REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO.670 OF 2003

Rajinder  @ Raju     …..Appellant

Vs. State of H.P. ….Respondent

J U D G E M E N T   

R.M. LODHA, J.

Rapist  not  only  violates  the  victim’s  privacy  and  

personal integrity, but inevitably causes serious psychological as well  

as physical harm in the process. Rape is not merely assault – it is  

often  destructive  of  the  whole  personality  of  the  victim.    The  

murderer destroys the physical body of his victim.  Rapist degrades  

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

Singh and Others1]

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

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

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

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

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

1 (1996) 2 SCC 384

village  Kothi   near  the  residence  of  the  prosecutrix.   In  that  

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

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

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

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

suggested  to  the  mother  of  the  prosecutrix  that  his  cousin  at  

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

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

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

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

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

the  accused  took  prosecutrix  to  Berthin.  The  accused  reached  

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

Berthin,  the accused bought   some sweets and told the prosecutrix  

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

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

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

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

lie down;  untied her salwar and committed the sexual intercourse  

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

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

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

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

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

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

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

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

registered at the Ghumarwin Police Station.  The prosecutrix and the  

accused  were  got  medically  examined.   The  Investigating  Officer  

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

was  sent  for  chemical  analysis  alongwith  vaginal  slide  and  

underwear  of  the  accused.    During  the  investigation,  it  also  

transpired that the prosecutrix belonged to Scheduled Caste.   After  

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

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

Scheduled Castes and Scheduled Tribes (Prevention of  Atrocities)  

Act,  1989.

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

the accused for the aforesaid offences.    The prosecution examined  

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

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

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

Savita Mehta (PW-13).

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

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

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

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

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

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

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

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

case against him.

5. The  Sessions  Judge,  Bilaspur  on  consideration  of  the  

evidence  on  record,  acquitted  the  accused  of  the  charge  under  

Section  3(XII)  of  Scheduled  Castes  and  Scheduled  Tribes  

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

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

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

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

6. The  accused  challenged  his  conviction  and  sentence  

before  the  High  Court  of  Himachal  Pradesh.  The  learned  Single  

Judge dismissed the appeal preferred by the accused.  Hence the  

present appeal by  special leave.

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

did not  dispute before us  that the accused had sexual intercourse  

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

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

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

consent and free will  of the prosecutrix.  The aforesaid  contention  

was  argued  before  the  High  Court  as  well   and  the  following  

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

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

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

person of  the prosecutrix   is   suggestive of  her  consent  which is  

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

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

prosecutrix  accompanied  the accused  voluntarily   from the very  

beginning; and that the aspect  of the accused  having threatened  

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

not find mention in the FIR.   

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

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

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

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

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

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opined  that sexual intercourse was committed  with the prosecutrix  

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

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

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

opinion,  the  prosecutrix  was  sexually  assaulted  for  the  first  time  

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

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

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

the accused had sexual intercourse with the prosecutrix on the date  

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

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

9. The prosecutrix in her deposition  has been categorical,  

clear  and unequivocal  that  the accused committed  forcible  sexual  

intercourse with her. She testified:

“While  going,  the accused stopped the scooter  at  a  lonely place on the road and thereafter he dragged me  by holding me from my arm at some distance from the  road and gagged  my mouth and after placing ‘pattu’  on the ground, he untied my salwar and committed the  sexual  intercourse with me.  I  had felt  a pain in my  private part and the blood started oozing.”

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

accused  had threatened her  with  a dagger  before Jablu when she  

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

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

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

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

justifiable reason to take a different view.

11. The circumstances which have been pointed  out  by the  

learned  counsel   neither  individually  nor  collectively  lead  to  any  

plausible inference that the sexual intercourse  with the prosecutrix  by  

the accused was done with her tacit  consent.   

12.  The  learned  counsel  for  the  appellant  relied  upon  few  

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

of Orissa2, (2)  Sadashiv Ramrao Hadbe vs. State of Maharashtra and  

Anr.3,(3) Narayan alias Naran vs. State of Rajasthan4 and  (4)  Radhu  

vs. State of Madhya Pradesh5.  

