Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1708 OF 2010

PURAN CHAND .. APPELLANT

VERSUS

STATE OF H.P. ..RESPONDENT

J U D G M E N T

GYAN SUDHA MISRA, J.

1. This appeal was going unrepresented as no one

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

therefore, in the interest of justice, appointed an Amicus

Curiae to represent the case of the appellant and assist

the Court in reaching to a just conclusion.

2. Having heard the counsel for the parties and on

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

appeal is directed against the judgment and order dated

29.09.2009 passed by the High Court of Himachal Pradesh

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

appeal preferred by the appellant was dismissed by the

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Page 2 High Court. Consequently, the conviction of the appellant

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

Penal Code was upheld and the sentence of seven years

imposed on the appellant/accused alongwith a fine of

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

imprisonment for a period of one year under Section 376

IPC and further to undergo simple imprisonment for three

months under Section 506-I IPC, was confirmed.

3. The case of the prosecution which led to the

conviction and sentence of the appellant emerges out of

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

Station Nahan by the prosecutrix/the victim girl aged 17

years who suffered the offence of rape at the instance of

the appellant. She has stated in the FIR that on

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

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

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

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

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

who had forcibly caught hold of her. She enquired the

reason for holding her to which the accused did not

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Page 3 respond. The appellant thereafter physically abused her

body specially the chest portion removed her clothes

made her lie on the ground and inflicted sexual assault by

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

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

appellant after raping her left the place and threatened

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

will have to pay for the consequence of disclosing the

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

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

her parents for several days but she remained tense on

account of trauma that she had been suffering due to the

heinous incident. However, the tension that brewed in her

mind, increased so much that on 02.09.2006, she

attempted to commit suicide by consuming some poison

and she became unconscious after which she was

admitted into the Hospital at Dadahu and then shifted to

Nahan and finally to the PGI, Chandigarh. On regaining

her consciousness, she disclosed the incident to her

parents and brother Ramesh Chand. She was discharged

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Page 4 from PGI, Chandigarh on 10.09.2006 and thereafter she

reported the case at Police Station Nahan.

4. The prosecutrix/victim girl was then subjected

to medical examination and the case was investigated by

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

12.09.2006 and on completion of investigation,

chargesheet was submitted in the Court of learned Chief

Judicial Magistrate, Nahan who committed the case vide

order dated 19.05.2007 for trial.

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

prosecution examined 11 witnesses and also produced

documentary evidence. The accused was also examined

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

case and took the plea that the witnesses have deposed

against him due to previous enmity. However, the learned

Session Judge on a scrutiny of the evidence and on

conclusion of the trial, convicted and sentenced the

accused as noted above.

6. The appellant preferred an appeal before the

High Court of Himachal Pradesh at Shimla against the

judgment and order of the Trial Court, wherein he

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Page 5 reiterated his defence version that he had been falsely

implicated in the case due to previous enmity with the

victim's family and the learned Sessions Judge had not

appreciated the evidence properly and in correct

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

where conviction should have been recorded on the basis

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

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

contended that the medical evidence belies the case of

the prosecution and it was sought to be explained that the

prosecutrix was suffering from the fear of compartmental

examination in which she had to appear which was to

commence in September 2006 and out of fear of

examination, the prosecutrix has consumed poison and

not for the reason that she had been allegedly raped by

the accused.

7. The learned single Judge of the High Court

however did not feel persuaded to interfere with the

judgment and order of conviction and, therefore, upheld

the conviction and sentence imposed on the appellant by

the trial Court. The appellant therefore has preferred this

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Page 6 appeal assailing the judgment and order passed by the

concurrent judgment and order of the trial court and the

High Court.

8. The learned Amicus Curiae representing the

appellant practically repeated the submissions which had

been advanced before the trial Court and the first

appellate court and urged that the appellant has been

falsely implicated in the present case which was lodged by

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

the defence story to the effect that the girl attempted

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

have done it on account of the examination fever which

must have led her to consume poison. It was further

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

FIR against the appellant as the alleged occurrence took

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

registered on 11.09.2006. It was further contended that

there is nothing in the statement of the victim girl about

the nature of injuries which she sustained on her right leg

and chest at the time when the alleged rape was forcibly

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

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Page 7 from the evidence that the injuries with the prosecutrix

has stated in her cross-examination to have sustained on

her right leg and chest would in normal course come in

medical examination conducted after 21 days of the

alleged incident. Therefore, the prosecution/the victim girl

cannot be permitted to take benefit of the statement of

the prosecutrix that some injuries were caused on the

person and those injuries were not noticed by the Doctor

and reflected in the medical report.

