REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.670 OF 2003

Rajinder @ Raju …..Appellant

Vs.

State of H.P. ….Respondent

J U D G E M E N T

R.M. LODHA, J.

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 assault – it is

often destructive of the whole personality of the victim. The

murderer destroys the physical body of his victim. Rapist degrades

the very soul of the helpless female. [State of Punjab vs. Gurmit

Singh and Others

1

]

2.First, a brief reference to the prosecution case.

The prosecutrix (name with-held by us), a young girl about 18 years

of age, was staying with her parents in village Kothi, district Bilaspur,

(H.P.). The accused, Rajinder@Raju, resident of village Duhak,

district Bilaspur, had taken contract for laying G.I. Pipelines in

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(1996) 2 SCC 384

village Kothi near the residence of the prosecutrix. In that

connection, he used to store his material in the house of prosecutrix’

parents. On January 16, 1996, prosecutrix had some throat pain.

When the accused came to the house of the prosecutrix and came

to know that the prosecutrix has been suffering from throat pain, he

suggested to the mother of the prosecutrix that his cousin at

Ghumarwin was a doctor and if permitted, he could show the

prosecutrix to his cousin. The mother of the prosecutrix agreed.

The accused took the prosecutrix on his scooter at about 3.00 P.M.

Instead of taking the prosecutrix to Ghumarwin, he took her to Jablu

stating that he had to collect the rent from his tenants. From Jablu,

the accused took prosecutrix to Berthin. The accused reached

Berthin at about 8.00 - 8.30 P.M. alongwith the prosecutrix. At

Berthin, the accused bought some sweets and told the prosecutrix

that he would take her to his house as it was dark. The accused

instead of taking her to his house, took the scooter to some kachha

road and made her to get down from the scooter. After spreading

his pattu on the ground and gagging the prosecutrix mouth made her

lie down; untied her salwar and committed the sexual intercourse

with her forcibly. The accused then left her leaving behind his pattu

and torch. After the accused had left, the prosecutrix saw some

light from a house down the road. She walked upto that house and

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told the lady, Smt. Bimla Devi, (PW-2) residing there, of the

incident. The prosecutrix stayed overnight in the house of PW-2.

PW-2 told the whole incident to her husband (PW-3). In the morning

PW-3 called villagers; the statement of prosecutrix was recorded by

one of the villagers viz., Roop Singh (PW-4). The FIR was then

registered at the Ghumarwin Police Station. The prosecutrix and the

accused were got medically examined. The Investigating Officer

took the apparel of the prosecutrix in his possession and the same

was sent for chemical analysis alongwith vaginal slide and

underwear of the accused. During the investigation, it also

transpired that the prosecutrix belonged to Scheduled Caste. After

completion of the investigation, a charge-sheet was filed against the

accused under Sections 366 and 376 IPC and Section 3(XII) of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989.

3. The Sessions Judge, Bilaspur, framed a charge against

the accused for the aforesaid offences. The prosecution examined

the prosecutrix (PW-1), Smt. Bimla devi (PW-2), Suram Singh (PW-

3), Roop Singh (PW-4), Smt. Sheela Devi (PW-5), Prem Singh (PW-

6), Dr.S.C. Kaushal (PW-7), Police Officials (PWs 8 to 12) and Dr.

Savita Mehta (PW-13).

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4. The Statement of the accused under Section 313 Cr.P.C.

was recorded. He denied his involvement in the crime and set up

the defence that the case against him has been engineered at the

behest of PW-2, PW-3 and PW-6. He also stated in his statement

under Section 313 Cr.P.C. that mother of the prosecutrix (PW-5)

had taken timber worth Rs. 5,000/- and when he demanded payment

of due amount, PW-5 demanded Rs. 50,000/- from him and said

that after payment of the aforesaid amount only she would finish the

case against him.

5. The Sessions Judge, Bilaspur on consideration of the

evidence on record, acquitted the accused of the charge under

Section 3(XII) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 but convicted the accused under

Sections 366 and 376 IPC. The accused was sentenced to rigorous

imprisonment for seven years and to pay a fine of Rs. 10,000/- with

default stipulation for the graver offence under section 376 IPC only.

6. The accused challenged his conviction and sentence

before the High Court of Himachal Pradesh. The learned Single

Judge dismissed the appeal preferred by the accused. Hence the

present appeal by special leave.

