State of Punjab v. Gurmit Singh & Ors.6, this Court  

made the following weighty observations at pages 394-396 and  

page 403:

“The  court  overlooked  the  situation  in  which  a  poor helpless minor girl had found herself in the  company  of  three  desperate  young  men  who  were  threatening  her  and  preventing  her  from  raising  any  alarm.  Again,  if  the  investigating  officer did not conduct the investigation properly  or was negligent in not being able to trace out the  driver or the car, how can that become a ground  to discredit the testimony of the prosecutrix? The  prosecutrix had no control over the investigating  agency  and  the  negligence  of  an  investigating  officer  could  not  affect  the  credibility  of  the  statement of the prosecutrix.... The courts must,  while evaluating evidence remain alive to the fact  that in a case of rape, no self- respecting woman  would  come forward  in  a  court  just  to  make  a  humiliating statement against her honour such as  is involved in the commission of rape on her. In  cases  involving  sexual  molestation,  supposed  considerations which have no material  effect on  the  veracity  of  the  prosecution  case  or  even  discrepancies in the statement of the prosecutrix  should  not,  unless  the  discrepancies  are  such  which are of fatal nature, be allowed to throw out  an otherwise reliable prosecution case.... Seeking  corroboration  of  her  statement  before  replying  upon the same as a rule, in such cases, amounts  to  adding  insult  to  injury....  Corroboration  as  a  condition for judicial reliance on the testimony of  

6 (1996) 2 SCC 384

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the prosecutrix is not a requirement of law but a  guidance of prudence under given circumstances.

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.  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.”

21. In Vijay @ Chinee v. State of Madhya Pradesh7,  

decided  recently,  this  Court  referred  to  the  above  two  

decisions of this Court in Chandraprakash Kewalchand Jain5  

and Gurmit Singh6 and also few other decisions  and observed  

as follows :

“Thus, the law that emerges on the issue is to the  effect that the statement of the prosecutrix, if found  to be worthy of credence and reliable, requires no  

7 (2010) 8 SCC 191

19

corroboration. The court may convict the accused  on the sole testimony of the prosecutrix.”.

22. The important thing that the  court  has to bear in  

mind is that what is lost by a rape victim is face.  The victim  

loses  value as a person.   Ours is a conservative society   and,  

therefore, a woman and more so a young unmarried woman  

will  not  put  her  reputation  in  peril   by  alleging  falsely  about  

forcible  sexual  assault.   In  examining  the  evidence  of  the  

prosecutrix   the  courts  must  be  alive  to  the   conditions  

prevalent  in  the Indian society  and must  not  be swayed by  

beliefs  in other countries. The courts must  be  sensitive and  

responsive to the plight of the female victim of sexual assault.  

Society’s belief and value systems need to be kept uppermost  

in mind as rape is the worst form of woman’s oppression.  A  

forcible sexual assault brings in humiliation, feeling of disgust,  

tremendous  embarrassment,  sense  of  shame,  trauma  and  

lifelong  emotional  scar  to  a  victim  and  it  is,  therefore,  most  

unlikely of  a woman, and more so by a young woman, roping in  

somebody  falsely  in  the  crime  of  rape.   The  stigma  that  

attaches to the victim of rape in Indian society ordinarily rules  

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out  the  leveling  of  false  accusations.   An  Indian  woman  

traditionally  will  not  concoct  an  untruthful  story  and  bring  

charges of rape for the purpose of blackmail, hatred, spite or  

revenge.   This Court has repeatedly laid down the guidelines  

as to how the evidence  of the prosecutrix in the crime of rape  

should be evaluated by the court.  The observations  made in  

the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat8  

deserve  special mention as, in our view, these must be kept in  

mind invariably  while dealing with  a rape case.  This Court  

observed as follows :

“9. In  the  Indian  setting,  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.  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? To do so is to justify the  charge of male chauvinism in a male dominated  society.  We  must  analyze  the  argument  in  support of the need for corroboration and subject  it  to  relentless  and  remorseless  cross- examination. And we must do so with a logical,  and  not  an  opinionated,  eye  in  the  light  of  probabilities with our feet firmly planted on the soil  of India and with our eyes focussed on the Indian  horizon. We must not be swept off the feet by the  approach made in the western world which has its  own social milieu, its own social mores, its own  

8 (1983) 3 SCC 217

21

permissive  values,  and  its  own  code  of  life.  Corroboration  may  be  considered  essential  to  establish a sexual offence in the backdrop of the  social  ecology of the western world.  It  is wholly  unnecessary  to  import  the  said  concept  on  a  turnkey basis and to transplant  it  on the Indian  soil  regardless  of  the  altogether  different  atmosphere,  attitudes,  mores,  responses of  the  Indian society, and its profile. The identities of the  two worlds are different. The solution of problems  cannot therefore be identical……….”

