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

Criminal Appeal No.139 of 2008

Reserved on : 11.3.2015

Date of Decision : March 18, 2015

State of Himachal Pradesh ...Appellant.

Versus

Varun Kumar and another ...Respondents.

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. V.S. Chauhan, Additional

Advocate General, and Mr. Vikram

Thakur, Deputy Advocate

General.

For the Respondents : Mr. Ashwani Sharma, Advocate for

respondent No.1.

Mr. J.R. Thakur, Advocate, for

respondent No.2

Sanjay Karol, Judge

State has appealed against the judgment

dated 5.12.2007 of the learned Sessions Judge, Hamirpur,

Himachal Pradesh, passed in Sessi ons Trial No.11 of

2007, titled as State v.Varun Kumar & another,

challenging the acquittal of respondents Varun Kumar

and Deepak Rai Verma (hereinafter referred to as the

accused).

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

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2. It is the case of prosecution that prosecutrix

(PW-4), a student of 10

th

Class, was residing with her

mother at village Khagal (District Hamirpur), Himachal

Pradesh. At the end of the academic session, on

27.2.1007, a farewell party was arranged in the school,

where prosecutrix was studying. After the party,

prosecutrix went to the house of her friend Kanchan (PW-

10), where accused Varun Kumar met her and took her to

the house of his cousin co-accused Deepak Rai Verma, at

Una, where they spent night. During midnight accused

forcibly committed sexual intercourse with the

prosecutrix. Finding that prosecutrix had not reached the

house of her Mausi, as she had informed her mother, her

uncle girdhari Lal (PW-6) lodged report with the police, on

the basis of which FIR No.88 dated 28.2.2007 (Ex. PW -

6/A), under the provisions of Sections 363,336 of the

Indian Penal Code, was registered at Police Station, Sadar

(Hamirpur). When accused Varun Kumar learnt about the

same, Deepak Rai took them to his factory at Tahaliwal,

near Una. There prosecutrix spent som e time, where

again she was subjected to carnal intercourse by accused

Varun Kumar. Next day, Deepak Rai Verma brought back

accused Varun Kumar and the prosecutrix to his house

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and handed over the custody to the police. Investigation

was taken over by SI Guler Chand, who got the

prosecutrix medially examined from Dr. Deepa Diwan

(PW-1) and Dr. Kavita (PW-2), who issued MLCs (Ex. PW-

1/B and 2/B). Investigation revealed that prosecutrix, as

on the date of commission of crime, was minor and as

such, her ossification test was got conducted through

Radiologist Partap Chand Indoria (PW -3) and Dr. D.V.

Kulkarni (PW-5). Skiagrams and X -Ray rports (Ex.PW-

3/A1 to A-4 & Ex. PW-5/A) were taken on record by the

police. Also certificates establishing date of birth of the

prosecutrix were taken on record by the police from Jai

Kishan (PW-13) and Ms Pushpa Thakur (PW -14). Police

also took into possession Chaddar , mattress, clothes,

vaginal swab, which were sent for chemical analysis and

report (Ex. PX) obtained and taken on record. With the

completion of investigation, which revealed complicity of

both the accused in the alleged crime, challan was

presented in the Court for trial.

3. Accused Varun Kumar was charged for having

committed an offence punishable under the provisions of

Sections 363, 366, 376 & 377 of the Indian Penal Code

and accused Deepak Rai Verma was charged for having

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committed offences under the provisions of Sections 212

and 368 of the Indian Penal Code, to which they did not

plead guilty and claimed trial.

4. In order to establish its case, prosecution

examined as many as 23 witnesses and statements of

the accused under the provisions of Section 313 of the

Code of Criminal Procedure were also recorded, in which

accused Deepak Rai Verma pleaded innocence and false

implication, however accused Varun Kumar took the

following defence:

“I am innocent. I have not committed

any wrong act. A false case has been foisted

against me by the prosecutrix and her mother

in order too make pressure on me and my

parents to marry her daughter.”

5. Based on the testimonies of witnesses and

the material on record, trial Court acquitted both the

accused persons of the charged offences. Hence, the

present appeal by the State.

6. Finding that prosecution failed to establish its

case, trial Court acquitted the accused, primarily on the

following grounds. (i) Prosecutrix was not minor, (ii)

medical evidence did not conclusively establish

commission of crime, and (iii) in any event it was a case

of consent.

