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PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: RAGHUBIR SINGH

DATE OF JUDGMENT18/02/1993

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) YOGESHWAR DAYAL (J) VENKATACHALA N. (J)

CITATION:  1993 SCR  (1)1087        1993 SCC  Supl.  (3) 150  JT 1993 (4)    52        1993 SCALE  (1)637

ACT: Indian Penal Code, 1860. S.376-Rape-Accused-Conviction  by trial  court-Acquittal  by High  Court-Appeal by State to Supreme  Court-Acquittal  set aside-Conviction   and  sentence  awarded  by  trial   court confirmed-Held, judgment of High Court based on  conjectural findings  and not on proper appreciation of  evidence-Courts must  be slow to interfere with findings based on  apprecia- tion  of  evidence in case of child rape-Conviction  can  be based  on sole testimony of prosecutrix-Absence of  injuries on  male  organ of accused not always fatal  to  prosecution case-Court  cannot  enhance sentence without  a  show  cause notice to acquitted accused

HEADNOTE: The respondent-accused was prosecuted for committing rape on a child of 8/9 years of age.  The prosecution case was that: while the prosecutrix (P.W.4), her father (P.W.5) and  elder sister  (P.W.7)  were in their fields, it  suddenly  started raining and all the three ran towards their house; P.W.4 got separated from the two kins and was following them when  the accused,  then aged about 16 years, took her under  a  mango tree  and committed rape on her; P.W.5, who in the  meantime returned  to the fields in search of P.W.4, saw the  accused lying on her, he raised an alarm whereupon P.W.7, rushed  to the  spot and the accused ran away leaving P.W.4 crying  and bleeding per vagina. The  victim was got medically examined the same day and  the doctor  (P.W.1),  besides  mentioning the  injuries  on  the private part of the prosecutrix,   reported  that  she   had been subjected to sexual intercourse. At  the  trial P.W.5, P.W.7 and the doctor (P.W.1)  who  had medically   examined   the   prosecutrix,   supported    the prosecution case in its totality.  The trial court held that the  accused had committed an offence of rape  under  s.376, I.P.C. on the prosecutrix, and sentenced him to suffer  R.I. for a period of five years. 18 The  accused  riled an appeal before the  High  Court  which acquitted him.  The State filed the appeal by special  leave to this Court.

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Allowing the appeal, this Court, HELD:     1.I. Courts must be wary, circumspect and slow  to interfere  with  reasonable  and proper  findings  based  on appreciation  of evidence as recorded by the  lower  courts, before upsetting the same and acquiring an accused  involved in the commission of heinous offence of rape of hapless girl child. [p.24B-C] 1.2. The   High  Court  without  appreciating  or   properly discussing the evidence committed an error in setting  aside the findings recorded by the trial court which were based on proper  appreciation of evidence and were  not  unreasonable much less perverse.  The judgment of the High Court is based on  conjectural findings and cannot be  sustained.[pp.22B-C; 25A] 3.   The statement of prosecutrix (PW4) is clear, cogent and specific.   The  Sessions Judge recorded  her  statement  on being  satisfied  that she was capable of  giving  evidence. She narrated the occurrence in a simple and straight forward manner.   The  prosecution case was fully supported  by  her during her statement and nothing has been brought out in the cross-examination from which any doubt could be caused about her  veracity.  Her statement receives  ample  corroboration from the testimony of her father (PW5) who is found to be  a truthful and reliable witness.  The medical evidence of  PWl has  supported the prosecutrix in all material  particulars. The  evidence of PW7 who had also seen the  accused  running away  from the scene of crime further lands credence to  the prosecution version. [pp.21E-H; 22A] 2.1. There is no legal compulsion to look for  corroboration of the evidence of the prosecutrix before recording an order of conviction.  Evidence has to be weighed and not  counted. Conviction  can  be recorded on the sole  testimony  of  the prosecutrix,  if her evidence inspires confidence and  there is  absence  of  circumstances which  militate  against  her veracity. [p.22D] 2.2. In the instant case the evidence of the prosecutrix  is found to be reliable and trustworthy.  No corroboration  was required  to be looked for, though enough was  available  on the  record.   The  medical  evidence  provided   sufficient corroboration. [p.22E] 19 3.1. There  is  no inflexible axiom of law which  lays  down that  the  absence  of injuries on the  male  organ  of  the accused  would always be fatal to the prosecution  case  and would  discredit the evidence of the prosecutrix,  otherwise found to be reliable.  Every case has to be approached  with realistic   diversity   based   on   peculiar   facts    and circumstances  of that case and inferences have to be  drawn from the given set of facts and circumstances. [p.24D-F] Rahim  Beg  &  Anr.  v. State of  UP.,  [1972]  3  SCC  759, distinguished. 3.2. The  doctor  (PW3), who had  examined  the  respondent, found him to be capable of sexual intercourse and  according to  him  the  absence of injury on the  male  organ  of  the accused  was  not  suggestive of the fact that  he  had  not indulged in sexual intercourse with the prosecutrix, then of tender years of age.  His evidence was not at all challenged on this aspect by the defence. [p.24F-G] 4.1. The  judgment of the High Court acquitting the  accused is set aside.  The accused is convicted under S.376 IPC  for having  committed rape on the prosecutrix and  sentenced  to suffer  regorous  imprisonment for a period of  five  years. [pp. 25H; 26A] 4.2. Though for such an offence a more severe sentence would

