of Himachal Pradesh Vs. Gian Chand  Insc 256 (1 May 2001)
R.C. Lahoti & Doraiswamy Raju R.C. Lahoti, J.
accused-respondent was charged under Section 376 IPC for having committed
forcible sexual intercourse with the prosecutrix, a girl of the age of the 5
years and 6 months, on 29.10.1991 at about 6.30 p.m. at Village Baru. On trial, the learned Sessions Judge found
the accused guilty and sentenced him to undergo rigorous imprisonment for a
period of 10 years and to pay a fine of Rs.5,000 and in default of payment of
fine to undergo rigorous imprisonment for a further period of 6 months. The
amount of fine, if realised, was directed to be paid to the mother of the prosecutrix.
The accused- respondent preferred an appeal.
Division Bench of the High Court has by judgment dated 22.12.1995 allowed the
appeal, set aside the conviction and directed the accused-respondent to be
released. Feeling aggrieved thereby, the State of Himachal Pradesh has come up in appeal by special
leave which has been granted.
the mother of the prosecutrix. Her husband had expired a few years before the
date of the incident. She was residing in the family house. However, her
father-in-law, her two brothers-in-law and she herself had separated in
residence and they were living in three separate portions of the house. PW1 has
a son and two daughters. The prosecutrix is the youngest of the three children.
The accused is brother of wife of PW1s brother-in-law, i.e., jeth or her
deceased husbands brother. The accused, being a relation, was often visiting
the house. According to the prosecution on the date of the incident, PW1 had
gone to the fields for collecting grass.
son and the elder daughter had accompanied her. They returned to home at about 7 p.m. PW1, on her return, found her youngest daughter lying below
a cot on the lintel of the house. Her salwar and shirt were having blood
was blood on the bed sheet and a towel lying on the cot. She looked into the
private parts of the victim child and found blood and inflammation therein. On
being asked, the prosecutrix told the mother, that when she was playing the
accused had committed Bura Kaam (a sinful act) with her. The mother PW1 told about
the incident the next morning to her parents-in-law and co-sister (i.e.
husbands brothers wife). The father of the accused was summoned and was told of
what the accused had done. The father of the accused defended his son saying
that he could not have indulged into such a wrongful act. On the third day, in
the morning hours, when PW1 was going to police station, Ruldu Ram, PW9, a
member of village Panchayat met her on way and agreeing with her advised PW1 to
lodge the report with the police. The FIR of the incident was lodged in the
morning of 31.10.1991. An offence under Section 376 IPC was registered and the
31.10.1991 at 12.15 p.m. Dr. Mudita Gupta, PW5, conducted medico-legal
examination of the prosecutrix and found the following injuries on her person :
Exam - No external injury. On retracting the labia - erythema seen. Hymen torn
- irregular edges.
vaginal wall tear about 0.5 cm in length. No blood clot seen. No evidence of
healing, no pus seen - foul smell.
No sperms were seen.
observations noted by Dr. Mudita Gupta were that the prosecutrix had changed
her clothes and taken a bath also on the next day of the incident. The victim
had passed urine and stool about one hour after the incident. There was no
external injury on any part of the body of the victim. Dr. Mudita Gupta opined
that possibility of commission of rape on the prosecutrix on 29.10.1991 could
not be ruled out.
accused was arrested on 31.10.1991 and subjected to medico-legal examination on
the same day. Dr. Jagdish Gupta P.W.6, who examined the accused, recorded the
result of his medico-legal examination as under:- The general behaviour of the
patient was normal. The mental condition was normal. Bath not taken for the last five days. Urine passed many
times. Passing motion normally.
stains were found on the body of the patient. Clothing and under-garments.
injury marks were present on genitals.
venereal disease was found.
examination of genital, pubic hairs were present.
normal, prepuse retracted, frenum normal. Testicles were normal. There were
following injuries present on his person:- Multiple contusions, some of them
were patterned on back, buttocks posteromedial aspect of thigh. Redish in colour.
