Holding

A conviction for rape under IPC s.376 can be sustained on the sole credible testimony of a minor victim, corroborated by child witnesses and medical evidence, and the High Court’s acquittal was a miscarriage of justice.

Summary

The State of Himachal Pradesh appealed against the Himachal High Court’s acquittal of Suresh Kumar, who had been convicted by the Sessions Court for raping a minor girl and wrongful confinement under IPC sections 376 and 342. The victim, a girl aged between 5 and 12, identified the accused as her rapist and her testimony was corroborated by her elder sister, mother, a hostile witness, and a medical examination indicating recent sexual intercourse. The High Court had set aside the conviction, relying on the medical doctor’s uncertainty about the exact date of the assault, and dismissed the child witnesses as unreliable. The Supreme Court held that the child witnesses’ statements were cogent, credible, and not the product of tutoring, and that a conviction for rape can rest on the sole testimony of a credible victim. Consequently, the Court set aside the acquittal, restored the Sessions Court’s judgment, and ordered the respondent to surrender to serve his sentence.

Issues considered

Whether the testimony of a minor victim and her child witnesses can be deemed credible and sufficient to uphold a conviction for rape under IPC s.376.
Whether the medical evidence, despite uncertainty about the exact date, corroborates the victim’s account.
Whether the High Court erred in acquitting the accused by disregarding the victim’s and witnesses’ statements.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 342, s. 376

Subjects

rapeminorchild witnessconvictionacquittalmiscarriage of justiceevidence credibilitymedical evidence

Judgment

[2009] 10 S.C.R. 143

... STATE OF H.P. A
v.
SURESH KUMAR @ DC
(Criminal Appeal No. 841 of 2002)
MAY 29, 2009
B
[DR. ll/IUKUNDAKAM SHARMA AND DR. B.S.
CHAUHAN, JJ.]
•
Penal Code, 1860 - ss.376 and 342 - Rape of minor girl
pursuant to wrongful confinement - Conviction of accused- c
respondent - Set aside by High Court - Justification of -
Held: Not justified - Accusation made by the two child
witnesses i.e. the victim and her elder sister was cogent,
credible and not influenced by any tutoring - High Court
• erroneously ignored their credible evidence and the statement D
of their mother, which was further corroborated by medical
evidence - This amounted to miscarriage of justice.

According to the prosecution, the respondent raped
PW3, a minor girl, after wrongfully confining her in his E
house. The trial court convicted the respondent under
ss.376 and 342 IPC. The High Court however acquitted
the respondent. Hence the present appeal.

Allowing the appeal, the Court
F
HELD: 1.1. The prosecutrix, PW3, had categorically
and affirmatively stated that the respondent committed
rape on her. Immediately after the occurrence she
reported the matter to her sister, PW4, who had also in
her statement corroborated the said fact. The mother of G
the prosecutrix, PW-5, also corroborated the said fact that
" she was informed by her daughter on the very next day
that the accused-respondent had committed rape on her.
She has also stated that the accused took her to his
143 H
144 SUPREME COURT REPORTS (2009] 10 S.C.R.

A room, bolted the room from inside and thereafter
committed rape on her. [Para 11] [150-F-H]
..
1.2. Though it was submitted by respondent that
there was no other independent witness to support the
allegation, in a case like this, when the prosecutrix, who
8
was a minor girl on the date of incident, has come forward
and stated that she was raped by the accused and her
testimony could not be shaken in the cross-examination,
there is no reason to disbelieve her for no girl would ever
lie on a vital issue of this nature. Even her sister and
C mother also stated as to what were reported by the
prosecutrix herself immediately after the alleged
occurrence. In fact, a witness in this case, PW-6, although,
turned hostile at one stage of her examination, yet she
had stated that PW5 had come to her house along with
D prosecutrix and had told that respondent had committed
sexual act with prosecutrix and she advised her to report
the matter to the police. She had in her cross examination
by the public prosecutor admitted that PW-5 had told her
that accused had raped her daughter and accused had
E given a currency note of Rs. 5/- & "Sha~kar" to the
prosecutrix after the sexual act. She also stated that she
enquired from the prosecutrix and the prosecutrix
narrated her the entire incident. [Para 11] [151-A-E]

