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The State Of Himachal Pradesh vs Manga Singh on 28 November, 2018

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No(s). 1481 OF 2018
(Arising out of SLP(Crl.)No.4177 of 2015)

THE STATE OF HIMACHAL PRADESH Appellant(s)

VERSUS

MANGA SINGH Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) This appeal arises out of judgment and order of the

High Court of Himachal Pradesh at Shimla in Criminal

Appeal No.523 of 2010 dated 22nd October, 2014 in and by

which the High Court has reversed the verdict of

conviction of the respondent-accused under Section 376

I.P.C. to acquittal and also set aside the sentence of

imprisonment of 10 years imposed upon the respondent-

accused.

Signature Not Verified

Digitally signed by
MAHABIR SINGH
Date: 2018.12.11
10:59:59 IST
Reason:

(3) Briefly stated the case of the prosecution is that

the prosecutrix (PW-4), who was aged about 9 years at the
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relevant point of time, was studying in Class-III in

Government Primary School. The prosecutrix (PW-4) was

staying in her aunt’s house along with her brother. The

respondent-accused is the cousin (son of the aunt) of the

prosecutrix (PW-4).

(4) On 4th March, 2010, after the school hours, the

prosecutrix (PW-4) was very reluctant to go to her aunt’s

house where she was staying; and she came back to the

school. On being asked by Pooja Mahajan (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-accused made her sleep with him and during the

nights the respondent-accused used to put off her clothes

and used to commit sexual intercourse with her. The

prosecutrix stated that the respondent-accused had been

doing the same for about three years. On hearing the same

from the prosecutrix, the school teacher, Pooja Mahajan

(PW-1), informed the president of the Gram Pachayat (PW-3)

who came to the school and made enquiries whereupon the

prosecutrix (PW-4) told the president that the respondent-

accused had been committing sexual intercourse with her

during the night.

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(5) A complaint was lodged by the teacher, Pooja Mahajan

(PW-1), and an F.I.R. was registered against the

respondent-accused under Section 376 I.P.C. Dr. Neerja

Gupta (PW-6) who medically examined the prosecutrix (PW-4)

found that there was no injury found on her private parts.

Dr. Neerja Gupta (PW-6) gave her opinion in writing (MLC

Ex.PW6/B) in which she has opined that “in case of

slightest 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

prosecution has examined the prosecutrix (PW-4), the

school teachers, Pooja Mahajan (PW-1) and Ritubala (PW-2),

and the president of the Gram Panchayat (PW-3) and other

witnesses. Based on the evidence of the prosecutrix (PW-

4) and the medical evidence, the Trial Court convicted the

respondent-accused under Section 376 I.P.C. and sentenced

him to undergo sentence of ten years of rigorous

imprisonment and also imposed a fine of Rs.25,000/-. In

appeal, the High Court reversed the verdict of conviction

of the respondent-accused only on the ground that the

opinion of Dr. Neerja Gupta (PW-6) and Dr. Pooja Gupta

(PW-7) are not conclusive to hold that the respondent-

accused has forcefully committed sexual intercourse with
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the prosecutrix. The High Court held that the evidence of

the prosecutrix (PW-4) does not inspire the confidence of

the court to sustain the conviction and the respondent-

accused is entitled to the benefit of doubt and on those

findings the High Court has reversed the judgment of the

Trial Court and set aside the conviction and sentence of

the imprisonment imposed upon respondent-accused.

(7) Despite service of notice, the respondent has not

entered appearance. Accordingly Mrs. Manjeet Chawla,

Advocate, has been nominated by the Supreme Court Legal

Services Committee as amicus to contest the appeal on

behalf of the respondent-accused.

(8) We have heard Ms. Bihu Sharma, learned counsel

appearing for the appellant-State and Mrs. Manjeet Chawla,

learned amicus. We have carefully perused the impugned

judgment, the evidence of the witnesses and materials on

record.

