Himachal Pradesh Vs. Mango Ram  INSC 445 (24 August 2000)
R.C. Lahoti, & K.G. Balakrishnan, J.
This appeal has been filed by the State of Himachal Pradesh against the acquittal of the accused for the offence under
Section 376 I.P.C. The respondent-accused was tried by the Court of Sessions
Judge, Chamba Division of Himachal Pradesh alleging that he committed rape of a
girl aged 13 years.
prosecution case is that the prosecutrix was the eldest daughter of Jagia Ram. Jagia
Ram is a small agriculturist residing with his wife Smt. Pinji and children in
a village by name Kuthed. He is a native of neighboring village Bhadhad. The
accused is his brother-in-law being the brother of his wife, Smt. Pinji.
accused was aged about 17 years and was the student of VIIIth standard during
the relevant time. On 17.4.1993, Smt. Pinji asked her daughter to go to village
Bhadhad and get the plough kept in the house of Jagia Ram. Prosecutrix left for
Bhadhad at about 6.00
p.m. on 17.4.1993.
Accused also accompanied the prosecutrix. When she entered her father's house
at Bhadhad to get the plough, accused followed her and when she reached the
cow-shed, she was caught by the accused from behind. Prosecutrix tried to
extricate herself from him but she was over-powered by the accused and was made
to lie on the floor of the cow-shed.
accused then untied the knot of her salwar and lifted it down and thereafter,
committed sexual act. There was a bleeding from her private part. The prosecutrix
returned home immediately and told her father Jagia Ram about the incident. Jagia
Ram went to PW 8, Sh. Devi Chand, Pradhan of the Gram Panchayat of the area
who, in turn, advised to lodge a complaint to the police. Jagia ram reported
the matter to the police. As the prosecutrix was having a severe pain and uncomfort,
she did not accompany her father to the police station.
police registered the case and investigation was commenced. Prosecutrix was
subjected to medical examination by the PW 2, Dr. Veena Sehgal. The accused was
arrested and PW 1, Dr. Hemant Sharma examined him. Police visited the place of
occurrence and recovered a blood stained piece of cloth. The salwar and kameez
worn by the prosecutrix at the time of the occurrence were also recovered. In
the course of investigation, the police collected a family history book which
indicated the age of the prosecutrix and the accused.
piece of cloth recovered from the place of occurrence and the kameez worn by
the prosecutrix were found to be stained with blood and on serological test
found to have blood of A +ve group. Even though, there were some blood stains
on the salwar, the grouping could not be made.
undergarments worn by the accused during the relevant time were also recovered
and subjected to chemical examination and it neither contained blood nor
was medically examined by PW 2 Dr.
She observed as under:- "She was a girl of average built, conscious, well
oriented in place and time.
4'-10½ ", weight 31 kg. Breasts and papilae were elevated as small mounds
and there was enlargement of areolas diameter. Axillary hairs were not
developed. Pubic hairs were not developed. She was referred to Dentist for
examining her dental age. There were no marks of violence over the breasts,
nipples, cheeks and lips. No marks of violence were seen on the external
genitals, perineum, abdomen, chest, back, limbs, neck and face. Menarche not
were no marks of injury over vulva. Hymen found intact with a small laceration
at 6'o clock position.
blood was seen at vaginal orifice, which admitted tip of the finger with great
basis of the above examination, PW 2 Dr. Veena Sehgal opined as under:-
"From the above, it was difficult to say whether intercourse has taken
place or not. Vaginal swab slide was prepared and got examined microscopically
in the District Hospital, Chamba under which no dead or alive sperms were seen. Her
blood group was A +VE. She was also referred for X-ray to determine her radiocal
Dr. Veena Sehgal was of the view that the age of the prosecutrix at the time of
the examination would have been 13 years or 14 years. PW 3 Dr. Lokender Badotra,
a Senior Medical Officer(Dental) opined that the prosecutrix was about 13 years
of age and issued a certificate. PW 13, Medial Officer-cum-Radiologist, based
on X-Ray examination of prosecutrix, stated that the age of the prosecutix must
be within 14 to 16 years.