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have been desirable but neither the State sought enhancement of  the sentence by filing an appropriate petition  nor  any notice  in this regard had been issued to the  accused,  and without  putting  him on such a notice,  the  Court  ’cannot enhance  the  sentence.   ’Me  provision  prescribing   more stringent  minimum  sentence  under  Section  376  was  also incorporated  in the Code by an amendment only  with  effect from  December, 1982, after the offence in the instant  case had been committed. [p.25D-G]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 398  of 1984. From  the Judgment and Order dated 16.11.83 of the  Himachal Pradesh High Court in Crl.  A. No. 32 of 1983. Ms. Kusum Choudhury and Ms. Bina Gupta for the Appellant. Dr. N.M. Ghatate and S.V. Deshpande for the Respondent. 20 The following Order of the Court was delivered: On  special  leave  being granted,  the  State  of  Himachal Pradesh  has preferred this appeal against the judgment  and order  dated  16.11.1983, acquitting the  respondent  of  an offence  under  Section  376, IPC earlier  recorded  by  the learned Sessions Judge. Briefly stated the prosecution case is that on 2.8.1982, the prosecutrix, Raksha Devi PW4 alongwith her father Nikkoo Ram PW5 and an elder sister by name Samti were in their  fields. It started to rain all of a sudden and the prosecutrix,  her father  and  her  sister,  ran  towards  their  house.   The prosecutrix  got separated from her father and elder  sister and  was following them when the respondent Raghubir  Singh, then aged about 16 years, came to her and caught hold of her hand and took her under a mango tree.  The prosecutrix,  who was  7/8  years  old at that time was wearing  a  frock  and having a shawl with her.  The respondent spread the shawl on the  ground  and making the prosecutrix lie  on  that  shawl committed  rape  on  her.  Since, the  prosecutrix  had  not reached  her home, Nikkoo Ram her father after  waiting  for about  half an hour returned towards the field and  saw  the respondent  lying  on top of the prosecutrix,  Raksha  Devi, under  the mango tree.  He raised alarm and  the  respondent ran  away carrying with him his underwear.  The  prosecutrix was crying and was bleeding per vagina.  The occurrence took place  at about 2.30 p.m. and the First  Information  Report Ex.   PE was lodged at the Police Station at 5.50  p.m.  The prosecutrix  was got examined by the doctor, who  found  her hymen ruptured and slight bleeding coming out of the vaginal edges.   Blood  clott  was also  present  and  the  external genitals of the prosecutrix were found to be tender and red. The  vagina admitted one finger with difficulty,  which  got smeared  with  blood.   The  doctor  who  had  examined  the prosecutrix, namely, Dr. Urmil Gupta, Medical Officer, Rural Hospital Nalagarh at about 7 p.m. on the same day, appearing as  PWI  at  the  trial had also  testified  that  when  the prosecutrix  was brought to her by her father, he  had  also brought with him a shawl, which was found to be having  some mud and bloodstains.  According to the opinion of Dr.  Urmil Gupta  PWI,  the prosecutrix had been  subjected  to  sexual intercourse and the probable duration of the injuries on her private  parts.,  including the vagina, was about  6  to  12 hours.   During the cross-examination, a suggestion was  put to  the  doctor that the injuries found on  the  prosecutrix could  have been caused by a fall on some bushes or  on  the

