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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: N.  K.  ACCUSED

DATE OF JUDGMENT:       30/03/2000

BENCH: S.N.Variava, R.C.Lahoti

JUDGMENT:

     R.C.  Lahoti, J.

     The  State of Rajasthan has come up in appeal  feeling aggrieved  by  an  order of acquittal recorded by  the  High Court  of  Rajasthan reversing the judgment of the  Sessions Court  which  had found the accused-respondent guilty of  an offence  punishable under Section 376 Indian Penal Code  and sentenced  him to undergo seven years rigorous  imprisonment with   a  fine  of  Rs.2,000/-   and  to  a  further  simple imprisonment  of  one  year and nine months  in  default  of payment  of fine.  According to the prosecution, G, PW2, the prosecutrix,  was  aged 15 years and was living  in  village BhaniaYana (Jaisalmer) with her father, mother and a younger sister.   The family resided in a lonely hutment situated in a field.  On 1.10.1993 at about 12 noon, the prosecutrix was alone  in her hut busy washing clothes on a water pump.  NK, the  accused-respondent  was known to the prosecutrix  since before.   He came to her and initially asked for water which she  provided in a lota.  The accused then asked for a knife for peeling the skin of a cucumber.  The prosecutrix brought the  knife and handed it over to him.  When the  prosecutrix was  about  to turn and go back, the accused caught hold  of her .  He twisted her hand on her back and forcibly took her to a nearby place called Bhitian, , i.e., a place surrounded by walls.  The accused forced the prosecutrix to lie down on the ground, put his foot on her chest, closed her mouth with his  palm,  removed  her lehenga upwards and  then  forcibly committed  sexual  intercourse  with her.   The  prosecutrix offered  resistance  and  tried  to  save  herself  but  the respondent  gagged her mouth by a towel pressed against  her mouth.    Having   thus    raped    the   prosecutrix,   the accused-respondent  went  away to Thane, another village  or another  part of the same village.  The prosecutrix  reached back  her home and narrated the entire incident to a  woman, described  as wife of Udai Singh and to her father, PW 10, who  had  returned by that time.  The victim accompanied  by her  father wanted to go to the police station and lodge the first  information  report  of the incident  but  they  were prevented  from doing so by several village people belonging to the community of the accused who also proposed the matter being  settled within the village by convening a  panchayat. However,  report of the incident was lodged on 5.10.1993  at 11.20  a.m.   The offence was registered  and  investigation commenced.

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     The  prosecutrix was referred for medical  examination so  as  to  find out the injuries on her person as  also  to ascertain  her  age.  Dr.  V.D.  Jetha, (P.W.9) the  medical officer  posted at primary health centre, Jaisalmer examined the  prosecutrix  on  6-10-1993  at about  12  noon  upon  a requisition  made by the investigating officer.  Dr.   Jetha found  inter alia the hymen of the prosecutrix was  ruptured in  multiple radial tears, the edges of which showed healing at  most of the places and mild tenderness.  The hymen  hole admittted one finger easily with mild tenderness.  Sample of vaginal  swab  from posterior front of vagina was taken  and smear  slide  was  prepared  which was sealed  and  sent  to forensic science laboratory for examination.  In the opinion of  Dr.   Jetha sexual intercourse with the prosecutrix  was done  5 to 7 days before the day of examination.  He further opined that after a lapse of 5 to 7 days, the examination of vaginal  smear  and  vaginal  swab  could  not  confirm  the presence of semen.

     For   the   purpose  of   ascertaining  age   of   the prosecutrix,  x-rays of arms and elbow joints were taken  in his  presence.   After examinaing x-rays he opined that  the age of the prosecutrix was 15 years.

     On   4.11.1993   on   a   requisition  made   by   the investigating   officer,  Dr.   Jetha   examined   NK,   the accused-respondent.   He was found to be a person of average built  suffering  from no disease or infirmity.  His  height was  5 ft 11 inches and weight was 61 kg.  He was found  fit and  competent  to perform sexual intercourse.  No  mark  of injury was found on his person.

