REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 841 OF 2002  

State of H.P. …. Appellant

Versus

Suresh Kumar @ DC               …. Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

 1. This  appeal  is  filed  by  the  State  of  Himachal  Pradesh  challenging  the  

judgment and order of acquittal  passed by the High Court of Himachal  

Pradesh whereby and whereunder the High Court acquitted the respondent  

- Suresh Kumar from the charges under Sections 376 of Indian Penal Code  

(hereinafter referred to as ‘the IPC’) and also under Section 342 IPC.

2. Before dealing with the contentions raised on behalf of the parties and in  

order to appreciate the said contentions it would be necessary to state a  

few facts leading to registration of the aforesaid criminal case.

3. The age of the prosecutrix – Km. Kusum Lata (PW-3) was opined by PW-

7 Dr. Devinder Kaur as between 5 to 12 years on the date of examination  

i.e. 17.03.2000.  Therefore, there is no dispute with regard to the fact that  

she was minor at the time of commission of alleged offence of rape.  The  

prosecutrix and the accused are the residents of the same village and in  

fact  they were neighbourers.    The respondent – accused was about 25  

years of age on the date of commission of the alleged crime whereas, as  

stated hereinbefore, the prosecutrix was a minor on the date of commission  

of alleged offence of rape.  On 15.03.2000, the parents of the prosecutrix,  

namely, Smt. Shakuntla Devi, PW-5, and Shri Ramesh Chand had gone to  

the house of maternal uncle of the prosecutrix.  On the said fateful day,  

PW-4, Km. Punam, the elder sister  of the prosecutrix,  had gone to the  

jungle to fetch green leaves for the goats leaving behind the prosecutrix  

along with her two younger brothers, namely, Vicky and Ajesh at their  

residence.  It is alleged that on the said date the accused went to the house  

of the prosecutrix and took her to his house and after entering his room the  

accused bolted the door of the room from inside and put the prosecutrix on  

the  cot  and switched on the T.V.   It  is  also alleged that  thereafter  the  

accused opened the salwar of the prosecutrix and took off his trouser and  

underwear and thereafter the accused committed rape on the prosecutrix.  

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The prosecutrix stated in her deposition that she wanted to cry and weep  

but she could not do so because the accused had gagged her mouth.  It is  

also alleged that after committing the rape the respondent-accused gave a  

currency  note  of  Rs.  5/-  and  some “shakkar”  to  the  prosecutrix.   The  

prosecutrix  ate  the  said  “shakkar”  and  thereafter  she  returned  home.  

When PW-4, Km. Punam, the elder sister of the prosecutrix, returned from  

the  forest  after  collecting  the  green  leave  for  the  goats,  prosecutrix  

narrated the whole incident of rape on her.  On 16.03.2000, when parents  

of the prosecutrix, PW-5, Smt. Shakuntla Devi and Shri Ramesh Chand  

returned back to their residence at village Sunali, at about 2.30 p.m., the  

prosecutrix narrated the incident of rape by the accused to them.  PW-4,  

sister of the prosecutrix handed over currency note of Rs. 5/- to her mother  

Smt. Shakuntla Devi (PW-5) which was given to her by the prosecutrix on  

the  previous  day.   Thereafter,  the  parents  reported  the  matter  to  the  

Pradhan of  the  Gram Panchayat,  who sent  telephonic  intimation to  the  

police station.  The police reached the village on 16.03.2000 at about 9  

p.m. and recorded the statement of the prosecutrix, on the basis of which a  

case for offence under sections 376 and 342 IPC was registered.   

4. After registering the case, the police started investigation into the case and  

during  the  same  the  prosecutrix  was  got  medically  examined  on  

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17.03.2000 at District Hospital, Bilaspur.  Dr. (Ms.) J. Goswami (PW-8)  

conducted the said medical examination.  The police also examined the  

witnesses and on completion of the investigation submitted a charge sheet  

against  the  respondent  –  accused  for  committing  the  offence  under  

Sections 376 and 342 IPC.  When the charge was explained to the accused,  

he pleaded not guilty and claimed to be tried.   

5. Consequently,  the  prosecution  examined  as  many  as  13  witnesses  to  

establish the charge against the respondent – accused.  The statement of  

the accused was also recorded under Section 313 Cr.P.C.  The respondent-

accused led no evidence in support of his denial of the allegation.  After  

conclusion  of  the  trial,  the  learned  Sessions  Judge,  Bilaspur,  Himachal  

Pradesh by judgment and order dated 30.04.2001, convicted the accused –  

respondent  under  Sections  376 and 342 IPC with  sentence  of  rigorous  

imprisonment of seven years and fine of Rs. 2000/- for the offence under  

section 376 IPC and rigorous imprisonment of one year for the offence  

under section 342 IPC.  Learned Sessions Judge further ordered that both  

the sentences of imprisonment would run concurrently.   