F 1.3. The further submission of respondent that the
prosecutrix was habitual to sexual intercourse cannot be
accepted. It is disclosed from the medical report that the
prosecutrix was not habitual to sexual intercourse as the
doctor, PW8, herself stated that the prosecutrix was not
G used to sexual intercourse because her vagina admitted
only one finger. She has explained that there was
redness over the margin of hymen and on the basis of
this redness, the possibility of recent sexual intercourse
could not be ruled out. As the testimony of the
H
STATE OF H.P. v. SURESH KUMAR @ DC 145

.. prosecutrix, he~ sister and mother has not been shaken A
in cross-exa 1ination, the statement of the doctor
appears to be .a plausible and convincing version. [Para
11] [151-E-H]

1.4. The submission made by respondent that both
B
the child witnesses, namely, PW-3 and her sister, PW-4,
should not and could not have been believed, cannot be
accepted. The depositions of PW-3 and PW-4 with .regard
to the occurrence of such incidence are firm and
convincing. No reason is found as to why a child of her
age i.e. prosecutrix would get an innocent person named
c
for an offence which was undisputedly committed on her.
Conviction for offence under Section 376 IPC can be
based on the sole testimony of a rape victim if the
evidence of the prosecutrix is found to be credible and
convincing. [Para 13) [152-B-D] D

1.5. When the evidence of PW-3 and PW-4 is taken
into consideration, it becomes quite clear that the
accusation made by them in their deposition are cogent,
credible and had grain of truth and was not influenced E
by any tutoring. While passing order of acquittal, the High
Court erroneously ~ppreciated the evidence by ignoring
credible evidence which is available in the nature of two
child witnesses and the statement of the mother of the
prosecutrix, which was further corroborated by the F
medical evidence. Clearly, the aforesaid manifest error
committed by the High Court amounts to miscarriage of
justice. [Para 15] [153-E-H]

State of Rajasthan v. Om Prakash (2002) 5 SCC 745;
Panchhi v.State of U.P. (1998) 7sec 177 and Mohd. Ka/am G
v. State of Bihar(2008) 7sec 257 - relied on.

2. The judgment of the High Court is illegal and
unjustified in the fact situation of the present case. There
H
•
146 SUPREME COURT REPORTS [2009] 10 S.C.ll

A cannot be an order of acquittal of the accused -
respondent. Accordingly, the order of acquittal passed by
the High Court is set aside and the judgment passed by
the Sessions Judge is restored. [Para 16] [154-A-B]

Case Law Reference:
B
(2002) 5 sec 145 relied on Para 13
(1998) 1 sec 111 relied on Para 14

(2008) 1 sec 257 relied on Para 15
c
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 841 of 2002.

From the Judgment & Order dated 16.11.2001 of the High
Court of Himachal Pradesh at Shimla in Criminal Appeal No.
D 410 of 2001.

Naresh Kumar Sharma for the Appellants.

Rajeev Kumar Bansal, Sanjeev Bansal and Akshai K. Ghai
E for the Respondents.

The Judgment of the Court was delivered by

DR. MUKUNDAKAM SHARMA, J. 1. This appeal is filed
by the State of Himachal Pradesh challenging the judgment and
F order of acquittal passed by the High Court of Himachal
Pradesh whereby and whereunder the High Court acquitted the
respondent - Suresh Kumar from the charges under Sections
376 of Indian Penal Code (hereinafter referred to as '.the IPC')
and also under Section 342 IPC.
G
2. Before dealing with the contentions raised on behalf of
the. parties and in order to appreciate the said contentions it
would be necessary to state a few facts leading to registration
of the aforesaid criminal case.

