High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No.4109,4232 of 2013 & 230

of 2015

Reserved on : 12.5.2016

Date of Decision : May 23, 2016.

1.Cr.A No.4109/2013

Gurmukh Singh ...Appellant.

Versus

State of H.P. ...Respondent.

2.Cr.A No.4232/2013

State of H.P. ...Appellant.

Versus

Gurmukh Singh ...Respondent.

3.Cr.A No.230/2015

Gurmukh Singh ...Appellant.

Versus

State of H.P. ...Respondent.

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Judge.

The Hon’ble Mr. Justice P.S. Rana, Judge.

Whether approved for reporting?

1 Yes.

For the Appellant/ : Mr. N.S. Chandel, Advocate.

Accused

For the State : Mr. V.S. Chauhan, Additional

Advocate General, and Mr. Vikram

Thakur, Deputy Advocate

General.

Whether reporters of the local papers may be allowed to see the judgment?

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Sanjay Karol, Judge

In relation to FIR No.60, dated 15.3.2013, for

commission of offence, under the provisions of Section

376 of the Indian Penal Code, registered at Police Station

Sadar, Una, Himachal Pradesh, accused Gurmukh Singh,

hereinafter referred to as the accused, was charged to

face trial for having committed offence punishable under

the provisions of Section 4 of the Protection of Children

from Sexual Offences Act, 2012 and Section 376 of the

Indian Penal Code.

2. On the strength of the evidence led by the

prosecution, vide judgment dated 6.8.2013, passed by

Special Judge, Una, Himachal Pradesh, in Case No.3 -

VII/2013, titled as State of Himachal Pradesh v. Gurmukh

Singh , accused was stands convicted of the offence

punishable under the prov isions of Section 4 of the

Protection of Children from Sexual Offences Act, 2012,

and sentenced to undergo rigorous imprisonment for a

period of seven years and pay fine of `5,000/ - and in

default of payment thereof, to further undergo simple

imprisonment for a further period of three months.

3. Hence, the said judgment came to be

assailed by the accused by filing Criminal Appeal No.4109

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of 2013 and by the State in Criminal Appeal No.4232 of

2013.

4. When these appeals came up for hearing, it

came to the notice that the trial Court had not dealt with

the charge of offence, punishable under the provisions of

Section 376 of the Indian Penal Code. As such, for a

limited purpose, the matter was remitted to the trial

Court for retuning findings thereupon.

5. In terms of separate judgment dated

30.4.2015, passed by Special Judge, Una, Himachal

Pradesh in Sessions Case No.3-VII/2013, titled as State of

Himachal Pradesh v. Gurmukh Singh , so assailed by the

accused by way of Criminal Appeal No.230 of 2015, trial

Court found the accused guilty of also having committed

an offence, punishable under the provisions of Section

376 of the Indian Penal Code. However, since the accused

already stood sentenced for having committed offence,

punishable under the provisions of Section 4 o f the

POCSO Act, no separate sentence was imposed for the

offence punishable under the provisions of Section 376 of

the Indian Penal Code.

6. Since all these appeal arise out of the very

same FIR; incident and evidence led by the parties, they

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were heard together and are being disposed of by a

common judgment.

7. It is the case of prosecution that prosecutrix,

born on 11.6.1997, was residing with her mother, in

village Barnoh, Tehsil & District Una, Himachal Pradesh.

In the year 2013, she was studying in Class 10 and in the

month of March was undertaking her annual examination.

On 14.3.2013 at about 4.30 p.m., when she went to the

Forest (Choa) to answer the call of nature, accused came

there and after gagging her mouth, sexually assaulted

her against her consent and will. Hearing her cries, her

aunt Baksho Devi (PW-2) reached the spot and witnessed

the crime. Soon the accused ran away from the spot and

the incident was brought to the notice of Soma Devi (PW-

5) and Sat Pal (PW-4), paternal aunt and uncle of the

prosecutrix. Apparently, Usha Devi (PW-3), mother of the

prosecutrix, was not in the village at that time.