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stem  of  a ’beree’ tree but the  doctor  had  categorically denied  the suggestion.  It was also suggested to  her  that the venginal in jury could also be caused by inserting 21 a  finger in the vagina.  The X-Ray, the skiagrams  and  the examination of her teeth by Dr. Subhash Chandra Aggarwal PW2 established the age of the prosecutrix to be between 6 to  8 years.   The  respondent was also examined  by  doctor  C.L. Sharma PW3, medical officer at the Rural Hospital, Nalagarh. He  had  found the respondent to be potent  and  capable  of sexual intercourse.  He denied the suggestion that  injuries would  necessarily be caused to the penis in case of  sexual intercoures by a grown up male with a virgin when during the act her hymen gets torn. The   father  of  the  prosecutrix  Nikkoo  Ram   PW5,   the prosecutrix Raksha Devi PW4 and Taru PW7, who had rushed  to the  scene of occurrence on hearing the alarm and  had  also seen the respondent running away therefrom carrying with him his   underwear  supported  the  prosecution  case  in   its totality. The learned Sessions Judge after a careful appraisal of  the evidence  on record found that the respondent had  committed the  offence of rape and sentenced him to suffer R.I. for  a period of five years for the offence under Section 376  IPC. While awarding the sentence, the learned Sessions Judge took into  account  the age of the prosecutrix, the  age  of  the accused  and the other attending circumstances and  directed that it would be appropriate if the accused was kept in  the open air jail in Bilasput during the term of five years R.I. The  respondent  appealed  to the  High  Court  of  Himachal Pradesh and on 16.11.1983. The High Court acquitted him. We have heard learned counsel for the parties at length  and have gone through the evidence on the record.  The statement of  the  prosecutrix, Raksha Devi PW4 is clear,  cogent  and specific.   The learned Sessions Judge before recording  her statement was conscious of her age and had, therefore, taken all the precautions required by law to ascertain whether she was capable of giving evidence or not and on being satisfied that  she  was  so capable, recorded  her,  statement.   She narrated  the  occurrence in a simple and  straight  forward manner.  The prosecution case as noticed in the earlier part of  the  judgment  was fully supported  by  her  during  her statement  and  nothing has been brought out in  the  cross- examination  from which any doubt could be caused about  her veracity.   Her statement receives ample corroboration  from the  testimony  of  Nikkoo  Ram PW5,  her  father  who  even otherwise  would be the last person to come forward  with  a false accusation of the type of rape on his young  unmarried daughter. 22 His  testimony  has  impressed us and we find him  to  be  a truthful and reliable witness.  The medical evidence of  Dr. Urmil  Gupta has supported the prosecutrix in  all  material particulars.  She has also testified to the presence of  mud and  blood-stain,-, on the shawl.  The evidence of Taru  PW7 who had also seen the accused running away from the scene of crime carrying his underwear, further lends credence to  the prosecution  version.   The learned Sessions Judge,  in  our opinion,  was  therefore  justified  in  relying  upon   the prosecution  evidence and recording an order  of  conviction against the respondent for an offence under Section 376 IPC. His  findings were based on proper appreciation of  evidence and  were not unreasonable much less perverse.  The  learned single  Judge  of  the High Court in  our  opinion,  without appreciating  or properly discussing the evidence set  aside