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7. Mr. Ashok Mehta, the learned Counsel for the accused

did not dispute before us that the accused had sexual intercourse

with the prosecutrix at the time and place of occurrence. The thrust

of his contention was that the accused did not commit the alleged

act forcibly; rather such act was committed by the accused with the

consent and free will of the prosecutrix. The aforesaid contention

was argued before the High Court as well and the following

circumstances were pressed into service viz., that the prosecutrix at

the relevant time was 18 years of age and thus capable of

consenting to the act of sex; that the absence of injury/injuries on the

person of the prosecutrix is suggestive of her consent which is

further fortified by the fact that the act of sex is said to have been

done after the accused had laid the pattu on the ground and that the

prosecutrix accompanied the accused voluntarily from the very

beginning; and that the aspect of the accused having threatened

the prosecutrix at the point of dagger is palpably false as this does

not find mention in the FIR.

8. Since the act of sexual intercourse by the accused on

the prosecutrix is admitted, we do not deem it necessary to

consider the medical evidence at great length. Suffice it to say

that Dr. Savita (PW-13) examined the prosecutrix on January 18,

1996. At that time her clothes were found soiled with blood. PW-13

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opined that sexual intercourse was committed with the prosecutrix

within 48 hours of her examination. She also conducted the vaginal

test to ascertain the presence of spermatozoa. According to PW-13,

the prosecutrix was not habitual to sexual intercourse and, in her

opinion, the prosecutrix was sexually assaulted for the first time

before she examined her. She was not in a position to opine whether

the sexual act was with consent of the prosecutrix or it was

committed forcibly. In the circumstances, it admits of no doubt that

the accused had sexual intercourse with the prosecutrix on the date

and place of occurrence. The core area of debate is whether such

act was committed with the consent of the prosecutrix or not.

9. The prosecutrix in her deposition has been categorical,

clear and unequivocal that the accused committed forcible sexual

intercourse with her. She testified:

“While going, the accused stopped the scooter at a

lonely place on the road and thereafter he dragged me

by holding me from my arm at some distance from the

road and gagged my mouth and after placing ‘pattu’

on the ground, he untied my salwar and committed the

sexual intercourse with me. I had felt a pain in my

private part and the blood started oozing.”

10. It is true that in her cross examination she stated that the

accused had threatened her with a dagger before Jablu when she

refused to go with him and this aspect was neither stated in her

statement under Section 161 Cr.P.C. nor in the FIR but does this

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contradiction make her evidence unreliable. We do not think so. The

trial court as well as High Court has accepted her evidence. We find no

justifiable reason to take a different view.

11. The circumstances which have been pointed out by the

learned counsel neither individually nor collectively lead to any

plausible inference that the sexual intercourse with the prosecutrix by

the accused was done with her tacit consent.

12. The learned counsel for the appellant relied upon few

decisions of this Court, namely, (1) Pratap Misra and Ors. vs. State

of Orissa

2

, (2) Sadashiv Ramrao Hadbe vs. State of Maharashtra and

Anr.

3

,(3) Narayan alias Naran vs. State of Rajasthan

4

and (4) Radhu

vs. State of Madhya Pradesh

5

.

13. That the accused is not bound by his pleading and that it is

open to him to prove his defence even from the admissions made by

the prosecution witness or the circumstances proved in the case admits

of no doubt. However, so far as decision in the case of Pratap Misra

is concerned, this Court on consideration of the evidence let therein

held that the appellants had sexual intercourse with the prosecutrix with

her tacit consent and the connivance of her husband. This Court held

2

(1977) 3 SCC 41

3

(2006) 10 SCC 92

4

(2007) 6 SCC 465

5

(2007) 12 SCC 57

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that there was no material at all to prove the allegation of rape. Even

the medical evidence therein did not support the prosecution case. We

are afraid the decision of this Court in Pratap Misra turned on its own

facts and is of no help to the appellant herein.

14. In Sadashiv Ramrao Hadbe, this Court while reiterating that

in a rape case, the accused could be convicted on the sole testimony of

prosecutrix if it is capable of inspiring the confidence in the mind of the

Court, put a word of caution that the Court should be extremely careful

while accepting the testimony when the entire case is improbable and

unlikely to have happened. This is what has been stated:

“9. It is true that in a rape case the accused could

be convicted on the sole testimony of the prosecutrix, if

it is capable of inspiring confidence in the mind of the

court. If the version given by the prosecutrix is

unsupported by any medical evidence or the whole

surrounding circumstances are highly improbable and

belie the case set up by the prosecutrix, the court shall

not act on the solitary evidence of the prosecutrix. The

courts shall be extremely careful in accepting the sole

testimony of the prosecutrix when the entire case is

improbable and unlikely to happen.”

