Rajasthan Vs. N. K.  INSC 163 (30 March
R.C.Lahoti R.C. Lahoti, J.
State of Rajasthan has come up in appeal feeling aggrieved by an order of
acquittal recorded by the High Court of Rajasthan reversing the judgment of the
Sessions Court which had found the accused-respondent guilty of an offence
punishable under Section 376 Indian Penal Code and sentenced him to undergo
seven years rigorous imprisonment with a fine of Rs.2,000/- and to a further
simple imprisonment of one year and nine months in default of payment of fine.
According to the prosecution, G, PW2, the prosecutrix, was aged 15 years and
was living in village BhaniaYana (Jaisalmer) with her father, mother and a
younger sister. The family resided in a lonely hutment situated in a field. On
1.10.1993 at about 12
noon, the prosecutrix
was alone in her hut busy washing clothes on a water pump. NK, the
accused-respondent was known to the prosecutrix since before. He came to her
and initially asked for water which she provided in a lota. The accused then
asked for a knife for peeling the skin of a cucumber. The prosecutrix brought
the knife and handed it over to him. When the prosecutrix was about to turn and
go back, the accused caught hold of her . He twisted her hand on her back and
forcibly took her to a nearby place called Bhitian, , i.e., a place surrounded
by walls. The accused forced the prosecutrix to lie down on the ground, put his
foot on her chest, closed her mouth with his palm, removed her lehenga upwards
and then forcibly committed sexual intercourse with her. The prosecutrix
offered resistance and tried to save herself but the respondent gagged her
mouth by a towel pressed against her mouth. Having thus raped the prosecutrix,
the accused-respondent went away to Thane, another village or another part of
the same village. The prosecutrix reached back her home and narrated the entire
incident to a woman, described as wife of Udai Singh and to her father, PW 10,
who had returned by that time. The victim accompanied by her father wanted to
go to the police station and lodge the first information report of the incident
but they were prevented from doing so by several village people belonging to
the community of the accused who also proposed the matter being settled within
the village by convening a panchayat.
report of the incident was lodged on 5.10.1993 at 11.20 a.m. The offence was registered and investigation commenced.
was referred for medical examination so as to find out the injuries on her
person as also to ascertain her age. Dr. V.D. Jetha, (P.W.9) the medical
officer posted at primary health centre, Jaisalmer examined the prosecutrix on 6-10-1993 at about 12 noon upon a requisition made by the investigating officer. Dr. Jetha found
inter alia the hymen of the prosecutrix was ruptured in multiple radial tears,
the edges of which showed healing at most of the places and mild tenderness.
The hymen hole admittted one finger easily with mild tenderness. Sample of
vaginal swab from posterior front of vagina was taken and smear slide was
prepared which was sealed and sent to forensic science laboratory for
examination. In the opinion of Dr. Jetha sexual intercourse with the prosecutrix
was done 5 to 7 days before the day of examination. He further opined that
after a lapse of 5 to 7 days, the examination of vaginal smear and vaginal swab
could not confirm the presence of semen.
the purpose of ascertaining age of the prosecutrix, x-rays of arms and elbow
joints were taken in his presence. After examinaing x-rays he opined that the
age of the prosecutrix was 15 years.
4.11.1993 on a requisition made by the investigating officer, Dr. Jetha
examined NK, the accused-respondent. He was found to be a person of average
built suffering from no disease or infirmity. His height was 5 ft 11 inches and
weight was 61 kg. He was found fit and competent to perform sexual intercourse.
No mark of injury was found on his person.
trial court found the incident, as alleged, proved. In the opinion of the
learned trial Judge the testimony of the prosecutrix inspired confidence. It
was corroborated by the medical evidence as also by the testimony of her
father. The prosecutrix was held to be 15 years of age on the date of the
incident. Though there was delay in lodging the FIR but it was satisfactorily
explained. Accordingly, the accused-respondent was found guilty of the offence
punishable under Section 376 IPC and sentenced as above.