witnesses were examined on the side of the prosecution. The prosecutrix was
examined as PW 5 and her@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ father
Jagia Ram was examined at PW 7. Both of them firmly@@ JJJJJJJJJJJJJJJJJJJJJ
supported prosecution. The other items of evidence include the medical
Sessions Court acquitted the accused on the ground that the ingredients of the
offence of rape had not been established and there was no penetration as
alleged by the prosecution. The learned Sessions Judge was of the view that the
prosecutrix must have been above the age of 16 years and the evidence as a
whole indicated that there was a consent on the part of the prosecutrix to have
the sexual act. The learned Single Judge before whom the appeal was filed by
the State did not interfere with the findings of the learned Sessions Judge by
holding that a view taken by the Trial Court was not either perverse or grossly
learned Single Judge also observed that the medical evidence did not positively
point out the commission of the alleged offence on the prosecutrix.
above findings are challenged before this Court.
heard the Counsel for the appellant and also Mr. U. U.
for the accused who was appointed as amicus curiae.
Counsel for the appellant contended that the findings entered by the learned
Sessions Judge which were confirmed by the learned Single Judge are
unsustainable and that there was ample evidence to show that the accused had
committed the offence of rape. It was contended that the prosecutrix was below
the age of 16 years and there was no consent on her part for any sexual act and
she was physically over-powered by the accused and medical evidence clearly
indicated that she was ravished by the accused. Whereas the Counsel for the
respondent-accused contended that the absence of spermatozoa either in the
clothes worn by the prosecutrix or in the undergarment of the accused which
were subjected to chemical examination clearly showed that the accused had not
committed any sexual act. The Counsel for the accused-respondent submitted that
this is a false case filed against the accused to get at his property.
carefully considered the rival contentions and also perused the records and the
impugned judgments. The verdict of not guilty has been entered by the learned
Sessions Judge mainly based on two grounds that the prosecutrix was aged above
sixteen years and if at all there was any sexual act, it must have been with
her consent. Both these findings are erroneous and incorrect.
regards age of the prosecutrix, there is evidence of PW 2 Dr. Veena Sehgal who
examined the prosecutrix and after taking note of physical features stated that
prosecutrix must be of the age between 13 to 14 years. PW 3 Dr. Lokender Badotra,
who examined the prosecutrix also supported this version. This view is more
strengthened by the family history which showed that she was born in the year
1979. Therefore, in all probability, the age of the prosecutrix at the time of
occurrence was about fourteen years. The certificate of PW 13, the Medical Officercum-
Radiologist, also gives only the probable age of the prosecutrix. Therefore,
the finding of the learned Sessions Judge that prosecutrix was above the age of
sixteen is based on faulty reasons and is unsupported by evidence.
if it is assumed that the prosecutrix was above 16 years, the reasons
attributed by the learned Sessions Judge to prove that she had given consent
for the sexual act are not true. According to the prosecutrix, she resisted the
accused by scratching him with nails but as no nail marks were found on the
body of the accused, the learned Sessions Judge was of the view that for this
reason, it is to be assumed that there was consent on the part of the prosecutrix.
The accused was examined on 20.4.1993. As the incident occurred on 17.4.1993,
even if there were any marks of violence on the body of accused, the same would
have been obliterated and were not so prominent so as to be noticed by the
medical officer who examined him. Therefore, the absence of nail marks or minor
injuries on the body of the accused is of not much significance. From the oral
evidence of the prosecutrix (PW 5), it is proved that the accused caught her
from behind and he lifted her and pushed her down and despite her attempt to
cover herself with the salwar, the accused pull it down. She also stated that
the accused gagged her mouth when she attempted to cry a loud. The subsequent
conduct of the prosecutrix also shows that she was very much resistant to the
sexual onslaught on her. She came to her father immediately and told the entire
incident as to how she was ravished by the accused. The evidence as a whole
indicates that there was resistance by the prosecutrix and there was no
voluntary participation by her for the sexual act. Submission of the body under
the fear of terror cannot be construed as a consented sexual act.