Gupta opined that there was nothing to suggest that the accused was not fit to
perform sexual intercourse.
trial the prosecutrix appeared as PW7 and her mother was examined as PW1. The prosecutrix
was 8 years of age at the time of her examination. The Court conducted
preliminary examination of the witness and observed that the witness understood
the sanctity of oath and then proceeded to examine her after administering oath
to her. She stated that the accused was known to her as he was the brother of
her Mausi (Aunt) and was on visiting terms with her Mausi residing in her neighbourhood.
On the date and at the time of the incident the accused came to her house in
the absence of her mother or any other member of the family, untied the string
of her salwar and also untied the string of his kachcha (underwear). Thereafter
the accused put his organ into her private part. The learned Sessions Judge has
noted in the statement of the witness that the witness had specifically stated
that the accused had inserted his penis into her private part and due to the
act committed by the accused blood had started oozing out of her. The accused
remained at the place of the incident for one or two minutes and thereafter
disappeared. She had felt pain when the act was committed by the accused. The
accused had made the prosecutrix lie down on the cot which was spread on the
lintel of the house. At that time the sun had set in and darkness had started
spreading. The mother returned to home at about 8 p.m. when she narrated the incident to her.
the mother of the prosecutrix, has corroborated the version of the victim.
doctors, who had examined the prosecutrix and the accused respectively,
appeared in the witness box and stated the results of the respective medico-legal
examinations conducted and observations made by them as noticed hereinabove. Ruldu
Ram, PW9 corroborated the version of PW1. Smt. Premi, co-sister of PW1,
appeared in the witness box as PW8 but she turned hostile and denied having any
knowledge of the occurrence. The learned Sessions Judge found the prosecution
story having been substantiated fully by the prosecution evidence. He found the
prosecutrix and her mother truthful witnesses and worthy of credence. The
version of the prosecutrix stood corroborated by the testimony of her mother
and the latter testimony stood corroborated by the statement of Ruldu Ram, PW9,
the village Panch and the FIR. The learned Sessions Judge also found that the
medical testimony corroborates the version of the incident as given by the prosecutrix.
The clothes of the prosecutrix were blood-stained. The salwar which was worn by
the prosecutrix at the time of the incident and which was seized by the police
was sent for chemical examination.
to the report of Chemical Examiner of State of Punjab spermatozoa was detected
on the salwar though not on the shirt of the prosecutrix and underwear of the
learned Sessions Judge convicted the accused and sentenced him as stated
perusal of the judgment of the High Court shows that delay in lodging the FIR,
change in the description by PW1 of the exact place where the prosecutrix was
raped (i.e. shifting of the scene of incident), and non-examination of two or
three little girls who were playing with the prosecutrix soon before the
incident - are the factors, which have persuaded the learned Judges of the High
Court in forming an opinion that prosecution story was doubtful. The learned
Judges have also noted that the prosecutrixs hymen could have been ruptured by
a fall also and there was no corresponding injury on the private parts of the
accused which factors taken together rendered the prosecution story doubtful.
it would be worthwhile to mention that in his statement under Section 313 of
the Cr.P.C. the accused denied the prosecution story and at the end of the
statement stated that he was suffering from mental disorder at the time of the
incident. While the learned Sessions Judge found the plea raised by the accused
of no significance, the learned Judges of the High Court have observed that in
view of the mental condition of the appellant who was suffering from
schizophrenia before and after the occurrence there is a reasonable doubt as
regards one or more of the ingredients of the offence. In support of such
observation the High Court has referred to the decision of this Court in 2 Cr.L.J.
have heard the learned counsel for the parties. Shri Anil Soni, the learned
counsel appearing for the State of Himachal Pradesh has vehemently attacked the judgment of the High Court
submitting that on the evidence available the findings arrived at by the
learned Sessions Judge were not liable to be interfered with and the judgment
of the High Court verges on perversity. An entirely unmerited acquittal and
that too from a serious charge where an innocent girl of tender years was raped
by a distant relation of hers in her own house has occasioned a gross failure
of justice and therefore the judgment of the High Court deserves to be set
aside, submitted the learned Counsel for State. Shri Shrish Kumar Misra, the
learned counsel for the respondent has supported the judgment of the High
Court. Having carefully considered the contending submissions, we are of the
opinion that the appeal deserves to be allowed and the judgment of the High
Court deserves to be set aside. We have given our thoughtful consideration to
the submission made and have independently appreciated the evidence to satisfy
our judicial conscious. We deal with each of the reasonings which have prevailed
with the High Court in doubting the prosecution story.