     The  trial  court  found  the  incident,  as  alleged, proved.   In  the  opinion of the learned  trial  Judge  the testimony  of  the prosecutrix inspired confidence.  It  was corroborated  by  the  medical  evidence   as  also  by  the testimony  of her father.  The prosecutrix was held to be 15 years  of age on the date of the incident.  Though there was delay  in  lodging  the  FIR   but  it  was   satisfactorily explained.   Accordingly,  the accused-respondent was  found guilty  of the offence punishable under Section 376 IPC  and sentenced as above.

     The  High  Court  has, in an appeal preferred  by  the accused-respondent, held that the prosecutrix was not proved beyond reasonable doubt to be below 16 years of age.  In the opinion  of  the  High Court though the factum  of  accused- respondent  having  committed  sexual intercourse  with  the prosecutrix  was  proved but the absence of injuries on  the person  of the prosecutrix was a material fact not excluding the  possibility of the prosecutrix having been a consenting party.   The delay in lodging the FIR was not satisfactorily explained.   The  delay coupled with the non-examination  of the  wife  of  Udai Singh to whom the incident  was  first narrated by the prosecutrix immediately after the occurrence rendered  the  prosecution  case doubtful.  Mainly  on  this reasoning  the  High  Court  has   allowed  the  appeal  and acquitted the accused-respondent.

     The  learned  counsel  for   the  appellant-State  has vehemently  attacked  the  findings arrived at by  the  High Court  and  submitted that none of them was sustainable  and none  could be a reason for doubting the prosecution case in the  given  facts and circumstances and hence the  acquittal

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deserves to be set aside.

     Having  heard  the learned counsel for the parties  we are  of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal.  It is true that the golden thread which runs  throughout  the cob-web of criminal  jurisprudence  as administered in India is that nine guilty may escape but one innocent  should not suffer.  But at the same time no guilty should  escape unpunished once the guilt has been proved  to hilt.   An unmerited acquittal does no good to the  society. If  the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the  Court should not lean in favour of acquittal by  giving weight  to  irrelevant or insignificant circumstances or  by resorting to technicalities or by assuming doubts and giving benefit  thereof where none exists.  A doubt, as  understood in  criminal jurisprudence, has to be a reasonable doubt and not  an  excuse  for  finding in favour  of  acquittal.   An unmerited  acquittal encourages wolves in the society  being on  prawl for easy preys, more so when the victims of  crime are  helpless  females.   It is the spurt in the  number  of unmerited acquittals recorded by criminal courts which gives rise  to the demand for death sentence to the rapists.   The courts have to display a greater sense of responsibility and to  be  more sensitive while dealing with charges of  sexual assault  on  women.  In Bharwada Bhoginbhai  Hirijibhai  Vs. State  of  Gujarat 1983 Crl.L.J.  1096 this  Court  observed that  refusal to act on the testimony of a victim of  sexual assault in the absence of corroboration as a rule, is adding insult to injury.  This court deprecated viewing evidence of such  victim  with the aid of spectacles fitted with  lenses tinted  with  doubt, disbelief or suspicion.  We  need  only remind  ourselves of what this court has said through one of us (Dr.  A.S.  Anand, J.  as His Lordship then was) in State of Punjab Vs.  Gurmeet Singh & Ors., 1996 (2) SCC 384.

     ..A  rapist  not  only  violates  the  victims privacy  and  personal  integrity,   but  inevitably  causes serious  psychological  as  well  as physical  harm  in  the process.   Rape  is  not merely a physical assault   it  is often destructive of the whole personality of the victim.  A murderer  destroys the physical body of his victim, a rapist degrades  the very soul of the helpless female.  The courts, therefore,  shoulder a great responsibility while trying  an accused  on charges of rape.  They must deal with such cases with  utmost  sensitivity.   The courts should  examine  the broader  probabilities of a case and not get swayed by minor contradictions   or  insignificant   discrepancies  in   the statement  of  the  prosecutrix, which are not  of  a  fatal nature, to throw out an otherwise reliable prosecution case.