for the purpose of Section 375 requires voluntary participation not only after
the exercise of intelligence based on the knowledge of the significance and
moral quality of the act but after having fully exercised the choice between
the resistance and assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant circumstances. From the
evidence on record, it cannot be said that the prosecutrix had given consent
and thereafter she turned round and acted against the interest of the accused.
There is a clear credible evidence that she resisted the onslaught and made all
possible efforts to prevent the accused from committing rape on her. Therefore,
the finding entered by the learned Sessions Judge that there was consent on the
part of the prosecutrix is without any basis.
learned Counsel for the accused argued that there were no marks of violence
over the breasts, nipples or cheeks and lips or other external genitals of the prosecutrix
and that she herself had not deposed anything about the extent of penetration
and this would indicate that there was no commission of the offence. It was
argued that the absence of the spermatozoa in the clothes worn by the prosecutrix
and the accused also indicated that there was no sexual act and at the most
this would have been only an attempt to outrage the modesty of the girl. We are
not inclined to accept this contention.
medical certificate issued by PW 2 Dr. Veena Sehgal clearly indicates that
there was laceration of the hymen at 6'o clock position and clotting of blood
was seen at the vaginal orifice. This item of medical evidence is to be
appreciated in the background of the oral evidence given by PW 5, the prosecutrix.
She deposed that accused lifted down her salwar and had sexual act with her. It
is not known whether these clothes were washed before they were subjected to
chemical examination. A piece of cloth which was recovered from the place of
occurrence and the wearing apparel worn by the prosecutrix were stained with
learned Sessions Judge made a casual observation that these blood stains might
have been caused due to the menstruation of the prosecutrix. PW 2 Dr. Veena Sehgal
stated that she had no history of menstruation and there was no suggestion also
on the part of the accused as to whether the prosecutrix sustained injury on
account of any other violent act. The evidence of PW 2 Dr. Veena Sehgal on
these facts are not seen challenged in cross-examination.
view of the evidence of prosecutrix(PW 5), which is corroborated by medical
evidence and other item of evidence and in the absence of any consent on the
part of the prosecutrix, it is clearly established that the accused had
committed rape on the prosecutrix and is liable for the offence punishable
under Section 376 I.P.C. The finding given by the learned Sessions Judge is not
based on proper appreciation of evidence and, therefore, unreasonable and we
are of the view that the Sessions Court dealt the case so lightly. The offence
of rape being a serious one, the case should have received careful attention
and that the learned Sessions Judge and the learned Single Judge should have
shown greater sensitivity to these type of cases. The evidence should have been
appreciated on broader probabilities and not to be carried away by
view of the foregoing conclusions, we reverse the findings of the learned
Sessions Judge which was confirmed@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ by learned Single Judge and find
that the accused is guilty@@ JJJJJJJJJJJJJJJJJJJJJJJJ of the offence punishable
under Section 376 I.P.C. As regards the sentence, we take a lenient view for
the reason that the prosecutrix and accused are related. They were both
teenagers with an age difference of about 2-3 years.
were immature and young. Evidence indicates no marks of violence at all on any
part of the body of the prosecutrix. The incident happened in 1993. After the
acquittal by passage of time, the members of the two families must have buried
their hatchet if any arisen on account of this incident. The learned Counsel
for the respondent argued that a further order for custodial sentence at this
distance of time may cause rapture to social harmony in the village life and
may only help to rekindle the flames of anger which have been smouldering for
so long between near relatives. Having regard to all these matters, we hold
that sentence already undergone by the accused would be sufficient to meet the
ends of justice, and we do accordingly.
appeal is accordingly disposed of.