THE STATE OF HIMACHAL PRADESH versus MANGA SINGH on 28 November 2018

904 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 904

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THE STATE OF HIMACHAL PRADESH

v.

MANGA SINGH

(Criminal Appeal No. 1481 of 2018)

NOVEMBER 28, 2018

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[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – s.376 – Prosecutrix-PW-4 was staying inher aunt’s house – Respondent-accused is son of the aunt – FIRfiled stating that the respondent used to make the prosecutrix sleepwith him and commit sexual intercourse with her – Trial CourtCconvicted the respondent – High Court reversed the conviction –On appeal, held: Trial court, which had the opportunity of observingand hearing the prosecutrix, recorded a finding of fact that theevidence of prosecutrix is convincing and inspires the confidenceof the court – In the absence of any convincing reason, the HighDCourt ought not to have interfered with such finding of fact – Further,merely because there was no rupture of hymen/injury marks it cannotbe said that there was no question of sexual intercourse – It cannotbe the reason to disbelieve the testimony of the prosecutrix –Prosecutrix was reluctant to go back to her aunt’s house andcomplained the act of sexual intercourse committed by the respondentEto her teachers, PW-1 and PW-2 – Prosecutrix being a young girlaged about nine years, had no reason to falsely implicate therespondent – Evidence of the prosecutrix established that theaccused was committing rape on her by penetration – Impugnedjudgment set aside – Crime against Women.

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Evidence – Rape – Sole testimony of prosecutrix –Appreciation of – Discussed.

Evidence – Rape – Absence of external injury on the body ofthe prosecutrix – Effect of – Held: Respondent-accused(Prosecutrix’s cousin brother) used to make the prosecutrix sleepGwith him and insert his private part in the private part of theprosecutrix which constitutes rape – This may not have rupturedthe hymen – In case of rape it is not necessary that external injuryis to be found on the body of the prosecutrix – Absence of injurieson the private part of the prosecutrix can be of no consequence inthe facts and circumstances of the present case.H

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Allowing the appeal, the Court

HELD: 1.1 The conviction can be sustained on the soletestimony of the prosecutrix, if it inspires confidence. Theconviction can be based solely on the solitary evidence of theprosecutrix and no corroboration be required unless there arecompelling reasons which necessitate the courts to insist forcorroboration of her statement. Corroboration of the testimonyof the prosecutrix is not a requirement of law; but a guidance ofprudence under the given facts and circumstances. Minorcontractions or small discrepancies should not be a ground forthrowing the evidence of the prosecutrix. Corroboration is not asine qua non for conviction in a rape case. If the evidence of thevictim does not suffer from any basic infirmity and the‘probabilities factor’ does not render it unworthy of credence. Asa general rule, there is no reason to insist on corroboration exceptfrom medical evidence. However, having regard to thecircumstances of the case, medical evidence may not be available.In such cases, solitary testimony of the prosecutrix would besufficient to base the conviction, if it inspires the confidence ofthe court. The prosecutrix was aged only nine years, she had noreason to falsely implicate her cousin. Since the prosecutrix hasbeen compelled to face the ordeal of sleeping with the respondent-accused every night, on 04.03.2010 she refused to go the houseof her aunt. Considering the evidence of PW-4 – a girl of tenderyear, corroboration from an independent source of the evidenceof the prosecutrix is not required. The evidence of the prosecutrixclearly established that the accused was committing rape on herby penetration. [Paras 11, 12 and 14][909-C-F; 910-D-E]

1.2 The Trial Court, which had the opportunity of observingand hearing the prosecutrix (PW-4), recorded a finding of factthat the evidence of prosecutrix (PW-4) is convincing and inspiresthe confidence of the court. When the Trial Court held that theevidence of the prosecutrix (PW-4) inspires confidence of thecourt, in the absence of any convincing reason, the High Courtought not to have interfered with such finding of fact. PW-6, thedoctor in her evidence has categorically stated that merelybecause there was no injury marks it cannot be said that therewas no question of sexual intercourse. In her Chief ExaminationPW-6 has further stated that in case of small/slightest penetration A