     The questions arising for consideration before us are: Whether   the  prosecution  story,   as  alleged,   inspires confidence  of  the court on the evidence adduced?   Whether the  prosecutrix, is a witness worthy of reliance?   Whether the testimony of a prosecutrix who has been a victim of rape stands  in  need of corroboration and, if so,  whether  such corroboration is available in the facts of the present case? What  was  the  age of the prosecutrix?  Whether she  was  a consenting   party   to  the   crime?   Whether  there   was unexplained delay in lodging the F.I.R.?

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     It  is well settled that a prosecutrix complaining  of having  been  a  victim  of the offence of rape  is  not  an accomplice  after  the crime.  There is no rule of law  that her  testimony  cannot  be acted  without  corroboration  in material  particulars.  Her testimony has to be  appreciated on  the principle of probabilities just as the testimony  of any other witness;  a high degree of probability having been shown  to  exist  in  view of the  subject  matter  being  a criminal charge.  However, if the court of facts may find it difficult  to  accept the version of the prosecutrix on  its face   value,  it  may  search   for  evidence,  direct   or circumstantial, which would lend assurance to her testimony. Assurance,  short  of  corroboration as  understood  in  the context  of an accomplice would do.  Reference may be had to a  long chain of decisions, some of which are Rameshwar 1952 SCR 377, Sidheshwar Ganguly AIR 1958 SC 143, Madhoram & Anr. (1973)  1 SCC 533, State of Maharashtra Vs.   Chandraprakash Kewalchand  Jain (1990) 1 SCC 550, Madam Gopal Kaddad (1992) 3  SCC  204 Shri Narayan AIR 1992 (3) SCC 615, Karnel  Singh 1995  (5)  SCC  518, Bodhisattwa Gautam 1996 (1) SCC  490  & Gurmit  Singh  (supra).  We may quote from the last  of  the above  said  decisions where the rule for  appreciating  the evidence  of  the  prosecutrix  in   such  cases  has   been succinctly summed up in the following words :-

     .   If  evidence  of   the  prosecutrix   inspires confidence,   it  must  be   relied  upon  without   seeking corroboration  of her statement in material particulars.  If for  some  reason  the  court finds it  difficult  to  place implicit reliance on her testimony, it may look for evidence which  may  lend  assurance  to   her  testimony,  short  of corroboration  required  in the case of an accomplice.   The testimony  of  the  prosecutrix must be appreciated  in  the background  of  the entire case and the trial court must  be alive  to its responsibility and be sensitive while  dealing with cases involving sexual molestations.

     According to Dr.  V.D.  Jetha, x-ray of left elbow and arm  of  the prosecutrix were taken for assessing  her  age. Though   the  technician  who   had  actually  x-rayed   the prosecutrix  and  prepared  the x-ray plates  has  not  been examined  in  the  court but the non-examination  is  of  no consequence.   According to Dr.  Jetha, x-rays were taken in his  presence.   Based  on  the x-ray plates  he  had  drawn deductions,  formed an opinion based on standard text  books and  prepared  the  report on the question of age.   He  has further  stated  that there was no need for the  prosecutrix being referred to radiologist in as much as what radiologist could  have read from the x-ray plates could also have  been done by him as he has done.