Information of crime was furnished to the police, vide

complaint (Ex. PW-1/A) and statement of the prosecutrix,

under the provisions of Section 154 of the Code of

Criminal Procedure, recorded, on the basis of which FIR

No.60, dated 15.3.2013 (Ex. PW -14/A), under the

provisions of Section 376 of the Indian Penal Code,

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registered at Police Station Sadar, Una, Himachal

Pradesh. Tirlok Chand (PW-17), who took charge of the

investigation, got the prosecutrix medically examined

from Dr. Seema (PW-10), who issued MLC (Ex. PW-10/A),

opining the act of sexual intercourse not to be ruled out.

Accused was also got medically examined. Documents

with regard to the age of the prosecutrix were taken on

record and statements of relevant witnesses recorded.

With the completion of investigation, which revealed

complicity of the accused in the alleged crime, challan

was presented in the Court for trial.

8. Accused was charged for having committed

an offence punishable under the provisions of Section 4

of the Protection of Children from Sexual Offences Act,

2012 and Section 376 of the Indian Penal Code, to which

he did not plead guilty and claimed trial.

9. In order to establish its case, prosecution

examined as many as 18 witnesses and statement of the

accused under the provisions of Section 313 of the Code

of Criminal Procedure was also recorded, in which he took

the following defence:

“We have land dispute with Su/Smt.

Baksho, Sonia evi, Usha Devi, Soma Devi and

as such I have been impleaded in a false case

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and PWs have deposed falsely. The victim

was after me badly and stated to me that if

you did not respond, I shall not allow to be of

any body else.”

Though initially, he expressed his desire of leading

evidence in defence, but eventually chose not to do so.

10. Based on the testimonies of witnesses and

the material on record, trial Court convicted the accused

of the charged offences, vide separate judgments and

sentenced as aforesaid.

11. Hence, Criminal Appeals No.4109 of 2013 and

Criminal Appeal No.230 of 2015 stand filed by the

accused and in Criminal Appeal No.4232 of 2013, State is

seeking enhancement of sentence.

12. We have heard Mr. V.S. Chauhan, learned

Additional Advocate General, on behalf of the State as

also Mr. N.S. Chandel, Advocate, on behalf of the

accused. We have also minutely examined the

testimonies of the witnesses and other documentary

evidence so placed on record by the prosecution. Having

done so, we are of the considered view that no case for

interference is made out at all. We find that the

judgment rendered by the trial Court and based on

complete, correct and proper appreciation of evidence

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(documentary and ocular) so placed on record. There is

neither any illegality/infirmity nor any perversity with the

same, resulting into miscarriage of justice. The fact that

there was delay in lodging the FIR was taken into account

and dealt with by the trial Court, while convicting the

accused. Also, given facts do not warrant enhancement

of sentence of imprisonment.

13. In Indian Woman Says Gang -Raped on Orders

of Village Court Published in Business and Financial News

Dated 230102014, In Re, (2014) 4 SCC 786, the Apex

Court has highlighted the need for having an effec tive

State police machinery for curbing the menace of rape,

for such crime is not only in contravention of the

domestic laws, but is also in direct breach of obligations

under International Law, treaties whereof stand ratified

by the State, which is under an obligation to protect its

women from any kind of discrimination.

14. The Apex Court has highlighted the need for

prompt disposal of cases of crime against women and

children. (Rajkumar v. State of Madhya Pradesh, (2014) 5

SCC 353).

15. In Shyam Narain v. State (NCT of Delhi),

(2013) 7 SCC 77, the Apex Court held as under:

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“27. Respect for reputation of women in the