(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. Neerja Gupta (PW-6) Dr.

Pooja Gupta (PW-7) is not conclusive to hold that the

prosecutrix (PW-4) was subjected to sexual intercourse.
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(10) The Trial Court has elaborately referred to the

evidence of the prosecutrix (PW-4) who was studying in

Class III in Kandwal Primary School 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 house for pursuing her studies, the respondent-

accused made her sleep with him and that the respondent-

accused used to put off her clothes and his own clothes

and that he used to touch her private part with his

private part and used to insert his private part inside

her private part. The respondent-accused had told her not

to reveal it to anybody otherwise he would do away her

life. The prosecutrix (PW-4) further stated that she told

the aforesaid facts to her teacher, Pooja Mahajan (PW-1),

and other lady teachers.

(11). The conviction can be sustained on the sole

testimony of the prosecutrix, if it inspires confidence.

The conviction can be based solely on the solitary

evidence of the prosecutrix and no corroboration be

required unless there are compelling reasons which

necessitate the courts to insist for corroboration of her

statement. Corroboration of the testimony of the
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prosecutrix is not a requirement of law; but a guidance of

prudence under the given facts and circumstances. Minor

contractions or small discrepancies should not be a ground

for throwing the evidence of the prosecutrix.

(12) It is well settled by a catena of decisions of

the Supreme Court that corroboration is not a sine qua

non for conviction in a rape case. If the evidence of the

victim does not suffer from any basic infirmity and the

‘probabilities factor’ does not render it unworthy of

credence. As a general rule, there is no reason to

insist on corroboration except from medical evidence.

However, having regard to the circumstances of the case,

medical evidence may not be available. In such cases,

solitary testimony of the prosecutrix would be sufficient

to base the conviction, if it inspires the confidence of

the court.

(13). In State of Punjab v. Gurmit Singh and Others –

(1996) 2 SCC 384, it was held as under:-

“8. The courts must, while evaluating evidence,
remain alive to the fact that in a case of rape,
no self-respecting woman would come forward in a
court just to make a humiliating statement
against her honour such as is involved in the
commission of rape on her. In cases involving
sexual molestation, supposed considerations which
have no material effect on the veracity of the
prosecution case or even discrepancies in the
statement of the prosecutrix should not, unless
the discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise
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reliable prosecution case. 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. Why
should the evidence of a girl or a woman who
complains of rape or sexual molestation, be
viewed with doubt, disbelief or
suspicion?……..”. (Underlining
added)

(14). The prosecutrix was aged only nine years, she had

no reason to falsely implicate her cousin. Since the

prosecutrix has been compelled to face the ordeal of

sleeping with the respondent-accused everyday night, On

04.03.2010 she refused to go the house of her aunt.

Considering the evidence of PW-4 – a girl of tender year,

corroboration from an independent source of the evidence

of the prosecutrix is not required. The evidence of the

prosecutrix clearly established that the accused was

committing rape on her by penetration.

(15) The Trial Court, which had the opportunity of

observing and hearing the prosecutrix (PW-4), recorded a

finding of fact that the evidence of prosecutrix (PW-4) is

convincing and inspires the confidence of the court. When
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the Trial Court which had the opportunity of seeing and

hearing the witness has held that the evidence of the

prosecutrix (PW-4) inspires confidence of the court, in

our considered view, in the absence of any convincing

reason, the High Court ought not to have interfered with

such finding of fact.

(16) Insofar as the second ground on which the High

Court gave the benefit of doubt to the respondent-accused

that the medical evidence was inconclusive, it is to be

pointed out that Dr. Neerja Gupta (PW-6) in her evidence

has categorically stated that merely because there was no

injury marks it cannot be said that there was no question

of sexual intercourse. In her Chief Examination Dr.