in lodging the FIR cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same solely on the ground of delay in
lodging the first information report. Delay has the effect of putting the Court
in its guard to search if any explanation has been offered for the delay, and
if offered, whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is possibility of embellishment in
prosecution version on account of such delay, the delay would be fatal to the
if the delay is explained to the satisfaction of the court, the delay cannot by
itself be a ground for disbelieving and discarding the entire prosecution case.
In the present case, PW1__the mother of the prosecutrix is a widow. The accused
is a close relation of brother of late husband of PW1. PW1 obviously needed her
family members consisting of her in-laws to accompany her or at least help her
in lodging the first information report at the police station. The incident
having occurred in a village, the approach of the in-laws of PW1 displayed
rusticity in first calling upon the father of the accused and complaining to
him of what his son had done. It remained an unpleasant family affair on the
next day of the incident which was tried to be settled, if it could be, within
the walls of family. That failed. It is thereafter only that the complainant,
the widow woman, left all by herself and having no male family member willing
to accompany her, proceeded alone to police station. She was lent moral support
by Ruldu Ram, the village Panch, whereupon the report of the incident was
lodged. The sequence of events soon following the crime and as described by the
prosecution witnesses sounds quite natural and provides a satisfactory
explanation for the delay. It was found to be so by the learned Sessions Judge.
The High Court has not looked into the explanation offered and very
superficially recorded a finding of the delay having remained unexplained and
hence fatal to the prosecution case. It is common knowledge and also judicially
noted fact that incidents like rape, more so when the perpetrator of the crime
happens to be a member of the family or related therewith, involve the honour
of the family and therefore there is a reluctance on the part of the family of
the victim to report the matter to the police and carry the same to the court.
A cool thought may precede lodging of the FIR. Such are the observations found
to have & Ors., (1996) 2 SCC 384 and also in the case of Harpal Singh
(1981) SCC Crl. 208. We are satisfied that the delay in making the FIR has been
satisfactorily explained and therefore does not cause any dent in the
to the High Court, the FIR states the occurrence of rape to have taken place in
the room on the first floor of the building but according to the statement of
PW1 as recorded in the Court, the rape was committed on the prosecutrix in the
open on the lintel of the house thus, according to the High Court, there was a
doubt raised about the place of the incident which was an infirmity in the
prosecution story. The room and the lintel are situated close to each other.
PW1 is not an eye-witness to the incident. When she reached home she found her
daughter, the victim of rape lying on the lintel of the house below the cot. A
perusal of the site plan shows the distance between the two places is insignficant.
Moreover, such minor inconsistency coming from the mouth of PW1, who is not an
eye- witness, was of no significance and caused no infirmity in the prosecution
case when the overall narration of the incident given by her is found to be
natural and trustworthy. It is pertinent to note that PW1 was only corroborating
the statement of PW7, the young victim of rape and the latters testimony was
found to be very natural and inspiring confidence by the learned Sessions Judge
who had recorded her statement. The learned Sessions Judge had himself
inspected the site of the incident and noted in his inspection note inter alia
that the other houses were situated at a distance and another house situated
nearest to the house where incident had taken place was about 50 yards away.