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Athe hymen will not rupture; the hymen will rupture only in case ofcomplete penetration with force. The respondent-accused madethe prosecutrix to sleep with him and inserted his private part inthe private part of the prosecutrix which constitutes rape. Thismay not have ruptured the hymen. In the absence of injury onthe private part of the prosecutrix, it cannot be concluded thatBthe incident had not taken place or the sexual intercourse wascommitted with the consent of the prosecutrix. The prosecutrixbeing a small child of about nine years of age, there could be noquestion of her giving consent to sexual intercourse. The absenceof injuries on the private part of the prosecutrix can be of noCconsequence in the facts and circumstances of the present case.In case of rape it is not necessary that external injury is to befound on the body of the prosecutrix. [Paras 15-17][910-E-H;911-A-C]

1.3 The testimony of the prosecutrix must have beenDappreciated in the light of the background of the case; more so,the prosecutrix was reluctant to go back to the house of her auntand complained the act of sexual intercourse committed by therespondent-accused to her teachers, PW-1 and PW-2. In the lightof the evidence of the prosecutrix and the categorical findingsrecorded by the Trial Court, the High Court was not justified inEreversing the conviction of the respondent-accused and recordingorder of acquittal of the respondent-accused. In order to givethe benefit of doubt to the accused, it has to be a reasonabledoubt. The impugned judgment of the High Court is notsustainable and is set aside. Since at the time of incident thevictim was at her tender age, there is reason to show sympathyFtowards the respondent. The judgment of the Trial Court isrestored confirming conviction of the respondent under Section376 I.P.C. and the sentence of imprisonment of ten years.[Paras 19, 21 and 22][911-E-F; 912-H; 913-A-C]

State of Punjab v. Gurmit Singh and Others (1996) 2GSCC 384: [1996] 1 SCR 532 ; State of Rajasthan v.N.K. The Accused (2000) 5 SCC 30 : [2000] 2 SCR818 – relied on.

Case Law Reference[1996] 1 SCR 532relied onPara 13H[2000] 2 SCR 818relied onPara 20

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1481 of 2018.

From the Judgment and Order dated 22.10.2014 of the High Courtof Himachal Pradesh at Shimla in Criminal Appeal No. 523 of 2010.

Ms. Bihu Sharma, Ms. Purnima Krishna, Ms. Pratishtha Vij (ForAbhinav Mukerji), Advs. for the Appellant.

Ms. Manjeet Chawla, Adv. for the Respondent.

The Judgment of the Court was delivered by BANUMATHI, J.

1. Leave granted.

2. This appeal arises out of judgment and order of the High Courtof Himachal Pradesh at Shimla in Criminal Appeal No.523 of 2010 dated22[nd] October, 2014 in and by which the High Court has reversed theverdict of conviction of the respondent-accused under Section 376 I.P.C.to acquittal and also set aside the sentence of imprisonment of 10 yearsimposed upon the respondent-accused.

3. Briefly stated the case of the prosecution is that the prosecutrix(PW-4), who was aged about 9 years at the relevant point of time, wasstudying in Class-III in Government Primary School. The prosecutrix(PW-4) was staying in her aunt’s house along with her brother. Therespondent-accused is the cousin (son of the aunt) of the prosecutrix(PW-4).

4. On 4[th] March, 2010, after the school hours, the prosecutrix(PW-4) was very reluctant to go to her aunt’s house where she wasstaying; and she came back to the school. On being asked by PoojaMahajan (PW-1) the school teacher and other teachers, the prosecutrix(PW-4) informed the teachers, Pooja Mahajan (PW-1) and Ritubala (PW-2), that she lives in her aunt’s house and that the respondent-accusedmade her sleep with him and during the nights the respondent-accusedused to put off her clothes and used to commit sexual intercourse withher. The prosecutrix stated that the respondent-accused had been doingthe same for about three years. On hearing the same from theprosecutrix, the school teacher, Pooja Mahajan (PW-1), informed thepresident of the Gram Pachayat (PW-3) who came to the school andmade enquiries whereupon the prosecutrix (PW-4) told the presidentthat the respondent-accused had been committing sexual intercoursewith her during the night.

