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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s). 1481   OF 2018 (Arising out of SLP(Crl.)No.4177 of 2015)

THE STATE OF HIMACHAL PRADESH                Appellant(s)

                               VERSUS

MANGA SINGH                                  Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) This appeal arises out of judgment and order of the

High  Court  of  Himachal  Pradesh  at  Shimla  in  Criminal

Appeal No.523 of 2010 dated 22nd October, 2014 in and by

which  the  High  Court  has  reversed  the  verdict  of

conviction  of  the  respondent-accused  under  Section  376

I.P.C. to acquittal and also set aside the sentence of

imprisonment  of  10  years  imposed  upon  the  respondent-

accused.

(3) Briefly stated the case of the prosecution is that

the prosecutrix (PW-4), who was aged about 9 years at the

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relevant  point  of  time,  was  studying  in  Class-III  in

Government  Primary  School.   The  prosecutrix  (PW-4)  was

staying in her aunt’s house along with her brother.  The

respondent-accused is the cousin (son of the aunt) of the

prosecutrix (PW-4).

(4)  On  4th March,  2010,  after  the  school  hours,  the

prosecutrix (PW-4) was very reluctant to go to her aunt’s

house where she was staying; and she came back to the

school.  On being asked by Pooja Mahajan (PW-1) the school

teacher  and  other  teachers,  the  prosecutrix  (PW-4)

informed the teachers, Pooja Mahajan (PW-1) and Ritubala

(PW-2), that she lives in her aunt’s house and that the

respondent-accused made her sleep with him and during the

nights the respondent-accused used to put off her clothes

and  used  to  commit  sexual  intercourse  with  her.   The

prosecutrix stated that the respondent-accused had been

doing the same for about three years.  On hearing the same

from the prosecutrix, the school teacher, Pooja Mahajan

(PW-1), informed the president of the Gram Pachayat (PW-3)

who came to the school and made enquiries whereupon the

prosecutrix (PW-4) told the president that the respondent-

accused had been committing sexual intercourse with her

during the night.

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(5) A complaint was lodged by the teacher, Pooja Mahajan

(PW-1),  and  an  F.I.R.  was  registered  against  the

respondent-accused under Section 376 I.P.C.  Dr. Neerja

Gupta (PW-6) who medically examined the prosecutrix (PW-4)

found that there was no injury found on her private parts.

Dr. Neerja Gupta (PW-6) gave her opinion in writing (MLC

Ex.PW6/B)  in  which  she  has  opined  that  “in  case  of

slightest or small penetration, hymen will not rupture”.

Dr. Pooja Gupta (PW-7) also examined the prosecutrix (PW-

4).

(6) To substantiate the case of the prosecution, the

prosecution  has  examined  the  prosecutrix  (PW-4),  the

school teachers, Pooja Mahajan (PW-1) and Ritubala (PW-2),

and the president of the Gram Panchayat (PW-3) and other

witnesses.  Based on the evidence of the prosecutrix (PW-

4) and the medical evidence, the Trial Court convicted the

respondent-accused under Section 376 I.P.C. and sentenced

him  to  undergo  sentence  of  ten  years  of  rigorous

imprisonment and also imposed a fine of Rs.25,000/-.  In

appeal, the High Court reversed the verdict of conviction

of  the  respondent-accused  only  on  the  ground  that  the

opinion of Dr. Neerja Gupta (PW-6) and Dr. Pooja Gupta

(PW-7) are not conclusive to hold that the respondent-

accused has forcefully committed sexual intercourse with

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the prosecutrix.  The High Court held that the evidence of

the prosecutrix (PW-4) does not inspire the confidence of

the court to sustain the conviction and the respondent-

accused is entitled to the benefit of doubt and on those

findings the High Court has reversed the judgment of the

Trial Court and set aside the conviction and sentence of

the imprisonment imposed upon respondent-accused.

(7) Despite service of notice, the respondent has not

entered  appearance.   Accordingly  Mrs.  Manjeet  Chawla,

Advocate, has been nominated by the Supreme Court Legal

Services  Committee  as  amicus  to  contest  the  appeal  on

behalf of the respondent-accused.

(8) We have heard Ms. Bihu Sharma, learned counsel

appearing for the appellant-State and Mrs. Manjeet Chawla,

learned amicus.  We have carefully perused the impugned

judgment, the evidence of the witnesses and materials on

record.

(9) The High Court has given the benefit of doubt to the

respondent-accused mainly on two grounds : (i) Evidence of

the prosecutrix (PW-4) does not inspire confidence; and

(ii) the medical evidence of Dr. Neerja Gupta (PW-6) Dr.

Pooja Gupta (PW-7) is not conclusive to hold that the

prosecutrix (PW-4) was subjected to sexual intercourse.