society shows the basic civility of a civilised

society. No member of society can afford to

conceive the idea that he can create a hollow in

the honour of a woman. Such thinking is not

only lamentable but also deplorable. It would

not be an exaggeration to say that the thought

of sullying the physical frame of a woman is the

demolition of the accepted civilized norm, i.e.,

“physical morality”. In such a sphere,

impetuosity has no room. The youthful

excitement has no place. It should be

paramount in everyone's mind that, on one

hand, the society as a whole cannot preach

from the pulpit about social, economic and

political equality of the sexes and, on the other,

some pervert members of the same society

dehumanize the woman by attacking her body

and ruining her chastity. It is an assault on the

individuality and inherent dignity of a woman

with the mindset that she should be elegantly

servile to men. Rape is a monstrous burial of

her dignity in the darkness. It is a crime against

the holy body of a woman and the soul of the

society and such a crime is aggravated by the

manner in which it has been committed. We

have emphasised on the manner because, in

the present case, the victim is an eight year old

girl who possibly would be deprived of the

dreams of “Spring of Life” and might be

psychologically compelled to remain in the

“Torment of Winter”. When she suffers, the

collective at large also suffers. Such a singular

crime creates an atmosphere of fear which is

historically abhorred by the society. It demands

just punishment from the court and to such a

demand, the courts of law are bound to respond

within legal parameters. It is a demand for

justice and the award of punishment has to be

in consonance with the legislative command

and the discretion vested in the court.”

16. In Narender Kumar v. State (NCT of Delhi),

(2012) 7 SCC 171, the apex Court has cautioned the

Court to adopt the following approach:

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“The courts while trying an accused on

the charge of rape, must deal with the case with

utmost sensitivity, examining the broader

probabilities of a case and not get swayed by

minor contradictions or insignificant

discrepancies in the evidence of the witnesses

which are not of a substantial character.”

17. The Apex Court in Munna v. State of Madhya

Pradesh, (2014) 10 SCC 254, has reiterated the principle

that testimony of prosecutrix is almost at par with an

immediate witness and can be acted upon without

corroboration.

18. From the testimony of Dr. Seema (PW -10),

who proved medical record (Ex. PW-10/A), it is apparent

that at the time of medical examination, there was

scratch mark on the left arm of the prosecutrix; hymen

was ruptured; and one finger could be admitted inside

the vagina. Though there was no evidence of recent

sexual assault, but the doctor did not rule it out. In fact,

in Court, this doctor has categorically deposed that

penetration of vagina could not be ruled out and the

words “recent sexual activity”, so recorded by her, would

mean that no such act was performed within “five-six

hours”. However, to the advantage of the accused, she

has also opined that if forcible sexual intercourse, on a

thorny surface takes place, victim is supposed to have

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injuries on her back. But then, it is also a settled position

of law that absence of injuries would, in no manner

render the version of the prosecutrix to be false or

genesis of the prosecution story to be doubtful. There

are injuries on the other parts of the body of the

prosecutrix.

19. Even in the absence of categorical opinion

about rape, opinion of the doctor about such act not

being totally ruled out is relevant. Mere absence of

spermatozoa would not cast doubt on correctness of the

prosecution case. (See: Datta v. State of Maharashtra,

(2013) 14 SCC 588; and Prithi Chand v. State of H.P.,

(1989) 1 SCC 432).

20. The Apex Court had the occasion to deal with

the case where there was a conflict between medical

evidence and ocular evidence of the prosecution. There

the Court held as under:

“23. In any case, to establish a conflict between

the medical and the ocular evidence, the law is

no more res integra and stands squarely

answered by the recent judgment of this Court

in the case of Dayal Singh v State of

Uttaranchal, (2012) 8 SCC 263 (SCC p.283,

paras 35036)

"35. This brings us to an ancillary issue as

to how the Court would appreciate the

evidence in such cases. The possibility of

some variations in the exhibits, medical

and ocular evidence cannot be ruled out.

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But it is not that every minor variation or

inconsistency would tilt the balance of

justice in favour the accused. Of course,

where contradictions and variations are of

a serious nature, which apparently or

impliedly are destructive of the

substantive case sought to be proved by

the prosecution, they may provide an

advantage to the accused. The Courts,

normally, look at expert evidence with a

greater sense of acceptability, but it is

equally true that the courts are not

absolutely guided by the report of the

experts, especially if such reports are

perfunctory, unsustainable and are the

result of a deliberate attempt to misdirect

the prosecution. In Kamaljit Singh v. State

of Punjab , (2003) 12 SCC 155, the Court,

while dealing with discrepancies between

ocular and medical evidence, held: (SCC

p. 159, para 8)

‘8. It is trite law that minor

variations between medical

evidence and ocular evidence do

not take away the primacy of the

latter. Unless medical evidence in

its term goes so far as to completely

rule out all possibilities whatsoever

of injuries taking place in the

manner stated by the eyewitnesses,

the testimony of the eyewitnesses

cannot be thrown out.’