     Dr.   Jetha found that top radial was fully  occified. Olecranon  of  ulna was also fully occified.  Distal end  of radial  and ulna were not completely occified.  On the basis of  such  data he inferred the age of the prosecutrix to  be about  15  years.   However,   during  cross-examination  he admitted  that the age of the prosecutrix could be 15 or  16 years  because  a  variation of 3 on plus or minus  side  as described by Modi in his Medical Jurisprudence was possible. The  learned  counsel for the State vehemently  argued  that non-occification of the distal ends of radial and ulna was a positive indicator of the prosecutrix having not crossed the age of 15 years and in support of his submission he referred

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to   certain  passages  and   tables  from  Modis   Medical Jurisprudence.   However  we are not satisfied that only  on the  basis of Dr.  Jethas testimony, a positive finding can be  recorded that the prosecutrix was less than 16 years  of age  on  the date of the incident.  In the estimate made  by Dr.   Jetha  he  himself admits a variation of  3  years  on either  side being permissible.  The prosecutrix herself and her  father are illiterate persons.  The prosecutrix has not taken  any  schooling.   There  is  no  other   satisfactory evidence  as  to  her age available on  record.   We  cannot positively  hold on the basis of material available that she was less than 16 years of age on the date of the incident.

     It  is  true  that the incident  dated  1.10.1993  was reported  to the police on 5.10.1993.  The prosecutrix was a married  woman.   Her muklana ceremony had not taken  place. Muklana  ceremony is a rural custom prevalent in  Rajasthan, whereunder the bride is left with the parents after marriage having  been  performed  and is taken away  by  the  husband and/or  the in-laws to live with them only after a lapse  of time.   The  origin  of  the custom owes  its  existence  to performance  of  child-marriages which are widely  prevalent there.   The muklana was yet to take place.  The prosecutrix was  a virgin prior to the commission of the crime and  this fact  finds support from the medical evidence.  The  parents of  such  a prosecutrix would obviously be chary to such  an incident  gaining  publicity because it would  have  serious implications  for  the reputation of the family and also  on the married life of the victim.  The husband and the in-laws having become aware of the incident may even refuse to carry the  girl  to reside with them.  The incident if  publicised may  have  been an end of the marriage for the  prosecutrix. Added  to this is the communal tinge which was sought to  be given by the community of the accused.  PW-10, the father of the  prosecutrix,  the prosecutrix PW-2 and other  witnesses have stated that while they were about to move to the Police Station  they were prevented from doing so by the  community fellows  of  the  accused who persuaded them  not  to  lodge report  with  the  police  and instead to  have  the  matter settled  by convening a panchayat of village people.   After all  the family of the victim had to live in the village  in spite  of the incident having taken place.  The  explanation is  not  an after thought.  An indication thereof is  to  be found in the F.I.R.  itself where the complainant has stated   the  delay  in  lodging the report  is  due  to  village panchayat,  insult and social disrepute.  Nothing has  been brought  out  in the cross-examination of the  witnesses  to doubt  the  truth and reasonableness of the  explanation  so offered.

     We  may however state that a mere delay in lodging the FIR  cannot  be a ground by itself for throwing  the  entire prosecution  case  overboard.   The  Court has  to  seek  an explanation   for  delay  and   test  the  truthfulness  and plausibility  of  the  reason  assigned.  If  the  delay  is explained  to  the  satisfaction of the Court it  cannot  be counted  against the prosecution.  In State of Rajasthan Vs. Narayan  AIR 1992 SC 2004 this Court observed  True it  is that  the complaint was lodged two days later but as  stated earlier  Indian society being what it is the victims of such a  crime  ordinarily consult relatives and are  hesitant  to approach  the  police  since  it involves  the  question  of morality  and chastity of a married woman.  A woman and  her relatives  have  to struggle with several situations  before

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deciding  to  approach the police. In State of  Punjab Vs.   Gurmit  Singh & Ors.  (supra), this Court has  held The Courts cannot overlook the fact that in sexual offences delay  in  the lodging of the FIR can be due to  variety  of reasons  particularly  the reluctance of the prosecutrix  or her  family  members to go to the police and complain  about the   incident   which  concerns   the  reputation  of   the prosecutrix  and the honour of her family.  It is only after giving  it a cool thought that a complaint of sexual offence is  generally lodged. So are the observations made by  this Court  in in Karenel Singh Vs.  State of M.P.  (1995) 5  SCC 518  repelling  the  defence contention based  on  delay  in lodging  the  FIR.  In the present case, in our opinion  the delay  in  lodging  the   F.I.R.   has  been  satisfactorily explained.