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the findings recorded by the Sessions Judge.  The High Court appears  to have- embarked upon a course to find some  minor contradictions   in  the  oral  evidence  with  a  view   to disbelieve  the prosecution version.  In the opinion of  the High  Court,  conviction  on  the  basis  of  uncorroborated testimony of the prosecutrix was not safe.  We cannot agree. There  is no legal compulsion to look for  corroboration  of the evidence of the prosecutrix before recording an order of conviction.   Evidence  has to be weighed and  not  counted. Conviction  can  be recorded on the sole  testimony  of  the prosecutrix,  if her evidence inspires confidence and  there is  absence  of  circumstances which  militate  against  her veracity.    In  the  present  case  the  evidence  of   the prosecutrix  is  found to be reliable and  trustworthy.   No corroboration  was required to be looked for, though  enough was available on the record.  The medical evidence  provided sufficient  corroboration.  The High Court,  however,  while dealing with the medical evidence observed as follows:               "Lady doctor Urmil Gupta PW1, who had examined               the prosecutrix, had admitted in so many words               towards the end of her cross examination  that               the  injury found on the private part  of  the               prosecutrix and which is the only injury found               in  the  instant  case,  could  be  caused  by               insertion  of  a finger by a grown  up  person               like the parents of the prosecutrix It is true               that  normally no parents would not do so  but               in  the peculiar circumstances of  this  case,               this   possibility  may  not  be   ruled   out               altogether.   In any case the mere  fact  that               the  hymen of the prosecutrix had  been  found               ruptured,  would  not  prove  the  prosecution               version               23               and  connect  the appellant with  the  offence               charged against him." The  above  approach to say the least was  highly  improper. What  were  the ’peculiar circumstances’ of  the  case  from which  the  learned single Judge of the High  Court  thought that the possibility could not be ruled out that the parents of the prosecuted would have themselves caused injury to the prosecutrix by inserting finger in her vagina rupturing  her hymen is not at all understandable.  There is no  suggestion that on account of any enmity, the parents of the girl would go to that length to falsely implicate the respondent.   Dr. Ghatate, the learned senior counsel was also unable to point out  any  such ’circumstances’ from the record  which  could show  that  there was any possibility of the  hymen  of  the prosecutrix having been ruptured in the manner suggested  by the  High  Court  or any reason  to  falsely  implicate  the respondent.  In fairness to Dr. Ghatate it must be  recorded that  he did not support the observations of the High  Court noticed above. The  learned  single Judge of the High Court  also  drew  an inference  against the prosecution from the fact  that  only two blood-stains had been found on the shawl by the Chemical Examiner  and  doubted  the  prosecution  version  on   that account.  According to the learned single Judge:               "In natural course if this shawl had been used               under  the  prosecutrix  at the  time  of  the               alleged  offence,  the same should  have  been               drenched with blood in the meddle.   Moreover,               this shawl should have been full of mud as  it               remained   lying  on  the  ground  under   the               prosecutrix  for such a long time and when  it