36. Where the eyewitness account is found

credible and trustworthy, medical opinion

pointing to alternative possibilities may not be

accepted as conclusive.

’34. ….The expert witness is expected to

put before the Court all materials

inclusive of the data which induced him to

come to the conclusion and enlighten the

court on the technical aspect of the case

by examining the terms of science, so

that the court, although not an expert,

may form its own judgment on those

materials after giving due regard to the

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expert's opinion, because once the expert

opinion is accepted, it is not the opinion of

the medical officer but that of the Court.’

21. The Apex Court in Madan Gopal Makkad v.

Naval Dubey and another, (1992) 3 SCC 204, has held as

under:

“34. A medical witness called in as an expert to

assist the court is not a witness of fact and the

evidence given by the medical officer is really of

an advisory character given on the basis of the

symptoms found on examination. The expert

witness is expected to put before the court all

materials inclusive of the data which induced

him to come to the conclusion and enlighten the

court on the technical aspect of the case by

explaining the terms of science so that the court

although, not an expert may form its own

judgment on those materials after giving due

regard to the expert's opinion because once the

expert's opinion is accepted, it is not the

opinion of the medical officer but of the court.

35. Nariman, J. in Queen v. Ahmed Ally, (1989)

11 Sutherland WR Cr 25, while expressing his

view a on medical evidence has observed as

follows:

"THE evidence of a medical man or other

skilled witnesses, however, eminent, as to

what he thinks may or may not have

taken place under particular combination

of circumstances, however, confidently,

he may speak, is ordinarily a matter of

mere opinion."

36. Fazal Ali, J. in Pratap Misra v. State of Orissa,

(1977 3 SCC 41, has stated thus:

"... [l]t is well settled that the medical

jurisprudence is not an exact science and

it is indeed difficult for any Doctor to say

with precision and exactitude as to when

a particular injury was caused ... as to the

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exact time when the appellants may have

had sexual intercourse with the

prosecutrix."

37. We feel that it would be quite appropriate,

in this context, to reproduce the opinion

expressed by Modi in Medical Jurisprudence and

Toxicology (Twenty-first Edition) at page 369

which reads thus:

"THUS to constitute the offence of rape it

is not necessary that there should be

complete penetration of penis with

emission of semen and rupture of hymen.

Partial penetration of the penis within the

labia majora or the vulva or pudenda with

or without emission of semen or even an

attempt at penetration is quite sufficient

for the purpose of the law. It is therefore

quite possible to commit legally the

offence of rape without producing any

injury to the genitals or leaving any

seminal stains. In such a case the medical

officer should mention the negative facts

in his report, but should not give his

opinion that no rape had been committed.

Rape is crime and not a medical

condition. Rape is a legal term and not a

diagnosis to be made by the medical

officer treating the victim. The only

statement that can be made by the

medical officer is that there is evidence of

recent sexual activity. Whether the rape

has occurred or not is a legal conclusion,

not a medical one. "

38. In Parikh 's Textbook of Medical

Jurisprudence and Toxicology, the following

passage is found:

"SEXUAL intercourse. In law, this term is

held to mean the slightest degree of

penetration of the vulva by the penis with

or without emission of semen. It is

therefore quite possible to commit legally

the offence of rape without producing any

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injury to the genitals or leaving any

seminal stains."

39. In Encyclopedia of Crime and Justice (Vol. 4

at page 1356, it is stated:

"... [E]ven slight penetration is sufficient

and emission is unnecessary."

40. In Halsbury's Statutes of England and Wales,

(Fourth Edition), Volume 12, it is stated that

even the slightest degree of penetration is

sufficient to prove sexual intercourse within the

meaning of S. 44 of the Sexual Offences Act,

1956. Vide (1) R. v. Hughes , (1841) 9 C&P 752,

(2) R. v. Lines and R. v. Nicholls , (1844) 1 Car &

Kir 393.

41. See also Harris's Criminal Law, (Twenty -

second Edition) at page 465.

42. In American Jurisprudence, it is stated that

slight penetration is sufficient to complete the

crime of rape. Code 263 of Penal Code of

Califomia reads thus:

"RAPE; essentials Penetration sufficient.