High Court has, in an appeal preferred by the accused-respondent, held that the
prosecutrix was not proved beyond reasonable doubt to be below 16 years of age.
In the opinion of the High Court though the factum of accused- respondent
having committed sexual intercourse with the prosecutrix was proved but the
absence of injuries on the person of the prosecutrix was a material fact not
excluding the possibility of the prosecutrix having been a consenting party.
The delay in lodging the FIR was not satisfactorily explained. The delay
coupled with the non-examination of the wife of Udai Singh to whom the incident
was first narrated by the prosecutrix immediately after the occurrence rendered
the prosecution case doubtful. Mainly on this reasoning the High Court has
allowed the appeal and acquitted the accused-respondent.
counsel for the appellant-State has vehemently attacked the findings arrived at
by the High Court and submitted that none of them was sustainable and none
could be a reason for doubting the prosecution case in the given facts and
circumstances and hence the acquittal deserves to be set aside.
heard the learned counsel for the parties we are of the opinion that the High
Court was not justified in reversing the conviction of the respondent and
recording the order of acquittal. It is true that the golden thread which runs
throughout the cob-web of criminal jurisprudence as administered in India is
that nine guilty may escape but one innocent should not suffer. But at the same
time no guilty should escape unpunished once the guilt has been proved to hilt.
An unmerited acquittal does no good to the society.
prosecution has succeeded in making out a convincing case for recording a
finding as to the accused being guilty, the Court should not lean in favour of
acquittal by giving weight to irrelevant or insignificant circumstances or by
resorting to technicalities or by assuming doubts and giving benefit thereof
where none exists. A doubt, as understood in criminal jurisprudence, has to be
a reasonable doubt and not an excuse for finding in favour of acquittal. An
unmerited acquittal encourages wolves in the society being on prawl for easy
preys, more so when the victims of crime are helpless females. It is the spurt
in the number of unmerited acquittals recorded by criminal courts which gives
rise to the demand for death sentence to the rapists. The courts have to
display a greater sense of responsibility and to be more sensitive while
dealing with charges of sexual State of Gujarat 1983 Crl.L.J. 1096 this Court observed that refusal to act on the testimony
of a victim of sexual assault in the absence of corroboration as a rule, is
adding insult to injury. This court deprecated viewing evidence of such victim
with the aid of spectacles fitted with lenses tinted with doubt, disbelief or
suspicion. We need only remind ourselves of what this court has said through
one of us (Dr. A.S. Anand, J. as His Lordship then was) in State ..A rapist not
only violates the victims privacy and personal integrity, but inevitably causes
serious psychological as well as physical harm in the process. Rape is not
merely a physical assault it is often destructive of the whole personality of
the victim. A murderer destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The courts, therefore, shoulder
a great responsibility while trying an accused on charges of rape. They must
deal with such cases with utmost sensitivity. The courts should examine the
broader probabilities of a case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the prosecutrix, which are not
of a fatal nature, to throw out an otherwise reliable prosecution case.
questions arising for consideration before us are:
the prosecution story, as alleged, inspires confidence of the court on the
evidence adduced? Whether the prosecutrix, is a witness worthy of reliance?
Whether the testimony of a prosecutrix who has been a victim of rape stands in
need of corroboration and, if so, whether such corroboration is available in
the facts of the present case? What was the age of the prosecutrix? Whether she
was a consenting party to the crime? Whether there was unexplained delay in
lodging the F.I.R.? It is well settled that a prosecutrix complaining of having
been a victim of the offence of rape is not an accomplice after the crime.
There is no rule of law that her testimony cannot be acted without
corroboration in material particulars. Her testimony has to be appreciated on
the principle of probabilities just as the testimony of any other witness; a
high degree of probability having been shown to exist in view of the subject
matter being a criminal charge. However, if the court of facts may find it
difficult to accept the version of the prosecutrix on its face value, it may
search for evidence, direct or circumstantial, which would lend assurance to
short of corroboration as understood in the context of an accomplice would do.