The main road was at a distance of 100 or 150 yards from the house as shown in
the site plan and there was also a tree which blocked the vision to some extent
from the main road towards the first floor and rooms as shown in the site plan
on the first floor. Thus, the place of the incident was secluded one and not
visible from distance. Similar facts were deposed to by the investigating
officer. The learned Sessions Judge had rightly noted in his judgment, relying
on the evidence adduced and the observations made at the time of spot inspection,
that the room and the lintel are situated near to each other and therefore the
so-called inconsistency was immaterial and insignificant. The High Court was
not right in ignoring this finding of the trial court or even otherwise making
this insignificant discrepancy, if at all it is a discrepancy, a major lacuna
in the prosecution case. It is not so.
as non-examination of other witnesses and an adverse inference drawn by the
High Court therefrom is concerned, here again we find ourselves not persuaded
to subscribe to the view taken by the High Court. The prosecutrix PW7 has
stated that soon before the incident she was playing with three girl-children
of the same age as of hers and they were present when the accused committed
rape on her. One of the girls picked up a broom and had tried to scar away the
accused by striking the broom on him. This little friend of the victim had also
raised a hue and cry but none from the neighbourhood came to the spot. These
girls were none else than daughters of her uncle. What the High Court has
failed to see is that these girls were of tender age and could hardly be
expected to describe the act of forcible sexual intercourse committed by the
accused on PW7. Secondly, these girls would obviously be under the influence of
their parents. We have already noted the co-sister of PW1 turning hostile and
not supporting the prosecution version. How could these little girls be
expected to be away from the influence of their parents and depose freely and
truthfully in the Court? Non-examination of a material witness is again not a
mathematical formula for discarding the weight of the testimony available on
record howsoever natural, trustworthy and convincing it may be. The charge of
withholding a material witness from the Court levelled against the prosecution
should be examined in the background of facts and circumstances of each case so
as to find whether the witnesses were available for being examined in the Court
and were yet withheld by the prosecution. The Court has first to assess the
trustworthiness of the evidence adduced and available on record. If the Court
finds the evidence adduced worthy of being relied on then the testimony has to
be accepted and acted on though there may be other witnesses available who
could also have been examined but were not examined.
if the available evidence suffers from some infirmity or cannot be accepted in
the absence of other evidence which tough available has been withheld from the
Court then the question of drawing an adverse inference against the prosecution
for non-examination of such witnesses may arise. It is now well-settled that
conviction for an offence of rape can be based on the sole testimony of prosecutrix
corroborated by medical evidence and other circumstances such as the report of
chemical examination etc. if the same is found to be natural, trustworthy and
worth being relied on. If the 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. ___ is the law Anr. - (1992) 3 SCC 204]. In the present case we are
clearly of the opinion that in view of the accused being a relation of the
in-laws of the mother of the prosecutrix and the other young girls who are
alleged to have been not examined being from the family of such in-laws, it is
futile to expect that such girls would have been allowed by their parents to be
examined as witnesses, and if allowed, could have freely deposed to in the
Court. The question of drawing an adverse inference against the prosecution for
such non-examination does not arise.
observations made and noted by Dr. Mudita Gupta during medico legal examination
of PW7 clearly make out the prosecutrix having been subjected to rape. The prosecutrix
has spoken of penetration in her statement. The discovery of spermatozoa in the
private part of the victim is not a must to establish penetration. There are
several factors which may negative the presence of spermatozoa. [See -
Slightest penetration of penis into vagina without rupturing the hymen would
constitute rape. [See - Madan Gopal Kakkad in the cross examination of Dr. Mudita
Gupta that injury of the nature found on hymen of prosecutrix could be caused
by a fall does not lead us anywhere. Firstly, no such suggestion was given to prosecutrix
or her mother during cross examination. Secondly, why would the girl or her
mother implicate the accused, charging him with rape, if the injury was caused
by a fall? There is nothing to draw such an inference not even a suggestion, to
be found on record.
to the suggestion made to Dr. Gupta cannot discredit the prosecution case in
the absence of any other material to support the suggestion. So is the case
with absence of external marks of violence on the body of the victim. In case
of children who are incapable of offering any resistance external marks of
violence may not be found.
Medical Jurisprudence, 22nd Edn., p.502). It is true that marks of external
injury have not been found on the person of the accused but that by itself does
not negate the prosecution case. Modi has opined (see, Modi ibid, page 509)
that even in the case of a child victim being ravished by a grown up person it
is not necessary that there should always be marks of injuries on the penis in
it is to be noted that about two days had elapsed between the time of the
incident and medical examination of the accused within which time minor
injuries, even if caused, might have healed.
remains the observation of the High Court regarding mental state of the
accused-respondent. The plea taken by the accused was that he was suffering
from some mental disorder and not that he was insane at the time of incident.