The essential guilt of rape consists in the

outrage to the person and feelings of the

victim of the rape. An y sexual

penetration, however slight, is sufficient

to complete the crime."

43. The First Explanation to S. 375 of Indian

Penal Code which defines 'Rape' reads thus:

"EXPLANATION.PENETRATION is sufficient

to constitute the sexual intercourse

necessary to the offence of rape."

44. In interpreting the above explanation

whether complete penetration is necessary to

constitute an offence of rape, various High

courts have taken a consistent view that even

the slightest penetration is sufficient to make

out an offence of rape and the depth of

penetration is immaterial. Reference may be

made to (1) Natha v. Emperor, (1925) 26 CrLJ

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1185, (2) Abdul Majid v. Emperor , AIR 1927 Lah

735(2), (3) Mst. Jantan v. Emperor, (1934) 36

Punj LR 35, (4) Ghanashyam Misra v. Stat e,

1957 CriLJ 469, (5) Das Bernard v. State , 1974

CriLJ 1098. In re Anthony, AIR 1960 Mad 308 it

has been held that while there must be

penetration in the technical sense, the slightest

penetration would be sufficient and a complete

act of sexual intercourse is not at all necessary.

In Gour's The Penal Law of India, 6th Edn. 1955

(Vol. II), page 1678, it is observed, "Even vulval

penetration has been held to be sufficient for a

conviction of rape." ”

22. Also, it is a settled principle of law that

absence of injuries on the external or internal parts of the

victim by itself cannot be a reason to disbelieve the

testimony of the prosecutrix. (See: Mukesh v. State of

Chhattisgarh, (2014) 10 SC 327); State of Haryana v.

Basti Ram, (2013) 4 SCC 200; O.M. Baby (Dead) by Legal

Representative v. State of Keral, (2012) 11 SCC 362; and

State of U.P. v. Chhotey Lal, (2011) 2 SCC 550).

23. The Apex Court in Puran Chand v. State of

Himachal Pradesh, (2014) 5 SCC 689, observed that even

non-rupture of hymen itself would be of no consequence

and rape could be held to be proved even if there is slight

penetration.

24. Mere fact that hymen is intact or that there is

no actual wound on the private part of the prosecutrix is

not conclusive of the fact that prosecutrix was not

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subjected to rape. (Radhakrishna Nagesh v. State of

Andhra Pradesh, (2013) 11 SCC 688).

25. The accused has taken a defence that

prosecutrix was in love with him and only after he got

married, complaint, false in nature, came to be filed

against him. We do not find it to have been probablized.

26. Significantly prosecutrix, at the time of

commission of the offence was less than 16 years of age.

She states her date of birth to be 11.6.1997, which fact is

not disputed by the accused, as is evident from the cross-

examination part of her testimony. That apart, her date

of birth stands proved through the testimony of Gurmeet

Chand (PW-7), Secretary of Gram Panchayat, Barnoh ,

who has proved register (Ex. PW-7/A), recording date of

birth of the prosecutrix, as also the birth certificate (Ex.

PW-7/B), issued under the provisions of Section 12/17 of

the Registration of Births and Deaths Act, 1969 and Rule

8 of the Himachal Pradesh Registration of Births and

Deaths Rules, 2003. Thus, on record, as on 14.3.2013,

the date of commission of crime, prosecutrix was below

16 years of age. There is no challenge with regard to

date of birth of the prosecutrix.

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27. The Apex Court in Ranjeet Goswami v. State

of Jharkhand and another, (2014) 1 SCC 588, held as

under:

“8. We are of the view that no cogent reasons

have been stated by the High court to discard

the school leaving certificate which was issued

on 10.04.2004 by the then Principal of the

school. The certificate reveals the date of birth

of the accused as 10.05.1991. The school

leaving certificate was proved by examining the

Headmistress of the school. She has recognized

the signatures of the Principal who issued the

school leaving certificate. The evidence

adduced by the Headmistress was not

challenged…………..”

28. The Apex Court in Mohd. Imran Khan v. State

Government (NCT of Delhi) , (2011) 10 SCC 192, had the

occasion to deal with the case, even though the birth

certificate issued under the Registration of Births and

Deaths Act, 1969, reveals the age of the child to be below

16 years, but the medica l report of the Radiologist

reveals the age to be between 16 and 17 years, the

Court, relying upon its earlier decisions in Jaya Mala v.