This Court went on to observe at page 225:

“………Without  the  fear  of  making  too  wide  a  statement,  or of  overstating the case,  it  can be  said  that  rarely  will  a  girl  or  a  woman  in  India  make  false  allegations  of  sexual  assault  on  account  of  any  such  factor  as  has  been  just  enlisted.  The  statement  is  generally  true  in  the  context  of  the  urban as also  rural  society.  It  is  also  by  and  large  true  in  the  context  of  the  sophisticated,  not  so  sophisticated,  and  unsophisticated society. Only very rarely can one  conceivably come across an exception or two and  that too possibly from amongst the urban elites.  Because (1)  A girl  or  a woman in the tradition- bound non-permissive society of India would be  extremely  reluctant  even  to  admit  that  any  incident which is likely to reflect on her chastity  had ever occurred. (2) She would be conscious of  the danger of being ostracized by the society or  being looked down by the society including by her  own  family  members,  relatives,  friends,  and  neighbours.  (3)  She  would  have  to  brave  the  whole world. (4) She would face the risk of losing  the  love  and  respect  of  her  own  husband  and  near relatives, and of her matrimonial home and  happiness  being  shattered.  (5)  If  she  is  unmarried, she would apprehend that it would be  

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difficult  to  secure  an  alliance  with  a  suitable  match from a respectable or an acceptable family.  (6)  It  would  almost  inevitably  and  almost  invariably result in mental torture and suffering to  herself.  (7) The fear of being taunted by others  will  always  haunt  her.  (8)  She  would  feel  extremely embarassed in relating the incident to  others being overpowered by a feeling of shame  on account of the upbringing in a tradition-bound  society where by and large sex is taboo. (9) The  natural  inclination  would  be  to  avoid  giving  publicity to the incident lest the family name and  family  honour  is  brought  into  controversy.  (10)  The  parents  of  an  unmarried  girl  as  also  the  husband and members of the husband’s family of  a  married  woman,  would  also  more  often  than  not, want to avoid publicity on account of the fear  of  social  stigma on the family name and family  honour. (11) The fear of the victim herself being  considered  to  be  promiscuous  or  in  some way  responsible  for  the  incident  regardless  of  her  innocence.  (12)  The  reluctance  to  face  interrogation by the investigating agency, to face  the  court,  to  face  the  cross-examination  by  counsel  for  the  culprit,  and  the  risk  of  being  disbelieved, acts as a deterrent.”

23. We  shall  now  examine  the  evidence  of  the  

prosecutrix. The prosecutrix at the relevant time was less than  

18 years of age. She was removed from the lawful custody of  

her brother in the evening on September 19, 1989.  She  was  

taken to a different village by two adult males under threat and  

kept in a rented room for many days where  A-1 had forcible  

sexual  intercourse  with  her.   Whenever  she  asked  A-1  for  

23

return to her village, she was threatened and her mouth was  

gagged.    Although we find that there are certain contradictions  

and  omissions  in  her  testimony,  but  such  omissions  and  

contradictions are  minor and on material aspects, her evidence  

is consistent.   The prosecutrix being illiterate and rustic young  

woman, some contradictions and omissions are natural as her  

recollection,  observance,  memory  and  narration  of  chain  of  

events  may  not  be  precise.   Learned  counsel  for  the  

respondent  submitted  that  no  alarm   was  raised  by  the  

prosecutrix  at the bus stand or the other places where she was  

taken and that creates serious doubt about truthfulness of her  

evidence.  This argument of the learned counsel overlooks the  

situation in which the prosecutrix was placed.  She had been  

kidnapped by two adult males, one of them – A-1 – wielded fire-

arm and  threatened  her  and  she  was  taken  away  from her  

village.  In the circumstances, it made sensible decision not to  

raise  alarm.   Any  alarm  at  unknown  place  might  have  

endangered her life.  The absence of alarm by her at the public  

place  cannot  lead  to  an  inference   that  she  had  willingly  

accompanied  A-1  and  A-2.    The  circumstances  made  her  

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submissive victim and that does not mean that she was inclined  

and willing to intercourse with A-1. She had no free act of the  

mind during her stay with A-1 as she was under constant fear.   

24. We  have  also  examined  the  evidence  of  

prosecutrix,  her  brother   and  the  statement  of  A-1  under  

Section  313  Cr.P.C.  to  satisfy  ourselves  whether  there  was  

likelihood of false implication or  motive for false accusations.  

Except the bald statement of  A-1 under Section 313 Cr.P.C.  

that he has been falsely implicated due to enmity, nothing has  

been  brought   on  record  that  may  probabalise  that  the  

prosecutrix  had  motive  to  falsely  implicate  him.   The  

circumstances  even  do  not  remotely  suggest  that  the  

prosecutrix would put her reputation and chastity at stake  for  

the reason stated by A-1 in the statement under Section 313  

Cr.P.C. that a case was pending between A-1 and one Sheo  

Ratan.  In our view, the evidence of the prosecutrix is reliable  

and has rightly been acted upon by the trial court.   