Reference may be had to a long chain of decisions, some of which are Rameshwar 1952
SCR 377, Sidheshwar Ganguly AIR 1958 SC 143, Madhoram & Anr.
Jain (1990) 1 SCC 550, Madam Gopal Kaddad (1992) 3 SCC 204 Shri Narayan AIR
1992 (3) SCC 615, Karnel Singh 1995 (5) SCC 518, Bodhisattwa Gautam 1996 (1)
SCC 490 & Gurmit Singh (supra). We may quote from the last of the above
said decisions where the rule for appreciating the evidence of the prosecutrix
in such cases has been succinctly summed up in the following words :- . If
evidence of the prosecutrix inspires confidence, it must be relied upon without
seeking corroboration of her statement in material particulars. If for some
reason the court finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may lend assurance to her testimony,
short of corroboration required in the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the background of the entire case and
the trial court must be alive to its responsibility and be sensitive while
dealing with cases involving sexual molestations.
to Dr. V.D. Jetha, x-ray of left elbow and arm of the prosecutrix were taken
for assessing her age.
the technician who had actually x-rayed the prosecutrix and prepared the x-ray
plates has not been examined in the court but the non-examination is of no
consequence. According to Dr. Jetha, x-rays were taken in his presence. Based
on the x-ray plates he had drawn deductions, formed an opinion based on
standard text books and prepared the report on the question of age. He has
further stated that there was no need for the prosecutrix being referred to
radiologist in as much as what radiologist could have read from the x-ray
plates could also have been done by him as he has done.
found that top radial was fully occified.
of ulna was also fully occified. Distal end of radial and ulna were not
completely occified. On the basis of such data he inferred the age of the prosecutrix
to be about 15 years. However, during cross-examination he admitted that the
age of the prosecutrix could be 15 or 16 years because a variation of 3 on plus
or minus side as described by Modi in his Medical Jurisprudence was possible.
learned counsel for the State vehemently argued that non-occification of the
distal ends of radial and ulna was a positive indicator of the prosecutrix
having not crossed the age of 15 years and in support of his submission he
referred to certain passages and tables from Modis Medical Jurisprudence.
However we are not satisfied that only on the basis of Dr. Jethas testimony, a
positive finding can be recorded that the prosecutrix was less than 16 years of
age on the date of the incident. In the estimate made by Dr. Jetha he himself
admits a variation of 3 years on either side being permissible. The prosecutrix
herself and her father are illiterate persons. The prosecutrix has not taken
any schooling. There is no other satisfactory evidence as to her age available
on record. We cannot positively hold on the basis of material available that
she was less than 16 years of age on the date of the incident.
true that the incident dated 1.10.1993 was reported to the police on 5.10.1993.
The prosecutrix was a married woman. Her muklana ceremony had not taken place.
ceremony is a rural custom prevalent in Rajasthan, whereunder the bride is left
with the parents after marriage having been performed and is taken away by the
husband and/or the in-laws to live with them only after a lapse of time. The
origin of the custom owes its existence to performance of child-marriages which
are widely prevalent there. The muklana was yet to take place. The prosecutrix
was a virgin prior to the commission of the crime and this fact finds support
from the medical evidence. The parents of such a prosecutrix would obviously be
chary to such an incident gaining publicity because it would have serious
implications for the reputation of the family and also on the married life of
the victim. The husband and the in-laws having become aware of the incident may
even refuse to carry the girl to reside with them. The incident if publicised
may have been an end of the marriage for the prosecutrix.
to this is the communal tinge which was sought to be given by the community of
the accused. PW-10, the father of the prosecutrix, the prosecutrix PW-2 and
other witnesses have stated that while they were about to move to the Police
Station they were prevented from doing so by the community fellows of the
accused who persuaded them not to lodge report with the police and instead to
have the matter settled by convening a panchayat of village people. After all
the family of the victim had to live in the village in spite of the incident
having taken place. The explanation is not an after thought. An indication
thereof is to be found in the F.I.R. itself where the complainant has stated
the delay in lodging the report is due to village panchayat, insult and social
disrepute. Nothing has been brought out in the cross-examination of the
witnesses to doubt the truth and reasonableness of the explanation so offered.