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7. Having heard learned counsel for the parties

as also perused the record, we are of the considered view

that the findings retuned by the trial Court cannot be said

to be based on complete and proper appreciation of

evidence on record. In our considered view, acquittal has

resulted into miscarriage of justice, for prosecution has

been able to establish its case, beyond reasonable doubt,

against accused Varun Rana. As such, in our considered

view, appeal has to be partly allowed.

8. A Constitution Bench of the Hon’ble Supreme

Court of India in M.G. Agarwal v. State of Maharashtra,

AIR 1963 SC 200, has held that in dealing with an appeal

against judgment of acquittal, the appellate Court should

normally be slow in disturbing the findings of fact

recorded by the trial Court. However, there is a caveat.

Such findings have to be based on proper and complete

appreciation of evidence. Jurisdiction and the power of

the appellate Court is also to reappreciate the evidence

but with caution. The Court is not to substitute its own

opinion with that of the trial Court. It is also settled

position of law that where two views are possible, benefit

of doubt must be given to the accused.

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9. In Madan Gopal Makkad v. Naval Dubey and

another, (1992) 3 SCC 204, the Apex Court held the

scope of the Court in an appeal against acquittal in the

following manner:

“26. In Wilayat Khan v. State of U.P., AIR 1953

SC 122; this court while examining the scope of

S. 417 and 423 of the old Code pointed out that

even in appeals against acquittal, the powers of

the High court are as wide as in appeals from

convictions. See also (1) Surajpal Singh v. State,

AIR 1952 SC 52, (2) Tulsiram Kanu v. State, AIR

1954 SC 1, (3) Aher Raja Khima v. State of

Saurashtra, AIR 1956 SC 217, (4) Radha Kishan

v. State of U.P ., AIR 1963 SC 822, holding that

an appeal from acquittal need not be treated

different from an appeal from conviction; (5 )

Jadunath Singh v. State of U.P ., (1971) 3 SCC

577, (6) Dharam Das v. State of U.P., (1973) 2

SCC 216, (7) Barati v. State of U.P. , (1974) 4

SCC 258, and (8) Sethu Madhavan Nair v. State

of Kerala, (1975) 3 SCC 150.”

10. First, we shall deal with the medical evidence

on record. Prosecutrix categorically states that she was

subjected to sexual intercourse by accused Varun Kumar,

in the night of 27.2.2007. This was in the house of co-

accused Deepak Rai Verma, cousin of accused Varun

Kumar. She further states that on 28.2.2007, accused

subjected her to carnal intercourse at Tahaliwal.

Investigating Officer Guler Chand (PW-23) deputed HC

Surjit and lady Constable Swaran Lata for getting the

prosecutrix medically examined at the Regional Hospital,

Hamirpur, where she was first examined by Dr. Deepa

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Diwan. Now, this doctor, at the time of medical

examination, observed that prosecutrix, who was

menstruating, had ruptured hymen and one fing er (inside

vagina) could be easily inserted. On touch, it was tender.

The doctor categorically opined that prosecutrix may

have undergone sexual intercourse within one week prior

to her examination, which was done on 2.3.2007. The

doctor advised the prosecutrix to be examined again

after completion of her menstrual period.

11. It appears that since prosecutrix did not

disclose to the said doctor, that she was subjected to

carnal intercourse, as such same day, she was again got

examined from Dr. Kavita, who on physical examination

did not find any evidence of carnal intercourse, but on

the basis of report of the Chemical Examiner, finally, did

not rule out the possibility of prosecutrix being subjected

to such act.

12. From the testimony of both the doctors, signs

of semen were not found on the vaginal swab, but then it

is also a matter of fact that the doctors have specifically

opined the hymen to be ruptured and possibility of the

prosecutrix being subjected to sexual intercourse not

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ruled out. Medical evidence cannot be said to have

rendered the prosecution version to be false or incorrect.

13. 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.

14. 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

subjected to rape. (Radhakrishna Nagesh v. S tate of

Andhra Pradesh, (2013) 11 SCC 688).

15. 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).

16. We shall now deal with the question of age of

the prosecutrix. Significantly, at the time of her medial

examination, prosecutrix disclosed her age to be 15-15½

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years. Prosecutrix states that she was born on 6.4.1992.

Even in the testimony of Kanchan (PW -10), it has come

that prosecutrix used to disclose her age as 15 years.At

the time of commission of crime, she was studying in 10

th

class. She admits to have failed twice in her class. We

find that prosecutrix was lastly studying in a private

school and not a Government school. Record pertaining

to her admission in a Private School is not there. Thus,

her failure in two classes would not even create any

doubt, as is sought to be urged that prosecutrix was a

major.