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(10) The Trial Court has elaborately referred to the

evidence of the prosecutrix (PW-4) who was studying in

Class III in Kandwal Primary School and was staying in the

house  of  her  aunt.   The  prosecutrix  (PW-4)  has

categorically stated that while she was staying in her

aunt’s  house  for  pursuing  her  studies,  the  respondent-

accused made her sleep with him and that the respondent-

accused used to put off her clothes and his own clothes

and  that  he  used  to  touch  her  private  part  with  his

private part and used to insert his private part inside

her private part. The respondent-accused had told her not

to reveal it to anybody otherwise he would do away her

life.  The prosecutrix (PW-4) further stated that she told

the aforesaid facts to her teacher, Pooja Mahajan (PW-1),

and other lady teachers.

(11). The  conviction  can  be  sustained  on  the  sole

testimony of the prosecutrix, if it inspires confidence.

The  conviction  can  be  based  solely  on  the  solitary

evidence  of  the  prosecutrix  and  no  corroboration  be

required  unless  there  are  compelling  reasons  which

necessitate the courts to insist for corroboration of her

statement.  Corroboration  of  the  testimony  of  the

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prosecutrix is not a requirement of law; but a guidance of

prudence under the given facts and circumstances. Minor

contractions or small discrepancies should not be a ground

for throwing the evidence of the prosecutrix.  

(12) It is well settled by a catena of decisions of

the Supreme Court that corroboration is not a  sine qua

non for conviction in a rape case. If the evidence of the

victim does not suffer from any basic infirmity and the

‘probabilities  factor’ does  not  render  it  unworthy  of

credence.   As  a  general  rule,  there  is  no  reason  to

insist  on  corroboration  except  from  medical  evidence.

However, having regard to the circumstances of the case,

medical  evidence  may  not  be  available.  In  such  cases,

solitary testimony of the prosecutrix would be sufficient

to base the conviction, if it inspires the confidence of

the court.  

(13). In State of Punjab v. Gurmit Singh and Others -

(1996) 2 SCC 384, it was held as under:-

“8. 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

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reliable  prosecution  case.  The  inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which  the  courts  should  not  overlook.  The testimony of the victim in such cases is vital and  unless  there  are  compelling  reasons  which necessitate  looking  for    corroboration   of  her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault  alone  to  convict  an  accused  where  her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases  amounts  to  adding  insult  to  injury.  Why should  the  evidence  of  a  girl  or  a  woman  who complains  of  rape  or  sexual  molestation,  be viewed  with  doubt,  disbelief  or suspicion?........”.             (Underlining added)

(14). The prosecutrix was aged only nine years, she had

no reason to falsely implicate her cousin.  Since the

prosecutrix  has  been  compelled  to  face  the  ordeal  of

sleeping with the respondent-accused everyday night, On

04.03.2010  she  refused  to  go  the  house  of  her  aunt.

Considering the evidence of PW-4 – a girl of tender year,

corroboration from an independent source of the evidence

of the prosecutrix is not required. The evidence of the

prosecutrix  clearly  established  that  the  accused  was

committing rape on her by penetration.

(15) The  Trial Court,  which had  the opportunity  of

observing and hearing the prosecutrix (PW-4), recorded a

finding of fact that the evidence of prosecutrix (PW-4) is

convincing and inspires the confidence of the court.  When

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the Trial Court which had the opportunity of seeing and

hearing the witness has held that the evidence of the

prosecutrix (PW-4) inspires confidence of the court, in

our  considered  view,  in  the  absence  of  any  convincing

reason, the High Court ought not to have interfered with

such finding of fact.

(16) Insofar as the second ground on which the High

Court gave the benefit of doubt to the respondent-accused

that the medical evidence was inconclusive, it is to be

pointed out that Dr. Neerja Gupta (PW-6) in her evidence

has categorically stated that merely because there was no

injury marks it cannot be said that there was no question

of  sexual  intercourse.   In  her  Chief  Examination  Dr.

Neerja Gupta (PW-6) has further stated that in case of

small/slightest penetration the hymen will not rupture;

the  hymen  will  rupture  only  in  case  of  complete

penetration  with  force.   As  discussed  earlier,  the

respondent-accused made the prosecutrix (PW-4) to sleep

with him and inserted his private part in the private part

of the prosecutrix which constitutes rape.  This may not

have ruptured the hymen.  In the absence of injury on the

private part of the prosecutrix, it cannot be concluded

that  the  incident  had  not  taken  place  or  the  sexual

intercourse  was  committed  with  the  consent  of  the

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prosecutrix. The prosecutrix being a small child of about

nine  years  of  age,  there  oculd  be  no  question  of  her

giving  consent  to  sexual  intercourse.   The  absence  of

injuries on the private part of the prosecutrix can be of

no  consequence  in  the  facts  and  circumstances  of  the

present case.

(17) As rightly stated by Dr. Neerja Gupta (PW-6) that

merely because there was no rupture of hymen it cannot be

said that there was penetration.  It cannot be the reason

to disbelieve the testimony of the prosecutrix (PW-4).  It

is fairly a well-settled principle that in case of rape it

is  not necessary that external injury is to be found on

the body of the prosecutrix.