Home Secretary, Government of Jammu & Kashmir and

others, (1982) 2 SCC 538, gave primacy not to the

medical report but to the statutory record, holding that

the medical report only gives an idea with a margin of 1-2

years on either side. (Also: Vishnu alias Undrya v. State of

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Maharashtra, (2006) 1 SCC 283; and Mst. Aqeela and

another v. State of U.P., (1998) 9 SCC 526).

29. When assessing the presence or absence of

consent, the Court is duty bound to satisfy itself, about

the parties being ad idem on essential features. (Vinod

Kumar v. State of Kerala, (2014) 5 SCC 678).

30. The apex Court in Roop Singh v. State of

Madhya Pradesh, (2013) 7 SCC 89, held that:

“9. In State of U.P. v. Chhotey Lal (2011) 2 SCC

550, the following passage from the judgment

of a three-Judge Bench of this Court in State of

H.P. v. Mango Ram3 on the meaning of

"consent" for the purpose of the offence of rape

as defined in Section 375 IPC, is quoted:

(Chhotey Lal (2011) 2 SCC 550 , SCC p. 560,

para 20)

"20. ... ‘13. ... 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 and assent.

Whether there was consent or not, is to

be ascertained only on a careful study of

all relevant circumstances.' ( Mango Ram

case (2000) 7 SCC 224, SCC 230-31, para

13)"

31. The Apex Court in Deepak Gulati v. State of

Haryana, (2013) 7 SCC 675, has further held that “Consent

may be express or implied, coerced or misguided, obtained

willingly or through deceipt. Consent is an act of reason,

accompanied by deliberation, the mind weighing, as in a

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balance, the good and evil on each side. The Court must

examine whether there was made, at an early stage a false

promise of marriage by the accused; and whether the

consent involved was given after wholly understanding the

nature and consequences of sexual indulgence”.

32. In Nagadeo s/o Kerba Maske v. State of

Maharashtra and another, (2013) 14 SCC 637, the Apex

Court held as under:

“17. Keeping the contents of the chemical

analysis report, as noted by the Courts below in

mind, when we consider the deposition of the

prosecutrix PW-3, we find that she had narrated

every minute detail as to how the appellant

allured her by taking advantage of her contact

with him while singing Bhajan songs, how he

persuaded her by stating that recording of her

Bhajans in audio cassette would enable her to

earn tons of money and in that pretext also

tempted her to take away the gold ornaments

from the house worth Rs. 1 lakh and thus

gained her confidence to go along with him and

misused his company by keeping her in a place

at Karnool where she was not acquainted with

the local language of Telugu and ultimately,

abused her physically at least for more than for

a month and twenty days. The vivid description

of the behaviour of the appellant during the

period when she was kept in his custody i.e.,

between 20.09.2005 to 07.11.2005, was clearly

demonstrated by the prosecutrix and any

amount of cross examination at the instance of

the appellant, did not bring about any candid

contradiction in her statement in order to

disbelieve her deposition. The trial Court has

also elaborately dealt with her deposition and

found that the version of the prosecutrix was

fully supported by the chemical analyst report,

as well as. the medical evidence.

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18. In such circumstances, the trial Court in our

considered opinion rightly found the appellant

guilty of the offences charged against him. The

conclusion of the trial Court in having found the

appellant guilty of offences under Sections 363

and 376IPC was further upheld by the High

Court by the impugned judgment. The High

Court, however, found that the conviction for

the offence under Section 506 IPC was not

sufficiently supported by evidence and

conviction and sentence for offence under

Section 506 IPC was set aside. Having perused

the judgment of the High Court, we arc also

convinced that the said conclusion is also

perfectly justified.