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A5. A complaint was lodged by the teacher, Pooja Mahajan(PW-1), and an F.I.R. was registered against the respondent-accusedunder Section 376 I.P.C. Dr. Neerja Gupta (PW-6) who medicallyexamined the prosecutrix (PW-4) found that there was no injury foundon her private parts. Dr. Neerja Gupta (PW-6) gave her opinion inwriting (MLC Ex.PW6/B) in which she has opined that “in case ofBslightest or small penetration, hymen will not rupture”. Dr. Pooja Gupta(PW-7) also examined the prosecutrix (PW-4).

6. To substantiate the case of the prosecution, the prosecutionhas examined the prosecutrix (PW-4), the school teachers, Pooja Mahajan(PW-1) and Ritubala (PW-2), and the president of the Gram PanchayatC(PW-3) and other witnesses. Based on the evidence of the prosecutrix(PW-4) and the medical evidence, the Trial Court convicted therespondent-accused under Section 376 I.P.C. and sentenced him toundergo sentence of ten years of rigorous imprisonment and also imposeda fine of Rs.25,000/-. In appeal, the High Court reversed the verdict ofDconviction of the respondent-accused only on the ground that the opinionof Dr. Neerja Gupta (PW-6) and Dr. Pooja Gupta (PW-7) are notconclusive to hold that the respondent-accused has forcefully committedsexual intercourse with the prosecutrix. The High Court held that theevidence of the prosecutrix (PW-4) does not inspire the confidence ofthe court to sustain the conviction and the respondent-accused is entitledEto the benefit of doubt and on those findings the High Court has reversedthe judgment of the Trial Court and set aside the conviction and sentenceof the imprisonment imposed upon respondent-accused.

7. Despite service of notice, the respondent has not enteredappearance. Accordingly Mrs. Manjeet Chawla, Advocate, has beenFnominated by the Supreme Court Legal Services Committee as amicusto contest the appeal on behalf of the respondent-accused.

8. We have heard Ms. Bihu Sharma, learned counsel appearingfor the appellant-State and Mrs. Manjeet Chawla, learned amicus. Wehave carefully perused the impugned judgment, the evidence of thewitnesses and materials on record.G

9. The High Court has given the benefit of doubt to the respondent-accused mainly on two grounds : (i) Evidence of the prosecutrix (PW-4)does not inspire confidence; and (ii) the medical evidence of Dr. NeerjaGupta (PW-6) Dr. Pooja Gupta (PW-7) is not conclusive to hold that theprosecutrix (PW-4) was subjected to sexual intercourse.H

10. The Trial Court has elaborately referred to the evidence ofthe prosecutrix (PW-4) who was studying in Class III in Kandwal PrimarySchool and was staying in the house of her aunt. The prosecutrix (PW-4) has categorically stated that while she was staying in her aunt’s housefor pursuing her studies, the respondent-accused made her sleep withhim and that the respondent-accused used to put off her clothes and hisown clothes and that he used to touch her private part with his privatepart and used to insert his private part inside her private part. Therespondent-accused had told her not to reveal it to anybody otherwisehe would do away her life. The prosecutrix (PW-4) further stated thatshe told the aforesaid facts to her teacher, Pooja Mahajan (PW-1), andother lady teachers.

11. The conviction can be sustained on the sole testimony of theprosecutrix, if it inspires confidence. The conviction can be based solelyon the solitary evidence of the prosecutrix and no corroboration berequired unless there are compelling reasons which necessitate the courtsto insist for corroboration of her statement. Corroboration of the testimonyof the prosecutrix is not a requirement of law; but a guidance of prudenceunder the given facts and circumstances. Minor contractions or smalldiscrepancies should not be a ground for throwing the evidence of theprosecutrix.

12. It is well settled by a catena of decisions of the SupremeCourt that corroboration is not a sine qua non for conviction in a rapecase. If the evidence of the victim does not suffer from any basic infirmityand the ‘probabilities factor’ does not render it unworthy of credence.As a general rule, there is no reason to insist on corroboration exceptfrom medical evidence. However, having regard to the circumstancesof the case, medical evidence may not be available. In such cases, solitarytestimony of the prosecutrix would be sufficient to base the conviction,if it inspires the confidence of the court.