25. Although  the lady doctor - PW-5  did not find any  

injury on the external or internal part of body of the prosecutrix  

and  opined   that  the  prosecutrix  was  habitual  to  sexual  

25

intercourse,  we are afraid that does not make the testimony of  

the prosecutrix unreliable.   The fact  of  the matter  is that the  

prosecutrix was recovered almost after three weeks.  Obviously  

the sign of forcible intercourse  would not  persist   for that long  

period.  It is  wrong to assume that in all cases of intercourse  

with the women against will or without consent, there would be  

some injury on the external or internal part of the victim.   The  

prosecutrix has clearly deposed that she was not in a position  

to put up any struggle as she was taken away from her village  

by two adult males.  The  absence of injuries on the person of  

the prosecutrix is not sufficient to discredit  her evidence; she  

was a helpless victim.   She did not and could not inform the  

neighbours where she was kept  due to fear.  

26. As regards the belated FIR, suffice it to observe that  

PW-1  (brother  of  the  prosecutrix)  has  given   plausible  

explanation.  PW-1 deposed that when he returned to his home  

in the evening from agricultural field, he was informed that her  

sister   (prosecutrix)  who  had  gone  to  ease  herself  had  not  

returned.  He searched his sister and he was told by the two  

villagers  that  her  sister  was  seen  with  the  accused.   He  

26

contacted the  relatives of the accused for return of his  sister.  

He did not lodge the report immediately as the honour of the  

family was involved.  It was only after few days that when his  

sister did not return and there was no help from the relatives of  

the accused that   he made the complaint  on September 28,  

1989 to the Superintendent of Police, Hardoi who marked the  

complaint to the Circle Officer  and  the FIR was registered on  

September 30, 1989.  The delay in registration of the FIR is,  

thus, reasonably explained.   The High Court was in grave error  

in  concluding  that  there  was  no  reasonable  and  plausible  

explanation for the belated FIR and that it   was lodged after  

consultation and due deliberation and that creates doubt about  

the case.   Unfortunately, the High Court  did not advert to the  

evidence of PW-1 and the reasoning of the trial  court  in this  

regard.

27. The High Court was not at all  justified in taking a  

different view or conclusion from the trial court.  The judgment  

of the High Court is vitiated by non-consideration of the material  

evidence and relevant  factors  eloquently  emerging  from the  

prosecution evidence.   The High Court  in  a sketchy manner  

27

reversed the judgment of the trial court without discussing the  

deposition of the witnesses as well as all  relevant points which  

were considered and touched upon by the trial court.  We are  

satisfied  that   the  judgment  of  the  High  Court  cannot  be  

sustained and has to be set aside.  

28. We are not oblivious of the fact  that the incident is  

of 1989; the prosecutrix has married after the incident and A-1  

has a family of his own and sending A-1 to jail now may disturb  

his  family  life.    But  none  of  these  factors  individually   or  

collectively   persuades us for a soft option.  Rape is a heinous  

crime  and once it  is  established against a person charged of  

the  offence,  justice  must  be  done  to  the  victim  of  crime  by  

awarding  suitable  punishment  to  the  crime  doer.   We  are  

constrained   to  observe  that  criminal  justice  system  is  not  

working in our country as it should.  The police reforms have  

not taken place despite directions of this Court in the case of  

Prakash Singh  & Ors. vs. Union of India & Ors.9.  We do not  

intend to say anything more in this regard since matter is being  

dealt with separately by a 3-Judge Bench.   The investigators  

hardly have professional orientation;    they do not have modern  9 (2006) 8 SCC1

28

tools.   On  many  occasions  impartial  investigation  suffers  

because  of  political  interference.   The   criminal  trials  are  

protracted because of non-appearance of official witnesses on  

time  and  the  non-availability  of  the  facilities  for   recording  

evidence by video conferencing.  The public prosecutors have  

their  limitations; the defence  lawyers do not make themselves  

available and the court would be routinely informed  about  their  

pre-occupation  with  other  matters;    the  courts  remain  over-

burdened with the briefs listed on the day and they do not have  

adequate  infrastructure.   The  adjournments  thus  become  

routine; the casualty  is justice.  It is imperative that the criminal  

cases relating to offences against the State, corruption, dowry  

death, domestic violence,  sexual assault,  financial fraud and  

cyber crimes  are  fast  tracked  and decided in  a  fixed time  

frame,   preferably,  of  three  years  including  the  appeal  

provisions.  It is high time that immediate and urgent steps are  

taken in amending the procedural and other laws to achieve the  

above  objectives.   We  must  remember  that  a  strong  and  

efficient criminal justice system is a guarantee  to the rule of law  

and vibrant civil society.      

29

29. The  appeal  is,   accordingly,  allowed  and  the  

judgment of acquittal passed by the High Court of Judicature  at  

Allahabad, Lucknow Bench, in Criminal Appeal No. 484 of 1990  

is  set  aside.   The  judgment  passed  by  the  III    Additional  

Sessions Judge, Hardoi is restored.  The respondent shall now  

surrender  within  two  months  from  today  to  serve  out   the  

remaining sentence as awarded by the trial court.  

                                                                                ….……

………….. J.              (Aftab Alam)

….….……………. J.                                                        (R.M. Lodha) NEW DELHI, JANUARY  14 , 2011.

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