(18)  Mrs.  Manjeet  Chawla,  learned  counsel  for  the

respondent-accused, has submitted that non-examination of

aunt of the prosecutrix (PW-4) is fatal to the case of the

prosecution and no reason is forthcoming as to why aunt

was not examined.

(19) Be it noted that the respondent-accused is the

son of the aunt of the prosecutrix.  Nothing prevented the

respondent-accused  to  have  examined  his  mother  as  his

witness.  The non-examination of aunt of the prosecutrix

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(PW-4) cannot be put against the prosecution.  In the

light  of  the  evidence  of  the  prosecutrix  and  the

categorical findings recorded by the Trial Court, in our

view the High Court was not justified in reversing the

conviction of the respondent-accused and recording order

of acquittal of the respondent-accused.  In order to give

the  benefit  of  doubt  to  the  accused,  it  has  to  be  a

reasonable doubt.

(20) Observing  that  there  are  number  of  unmerited

acquittals  in  rape  cases  and  that  the  courts  have  to

display a greater sense of responsibility and to be more

sensitive while dealing with the charges of sexual assault

on woman, in  State of Rajasthan v.  N.K. The Accused –

(2000) 5 SCC 30, this Court has held as under :

“9.  ...A  Doubt,  as  understood  in  criminal jurisprudence, has to be a reasonable doubt and not  an  excuse  for  a  finding  in  favour  of acquittal.  An  unmerited  acquittal  encourages wolves in the society being on the prowl for easy prey,  more  so  when  the  victims  of  crime  are helpless females.  It is the spurt in the number of  unmerited  acquittals  recorded  by  criminal courts which gives rise to the demand for death sentence  to  the  rapists.   The  courts  have  to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.  In  Bharwada Bhoginbhai Hirjibhai v. State of Gujarat:-(1983) 3 SCC 217 this Court observed that refusal to act on the testimony of a victim of sexual assault in the absence  of  corroboration  as  a  rule,  is  adding insult to injury.  This Court deprecated viewing

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evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion.  We need only remind ourselves of what this Court has said through one of us (Dr A. S. Anand, J. as his Lordship then was)in  State of Punjab v. Gurmeet Singh:- (1996) 2 SCC 384:p. 403, para 21 )

“[A] rapist not only violates the victim's privacy  and  personal  integrity,  but inevitably causes serious psychological as well as physical harm in the process.  Rape is  not  merely  a  physical  assault-  it  is often destructive of the whole personality of  the  victim.  A  murderer  destroys  the physical  body  of  his  victim,  a  rapist degrades the very should of the helpless female.  The courts, therefore, shoulder a great  responsibility  while  trying  an accused on charges of rape.  The must deal with  such  cases  with  utmost  sensitivity. The  courts  should  examine  the  broader probabilities of a case and not get swayed by  minor  contradictions  or  insignificant discrepancies  in  the  statement  of  the prosecutrix,  which  are  not  of  a  fatal nature, to throw out an otherwise reliable prosecution case.”

10. The questions arising for consideration before us are: whether the prosecution story, as alleged, inspires confidence of the court on the evidence adduced?  Whether  the  prosecutrix,  is  a  witness worthy  of  reliance?  Whether  the  testimony  of  a prosecutrix who has been in victim of rape stands in need of corroboration and, if so, whether such corroboration  is  available  in  the  facts  of  the present case?  What was the age of the prosecutrix? Whether she was a consenting party to the crime? Whether there was unexplained delay in lodging the FIR?”

(21) In  the  present  case,  the  prosecutrix  (PW-4),

being a young girl aged about nine years, had no reason to

falsely implicate the respondent-accused.  The testimony

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of the prosecutrix (PW-4) must have been appreciated in

the light of the background of the case; more so, the

prosecutrix (PW-4) was reluctant to go back to the house

of her aunt and complained the act of sexual intercourse

committed by the respondent-accused to her teachers, Pooja

Mahajan (PW-1) and Ritubala (PW-2).  The High Court has

not appreciated the evidence of the prosecutrix (PW-4) in

the  light  of  the  well-settled  principles  and  erred  in

reversing the conviction of the respondent-accused to the

acquittal.  The impugned judgment of the High Court is not

sustainable and is liable to be set aside.  Since at the

time of incident the victim was at her tender age, we do

not  find  any  reason  to  show  sympathy  towards  the

respondent-accused.

(22) In the result, the impugned judgment and order of

the High Court is set aside and this appeal is allowed.

The judgment of the Trial Court is restored confirming

conviction of the respondent under Section 376 I.P.C. and

the sentence of imprisonment of ten years.

(23) The respondent-accused is to surrender to custody

within a period of four weeks from today to serve the

remaining  sentence  failing  which  he  shall  be  taken  to

custody.

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(24) A copy of this order be sent to the concerned

trial court for necessary action.      

.........................J. (R. BANUMATHI)

.........................J.         (INDIRA BANERJEE)

NEW DELHI, NOVEMBER 28, 2018.