13. In State of Punjabv. Gurmit Singh and Others- (1996) 2SCC 384, it was held as under:- “8. The courts must, while evaluating evidence, remain alive tothe fact that in a case of rape, no self-respecting woman wouldcome forward in a court just to make a humiliating statementagainst her honour such as is involved in the commission of rapeon her. In cases involving sexual molestation, supposedconsiderations which have no material effect on the veracity ofthe prosecution case or even discrepancies in the statement of A

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910 SUPREME COURT REPORTS [2018] 14 S.C.R.

Athe prosecutrix should not, unless the discrepancies are such whichare of fatal nature, be allowed to throw out an otherwise reliableprosecution case. The inherent bashfulness of the females andthe tendency to conceal outrage of sexual aggression are factorswhich the courts should not overlook. The testimony of the victimin such cases is vital and unless there are compelling reasonsBwhich necessitate looking for corroboration of her statement,the courts should find no difficulty to act on the testimony of avictim of sexual assault alone to convict an accused where hertestimony inspires confidence and is found to be reliable. Seekingcorroboration of her statement before relying upon the same, as aCrule, in such cases amounts to adding insult to injury. Why shouldthe evidence of a girl or a woman who complains of rape or sexualmolestation, be viewed with doubt, disbelief or suspicion?........”.(Underlining added)

14. The prosecutrix was aged only nine years, she had no reasonDto falsely implicate her cousin. Since the prosecutrix has been compelledto face the ordeal of sleeping with the respondent-accused everydaynight, On 04.03.2010 she refused to go the house of her aunt. Consideringthe evidence of PW-4 – a girl of tender year, corroboration from anindependent source of the evidence of the prosecutrix is not required.

The evidence of the prosecutrix clearly established that the accusedEwas committing rape on her by penetration.

15. The Trial Court, which had the opportunity of observing andhearing the prosecutrix (PW-4), recorded a finding of fact that theevidence of prosecutrix (PW-4) is convincing and inspires the confidenceof the court. When the Trial Court which had the opportunity of seeing Fand hearing the witness has held that the evidence of the prosecutrix(PW-4) inspires confidence of the court, in our considered view, in theabsence of any convincing reason, the High Court ought not to haveinterfered with such finding of fact.

16. Insofar as the second ground on which the High Court gavethe benefit of doubt to the respondent-accused that the medical evidenceGwas inconclusive, it is to be pointed out that Dr. Neerja Gupta (PW-6) inher evidence has categorically stated that merely because there was noinjury marks it cannot be said that there was no question of sexualintercourse. In her Chief Examination Dr. Neerja Gupta (PW-6) hasfurther stated that in case of small/slightest penetration the hymen willHnot rupture; the hymen will rupture only in case of complete penetration with force. As discussed earlier, the respondent-accused made theprosecutrix (PW-4) to sleep with him and inserted his private part in theprivate part of the prosecutrix which constitutes rape. This may nothave ruptured the hymen. In the absence of injury on the private part ofthe prosecutrix, it cannot be concluded that the incident had not takenplace or the sexual intercourse was committed with the consent of theprosecutrix. The prosecutrix being a small child of about nine years ofage, there oculd be no question of her giving consent to sexual intercourse.The absence of injuries on the private part of the prosecutrix can be ofno consequence in the facts and circumstances of the present case.

17. As rightly stated by Dr. Neerja Gupta (PW-6) that merelybecause there was no rupture of hymen it cannot be said that there waspenetration. It cannot be the reason to disbelieve the testimony of theprosecutrix (PW-4). It is fairly a well-settled principle that in case ofrape it is not necessary that external injury is to be found on the body ofthe prosecutrix.

18. Mrs. Manjeet Chawla, learned counsel for the respondent-accused, has submitted that non-examination of aunt of the prosecutrix(PW-4) is fatal to the case of the prosecution and no reason is forthcomingas to why aunt was not examined.