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

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

the prosecution witness or the circumstances proved in the case admits  

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

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

held that the appellants had sexual intercourse with the prosecutrix with  

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

2 (1977) 3 SCC 41   3 (2006) 10 SCC 92 4 (2007) 6 SCC 465 5 (2007) 12 SCC 57

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

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

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

facts and is of no help to the appellant herein.

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

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

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

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

while accepting the testimony when the entire case is improbable and  

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

“9. It is true that in a rape case the accused could  be convicted on the sole testimony of the prosecutrix, if  it is capable of inspiring confidence in the mind of the  court.  If  the  version  given  by  the  prosecutrix  is  unsupported  by  any  medical  evidence  or  the  whole  surrounding circumstances are highly improbable and  belie the case set up by the prosecutrix, the court shall  not act on the solitary evidence of the prosecutrix. The  courts shall be extremely careful in accepting the sole  testimony of  the  prosecutrix  when the entire  case  is  improbable and unlikely to happen.”

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

this Court found that the prosecution evidence suffered from many  

contradictions  and  the  whole  incident  seemed  to  be  highly  

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

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

improbabilise the prosecution version but the aforesaid observation  

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

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

“10. In  the  present  case  there  were  so  many  persons in the clinic and it is highly improbable that the  appellant  would  have  made  a  sexual  assault  on  the  patient who came for examination when large number of  persons were present in the near vicinity. It is also highly  improbable  that  the  prosecutrix  could  not  make  any  noise or get out of the room without being assaulted by  the doctor as she was an able-bodied person of 20 years  of age with ordinary physique.”

The decision in Sadashiav Ramrao Hadbe does not help  

the accused at all.

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

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

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

with  prosecutrix  thrice,  this  Court   held   that  absence  of  injuries  

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

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

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

concerned,  this Court  reiterated that evidence of prosecutrix can  

alone sustain conviction of the accused.   

17. This Court in Radhu considered  the matter  thus:

“12. Dr. Vandana (PW 8) stated that on examination of  Sumanbai,  she  found  that  her  menstrual  cycle  had  not  started  and pubic  hair  had  not  developed,  and  that  her  hymen was ruptured but the rupture was old. She stated  that there were no injuries on her private parts and she  could  not  give any opinion  as to  whether  any rape had  

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been  committed.  These  were  also  recorded  in  the  examination report (Ext. P-8). She, however, referred to an  abrasion on the left elbow and a small abrasion on the arm  and a contusion on the right leg of Sumanbai. She further  stated  that  she  prepared  two  vaginal  swabs  for  examination and handed it over along with the petticoat of  Sumanbai  to  the  police  constable,  for  being  sent  for  examination. But no evidence is placed about the results  of  the  examination  of  the  vaginal  swabs  and  petticoat.  Thus, the medical evidence does not corroborate the case  of sexual intercourse or rape. 13. We  are  thus  left  with  the  sole  testimony  of  the  prosecutrix and the medical evidence that Sumanbai had  an abrasion on the left elbow, an abrasion on her arm and  a  contusion  on  her  leg.  But  these marks  of  injuries,  by  themselves, are not sufficient to establish rape, wrongful  confinement or hurt, if  the evidence of the prosecutrix is  found to be not trustworthy and there is no corroboration. 14. Lalithabai says that when Sumanbai did not return, she  enquired  with  Gyarsibai.  Sumanbai  also  says  that  she  used to often visit the house of Gyarsibai. She says that  Radhu’s  parents  are  kaka and baba of  her  mother  and  Radhu was her maternal uncle. The families were closely  related  and  their  relationship  was  cordial.  In  the  circumstances, the case of the prosecution that Gyarsibai  would have invited Sumanbai to her house to abet her son  Radhu to rape Sumanbai and that Gyarsibai was present  in the small house during the entire night when the rape  was  committed,  appears  to  be  highly  improbable  in  the  light of the evidence and circumstances. 15. The FIR states that one Dinesh was sent by Lalithabai  to fetch her husband. Lalithabai and Mangilal have stated  that  they  did  not  know  anyone  by  the  name  Dinesh.  Sumanbai stated in her evidence that on 29-1-1991, as her  father was away, her brother-in-law went to bring back her  father, that the name of her brother-in-law is Ramesh, but  the SHO wrongly wrote his name as “Dinesh”. But none  else mentioned about such a mistake. Neither Ramesh nor  Dinesh was examined. 16. The evidence of the prosecutrix when read as a whole,  is  full  of  discrepancies and does not  inspire  confidence.  The gaps in the evidence, the several discrepancies in the  evidence  and  other  circumstances  make  it  highly  improbable  that  such  an  incident  ever  took  place.  The  learned  counsel  for  the  respondent  submitted  that  the  defence  had failed  to  prove  that  Mangilal,  father  of  the  prosecutrix  was  indebted  to  Radhu’s  father  Nathu  and  consequently, defence of false implication of the accused  should be rejected. Attention was invited to the denial by  