17. Also, based on this testimony of hers,

accused Varun Kumar wants the Court to b elieve that

police created evidence to establish her age to be below

16 years. We find the contention to be totally

misconceived.

18. From the medical evidence, we find her age,

so recorded at the time of medical examination to be 15-

15½ years. X-Ray examination of the prosecutrix was

conducted by Pratap Chand (PW -3). Dr. D.V. Kulkarni

(PW-5), who conducted her skiagram test, has proved

report (Ex.PW-5/A). From this report, which is dated

7.3.2007, bony age of the prosecutrix is opined to be 15-

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15½ years. Our attention is invited to that part of his

statement where he states that “keeping in view the

variation, the age of the prosecutrix might be between

17-17½ years”. This version of the doctor is not based on

any scientific analysis of the prosecutrix. This version, it

appears, is based on his assessment . In any event

benefit of variation in age of two years can be on either

side.

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 stan ds 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)

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"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.

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

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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

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, con fidently,

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

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it is indeed difficult for any Doctor to say

with precision and exactitude as to when

a particular injury was caused ... as to the

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 pe nis 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

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the offence of rape without producing any

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. Any 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, vari ous 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. State ,

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. Be that as it may, we are of the considered

view that benefit of variation in age by two years cannot

be granted to the accused, in view of other overwhelming

evidence on record, establishing the age of the

prosecutrix to be less than 16 years.

23. Sunita Devi (PW-7) categorically states that

prosecutrix, her daughter, was born on 6.4.1992. She

admits that prosecutrix was born in village Kargu and

entry of her birth was recorded in Gram Panchayat Neri.

Prosecution has placed on record, birth certificate (Ex.

PW-13/A), which stands duly proved on record by Jai

Kishan (PW-13), Panchayat Sahayak of Gram Panchayat

Neri. Now this certificate also records date of birth of the

prosecutrix to be 6.4.1992. We find that date of

registration of birth of the prosecutrix is 24.4.1992, which

was immediately after her birth and not after the incident

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in question. Certificate issued is under the provisions of

Registration of Births and Deaths Act 1969 and Himachal

Pradesh Registration of Births and Deaths Rules, 2003. It

is a public document and this, in our considered view,

there is presumption in favour o f registration of this

document as also its contents.

24. Significantly, this presumption rema ins

unrebutted by the accused. Also we find that Pushpa

Thakur (PW-14) has proved on record certificate (Ex. PW-

14/A), so issued by her as Head Master of Government

Primary School, Khaggal, indicating date of birth of the

prosecutrix to be 6.4.1992. There is no rebuttal to the

same.

25. We do not find testimonies of these witnesses

to be shaken in any manner. Their deposition is truthful

in nature; is based on the record so maintained by the

Institutions in the normal course of business. As such, in

our considered view, prosecution has been able to prove

that prosecutrix was born on 6.4.1992 and her age, on

the date of commission of crime, i.e. 27.2.2007 was

below 16 years.

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26. 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. T he 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…………..”

27. 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 medical 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, hold that the

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

years on either side.

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(See: Vishnu alias Undrya v. State of

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

Aqeela and another v. State of U.P., (1998) 9

SCC 526).

28. The Court is duty bound when assessing the

presence or absence of consent, to satisfy itself that both

the parties are ad idem on essential features. (Vinod

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

29. In the instant case, one cannot forget that

prosecutrix was in the company of accused Varun Kumar,

in the house of his relative. She has explained that she

remained mum, as accused Varun Kumar has asked her

to do so. Thus, keeping in view the law laid down by the

apex Court in Roop Singh v. State of Madhya Pradesh,

(2013) 7 SCC 89, relevant portion of which is reproduced

hereunder, it cannot be said that the prosecutrix

consented to the act of crime.

“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

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choice between resistance and as sent.

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)"

30. 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

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”.

31. 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 pr etext 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

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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.

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 al so

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-

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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 behin d 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.” ”

32. 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 see: Kailash alias Tanti Banjara v. State of

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

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

33. From the testimony of Sunita as also

prosecutrix, it is evident that after attending the farewell

function in the school, prosecutrix was not to return home

but to spend the night in the house of her Mausi, who

lived closeby. It is the specific case of the prosecution

that instead of going to the house of her Mausi,

prosecutrix went to spend the night in the house of her

friend Kanchan (PW-10), where she met accused Varun

Kumar, who took her to Una. Prosecution has also

examined Lalita (PW-9), another friend of the prosecutrix.

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We find that both Kanchan and Lalita have not supported

the prosecution. They were declared hostile and

extensively cross-examined by the prosecution.