In his defence the accused examined Dr. R.S. Dalwalia, DW2. He had examined the
accused on 9.6.1992 on a requisition made by jail authorities for his
psychiatric examination. He was diagnosed to be a case of schizophrenia and
necessary treatment was prescribed for him. Before the commencement of trial
the learned Sessions Judge had also held an enquiry under Section 329 of the
Code of Criminal Procedure to find out if the accused-respondent was fit and
capable to defend himself. Vide order dated 24.6.1993 the learned Sessions
Judge recorded a finding that the accused was fit to make his defence and
accordingly the trial was proceeded ahead. The only provision of law relevant
to the plea of the accused is Section 84 of the Indian Penal Code, 1860 which
provides that nothing is an offence which is done by a person who, at the time
of doing it, by reason of unsoundness of mind, is incapable of knowing the
nature of the act, or that he is doing what is either wrong or contrary to law.
Such is neither the plea nor evidence adduced by the accused. In Dahyabhais
case (supra) relied on by the High Court, this Court has held - when a plea of
legal insanity is set up, the Court has to consider whether at the time of
commission of the offence the accused, by reason of unsoundness of mind, was
incapable of knowing the nature of the act or that he was doing what was either
wrong or contrary to law. The crucial point of time for ascertaining the state
of mind of the accused is the time when the offence was committed. Whether the
accused was in such a state of mind as to be entitled to the benefit of Section
84 of the Penal Code can only be established from the circumstances which
preceded, attended and followed the crime. The High Court has picked up and
quoted another passage from the judgment dealing with burden of proof according
to which the burden of proof on the accused is no higher than that which rests
upon a party to civil proceedings and it is sufficient if the evidence adduced
by the accused raises a reasonable doubt in the mind of the Court as regards
one or more of the ingredients of the offence including mens rea of the accused
though not establishing conclusively the plea of insanity at the time of
commission of the offence. We fail to understand and appreciate how the passage
quoted by the High Court advanced the plea of the accused or raised any doubt
about his guilt.
contrary, the passage reproduced hereinabove from the judgment of this Court in
Dahyabhais case (supra) supports the prosecution. In the case of Dahyabhai
itself wantonness, vengeful mood or determination of the accused to see that
the victim did not escape was held not sufficient to prove that the accused was
doing the act under some hallucination. The plea raised before and entertained
by the High Court, in the present case, was one of the accused suffering from
schizophrenia. Schizophrenia is one of a group of severe emotional disorders,
usually of psychotic proportions, characterized by misinterpretation and
retreat from reality, delusions, hallucinations, ambivalence, inappropriate
affect, and withdrawn, bizarre, or regressive behavior; Popularly and
erroneously called split personality. [See - Medical- Legal Dictionary, Sloane-
Docland, p. 628]. We are not persuaded to hold even prima facie, on the
material available on record, that the accused was suffering from unsoundness
of mind and that too of a nature which would have rendered him incapable of
knowing the nature of the act which he was doing or incapable of distinguishing
between wrong or right as per law. The entire discussion by the High Court on
this aspect of the case was irrelevant and meaningless. The learned counsel for
the respondent has very fairly not persisted in pressing this plea before us.
384, one of us, Dr. A.S. Anand, J. (as His Lordship then was) has thus spoken
for the court __ 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. The
approach adopted by the High Court runs into the teeth of law so stated and
hence stands vitiated. For the foregoing reasons we hold the judgment of the
High Court wholly unsustainable in law. We are unhesitatingly of the opinion
that the Division Bench of the High Court ought not to have interfered with the
well-reasoned, detailed and well-articulated judgment of the Sessions Court
wherein we find no infirmity. For the foregoing reasons the appeal is allowed.
The judgment of the High Court is set aside and the judgment of the Sessions
Court holding the accused guilty of an offence punishable under Section 376 IPC
along with the sentence passed is restored. The bail bonds of the
accused-respondent are cancelled. He shall be taken into custody to serve out
the sentence passed by the trial court.