however state that a mere delay in lodging the FIR cannot be a ground by itself
for throwing the entire prosecution case overboard. The Court has to seek an
explanation for delay and test the truthfulness and plausibility of the reason
assigned. If the delay is explained to the satisfaction of the Court it cannot
be Narayan AIR 1992 SC 2004 this Court observed True it is that the complaint
was lodged two days later but as stated earlier Indian society being what it is
the victims of such a crime ordinarily consult relatives and are hesitant to
approach the police since it involves the question of morality and chastity of
a married woman. A woman and her relatives have to struggle with several
situations before deciding to approach the police. In State of Punjab The
Courts cannot overlook the fact that in sexual offences delay in the lodging of
the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix
or her family members to go to the police and complain about the incident which
concerns the reputation of the prosecutrix and the honour of her family. It is
only after giving it a cool thought that a complaint of sexual offence is
generally lodged. So are the observations made by this 518 repelling the defence
contention based on delay in lodging the FIR. In the present case, in our
opinion the delay in lodging the F.I.R. has been satisfactorily explained.
of injuries on the person of the prosecutrix has weighed with the High Court
for inferring consent on the part of the prosecutrix. We are not at all
convinced. We have already noticed that the delay in medical examination of the
prosecutrix was occasioned by the factum of the lodging of the F.I.R. having
been delayed for the reasons which we have already discussed. The prosecutrix
was in her teens. The perpetrator of the crime was an able bodied youth
bustling with energy and determined to fulfill his lust armed with a knife in
his hand and having succeeded in forcefully removing the victim to a secluded
place where there was none around to help the prosecutrix in her defence. The
injuries which the prosecutrix suffered or might have suffered in defending
herself and offering resistance to the accused were abrasions or bruises which
would heal up in ordinary course of nature within 2 to 3 days of the incident.
The absence of visible marks of injuries on the person of the prosecutrix on
the date of her medical examination would not necessarily mean that she had not
suffered any injuries or that she had offered no resistance at the time of
commission of the crime. Absence of injuries on the person of the prosecutrix
is not necessarily an evidence of falsity of the allegation or an evidence of
consent on the part of the prosecutrix. It will all depend on the facts and
circumstances of each case. In Sheikh Zakir 1983 Crl.L.J. 1285, absence of any
injuries on the person of the prosecutrix, who was the helpless victim of rape,
belonging to a backward community, living in a remote area not knowing the need
of rushing to a doctor after the occurrence of the incident, was held not
enough for discrediting the statement of the prosecutrix if the other evidence
was believable. In Balwant Singh & Ors.
971 this court held that every resistance need not necessarily be accompanied
by some injury on the body of the victim; the prosecutrix being a girl of 19/20
years of age was not in the facts and circumstances of the case expected to
offer such resistance as would cause injuries to her body. In Karenel Singh 1995
(5) SCC 518 the prosecutrix was made to lie down on a pile of sand. This court
held that absence of marks of external injuries on the person of the prosecutrix
cannot be adopted as a formula for inferring consent on the part of the prosecutrix
and holding that she was a willing party to the act of sexual intercourse. It
will all depend on the facts and circumstances of each case. A Judge of facts
shall have to apply common sense rule while testing the reasonablity of the
prosecution case. The prosecutrix on account of age or infirmity or overpowered
by fear or force may have been incapable of offering any resistance. She might
have sustained injuries but on account of lapse of time the injuries might have
healed and marks vanished.