     Absence  of injuries on the person of the  prosecutrix has weighed with the High Court for inferring consent on the part  of the prosecutrix.  We are not at all convinced.   We have  already noticed that the delay in medical  examination of  the  prosecutrix  was occasioned by the  factum  of  the lodging  of the F.I.R.  having been delayed for the  reasons which we have already discussed.  The prosecutrix was in her teens.   The  perpetrator  of the crime was an  able  bodied youth  bustling  with energy and determined to  fulfill  his lust  armed with a knife in his hand and having succeeded in forcefully  removing  the victim to a secluded  place  where there  was  none  around  to help  the  prosecutrix  in  her defence.   The  injuries which the prosecutrix  suffered  or might  have  suffered  in  defending  herself  and  offering resistance  to  the accused were abrasions or bruises  which would  heal  up in ordinary course of nature within 2  to  3 days  of  the  incident.  The absence of  visible  marks  of injuries on the person of the prosecutrix on the date of her medical  examination would not necessarily mean that she had not  suffered  any  injuries  or that  she  had  offered  no resistance  at the time of commission of the crime.  Absence of  injuries  on  the  person  of  the  prosecutrix  is  not necessarily  an evidence of falsity of the allegation or  an evidence of consent on the part of the prosecutrix.  It will all  depend on the facts and circumstances of each case.  In Sheikh Zakir 1983 Crl.L.J.  1285, absence of any injuries on the  person of the prosecutrix, who was the helpless  victim of  rape,  belonging  to a backward community, living  in  a remote  area  not  knowing the need of rushing to  a  doctor after  the  occurrence of the incident, was held not  enough for  discrediting  the statement of the prosecutrix  if  the other  evidence  was  believable.  In Balwant Singh  &  Ors. 1987  Crl.L.J.   971 this court held that  every  resistance need  not  necessarily be accompanied by some injury on  the body  of the victim;  the prosecutrix being a girl of  19/20 years  of age was not in the facts and circumstances of  the case  expected  to  offer  such resistance  as  would  cause injuries to her body.  In Karenel Singh 1995 (5) SCC 518 the prosecutrix  was  made to lie down on a pile of sand.   This court held that absence of marks of external injuries on the person of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that  she  was  a  willing  party   to  the  act  of  sexual intercourse.    It  will  all  depend   on  the  facts   and circumstances  of each case.  A Judge of facts shall have to apply  common  sense rule while testing the reasonablity  of the  prosecution case.  The prosecutrix on account of age or infirmity  or  overpowered  by fear or force may  have  been incapable  of  offering  any  resistance.   She  might  have

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sustained  injuries  but  on account of lapse  of  time  the injuries might have healed and marks vanished.

     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 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.  The prosecutrix  before us  had  just crossed the age of 16 years.  She has  clearly stated that she was subjected to sexual intercourse forcibly by  the  accused.   She  was not a  consenting  party.   She offered  resistance  to  the  best of her  ability  but  she succumbed  and  fell  victim to the force  employed  by  the accused.   She  has narrated how she was approached  by  the accused  while  she was busy washing clothes near  her  hut. The  accused initially asked for water in a lota.  Then  the accused  asked for a knife on the pretext that it was needed for  peeling  cucumber.   The accused was  gaining  time  to ascertain  if  the  prosecutrix was alone.   No  sooner  the prosecutrix  turned  her back unmindful of what laid  ahead, her  hand  was caught hold of by the accused and twisted  on her  back.   The accused pushed her to bhitian,  a  secluded place.   She was thrown on the ground.  The accused put  his knee on her chest so as to over power her.  Her shouting was throttled  by  the accused who placed his palm on her  mouth and  later covered her mouth by a towel pressed against  her lips.  She was then raped.  Blood oozed out from her private parts.   Having finished his act the accused left her  alone and  took  to his heels.  The prosecutrix was weeping.   She narrated  the incident to a woman described as the wife  of Udai  Singh  and  to her father in quick  succession.   The statement  of the father of the prosecutrix corroborates her in  all  material particulars and is admissible in  evidence and  relevant  under  Section 157 as  her  former  statement corroborating  her testimony as also under Section 8 of  the Evidence  Act as evidence of her conduct.  In spite of delay in   medical  examination  in   the  circumstances   already discussed the medical evidence corroborates the testimony of the  prosecutrix.  According to Dr.  Jetha, he had found the hymen  ruptured in multiple radial tears, the edges of which showed  healing  at most of the places and mild  tenderness. The  prosecutrix was not used to sexual intercourse.  Pieces of  broken  bangles were found at the place of the  incident and seized.  The Forensic Science Laboratory has found (vide report Ex.P/9) presence of human semen on the Lehenga seized from  the prosecutrix.  It is true that wife of Udai Singh has  not  been examined.  It would have been better  it  she would have been examined.  However, no dent is caused in the case  of the prosecution by her non-examination.  She  would