15. It is pertinent to notice that in Sadashiv Ramrao Hadbe,

this Court found that the prosecution evidence suffered from many

contradictions and the whole incident seemed to be highly

improbable. It is true that in Sadashiv Ramrao Hadbe, this Court

observed that the absence of injuries on the body of the prosecutrix

improbabilise the prosecution version but the aforesaid observation

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has to be understood in the context of the insufficiency of evidence

even to establish sexual intercourse. This is what this Court said:

“10. In the present case there were so many

persons in the clinic and it is highly improbable that the

appellant would have made a sexual assault on the

patient who came for examination when large number of

persons were present in the near vicinity. It is also highly

improbable that the prosecutrix could not make any

noise or get out of the room without being assaulted by

the doctor as she was an able-bodied person of 20 years

of age with ordinary physique.”

The decision in Sadashiav Ramrao Hadbe does not help

the accused at all.

16. In the Case of Narayan, it was held by this Court that the

evidence of prosecutrix was full of contradictions. In the back-drop

of the allegations made in the FIR that the accused committed rape

with prosecutrix thrice, this Court held that absence of injuries

either on her body or private parts ruled out the prosecution case of

forcible sexual intercourse. Suffice it to say that the case of

Narayan turned on its own facts. Insofar as legal position is

concerned, this Court reiterated that evidence of prosecutrix can

alone sustain conviction of the accused.

17. This Court in Radhu considered the matter thus:

“12. Dr. Vandana (PW 8) stated that on examination of

Sumanbai, she found that her menstrual cycle had not

started and pubic hair had not developed, and that her

hymen was ruptured but the rupture was old. She stated

that there were no injuries on her private parts and she

could not give any opinion as to whether any rape had

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been committed. These were also recorded in the

examination report (Ext. P-8). She, however, referred to an

abrasion on the left elbow and a small abrasion on the arm

and a contusion on the right leg of Sumanbai. She further

stated that she prepared two vaginal swabs for

examination and handed it over along with the petticoat of

Sumanbai to the police constable, for being sent for

examination. But no evidence is placed about the results

of the examination of the vaginal swabs and petticoat.

Thus, the medical evidence does not corroborate the case

of sexual intercourse or rape.

13. We are thus left with the sole testimony of the

prosecutrix and the medical evidence that Sumanbai had

an abrasion on the left elbow, an abrasion on her arm and

a contusion on her leg. But these marks of injuries, by

themselves, are not sufficient to establish rape, wrongful

confinement or hurt, if the evidence of the prosecutrix is

found to be not trustworthy and there is no corroboration.

14. Lalithabai says that when Sumanbai did not return, she

enquired with Gyarsibai. Sumanbai also says that she

used to often visit the house of Gyarsibai. She says that

Radhu’s parents are kaka and baba of her mother and

Radhu was her maternal uncle. The families were closely

related and their relationship was cordial. In the

circumstances, the case of the prosecution that Gyarsibai

would have invited Sumanbai to her house to abet her son

Radhu to rape Sumanbai and that Gyarsibai was present

in the small house during the entire night when the rape

was committed, appears to be highly improbable in the

light of the evidence and circumstances.

15. The FIR states that one Dinesh was sent by Lalithabai

to fetch her husband. Lalithabai and Mangilal have stated

that they did not know anyone by the name Dinesh.

Sumanbai stated in her evidence that on 29-1-1991, as her

father was away, her brother-in-law went to bring back her

father, that the name of her brother-in-law is Ramesh, but

the SHO wrongly wrote his name as “Dinesh”. But none

else mentioned about such a mistake. Neither Ramesh nor

Dinesh was examined.

16. The evidence of the prosecutrix when read as a whole,

is full of discrepancies and does not inspire confidence.

The gaps in the evidence, the several discrepancies in the

evidence and other circumstances make it highly

improbable that such an incident ever took place. The

learned counsel for the respondent submitted that the

defence had failed to prove that Mangilal, father of the

prosecutrix was indebted to Radhu’s father Nathu and

consequently, defence of false implication of the accused

should be rejected. Attention was invited to the denial by

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the mother and father of the prosecutrix of the suggestion

made on behalf of the defence that Sumanbai’s father

Mangilal was indebted to Radhu’s father Nathu and

because Nathu was demanding money they had made the

false charge of rape to avoid repayment. The fact that the

defence had failed to prove the indebtedness of Mangilal

or any motive for false implication does not have much

relevance as the prosecution miserably failed to prove the

charges. We are satisfied that the evidence does not

warrant a finding of guilt at all, and the trial court and the

High Court erred in returning a finding of guilt.”

18. Again in the case of Radhu, the evidence of prosecutrix

was found full of discrepancies and not worthy of credence. The

medical evidence also did not corroborate the case of sexual

intercourse or rape. In Radhu this Court reiterated the legal position

thus:

“6. It is now well settled that a finding of guilt in a case

of rape, can be based on the uncorroborated evidence

of the prosecutrix. The very nature of offence makes it

difficult to get direct corroborating evidence. The

evidence of the prosecutrix should not be rejected on

the basis of minor discrepancies and contradictions. If

the victim of rape states on oath that she was forcibly

subjected to sexual intercourse, her statement will

normally be accepted, even if it is uncorroborated,

unless the material on record requires drawing of an

inference that there was consent or that the entire

incident was improbable or imaginary. Even if there is

consent, the act will still be a “rape”, if the girl is under

16 years of age. It is also well settled that absence of

injuries on the private parts of the victim will not by

itself falsify the case of rape, nor construed as

evidence of consent.”