H
STATE OF H.P. v. SURESH KUMAR@ DC 147
[DR. MUKUNDAKAM SHARMA, J.]
3. The age of the prosecutrix - Km. Kusum Lata (PW-3) A
was opined by PW-7 Dr. Devinder Kaur as between 5 to 12
years on the date of examination i.e. 17.03.2000. Therefore,
there is no dispute with regard to the fact that she was minor
at the time of commission of alleged offence of rape. The
prosecutrix and the accused are the residents of the same B
village and in fact they were neighbourers. The respondent -
accused was about 25 years of age on the date of commission
of the alleged crime whereas, as stated hereinbefore, the
prosecutrix was a minor on the date of commission of alleged
offence of rape. On 15.03.2000, the parents of the prosecutrix, c
namely, Smt. Shakuntla Devi, PW-5, and Shri Ramesh Chand
had gone to the house of maternal uncle of the prosecutrix. On
the said fateful day, PW-4, Km. Punam, the elder sister of the
prosecutrix, had gone to the jungle to fetch green leaves for the
goats leaving behind the prosecutrix along with her two younger D
brothers, namely, Vicky and Ajesh at their residence. It is
alleged that on the said date the accused went to the house of
the prosecutrix and took her to his house and after entering his
room the accused bolted the door of the room from inside and
put the prosecutrix on the cot and switched on the T.V. It is also E
alleged that thereafter the accused opened the salwar of the
prosecutrix and took off his trouser and underwear and
thereafter the accused committed rape on the prosecutrix. The
• prosecutrix stated in her deposition that she wanted to cry and
weep but she could not do so because the accused had
gagged her mouth. It is also alleged that after committing the F
rape the respondent-accused gave a currency note of Rs. 5/-
and some "shakkar" to the prosecutrix. The prosecutrix ate the
said "shakkar" and thereafter she returned home. When PW-
4, Km. Punam, the elder sister of the prosecutrix, returned from
the forest after collecting the green leave for the goats, G
prosecutrix narrated the whole incident of rape on her. On
16.03.2000, when parents of the prosecutrix, PW-5, Smt.
Shakuntla Devi and Shri Ramesh Chand returned back to their
residence at village Sunali, at about 2.30 p.m., the prosecutrix
narrated the incident of rape by the accused to them. PW-4, H
148 SUPREME COURT REPORTS [2009] 10 S.C.R.

A sister of the prosecutrix handed over currency note of Rs. 5/-
to her mother Smt. Shakuntla Devi (PW-5) which was given to
her by the prosecutrix on the previous day. Thereafter, the
parents reported the matter to the Pradhan of the Gram
Panchayat, who sent telephonic intimation to the police station.
B The police reached the village on 16.03.2000 at about 9 p.m.
and recorded the statement of the prosecutrix, on the basis of
which a case for offence under sections 376 and 342 IPC was
)

registered.

4. After registering the case, the police started
c investigation into the case and during the same the prosecutrix
was got medically examined on 17.03.2000 at District Hospital,
Bilaspur. Dr. (Ms.) J. Goswami (PW-8) conducted the said
medical examination. The police also examined the witnesses
and on completion of the investigation submitted a charge sheet
D against the respondent - accused for committing the offence
under Sections 376 and 342 IPC. When the charge was
explained to the accused, he pleaded not guilty and claimed
to be tried.

E 5. Consequently, the prosecution examined as many as 13 ·
witnesses to establish the charge against the respondent -
accused. The statement of the accused was also recorded
under Section 313 Cr.P.C. The respondent-accused led no
~vidence in support of his denial of the allegation. After
•
conclusion of the trial, the learned Sessions Judge, Bilaspur,
F
Himachal Pradesh by judgment and order dated 30.04.2001,
convicted the accused - respondent under Sections 376 and
342 IPC with sentence of rigorous imprisonment of seven years
and fine of Rs. 2000/- for the offence under section 376 IPC
and rigorous imprisonment of one year for the offence under
G
section 342 IPC. Learned Sessions Judge further ordered that
both the sentences of imprisonment would run concurrently.

6. Being aggrieved by the aforesaid judgment and order,
the accused - respondent preferred an appeal before the High
H Court of Himachal Pradesh. After hearing the counsel
STATE OF H.P. v. SURESH KUMAR @ DC 149
[DR. MUKUNDAKAM SHARMA, J.}

.., appearing for the parties, the High Court by its judgment and A
order dated 16.11.2001 allowed the appeal thereby setting
aside the judgment and order of conviction imposed upon the
respondent and acquitted him of all the charges with the
direction that the accused be released forthwith.
B
7. Aggrieved by the impugned judgment and order of
acquittal passed by the High Court of Himachal Pradesh, the
State has preferred the present appeal, on which we have
heard learned counsel appearing for the parties.