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have  repeated  the same story as has been narrated  by  the father  of the prosecutrix.  We have found the testimony  of prosecutrixs  father (PW 10) trustworthy and unembellished. The  prosecutrix and her father have both been subjected  to lengthy  cross-examination.  The trial court has found  both the witnesses reliable.  We too find no reason to disbelieve their testimony.  A father would not ordinarily subscribe to a  false story of sexual assault involving his own  daughter and  thereby  putting at stake the reputation of the  family and  jeopardizing the married life of the daughter.  We find the  testimony of prosecutrixs father reliable and  lending support to the narration of the incident by the prosecutrix. No  reason  has  been  proved,  not  even  suggested  during cross-examination   of   any  of   the  witnesses  why   the prosecutrix  or  any  member  of her  family  would  falsely implicate  the  accused roping him in false charge of  rape. We  are  surprised  to note how an inference as  to  consent could  have  been drawn against the prosecutrix and to  hold that  she was a willing party to the sexual assault made  by the  accused.   Upon an evaluation of evidence available  on record  we  are satisfied to hold that the prosecutrix is  a witness of truth.  Her testimony inspires confidence.  Other evidence   available  on  record   lends  assurance  to  her testimony.   The  Trial Court had rightly held  that  sexual assault  amounting  to  rape  was committed on  her  by  the accused-respondent.   In spite of her having not been proved to be under 16 years of age the High Court was not justified in  holding  her  to  be a consenting party  to  the  sexual assault on her.

     For  the foregoing reasons, we are of the opinion that the  High  Court  has  committed a clear  error  of  law  in interfering  with the judgment of the trial court  regarding proof  of guilt of the accused.  The appeal is allowed.  The judgment  of  the  High  Court is set aside.   We  hold  the accused/respondent guilty of the offence charged i.e.  under Section 376 of the I.P.C..

     Now remains the question of sentence.  The incident is of the year 1993.  The accused was taken into custody by the police  on 3.11.1993.  He was not allowed bail.  During  the trial  as also during the hearing of the appeal by the  High Court  he  remained in jail.  It is only on 11.10.1995  when the  High  Court  acquitted him of the charge  that  he  was released  from  jail.   Thus he had remained in jail  for  a little  less than two years.  Taking into consideration  the period  of  remission for which he would have been  entitled and  the time which has elapsed from the date of  commission of   the   offence,  we  are  of  the   opinion   that   the accused-respondent  need not now be sent to jail.  It  would meet  the  end  of  justice if he is  sentenced  to  undergo imprisonment  for the period already undergone by him and to a  fine of Rs.2000/- with further simple imprisonment of one year and nine months in default of payment of fine as passed by the Triial Court.  The appellant is allowed time till 1st May, 2000 for payment of fine.  The accused-respondent is on bail.   The bail bonds shall stand discharged on payment  of fine as directed.  Ordered accordingly.