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             had rained throughout." In  making the above observations, obviously the High  Court ignored  the testimony of Doctor Urmil Gupta who  had  found the  presence of blood-stains and the mud on the  shawl  and who  had  opined  that the bleeding from the  edges  of  the vagina was slight and that some amount of clotted blood  was also present.  The prosecutrix was a girl of tender age  and on account of the rape committed on her, there was  bleeding from her vagina but to expect that the shawl should have got "drenched  with  blood" as if the large blood  arteries  had been  cut, is letting the imagination run wild and  ignoring the circumstances of the case.  The absence of spermatoza on the  vaginal slide, which was also pressed into aid  by  the High 24 Court  to  acquit the respondent, was not  based  on  proper scrutiny  of the evidence.  The prosecution case itself  was that on being surprised while the respondent was in the  act of committing sexual intercourse on the prosecutrix, he  ran away  carrying  his underwear.  The  absence  of  spermatoza under   the  circumstances  could  not  be  said  to  be   a circumstance  in  favour  of the  respondent  at  all.   The judgment of the High Court, in our opinion, is based more on surmises  and  conjectures than on  proper  appreciation  of evidence.  It exposes the insensitivity of the learned Judge to  the serious crime committed against human  dignity.   We are  not  impressed by the manner in which  the  High  Court dealt  with the case.  Courts must be wary, circumspect  and slow to interfere with reasonable and proper findings  based on appreciation of evidence as recorded by the lower courts, before upsetting the same and acquitting an accused involved in the commission of heinous offence of rape of hapless girl child. Dr.  Ghatate,  learned  senior counsel  for  the  respondent submitted,  by  reference to Rahim Beg & Anr.  v.  State  of U.P., [1972] 3 SCC 759, that the absence of injuries on  the penis  of the respondent should be treated as sufficient  to the  negative  prosecution case.  We are  afraid  we  cannot agree.   Inferences have to be drawn in every case from  the given   set  of  facts  and  circumstances.   There  is   no inflexible axiom of law which lays down that the absence  of injuries  on the male organ of the accused would  always  be fatal  to  the  prosecution case  and  would  discredit  the evidence of the prosecutrix, otherwise found to be reliable. The presence of injuries on the male organ may lend  support to  the  prosecution case, but their absence is  not  always fatal.   Rahim Beg’s case (supra) was based on its  peculiar facts  and the observations mate therein were in  a  totally different  context  and  cannot  advance  the  case  of  the respondent.   The observations in Rahim Beg’s  case  (supra) cannot  be  mechanically  pressed into  aid  in  every  case regardless  of the specific circumstances of the  crime  and absence  of  the fact situation as existing  in  that  case. Every  case  has to be approached with  realistic  diversity based  on  peculiar facts and circumstances  of  that  case. Doctor Sharma who had examined the respondent had found  him to  be  capable of sexual intercourse and according  to  his opinion  the  absence of injury on his male  organ  was  not suggestive  of the fact that he had not indulged  in  sexual intercourse with the prosecutes then of tender years of age. His evidence was not at all challenged on this aspect by the defence. Thus,  considered on the whole. we are of the  opinion  that the 25

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judgment of the High Court is based on conjectural  findings and cannot be sustained.  The same deserves to be set  aside and is hereby set aside.  The reasoning given by the learned Sessions   Judge  and  the  findings  recorded  by  him   on appreciation of evidence have appealed to us and we find  no reason  to take a view different than the one taken  by  the learned Sessions Judge. We,  accordingly, set aside the acquittal of the  respondent and hold him guilty of the offence under Section 376 IPC for having  committed rape on the prosecutrix, Raksha  Devi,  on the date and in the manner alleged by the prosecution. Having  recorded  the conviction of the respondent  for  the offence  under Section 376 IPC, the next question  is  about the awarding of proper sentence.  The occurrence took  place on  2.8.1982, more than a decade ago.  The learned  Sessions Judge  after recording the conviction under Section 376  IPC had  sentenced the respondent to suffer RI for  five  years. The State did not move the High Court for any enhancement of the sentence.  We, therefore, feel that the ends of  justice would be met if the sentence to be imposed on the respondent is  confined to five years RI as was awarded by the  learned Sessions  Judge for cogent reasons recorded by him.  We  may emphasise  that  though for such an offence  a  more  severe sentence  would have been desirable but we  have  restricted ourselves  to the maintenance of the sentence as imposed  by the learned Sessions Judge for the reason that the State did not  seek  any  enhancement of the  sentence  by  filing  an appropriate petition in the High Court or in this Court  and for  over  a  period  of seven years,  while  the  case  has remained  pending  here, no notice had been  issued  to  the acquitted respondent to show cause as to why in the event of his  acquittal being set aside, a more  deterrent  sentence, than  the one imposed by the Sessions Judge, be not  imposed upon him and without putting him on such a notice, the Court cannot  enhance the sentence.  If the notice were  to  issue now, it would further delay the disposal of the case and  we do  not consider that to be a proper course to  be  adopted. The  more  stringent  minimum  sentence  prescribed  for  an offence  under Section 376 IPC was also incorporated in  the Code  by an amendment only with effect from December,  1982, after the offence in the present case had been committed. The  appeal is consequently allowed and the judgment of  the High 26 Court  is  set aside.  The respondent is held guilty  of  an offence  under  Section  376 IPC  and  sentenced  to  suffer rigorous  imprisonment  for  a period of  five  years.   The respondent shall be taken into custody to suffer the term of imprisonment. R.P. Appeal allowed. 27