34. From the conjoint reading of testimonies of

these witnesses, it appears that accused Varun Kumar

tried to set up a defence of familiarity and consent. Effort

is made to establish that prosecutrix knew him from

before and voluntarily went with him. Such fact still

would not absolve accused Varun Kumar from his

complicity in the alleged crime. Kanchan does admit that

she knew accused Varun Kumar alias Sonu very well. But

then she was confronted with her previous statement,

duly proved by the Investigating Officer, wherein she had

categorically stated to the police that accused took the

prosecutrix in a private Bus towards Una. She also admits

that she had given the telephone number of accused

Sonu to the family members of the prosecutrix. She

admits that accused Varun used to treat her as also Lalita

as his sisters. Thus, to our min d version of the

prosecutrix, that from the house of Kanchan she was

taken away by the accused cannot be said to be false.

35. From the testimony of Girdhari Lal (PW -6),

Chuni Lal (PW-11) and Uttam Chand (PW -12), uncles of

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the prosecutrix, it is also evident that since prosecutrix

had not reached the house of her Mausi, her mother

became worried and asked Giardhari Lal to search for

her. Prosecutrix was not found in the house of any one of

the relatives. Resultantly, her friends were contacted,

who disclosed that prosecutrix had been taken away by

the accused to Una. Also, it has come on record through

the testimony of the Investigating Officer that when

prosecutrix was recovered she was in the custody of the

accused.

36. 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 effective

State police machinery for curbing the menace of rape,

for such crime is not only in cont ravention 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.

37. The Apex Court has highlighted the need for

prompt disposal of cases of crime against women and

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

SCC 353).

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

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

“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

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in consonance with the legislative command

and the discretion vested in the court.”

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

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

Court to adopt the following approach:

“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.”

40. 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.

41. 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.

42. In Radhakrishna Nagesh v. State of Andhra

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

under:

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“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

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 requi red to lend

assurance to the testimony of the

prosecutrix must necessarily depend on

the facts and circumstances of each case.

But if a prosecutrix is an adult and of full

understanding the court is entitled to

base a conviction on her evidence unless

the same is shown to be infirm and not

trustworthy. If the totality of the

circumstances appearing on the record of

the case disclose that the prosecutrix

does not have a strong motive to falsely

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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 story 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

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.’ "

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43. Prosecutrix, who hails from a rural

background, categorically states that that when she

reached the house of Kanchan, accused took her to Una

in a Bus. At that time she had borrowed two pairs of suits

from Kanchan. At Una, accused took her to the house of

his cousin Deepak Rai, who was residing with his wife and

small daughter. Accused and the prosecutrix slept in one

room, whereas Deepak Rai slept with his wife in another

room. During night, accused Varun Kumar subjected her

to forcible intercourse. Next morning, she changed her

clothes on the asking of wife of Deepak Rai. But then she

is not an accused. In the evening, she was told by

Deepak Rai that her family had lodged a report with the

police, who was searching for them. Thereafter, they

went to the factory premises of Deepak Rai and stayed

there. There accused subjected her to carnal intercourse.

Same day, at midnight, Deepak Rai brought them back to

his house at Una, but made them spent the night in the

car, which was parked by the side of his house. Next

day, Deepak Rai dropped them at Bus Stand Una, from

where they went to Chintpurni. From Chintpurni and

spent some time, accused Varun Kumar called Deepak

Rai, who asked them to come to the factory at Tahaliwal.

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When they reached there, Deepak Rai took them home

and handed over her custody to the family members of

accused Varun Kumar, who took them to Police Station,

Hamirpur.

44. From her testimony, it is evidently clear that

she was subjected to sexual intercourse by accused

Varun Kumar. We do not find this statement of hers to be

either false, untrue or unbelievable. It is fully inspiring in

confidence. Prosecutrix states that she did resist the acts

of the accused. Evidently, prosecutrix travelled from

place to place, in a public transport and did not disclose

such act to any one. But then she explains that accused

had asked her to keep mum. Medical evidence does not

rule out possibility of rape. Assuming hypothetically, that

prosecutrix had willfully volunteered herself to be

subjected to sexual intercourse, it becomes immaterial,

for she is minor in law.

45. Thus, the charges framed against accused

Varun Kumar stand fully proved on record by the

prosecution.

46. However, insofar as charges against accused

Deepak Rai Verma are concerned, we do not find the

same to have been proved on record. Prosecutrix does

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not state that accused Deepak Rai Verma was aware of

the fact that she was below 16 years of age or that she

was kidnapped and brought without the consent of her

parents or that the accused had seduced her to have

illicit intercourse and subjected her to rape or sodomy.