8. The counsel appearing for the parties in support of their C
respective cases had drawn our attention to the statements
made by the various witnesses and also to the contents of the
medical report of the prosecutrix and also to the statement of
the doctor, who examined the prosecutrix.
D
9. The records placed before us, clearly prove and
establish that the prosecutrix was a minor on the date of
occurrence. The doctor has given a medical opinion to that
effect and the Sessions Court as also by the High Court has
accepted the said report of doctor. Dr. J. Goswami (PW-8) had E
medically examined the prosecutrix on 17.03.2000 at 4.10 p.m.
The doctor has stated in her statement before the court that she
examined the prosecutrix on the basis of alleged history of
sexual molestation by her so called 'Chacha', aged 26 years:
At the time of examination on 17.03.2000, the said doctor was
F
told by the prosecutrix that the accused - respondent had
sexually molested the prosecutrix many days back i.e. when she
appeared in class-I examination and at the time of medical
examination she had appeared in class II examination. On
examination of the prosecutrix, the doctor found sign of recent
sexual act, as there was small-reddened area over the left upper G
margin of hymen. In the cross-examination, the doctor has
categorically stated that the prosecutrix was not habitual of
sexual intercourse because her vagina admitted only one finger.
The doctor, however, admitted that absence of hymen proves
that she had been used to sexual intercourse earlier. The H
150 SUPREME COURT REPORTS [2009] 10 S.C.R.

A aforesaid medical report of the doctor is corroborated by the
statement made by the prosecutrix that she was earlier also
raped by the same accused. As against the suggestion of the
accused that the sexual intercourse as alleged would have
been taken place more than one week prior to 17.03.2000, the
B doctor while accepting the same also stated that there can be
a possibility of recent sexual intercourse i.e. within a week from
17.03.2000, which cannot be ruled out because of the redness
on the margin of hymen. The High Court mainly relied upon the
opinion of the doctor holding that the doctor herself was unclear
c about the actual date of the alleged rape, and therefore, the
said medical report could not be relied upon. While doing so,
the High Court ignored the fact that the doctor had also stated
that there can be a possibility of recent sexual intercourse i.e.
within a week from 17.03.2000. The alleged rape was in fact
D committed within a week from 17.03.2000 i.e. on 15.03.2000.
The fact that prosecutrix was subjected to rape on 15.03.2000
is proved and established from the statement of the prosecutrix,
medical report and the statement of the doctor (PW-8), who had
examined the prosecutrix. The doctor had also stated that
E hymenal appearance cannot rule out recent coitus. Therefore,
it is also proved and established beyond doubt that the
prosecutrix was subjected to rape on 15.03.2000.

10. Having come to the aforesaid findings we are now left
to decide as to whether or not the respondent was the accused,
F who committed the rape on the minor girl.

11. The prosecutrix had categorically and affirmatively
stated to be so. Immediately after the occurrence she reported
the matter to her sister, who had also in her statement
G corroborated the said fact. The mother, who was examined as
PW-5, also corroborated the said fact that she was informed
by her daughter on the very next day that the accused had
committed rape on her. She has also stated that the accused
took her to his room, bolted the room from inside and thereafter
H committed rape on her. It is submitted by the counsel appearing
> STATE OF H.P. v. SURESH KUMAR @ DC 151
[OR. MUKUNOAKAM SHARMA, J.]

1 for the respondent - accused that there is no other independent A.
~.
witness to support the aforesaid allegation. In fact, in a case
like this, when the prosecutrix, who was a minor girl on the date
of incident, has come forward and stated that she was raped
by the accused and her testimony could not be shaken in the
cross-examination, we have no reason to disbelieve her for no B
girl would ever lie on a vital issue of this nature. Even her sister
and mother also stated as to what were reported by the
prosecutrix herself immediately after the alleged occurrence. In
fact, we have a witness in this case, who is Smt. Kanta Devi
(PW-6). Although, she turned hostile aLone stage of her c
examination, yet she had stated that on 16.03.2000 at about
3.30 p.m. Smt. Shakuntla Devi had come to her house along
with her daughter, prosecutrix and had told that accused -
respondent had committed sexual act with prosecutrix and she
advised her to report the matter to the police. She had in her
D
cross examination by the ;;ublic prosecutor admitted that it is
correct that Smt. Shakuntla had told her that accused had
raped her daughter and accused had given a currency note of
Rs. 5/- & "Shakkar" to the prosecutrix after the sexual act. She
also stated that she enquired from the prosecutrix and the
prosecutrix narrated her the entire incident. It was sought to be E
submitted by the respondent - accused that the prosecutrix
was habitual to sexual intercourse since her hymen was absent.