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the mother and father of the prosecutrix of the suggestion  made  on  behalf  of  the  defence  that  Sumanbai’s  father  Mangilal  was  indebted  to  Radhu’s  father  Nathu  and  because Nathu was demanding money they had made the  false charge of rape to avoid repayment. The fact that the  defence had failed to prove the indebtedness of Mangilal  or  any motive for  false implication does not  have much  relevance as the prosecution miserably failed to prove the  charges.  We  are  satisfied  that  the  evidence  does  not  warrant a finding of guilt at all, and the trial court and the  High Court erred in returning a finding of guilt.”

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

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

medical  evidence  also  did  not   corroborate  the  case  of  sexual  

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

thus:

“6. It is now well settled that a finding of guilt in a case  of rape, can be based on the uncorroborated evidence  of the prosecutrix. The very nature of offence makes it  difficult  to  get  direct  corroborating  evidence.  The  evidence of the prosecutrix should not be rejected on  the basis of minor discrepancies and contradictions. If  the victim of rape states on oath that she was forcibly  subjected  to  sexual  intercourse,  her  statement  will  normally  be  accepted,  even  if  it  is  uncorroborated,  unless the material  on record requires drawing of an  inference  that  there  was  consent  or  that  the  entire  incident was improbable or imaginary. Even if there is  consent, the act will still be a “rape”, if the girl is under  16 years of age. It is also well settled that absence of  injuries  on  the private  parts  of  the victim will  not  by  itself  falsify  the  case  of  rape,  nor  construed  as  evidence of consent.”  

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

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

consent.

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19. In State of Rajasthan vs. N.K. 6,  this Court held thus:

“19. For the offence of rape as defined in Section 375  of  the  Indian  Penal  Code,  the  sexual  intercourse  should  have  been  against  the  will  of  the  woman  or  without her consent.  Consent  is immaterial  in certain  circumstances covered by clauses thirdly to sixthly, the  last one being when the woman is under 16 years of  age. Based on these provisions, an argument is usually  advanced on behalf of the accused charged with rape  that the absence of proof of want of consent where the  prosecutrix  is  not  under  16  years  of  age  takes  the  assault out of the purview of Section 375 of the Indian  Penal  Code.  Certainly  consent  is  no  defence  if  the  victim has been proved to be under 16 years of age. If  she be of 16 years of age or above, her consent cannot  be presumed; an inference as to consent can be drawn  if only based on evidence or probabilities of the case.  The victim of rape stating on oath that she was forcibly  subjected  to  sexual  intercourse  or  that  the  act  was  done  without  her  consent,  has  to  be  believed  and  accepted  like  any  other  testimony  unless  there  is  material  available  to  draw  an  inference  as  to  her  consent or else the testimony of prosecutrix is such as  would be inherently improbable.”                            

20. This  Court,  in  the  case  of  Gurmit  Singh1,  made  the  

following weighty observations in respect of evidence of a victim of  

sexual assault:

“The  courts  must,  while  evaluating  evidence,  remain  alive  to  the  fact  that  in  a  case  of  rape,  no  self- respecting woman would come forward in a court just  to  make  a  humiliating  statement  against  her  honour  such as is involved in the commission of rape on her.  In  cases  involving  sexual  molestation,  supposed  considerations  which  have  no  material  effect  on  the  veracity of the prosecution case or even discrepancies  in the statement of the prosecutrix should not, unless  the discrepancies are such which are of fatal nature, be  allowed to throw out an otherwise reliable prosecution  case. The inherent bashfulness of the females and the  tendency  to  conceal  outrage of sexual aggression  are  