19. This Court in Lillu alias Rajesh and another

vs. State of Haryana reported in AIR 2013 SC

1784, where one of us was a party, held in para

11 that:

"11. In State of Punjab v. Ramdev Singh,

AIR 2004 SC 1290, this Court dealt with

the issue and held that rape is violativc of

victim's fundamental right under Article

21 of the Constitution. So, the Courts

should deal with such cases sternly and

severely. Sexual violence, apart from

being a dehumanizing act, is an unlawful

intrusion on the right of privacy and

sanctity of a woman. It is a serious blow to

her supreme honour and offends her self-

esteem and dignity as well. It degrades

and humiliates the victim and where the

victim is a helpless innocent child or a

minor, it leaves behind a traumatic

experience. A rapist not only causes

physical injuries, but leaves behind a scar

on the most cherished position of a

woman, i.e. her dignity, honour,

reputation and chastity. Rape is not only

an offence against the person of a

woman, rather a crime against the entire

society. It is a crime against basic human

rights and also voilates the most

cherished fundamental right guaranteed

under Article 21 of the Constitution.” ”

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33. Sexual intercourse, consensual in nature,

becomes absolutely irrelevant in a case where prosecutrix

is below 16 years of age. (Dilip v. State of Madhya Pradesh,

(2013) 14 SCC 331).

(Also: Kailash alias Tanti Banjara v. State of

Madhya Pradesh, (2013) 14 SCC 340; and Jarnail

Singh v. State of Haryana, (2013) 7 SCC 263)

34. Reiterating its earlier view in Mohd. Iqbal v.

State of Jharkhand, (2013) 14 SCC 481; Narender Kumar

v. State (NCT of Delh), (2012) 7 SCC 171, the Apex Court

in Mukesh v. State of Chhattisgarh, (2014) 10 SC 327, has

held that sole testimony of prosecutrix is sufficient to

establish commission of rape, even in the absence of any

corroborative evidence.

35. In Radhakrishna Nagesh v. State of Andhra

Pradesh, (2013) 11 SCC 688, the apex Court held as

under:

“33. It will be useful to refer to the judgment of

this Court in the case of O.M. Baby v. State of

Kerala, (2012) 11 SCC 362, where the Court

held as follows:-

"17. ….. ‘16. A prosecutrix of a sex

offence cannot be put on a 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

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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 t otality of the

circumstances appearing on the record of

the case disclose that the prosecutrix

does not have a strong motive to falsely

involve the person charged, the court

should ordinarily have no hesitation in

accepting her evidence.

18. We would further like to observe that while

appreciating the evidence of the prosecutrix,

the court must keep in mind that in the context

of the values prevailing in the country,

particularly in rural India, it would be unusual

for a woman to come up with a false stor y of

being a victim of sexual assault so as to

implicate an innocent person. Such a view has

been expressed by the judgment of this Court in

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the case of State of Punjab v. Gurmit Singh ,

(1996) 2 SCC 384 and has found reiteration in a

recent judgment in Rajinder @ Raju v. State of

H.P ., (2009) 16 SCC 69, para 19 whereof may be

usefully extracted:

‘19. In the context of Indian culture, a

woman - victim of sexual aggression -

would rather suffer silently than to falsely

implicate somebody. Any statement of

rape is an extremely humiliating

experience for a woman and until she is a

victim of sex crime, she would not blame

anyone but the real culprit. While

appreciating the evidence of the

prosecutrix, the courts must always keep

in mind that no self-respecting woman

would put her honour at stake by falsely

alleging commission of rape on her and

therefore, ordinarily a look for

corroboration of her testimony is

unnecessary and uncalled for. But for high

improbability in the prosecution case, the

conviction in the case of sex crime may

be based on the sole testimony of the

prosecutrix. It has been rightly said that

corroborative evidence is not an

imperative component of judicial

credence in every case of rape nor the

absence of injuries on the private parts of

the victim can be construed as evidence

of consent.’ "

36. The question, which still needs to be

considered, is as to whether the testimony of the

prosecutrix, who is a victim of crime, and not an

accomplice, inspires confidence or not. Having minutely

examined the same, we are convinced about the veracity

of her statement as also her creditworthiness as a

witness. Prosecutrix categorically states that on

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14.3.2013, when she went to the Forest (Choa) to answer

the call of nature, at about 4.30 p.m., accused came and

forcibly tried to commit sexual intercourse. When she

tried to raise voice, accused gagged her mouth.