6. Being  aggrieved  by  the  aforesaid  judgment  and  order,  the  accused  –  

respondent  preferred  an  appeal  before  the  High  Court  of  Himachal  

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Pradesh.   After hearing the counsel  appearing for the parties,  the High  

Court  by  its  judgment  and  order  dated  16.11.2001  allowed  the  appeal  

thereby setting aside the judgment and order of conviction imposed upon  

the respondent and acquitted him of all the charges with the direction that  

the accused be released forthwith.   

7. Aggrieved by the impugned judgment and order of acquittal passed by the  

High  Court  of  Himachal  Pradesh,  the  State  has  preferred  the  present  

appeal, on which we have heard learned counsel appearing for the parties.

8. The counsel appearing for the parties in support of their respective cases  

had drawn our attention to the statements made by the various witnesses  

and also to the contents of the medical report of the prosecutrix and also to  

the statement of the doctor, who examined the prosecutrix.   

9. The  records  placed  before  us,  clearly  prove  and  establish  that  the  

prosecutrix was a minor on the date of occurrence.  The doctor has given a  

medical opinion to that effect and the Sessions Court as also by the High  

Court has accepted the said report of doctor.   Dr. J. Goswami (PW-8) had  

medically examined the prosecutrix on 17.03.2000 at 4.10 p.m. The doctor  

has  stated  in  her  statement  before  the  court  that  she  examined  the  

prosecutrix on the basis of alleged history of sexual molestation by her so  

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called ‘Chacha’, aged 26 years.  At the time of examination on 17.03.2000,  

the said doctor was told by the prosecutrix that the accused – respondent  

had  sexually  molested  the  prosecutrix  many  days  back  i.e.  when  she  

appeared in class-I examination and at the time of medical examination  

she  had  appeared  in  class  II  examination.   On  examination  of  the  

prosecutrix, the doctor found sign of recent sexual act, as there was small-

reddened  area  over  the  left  upper  margin  of  hymen.   In  the  cross-

examination, the doctor has categorically stated that the prosecutrix was  

not habitual of sexual intercourse because her vagina admitted only one  

finger.  The doctor, however, admitted that absence of hymen proves that  

she had been used to sexual intercourse earlier.   The aforesaid medical  

report  of  the  doctor  is  corroborated  by  the  statement  made  by  the  

prosecutrix  that  she  was  earlier  also  raped  by  the  same  accused.   As  

against the suggestion of the accused that the sexual intercourse as alleged  

would have been taken place more than one week prior to 17.03.2000, the  

doctor while accepting the same also stated that there can be a possibility  

of recent  sexual intercourse i.e.  within a week from 17.03.2000, which  

cannot be ruled out because of the redness on the margin of hymen.  The  

High Court mainly relied upon the opinion of the doctor holding that the  

doctor herself was unclear about the actual date of the alleged rape, and  

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therefore, the said medical report could not be relied upon.  While doing  

so, the High Court ignored the fact that the doctor had also stated that there  

can be a possibility of recent sexual intercourse i.e. within a week from  

17.03.2000.  The alleged rape was in fact committed within a week from  

17.03.2000 i.e. on 15.03.2000.  The fact that prosecutrix was subjected to  

rape on 15.03.2000 is proved and established from the statement of the  

prosecutrix, medical report and the statement of the doctor (PW-8), who  

had examined the prosecutrix.    The doctor had also stated that hymenal  

appearance cannot rule out recent coitus. Therefore, it is also proved and  

established beyond doubt that  the prosecutrix  was subjected to rape on  

15.03.2000.   

10.Having come to the aforesaid findings we are now left  to decide as to  

whether or not the respondent was the accused, who committed the rape on  

the minor girl.

11.The  prosecutrix  had  categorically  and  affirmatively  stated  to  be  so.  

Immediately after the occurrence she reported the matter to her sister, who  

had also in her statement corroborated the said fact.  The mother, who was  

examined as PW-5, also corroborated the said fact that she was informed  

by her daughter on the very next day that the accused had committed rape  

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on her.  She has also stated that the accused took her to his room, bolted  

the room from inside and thereafter committed rape on her.  It is submitted  

by the counsel  appearing for the respondent  – accused that  there is  no  

other independent witness to support the aforesaid allegation.  In fact, in a  

case like this, when the prosecutrix, who was a minor girl on the date of  

incident, has come forward and stated that she was raped by the accused  

and her testimony could not be shaken in the cross-examination, we have  

no reason to disbelieve her for no girl would ever lie on a vital issue of this  

nature.   Even her sister and mother also stated as to what were reported by  

the prosecutrix herself immediately after the alleged occurrence.  In fact,  

we have a witness in this case, who is Smt. Kanta Devi (PW-6).  Although,  

she turned hostile at one stage of her examination, yet she had stated that  

on 16.03.2000 at about 3.30 p.m. Smt. Shakuntla Devi had come to her  

house along with her  daughter,  prosecutrix and had told that  accused -  

respondent had committed sexual act with prosecutrix and she advised her  

to report the matter to the police.  She had in her cross examination by the  

public prosecutor admitted that it is correct that Smt. Shakuntla had told  

her that accused had raped her daughter and accused had given a currency  

note of Rs. 5/-  & “Shakkar” to the prosecutrix after the sexual act.  She  

also  stated  that  she  enquired  from the  prosecutrix  and  the  prosecutrix  

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narrated her  the entire  incident.   It  was sought  to be submitted  by the  

respondent  –  accused  that  the  prosecutrix  was  habitual  to  sexual  

intercourse since her hymen was absent.  The aforesaid statement of the  

respondent also cannot be accepted in view of the fact that the prosecutrix  

has stated that the accused himself had earlier raped her about a year back.  