9. It was still further contended that the Courts

should not act on the solitary evidence of the prosecutrix

and it should be extremely careful in accepting the sole

testimony of the prosecutrix when the entire case is

improbable and unlikely to happen.

10. The counsel for the respondent-State however

supported the reasons relied upon by the High Court as

also the Sessions Court for upholding the conviction and

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

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

the prosecutrix became unconscious on consuming

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

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Page 8 there she was taken to Nahan and then to PGI, Chandigarh

where she remained admitted till 10.09.2006. The victim

girl on regaining consciousness at PGI, Chandigarh was

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

the victim girl as to why she had consumed poison to

which the prosecutrix stated that on 20.08.2006, the

accused had committed rape on her in the Jungle and he

had threatened her not to disclose the incident to anyone

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

incident, she consumed poison as she was feeling

ashamed due to the offence committed upon her by the

accused. After discharge from PGI, Chandigarh on

10.9.2006, FIR was lodged and the witness PW2- Daulat

Ram - father of the girl was subjected to cross-

examination on this aspect at the stage of trial but he

withstood the same by stating that there was no civil

litigation with the family of the accused so as to implicate

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

girl corroborated the statement of the victim prosecutrix

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

when the prosecutrix disclosed the fact that the accused –

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Page 9 appellant committed rape upon her. PW-4 Prem Pal,

Panchayat Sahayak had proved the birth certificate and

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

girl is 06.01.1987 indicating that she was a minor on the

date of the incident.

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

victim girl had deposed that before examining the

prosecutrix-victim, she narrated the history which was

noted down by the Doctor. The Doctor further deposed

that there was no fresh evidence, bleeding or tear or

scratch over the vulva outside and inner mucosa. There

was slightly reddened area over outer mucosa lower side

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

to mucosa. The Doctor further recorded that hymen of the

girl was intact. There was no evidence of any forceful

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

thereafter subjected to radiologist for x-ray for

ascertaining her age and was sent to ultrasonography for

pelvic problem as also dental surgeon for the

determination of her age. The Doctor further noted that

the attempt of rape could not be proved because of

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Page 10 examination done after 21 days of the occurrence.

Extensive cross-examination was done on the question as

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

proved when there was no evidence regarding the offence

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

The other evidence in regard to proof of age of the

prosecutrix was also adduced including matriculation

examination certificate of the victim girl showing her date

of birth as 06.11.1987 and other evidence relating to her

entry into the various Hospitals where she had been

admitted.

12. We have taken note of and considered all the

arguments advanced by the counsel for the appellant in

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

happen at all and the FIR was registered merely due to

enmity. In this respect, the most important evidence

assailing the prosecution case is the evidence of the

doctor in which serious infirmities have been pointed out

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

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

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

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Page 11 hymen that it is not clear from the statement of the doctor

PW-5 which could reveal or prove that on actual

examination, she found the hymen of the prosecutrix

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

accused that the hymen of the victim girl was intact could

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

gap between the sexual assault and the examination of

the prosecutrix, the medical report of the prosecutrix not

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

view taken by the Courts below. The prosecutrix victim

has stood the test of cross examination as she has

specifically stated that the accused forcibly committed

sexual assault/rape on her against her wish on

20.08.2006. The defence however has tried to rely on the

medical report in order to create a doubt about the actual

assault on the victim girl.

13. While we have noted that the Doctor has not

categorically denied the rupture of hymen of the victim

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

supported by other attending circumstances and evidence

adduced by the prosecution through the victim girl which

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Page 12 is supported by her father and brother. Even if we were to

doubt the prosecution version due to alleged infirmity in

the medical evidence, it cannot be overlooked that the

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

of the accompanying circumstantial evidence in order to

test the veracity of the prosecution case. The delay in

lodging the FIR has been clearly explained by the

prosecution relating the circumstance and the witnesses

supporting the same have stood the test of scrutiny of the

cross examination as a result of which the version of the

victim girl cannot be doubted. The delay in lodging the

FIR thus stands fully explained.