Thereafter, he opened her Salwar and subjected her to

sexual intercourse. In the meantime, he r aunt Baksho

Devi arrived at the spot. Thereafter, accused left the

spot. She is categorical that accused had been following

her for the last two years. The incident was also brought

to the notice of her aunt and uncle and upon return of her

mother, who had gone to visit a temple, matter was

reported to the police. In our considered view, she has

withstood the test of cross-examination. She has clarified

that the toilet at home is not put to use and the family

members go to the fields to ease out themselves. She

lives in a village. At the time of incident, her mother was

not home. She has explained that her siblings are

younger to her. She explains that after gagging her

mouth, accused immediately threw her on the ground

and though she did resist his acts, but eventually

succumbed to his assault. She knows the accused from

before and perhaps did not expect him to commit such an

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act of crime. Mere intimacy would not mean willingness

to perform an act of crime.

37. We find her version to have been fully

corroborated by Baksho Devi (PW-2), who also states that

after reaching the place of crime and witnessing the

incident, she called two ladies Soma Devi and Tara.

Presence of accused on the spot was also observed by

Sonia Devi (PW-6).

38. It is argued that the witnesses are close

relatives and thus their inte rested testimonies,

uninspiring in confidence, cannot be relied upon to

convict the accused. Submission, to say the least, only

merits rejection, for the spot witnesses, including the

prosecutrix, are clear and consistent in their narration of

events, and there are neither any improvements nor any

embellishments. Also, there being no material

contradiction, their version does not cast any doubt about

presence of the accused on the spot or his involvement in

the crime. There is no animosity or hostility inter se the

parties, prompting them to depose falsely.

39. Contradiction, as pointed out on the question

of pants being opened up fully or not, does not shake the

cred of the witness at all. On the question of material

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fact of sexual assault, there is no discrepancy/variation or

contradiction.

40. It is argued that there is delay of one day in

lodging the FIR. We do not find the same to be fatal at

all. In fact, it stands explained on record. There is no

premeditation or determination of mind prior to the

matter being reported to the police. The incident took

place in the evening of 14.3.2013. It has come on record

that the father of the prosecutrix is no more in the land of

living. Prosecutrix was residing with her mother and

siblings. Her uncle was not having a joint kitchen with

them. Even though same day, incident was brought to

the notice of her uncle Satpal (PW-4), however, as has

emerged from his testimony, he waited for Usha Devi

(PW-3), mother of the prosecutrix, to return from the

temple. Now, Usha Devi has categorically deposed that

she reached in the morning at about 9 a.m. and Satpal

had telephonically informed her about the incident. We

find that on 15.3.2013 itself, matter was immediately

brought to the notice of the police when statement of the

prosecutrix, under the provisions of Section 154 of the

Code of Criminal Procedure, came to be recorded. In

rural areas, generally people are reluctant to report the

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matter till the arrival of head of the family. Thus, there is

no delay in lodging the FIR.

41. Absence of injury on the body of the accused

or for that matter prosecutrix, would not render her

version in any manner to be false or doubtful. Exact

location of the angle in which she was subjected to

intercourse, cannot be left to the imagination of the

doctor, in whose view, there ought to ought to have been

some marks on the buttocks of the prosecutrix. After all,

there were injury marks on the face of the prosecutrix,

which she has stated to be on account of gagging of her

mouth.

42. In our considered view, prosecution has been

able to establish the guilt of the accused, beyond

reasonable doubt, by leading clear, cogent, convincing

and reliable piece of evidence.

43. For all the aforesaid reasons, we find no

reason to interfere with the well reasone d judgment

passed by the trial Court. The Court has fully appreciated

the evidence placed on record by the parties. There is no

illegality, irregularity, perversity in correct and/or in

complete appreciation of the material so placed on record

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by the parties. Hence, the appeal filed by the accused

are dismissed.

44. Trial Court has sentenced the accused to

rigorous imprisonment for a period of seven years and

fine of `5,000/-, and in default of payment thereof to

further undergo simple imprisonment for a per iod of

three months. This was so done by taking into account

the fact now accused is 22 years of age; is married and

that it is his first offence. We find no infirmity in the

same. Hence, the appeal filed by the State for

enhancement of sentence is also dismissed.

Appeal stands disposed of, so also pending

application(s), if any.

( Sanjay Karol ),

Judge.

( P.S. Rana ),

May 23, 2016(sd) Judge.

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