6 (2000) 5 SCC 30

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factors  which  the  courts  should  not  overlook.  The  testimony of the victim in such cases is vital and unless  there are compelling reasons which necessitate looking  for  corroboration of  her  statement,  the courts  should  find no difficulty to act on the testimony of a victim of  sexual assault alone to convict an accused where her  testimony  inspires  confidence  and  is  found  to  be  reliable. Seeking corroboration of her statement before  relying  upon  the  same,  as  a  rule,  in  such  cases  amounts  to  adding  insult  to  injury.  Why  should  the  evidence of a girl or a woman who complains of rape or  sexual molestation, be viewed with doubt, disbelief or  suspicion? The court  while appreciating the evidence  of a prosecutrix may look for some  assurance  of her  statement to satisfy its judicial conscience, since she is  a  witness  who  is  interested  in  the  outcome  of  the  charge levelled by her, but there is no requirement of  law  to  insist  upon  corroboration  of  her  statement  to  base  conviction  of  an  accused.  The  evidence  of  a  victim of sexual assault stands almost on a par with the  evidence of an injured witness and to an extent is even  more  reliable.  Just  as  a  witness  who has  sustained  some injury in the occurrence, which is not found to be  self-inflicted, is considered to be a good witness in the  sense that he is least likely to shield the real culprit, the  evidence of a victim of a sexual offence is entitled to  great  weight,  absence  of  corroboration  notwithstanding.  Corroborative  evidence  is  not  an  imperative  component  of  judicial  credence  in  every  case of rape. Corroboration as a condition for judicial  reliance on the testimony of  the prosecutrix  is  not  a  requirement of law but a guidance of prudence under  given circumstances. It must not be overlooked that a  woman or a girl subjected to sexual assault is not an  accomplice  to  the  crime  but  is  a  victim  of  another  person’s lust and it is improper and undesirable to test  her  evidence  with  a  certain  amount  of  suspicion,  treating her as if she were an accomplice. Inferences  have  to  be  drawn  from  a  given  set  of  facts  and  circumstances  with  realistic  diversity  and  not  dead  uniformity lest that type of rigidity in the shape of rule of  law is  introduced  through  a  new form of  testimonial  tyranny making justice a casualty. Courts cannot cling  to a fossil formula and insist upon corroboration even if,  taken as a whole, the case spoken of by the victim of  sex crime strikes the judicial mind as probable.”

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21. In  the  context  of  Indian Culture,  a  woman – victim of  

sexual  aggression  –  would  rather  suffer  silently  than  to  falsely  

implicate  somebody.   Any  statement  of  rape  is  an  extremely  

humiliating experience for a woman and  until she is a victim of sex  

crime,  she  would  not   blame anyone but  the  real  culprit.  While  

appreciating  the  evidence  of   the  prosecutrix,  the  Courts   must  

always keep in mind that no self-respecting woman would put her  

honour at stake by falsely alleging commission of rape on her and,  

therefore,  ordinarily   a look for  corroboration  of  her  testimony is  

unnecessary  and  uncalled  for.   But  for  high  improbability  in  the  

prosecution case, the conviction in the  case of sex crime may be  

based on the sole testimony of the prosecutrix. It has been rightly  

said that corroborative evidence is not an imperative component of  

judicial credence in every case of rape nor the absence of injuries on  

the  private  parts  of  the  victim  can  be  construed  as  evidence  of  

consent.  Insofar  as  the  present  case  is  concerned,  the  

circumstances referred to  and  pointed out by the learned counsel  

are neither  sufficient nor do they justify discarding the evidence of  

the  prosecutrix.  There  is  nothing  on  record   that  creates   any  

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

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

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

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she was suffering from some throat pain and she accompanied him  

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

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

prosecutrix  was  not   expected  to  put  any resistance lest  her  life  

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

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

an  inference  that  she  consented  for  sexual  intercourse  with  the  

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

was more than double her age and  yielded to sexual intercourse  

against her  will.  

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

affirming  the  judgement  of  the  trial  court  convicting  the  accused  

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

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

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

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

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

………………….J (V.S.Sirpurkar)  

………………….J (R.M. Lodha)

New Delhi, July 7,  2009.         

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