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

doubt is sought to be created by the defence relying upon

the lacuna in the medical evidence which could not

establish the incident in view of non-committal statement

of the doctor regarding the hymen being intact, the

prosecution version cannot be brushed aside totally and

will have to be judged by the other attending

circumstances brought on record. The defence no doubt

has taken the plea that the girl had attempted suicide due

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Page 13 to the examination fear and not on account of the rape

alleged to have been committed on her but the same does

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

view, is not worth placing reliance for the victim girl

immediately on regaining consciousness had narrated the

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

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

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

possible to overlook or ignore the trauma that the victim

girl must have suffered for 22 days after the sexual

assault/rape committed on her specially when she could

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

the appellant extremely unworthy of reliance so as to

demolish the version of the prosecutrix supported by

circumstantial evidence. The version of the victim girl

who was suffering the trauma of rape and was provoked

to take the extreme step of consuming poison, cannot be

doubted ignoring even the fact that a girl would put

herself to disrepute and go to the extent of supporting her

parents to lodge a false case merely due to some enmity

with the family of the accused putting her honour at stake

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Page 14 in a precarious mental state. In fact, we are prone to infer

with reason that if the prosecution had an intention of

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

that they would have created a story having a huge time

gap between the date of incident and the date of

lodgement of the FIR leaving the scope of weakening the

prosecution case. If it were a well thought out concocted

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

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

than 20 days between the incident and the lodgement of

the FIR. This clinching circumstantial evidence demolishes

the defence version and inspires much confidence in what

has been stated by the victim girl.

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

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

down as follows is worthwhile to be referred to:-

“Presumption as to absence of consent in

certain prosecutions for rape.- In a

prosecution for rape under clause (a) or

clause (b) or clause (c) or clause (d) or clause

(e) or clause (g) of sub- section (2) of section

376 of the Indian Penal Code, where sexual

intercourse by the accused is proved and the

question is whether it was without the

consent of the woman alleged to have been

raped and she states in her evidence before

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Page 15 the Court that she did not consent, the Court

shall presume that she did not consent.”

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

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

also impliedly would be applicable in a matter of this

nature where the victim girl had gone to the extent of

committing suicide due to the trauma of rape and yet is

sought to be disbelieved at the instance of the defence

that she weaved out a concocted story even though she

suffered the risk of death after consuming poison. If this

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

to what is the need of incorporating an amendment into

the Indian Evidence Act by incorporating Section 114A

which clearly has been added to add weight and credence

to the statement of the victim woman who suffers the

offence of rape and a claustrophobic interpretation of this

amended provision cannot be made to infer that the

version of the victim should be believed relating merely to

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

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

taken into account relying upon the amended Section 114-

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Page 16 A of the Indian Evidence Act which we clearly do, then

even if there had been a doubt about the medical

evidence regarding non rupture of hymen the same would

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

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

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

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

victim girl is fit to be believed due to the attending

circumstances that she was subjected to sexual assault of

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

acute which led her to the extent of committing suicide

which she miraculously escaped, it would be a travesty of

justice if we were to disbelieve her version which would

render the amendment and incorporation of Section 114A

into the Indian Evidence Act as a futile exercise on the

part of the Legislature which in its wisdom has

incorporated the amendment in the Indian Evidence Act

clearly implying and expecting the Court to give utmost

weightage to the version of the victim of the offence of

rape which definition includes also the attempt to rape.

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Page 17 16. In the instant matter, in view of the evidence led

by the witnesses, supported by the circumstantial

evidence, the prosecution version is fit to be relied upon

brushing aside the theory of improbability of the offence

and holding the prosecution case proved beyond

reasonable doubt, leading to the conclusion that the

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

been described by the victim girl who was only 17 years

and hence a minor at the time of the incident supported

by the medical evidence which although might be

somewhat weak, gains strength from other attending

circumstantial evidence wherein there is no missing link in

the chain of events.

17. In view of the aforesaid scrutiny and analysis of

the evidence on record, we find no substance in this

appeal and hence uphold the conviction and sentence

imposed on the appellant. Accordingly the appeal is

dismissed.

……………………… J.

(T.S. Thakur)

……………………… J.

(Gyan Sudha Misra)

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Page 18 New Delhi

April 23, 2014

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