Neerja Gupta (PW-6) has further stated that in case of

small/slightest penetration the hymen will not rupture;

the hymen will rupture only in case of complete

penetration with force. As discussed earlier, the

respondent-accused made the prosecutrix (PW-4) to sleep

with him and inserted his private part in the private part

of the prosecutrix which constitutes rape. This may not

have ruptured the hymen. In the absence of injury on the

private part of the prosecutrix, it cannot be concluded

that the incident had not taken place or the sexual

intercourse was committed with the consent of the
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prosecutrix. The prosecutrix being a small child of about

nine years of age, 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 of

no consequence in the facts and circumstances of the

present case.

(17) As rightly stated by Dr. Neerja Gupta (PW-6) that

merely because there was no rupture of hymen it cannot be

said that there was penetration. It cannot be the reason

to disbelieve the testimony of the prosecutrix (PW-4). It

is fairly a well-settled principle that in case of rape it

is not necessary that external injury is to be found on

the body of the 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 forthcoming as to why aunt

was not examined.

(19) Be it noted that the respondent-accused is the

son of the aunt of the prosecutrix. Nothing prevented the

respondent-accused to have examined his mother as his

witness. The non-examination of aunt of the prosecutrix
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(PW-4) cannot be put against the prosecution. In the

light of the evidence of the prosecutrix and the

categorical findings recorded by the Trial Court, in our

view the High Court was not justified in reversing the

conviction of the respondent-accused and recording order

of acquittal of the respondent-accused. In order to give

the benefit of doubt to the accused, it has to be a

reasonable doubt.

(20) Observing that there are number of unmerited

acquittals in rape cases and that the courts have to

display a greater sense of responsibility and to be more

sensitive while dealing with the charges of sexual assault

on woman, in State of Rajasthan v. N.K. The Accused –

(2000) 5 SCC 30, this Court has held as under :

“9. …A Doubt, as understood in criminal
jurisprudence, has to be a reasonable doubt and
not an excuse for a finding in favour of
acquittal. An unmerited acquittal encourages
wolves in the society being on the prowl for easy
prey, 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
Hirjibhai v. State of Gujarat:-(1983) 3 SCC 217
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
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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 v. Gurmeet Singh:- (1996) 2 SCC 384:p. 403,
para 21 )

“[A] rapist not only violates the victim’s
privacy and personal integrity, but
inevitably causes serious psychological as
well as physical harm in the process. Rape
is not merely 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 should of the helpless
female. The courts, therefore, shoulder a
great responsibility while trying an
accused on charges of rape. The 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.”

10. 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 in 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
FIR?”

(21) In the present case, the prosecutrix (PW-4),

being a young girl aged about nine years, had no reason to

falsely implicate the respondent-accused. The testimony
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of the prosecutrix (PW-4) must have been appreciated in

the light of the background of the case; more so, the

prosecutrix (PW-4) was reluctant to go back to the house

of her aunt and complained the act of sexual intercourse

committed by the respondent-accused to her teachers, Pooja

Mahajan (PW-1) and Ritubala (PW-2). The High Court has

not appreciated the evidence of the prosecutrix (PW-4) in

the light of the well-settled principles and erred in

reversing the conviction of the respondent-accused to the

acquittal. The impugned judgment of the High Court is not

sustainable and is liable to be set aside. Since at the

time of incident the victim was at her tender age, we do

not find any reason to show sympathy towards the

respondent-accused.

(22) In the result, the impugned judgment and order of

the High Court is set aside and this appeal is allowed.

The judgment of the Trial Court is restored confirming

conviction of the respondent under Section 376 I.P.C. and

the sentence of imprisonment of ten years.

(23) The respondent-accused is to surrender to custody

within a period of four weeks from today to serve the

remaining sentence failing which he shall be taken to

custody.

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(24) A copy of this order be sent to the concerned

trial court for necessary action.

…………………….J.

(R. BANUMATHI)

…………………….J.

(INDIRA BANERJEE)
NEW DELHI,
NOVEMBER 28, 2018.

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