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
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 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;
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. The prosecutrix before us had just
crossed the age of 16 years. She has clearly stated that she was subjected to
sexual intercourse forcibly by the accused. She was not a consenting party. She
offered resistance to the best of her ability but she succumbed and fell victim
to the force employed by the accused. She has narrated how she was approached
by the accused while she was busy washing clothes near her hut.
accused initially asked for water in a lota. Then the accused asked for a knife
on the pretext that it was needed for peeling cucumber. The accused was gaining
time to ascertain if the prosecutrix was alone. No sooner the prosecutrix
turned her back unmindful of what laid ahead, her hand was caught hold of by
the accused and twisted on her back. The accused pushed her to bhitian, a
secluded place. She was thrown on the ground. The accused put his knee on her
chest so as to over power her. Her shouting was throttled by the accused who
placed his palm on her mouth and later covered her mouth by a towel pressed
against her lips. She was then raped. Blood oozed out from her private parts.
Having finished his act the accused left her alone and took to his heels. The prosecutrix
was weeping. She narrated the incident to a woman described as the wife of Udai
Singh and to her father in quick succession. The statement of the father of the
prosecutrix corroborates her in all material particulars and is admissible in
evidence and relevant under Section 157 as her former statement corroborating
her testimony as also under Section 8 of the Evidence Act as evidence of her
conduct. In spite of delay in medical examination in the circumstances already
discussed the medical evidence corroborates the testimony of the prosecutrix.
According to Dr. Jetha, he had found the hymen ruptured in multiple radial
tears, the edges of which showed healing at most of the places and mild tenderness.
was not used to sexual intercourse. Pieces of broken bangles were found at the
place of the incident and seized. The Forensic Science Laboratory has found
(vide report Ex.P/9) presence of human semen on the Lehenga seized from the prosecutrix.
It is true that wife of Udai Singh has not been examined. It would have been
better it she would have been examined. However, no dent is caused in the case
of the prosecution by her non-examination. She would have repeated the same
story as has been narrated by the father of the prosecutrix. We have found the
testimony of prosecutrixs father (PW 10) trustworthy and unembellished.
and her father have both been subjected to lengthy cross-examination. The trial
court has found both the witnesses reliable. We too find no reason to
disbelieve their testimony. A father would not ordinarily subscribe to a false
story of sexual assault involving his own daughter and thereby putting at stake
the reputation of the family and jeopardizing the married life of the daughter.
We find the testimony of prosecutrixs father reliable and lending support to
the narration of the incident by the prosecutrix.
reason has been proved, not even suggested during cross-examination of any of
the witnesses why the prosecutrix or any member of her family would falsely
implicate the accused roping him in false charge of rape.
surprised to note how an inference as to consent could have been drawn against
the prosecutrix and to hold that she was a willing party to the sexual assault
made by the accused. Upon an evaluation of evidence available on record we are
satisfied to hold that the prosecutrix is a witness of truth. Her testimony
inspires confidence. Other evidence available on record lends assurance to her
testimony. The Trial Court had rightly held that sexual assault amounting to
rape was committed on her by the accused-respondent. In spite of her having not
been proved to be under 16 years of age the High Court was not justified in
holding her to be a consenting party to the sexual assault on her.
the foregoing reasons, we are of the opinion that the High Court has committed
a clear error of law in interfering with the judgment of the trial court
regarding proof of guilt of the accused. The appeal is allowed. The judgment of
the High Court is set aside. We hold the accused/respondent guilty of the
offence charged i.e. under Section 376 of the I.P.C..
remains the question of sentence. The incident is of the year 1993. The accused
was taken into custody by the police on 3.11.1993. He was not allowed bail.
During the trial as also during the hearing of the appeal by the High Court he
remained in jail. It is only on 11.10.1995 when the High Court acquitted him of
the charge that he was released from jail. Thus he had remained in jail for a
little less than two years. Taking into consideration the period of remission
for which he would have been entitled and the time which has elapsed from the
date of commission of the offence, we are of the opinion that the
accused-respondent need not now be sent to jail. It would meet the end of
justice if he is sentenced to undergo imprisonment for the period already
undergone by him and to a fine of Rs.2000/- with further simple imprisonment of
one year and nine months in default of payment of fine as passed by the Triial Court. The appellant is allowed time till
1st May, 2000 for payment of fine. The accused-respondent is on bail. The bail
bonds shall stand discharged on payment of fine as directed. Ordered accordingly.