- The aforesaid statement of the respondent also cannot be
accepted in view of the fact that the prosecutrix has stated that
the accused himself had earlier raped her about a year back. F
It is also disclosed from the medical report that the prosecutrix
was not habitual to sexual intercourse as doctor herself stated
that the prosecutrix was not used to sexual intercourse because
her vigina admitted only one finger. She has explained that there
was redness over the margin of hymen and on the basis of this G
- j, redness, the possibility of recent sexual intercourse could not
be ruled out. As the testimony of the prosecutrix, her sister and
mother has not been shakeri in cross-examination, the
statement of the doctor appears to be a plausible and
convincing version. H
152 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 12. There is another vital submission made by the
respondent-accused which is required to be dealt with at this
stage. It was submitted that both the child witnesses, namely,
PW-3 and PW-4, the prosecutrix and her sister respectively,
should not and could not have been believed due to the
B following two reasons. Firstly, both PW-3 as well as PW-4 was
child at the time of commission of the said offence and
secondly, they were tutored by their parents and police.

13. We have considered the said submission, but we find
the same to be unacceptable. The depositions of these two
C witnesses, i.e. PW-3 and PW-4 with regard to the occurrence
of such incidence are firm anp convincing. We find no reason
as to why a child of her age i.e. prosecutrix would get an
innocent person named for an offence which was undisputedly
committed on her. It is settled position of law that the conviction
D for offence under Section 376 on the sole testimony of a rape
victim if the evidence of the prusecutrix is found to be credible
an<il convincing. This Court observed as follows in the case State
of Rajasthan v. Om Prakash,(2002) 5 SCC 745, at page 753:

E 13. The conviction for offence under Section 376 IPC
can be based on the sole testimony of a rape victim is a
well-settled proposition. In State of Punjab v. Gurmit
Singh, referring to State of Maharashtra v.
Chandraprakash Kewalchand Jain this Court held that it
must not be overlooked that a woman or a girl subjected
F
to sexual assault is not an accomplice to the crime but is
a victim of another person's lust and it is improper and
undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice. It has
also been observed in the said decision by Dr Justice A.S.
G
Anand (as His Lordship then was), speaking for the Court
that the inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are
factors which the courts should not overlook. The testimony
of the victim in such cases is vital and unless there are
H
STATE OF H.P. v. SURESH KUMAR @ DC 153
[DR. MUKUNDAKAM SHARMA, J.]

• compelling reasons which necessitate looking for A
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 B
same, as a rule, in such cases amounts to adding insult
to injury.
•(

14. In Panchhi v. State of U.P, (1998) 7 SCC 177, it was
observed by this Court that the evidence of a child witness
cannot be rejected outrightly but the evidence must be evaluated
c
~
carefully and with greater circumspection because a child is
susceptible to be swayed by what others tell him and thus a
child witness is an easy prey to tutoring. The court has to
assess as to whether the statement of the victim before the
court is the voluntary expression of the victim and that she was D
not under the influence of others.

15. Relying on the aforesaid decision, in Mohd. Ka/am v.
State of Bihar, (2008) 7 SCC 257, this Court has observed that
the evidence of a child cannot be rejected outrightly and the E
same must be evaluated with great circumspection. The
aforesaid law laid down by this Court is squarely applicable in
the facts and circumstances of the present case. When the
~
~-
evidence of PW-3 and PW-4 is taken into consideration, it
becomes quite clear that the accusation made by them in their F
deposition are cogent, credible and had grain of truth and same
was not in any manner could be said to be influenced by any
tutoring. When we examine the impugned judgment in light of
above, we find that while passing of order of acquittal, the High
Court erroneously appreciated the evidence by ignoring
G
credible evidence which is available in the nature of two child
~
witnesses and the statement of the mother of the prosecutirx,
which was further corroborated by the medical evidence.
Clearly, the aforesaid manifest error committed by the High
Court amounts to miscarriage of justice.
H
154 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 16. In that view of the matter, we find that the judgment and
order of the High Court is illegal and unjustified in the fact
situation of the present case. There cannot be an order of
acquittal of the accused - respondent. Accordingly, we set
aside the order of acquittal passed by the High Court of
s Himachal Pradesh and restore the judgment and order passed
by the Sessions Judge, Bilaspur.

17. The accused - respondent is directed to surrender
before the trial court forthwith to serve out the remaining period
of the sentence within a period of four weeks from the date of
C pronouncement of judgment failing which he shall be traced out
by the police and arrested to serve the remaining sentence.

18. Accordingly, the appeal is hereby allowed.

8.B.B. Appeal Allowed.

_,