19. Be it noted that the respondent-accused is the son of the auntof the prosecutrix. Nothing prevented the respondent-accused to haveexamined his mother as his witness. The non-examination of aunt of theprosecutrix (PW-4) cannot be put against the prosecution. In the light ofthe evidence of the prosecutrix and the categorical findings recorded bythe Trial Court, in our view the High Court was not justified in reversingthe conviction of the respondent-accused and recording order of acquittalof the respondent-accused. In order to give the benefit of doubt to theaccused, it has to be a reasonable doubt.

20. Observing that there are number of unmerited acquittals inrape cases and that the courts have to display a greater sense ofresponsibility and to be more sensitive while dealing with the charges ofsexual assault on woman, in State of Rajasthanv. N.K. The Accused–(2000) 5 SCC 30, this Court has held as under :

“9. ...A Doubt, as understood in criminal jurisprudence, has to bea reasonable doubt and not an excuse for a finding in favour ofacquittal. An unmerited acquittal encourages wolves in the societybeing on the prowl for easy prey, more so when the victims of AB

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Acrime are helpless females. It is the spurt in the number ofunmerited acquittals recorded by criminal courts which gives riseto the demand for death sentence to the rapists. The courts haveto display a greater sense of responsibility and to be more sensitivewhile dealing with charges of sexual assault on women. InBharwada Bhoginbhai Hirjibhai v. State of Gujarat:-(1983)B3 SCC 217 this Court observed that refusal to act on the testimonyof a victim of sexual assault in the absence of corroboration as arule, is adding insult to injury. This Court deprecated viewingevidence of such victim with the aid of spectacles fitted with lensestinted with doubt, disbelief or suspicion. We need only remindCourselves of what this Court has said through one of us (Dr A. S.Anand, J. as his Lordship then was)in State of Punjab v. GurmeetSingh:- (1996) 2 SCC 384:p. 403, para 21 )

“[A] rapist not only violates the victim’s privacy and personalintegrity, but inevitably causes serious psychological as well asDphysical harm in the process. Rape is not merely a physicalassault- it is often destructive of the whole personality of thevictim. A murderer destroys the physical body of his victim, arapist degrades the very should of the helpless female. Thecourts, therefore, shoulder a great responsibility while tryingan accused on charges of rape. The must deal with such casesEwith utmost sensitivity. The courts should examine the broaderprobabilities of a case and not get swayed by minorcontradictions or insignificant discrepancies in the statementof the prosecutrix, which are not of a fatal nature, to throw outan otherwise reliable prosecution case.”F10. The questions arising for consideration before us are: whetherthe prosecution story, as alleged, inspires confidence of the courton the evidence adduced? Whether the prosecutrix, is a witnessworthy of reliance? Whether the testimony of a prosecutrix whohas been in victim of rape stands in need of corroboration and, ifso, whether such corroboration is available in the facts of theGpresent case? What was the age of the prosecutrix? Whethershe was a consenting party to the crime? Whether there wasunexplained delay in lodging the FIR?”

21. In the present case, the prosecutrix (PW-4), being a younggirl aged about nine years, had no reason to falsely implicate theHrespondent-accused. The testimony of the prosecutrix (PW-4) must

have been appreciated in the light of the background of the case; moreso, the prosecutrix (PW-4) was reluctant to go back to the house of heraunt and complained the act of sexual intercourse committed by therespondent-accused to her teachers, Pooja Mahajan (PW-1) and Ritubala(PW-2). The High Court has not appreciated the evidence of theprosecutrix (PW-4) in the light of the well-settled principles and erred inreversing the conviction of the respondent-accused to the acquittal. Theimpugned judgment of the High Court is not sustainable and is liable tobe set aside. Since at the time of incident the victim was at her tenderage, we do not find any reason to show sympathy towards the respondent-accused.

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22. In the result, the impugned judgment and order of the HighCourt is set aside and this appeal is allowed. The judgment of the TrialCourt is restored confirming conviction of the respondent under Section376 I.P.C. and the sentence of imprisonment of ten years.

23. The respondent-accused is to surrender to custody within aperiod of four weeks from today to serve the remaining sentence failingDwhich he shall be taken to custody.

24. A copy of this order be sent to the concerned trial court fornecessary action.

Divya Pandey

Appeal allowed.

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