Even in the house of Deepak Rai or in his factory, where

prosecutrix was subjected to rape and sodomy, she did

not disclose any such fact to him. On the contrary, he

asked them to leave and also on their return , handed

over their custody to the lawful guardians.

47. Learned counsel has referred to various

judicial pronouncements, which we find are totally

irrelevant to the issue involved in the present case. We

have ourselves, after carefully examining the exposition

of law, referred to various decisions.

48. Thus, in our considered view, findings

returned by the trial Court cannot be said to be based on

correct and complete appreciation of material on record,

which are partly reversed. We hold accused Varun Kumar

guilty of having committed offences, punishable under

the provisions of Sections 363, 366, 376 and 377 of the

Indian Penal Code, for kidnapping the prosecutrix, when

was then below 16 years of age, from the lawful

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guardianship of her parents; seduced her to have illicit

intercourse; committed sexual intercourse with her; and

also committed carnal intercourse against the order of

nature with the prosecutrix. Hence, appeal against

accused Varun Kumar is allowed and against accused

Deepak Rai Verma is dismissed.

49. Here we must reiterate the following

directions issued by Hon’ble Supreme Court of India in

State of Gujarat v. Krishanbhai and others, (2014) 5 SCC

108:

“22. Every acquittal should be understood as a

failure of the justice delivery system, in serving

the cause of justice. Likewise, every acquittal

should ordinarily lead to the inference, that an

innocent person was wrongfully prosecuted. It is

therefore, essential that every State should put

in place a procedural mechanism, which would

ensure that the cause of justice is served, which

would simultaneously ensure the safeguard of

interest of those who are innocent . In

furtherance of the above purpose, it is

considered essential to direct the Home

Department of every State, to examine all

orders of acquittal and to record reasons for the

failure of each prosecution case. A standing

committee of senior officers of the police and

prosecution departments, should be vested with

aforesaid responsibility. The consideration at

the hands of the above committee, should be

utilized for crystalizing mistakes committed

during investigation, and/or prosecution, or

both. The Home Department of every State

Government will incorporate in its existing

training programmes for junior investigation

/prosecution officials course- content drawn

from the above consideration. The same should

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also constitute course-content of refresher

training programmes, for senior

investigating/prosecuting officials. The above

responsibility for preparing training

programmes for officials, should be vested in

the same committee of senior officers referred

to above. Judgments like the one in hand

(depicting more than 10 glaring lapses in the

investigation/prosecution of the case), and

similar other judgments, may also be added to

the training programmes. The course content

will be reviewed by the above committee

annually, on the basis of fresh inputs, including

emerging scientific tools of investigation,

judgments of Courts, and on the basis of

experiences gained by the standing committee

while examining failures, in unsuccessful

prosecution of cases. We further direct, that the

above training programme be p ut in place

within 6 months. This would ensure that those

persons who handle sensitive matters

concerning investigation/prosecution are fully

trained to handle the same. Thereupon, if any

lapses are committed by them, they would not

be able to feign innocence, when they are made

liable to suffer departmental action, for their

lapses.

23. On the culmination of a criminal case in

acquittal, the concerned investigating/

prosecuting official(s) responsible for such

acquittal must necessarily be identified. A

finding needs to be recorded in each case,

whether the lapse was innocent or

blameworthy. Each erring officer must suffer

the consequences of his lapse, by appropriate

departmental action, whenever called for.

Taking into consideration the seriousness of the

matter, the concerned official may be

withdrawn from investigative responsibilities,

permanently or temporarily, depending purely

on his culpability. We also feel compelled to

require the adoption of some indispensable

measures, which may reduce the mal ady

suffered by parties on both sides of criminal

litigation. Accordingly we direct, the Home

Department of every State Government, to

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formulate a procedure for taking action against

all erring investigating/prosecuting

officials/officers. All such erring officials/officers

identified, as responsible for failure of a

prosecution case, on account of sheer

negligence or because of culpable lapses, must

suffer departmental action. The above

mechanism formulated would infuse

seriousness in the performance of investigating

and prosecuting duties, and would ensure that

investigation and prosecution are purposeful

and decisive. The instant direction shall also be

given effect to within 6 months.”

50. Accused Varun Kumar be produced in the

Court on 8.4.2015 for hearing him on the question of

quantum of sentence.

Appeal stands disposed of, so also pending

application(s), if any.

( Sanjay Karol ),

Judge.

( P.S. Rana ),

March 18, 2015(sd) Judge.

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