It is also disclosed from the medical report that the prosecutrix was not  

habitual to sexual intercourse as doctor herself stated that the prosecutrix  

was not used to sexual intercourse because her vigina admitted only one  

finger.  She has explained that there was redness over the margin of hymen  

and on the basis of this redness, the possibility of recent sexual intercourse  

could not be ruled out.  As the testimony of the prosecutrix, her sister and  

mother  has  not  been shaken in  cross-examination,  the  statement  of  the  

doctor appears to be a plausible and convincing version.

12.There is another vital submission made by the respondent-accused which  

is required to be dealt with at this stage. It was submitted that both the  

child witnesses, namely, PW-3 and PW-4, the prosecutrix and her sister  

respectively,  should  not  and  could  not  have  been  believed  due  to  the  

following two reasons. Firstly, both PW-3 as well as PW-4 was child at the  

time of commission of the said offence and secondly, they were tutored by  

their parents and police.

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13.We have considered  the  said  submission,  but  we  find  the  same  to  be  

unacceptable. The depositions of these two witnesses, i.e. PW-3 and PW-4  

with regard to the occurrence of such incidence are firm and convincing.  

We find no reason as to why a child of her age i.e. prosecutrix would get  

an  innocent  person  named  for  an  offence  which  was  undisputedly  

committed  on  her.  It  is  settled  position  of  law that  the  conviction  for  

offence under Section 376 on the sole testimony of a rape victim if the  

evidence of the prosecutrix is found to be credible and convincing.  This  

Court  observed  as  follows  in  the  case  State  of  Rajasthan  v.  Om  

Prakash,(2002) 5 SCC 745, at page 753  :  

13. The conviction for offence under Section 376 IPC can  be based on the sole testimony of a rape victim is a well-settled  proposition. In State of Punjab v. Gurmit Singh, referring to State  of Maharashtra v.  Chandraprakash Kewalchand Jain this Court  held  that  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. It has also been observed in the  said  decision  by  Dr  Justice  A.S.  Anand  (as  His  Lordship  then  was), speaking for the Court that the inherent bashfulness of the  females and the tendency to conceal outrage of sexual aggression  are 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.

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14.In  Panchhi v.  State of U.P,  (1998) 7 SCC 177,  it was observed by this  

Court that the evidence of a child witness cannot be rejected outrightly but  

the evidence must be evaluated carefully and with greater circumspection  

because a child is susceptible to be swayed by what others tell him and  

thus a child witness is an easy prey to tutoring. The court has to assess as  

to whether the statement of the victim before the court is the voluntary  

expression of the victim and that she was not under the influence of others.  

15.Relying on the aforesaid decision, in  Mohd. Kalam v. State of Bihar,  

(2008) 7 SCC 257, this Court has observed that the evidence of a child  

cannot be rejected outrightly and the same must be evaluated with great  

circumspection.  The aforesaid  law laid  down by this  Court  is  squarely  

applicable in the facts and circumstances of the present case. When the  

evidence of PW-3 and PW-4 is taken into consideration, it becomes quite  

clear  that  the  accusation  made  by  them in  their  deposition  are  cogent,  

credible and had grain of truth and same was not in any manner could be  

said to be influenced by any tutoring. When we examine the impugned  

judgment in light of above, we find that while passing of order of acquittal,  

the High Court erroneously appreciated the evidence by ignoring credible  

evidence which is available in the nature of two child witnesses and the  

statement of the mother of the prosecutirx, which was further corroborated  

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by the medical evidence. Clearly, the aforesaid manifest error committed  

by the High Court amounts to miscarriage of justice.

16.In that view of the matter, we find that the judgment and order of the High  

Court is  illegal  and unjustified in the fact  situation of the present  case.  

There  cannot  be  an  order  of  acquittal  of  the  accused  –  respondent.  

Accordingly, we set aside the order of acquittal passed by the High Court  

of Himachal Pradesh and restore the judgment and order passed by the  

Sessions Judge, Bilaspur.

17.The accused – respondent is directed to surrender before the trial  court  

forthwith to serve out the remaining period of the sentence within a period  

of four weeks from the date of pronouncement of judgment failing which  

he shall be traced out by the police and arrested to serve the remaining  

sentence.

18.Accordingly, the appeal is hereby allowed.

 ……………………………J.        [Dr. Mukundakam Sharma]

.…………………………..J.

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            [Dr. B.S. Chauhan] New Delhi, May 29, 2009

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