It has, thus, been held in Radhu that absence of injuries

on the private parts of the victim cannot be construed as evidence of

consent.

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19. In State of Rajasthan vs. N.K.

6

, this Court held thus:

“19. For the offence of rape as defined in Section 375

of the Indian Penal Code, the sexual intercourse

should have been against the will of the woman or

without her consent. Consent is immaterial in certain

circumstances covered by clauses thirdly to sixthly, the

last one being when the woman is under 16 years of

age. Based on these provisions, an argument is usually

advanced on behalf of the accused charged with rape

that the absence of proof of want of consent where the

prosecutrix is not under 16 years of age takes the

assault out of the purview of Section 375 of the Indian

Penal Code. Certainly consent is no defence if the

victim has been proved to be under 16 years of age. If

she be of 16 years of age or above, her consent cannot

be presumed; an inference as to consent can be drawn

if only based on evidence or probabilities of the case.

The victim of rape stating on oath that she was forcibly

subjected to sexual intercourse or that the act was

done without her consent, has to be believed and

accepted like any other testimony unless there is

material available to draw an inference as to her

consent or else the testimony of prosecutrix is such as

would be inherently improbable.”

20. This Court, in the case of Gurmit Singh

1

, made the

following weighty observations in respect of evidence of a victim of

sexual assault:

“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. The inherent bashfulness of the females and the

tendency to conceal outrage of sexual aggression

are

6

(2000) 5 SCC 30

12

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? The court while appreciating the evidence

of a prosecutrix may look for some assurance of her

statement to satisfy its judicial conscience, since she is

a witness who is interested in the outcome of the

charge levelled by her, but there is no requirement of

law to insist upon corroboration of her statement to

base conviction of an accused. The evidence of a

victim of sexual assault stands almost on a par with the

evidence of an injured witness and to an extent is even

more reliable. Just as a witness who has sustained

some injury in the occurrence, which is not found to be

self-inflicted, is considered to be a good witness in the

sense that he is least likely to shield the real culprit, the

evidence of a victim of a sexual offence is entitled to

great weight, absence of corroboration

notwithstanding. Corroborative evidence is not an

imperative component of judicial credence in every

case of rape. Corroboration as a condition for judicial

reliance on the testimony of the prosecutrix is not a

requirement of law but a guidance of prudence under

given circumstances. It must not be overlooked that a

woman or a girl subjected to sexual assault is not an

accomplice to the crime but is a victim of another

person’s lust and it is improper and undesirable to test

her evidence with a certain amount of suspicion,

treating her as if she were an accomplice. Inferences

have to be drawn from a given set of facts and

circumstances with realistic diversity and not dead

uniformity lest that type of rigidity in the shape of rule of

law is introduced through a new form of testimonial

tyranny making justice a casualty. Courts cannot cling

to a fossil formula and insist upon corroboration even if,

taken as a whole, the case spoken of by the victim of

sex crime strikes the judicial mind as probable.”

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21. 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. Insofar as the present case is concerned, the

circumstances referred to and pointed out by the learned counsel

are neither sufficient nor do they justify discarding the evidence of

the prosecutrix. There is nothing on record that creates any

doubt/disbelief or a suspicion about the evidence of the prosecutrix.

In a case, such as this, where the prosecutrix was misrepresented

by the accused that he would show her to his cousin (a doctor) as

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she was suffering from some throat pain and she accompanied him

but the accused took her to other places and when it became dark,

took her to a lonely place and committed sexual intercourse, the

prosecutrix was not expected to put any resistance lest her life

would have been in danger. In the facts and circumstances, the

absence of injuries on the person of the prosecutrix does not lead to

an inference that she consented for sexual intercourse with the

accused. The young girl became victim of lust of the accused who

was more than double her age and yielded to sexual intercourse

against her will.

22. In all, we find that the judgment of the High Court

affirming the judgement of the trial court convicting the accused

under Sections 366 and 376 IPC does not suffer from any legal

flaw. The sentence awarded to the appellant does not call for any

interference by this Court. The appeal having no merit must fail and

is dismissed. The appellant will surrender to his bail bond and will

be taken into custody to serve out the sentence as awarded.

………………….J

(V.S.Sirpurkar)

………………….J

(R.M. Lodha)

New Delhi,

July 7, 2009.

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