Holding

The Supreme Court held that the High Court erred and that the conviction under Section 376 IPC stands, as the alleged defects did not defeat the prosecution's case.

Summary

The State of Himachal Pradesh prosecuted Gian Chand for raping a 5‑year‑old girl, a distant relative, on 29 October 1991. The trial court convicted him under Section 376 IPC, sentencing him to ten years' imprisonment and a fine. The Himachal Pradesh High Court set aside the conviction, relying on alleged delay in filing the FIR, inconsistency about the place of the offence, non‑examination of certain witnesses, the absence of spermatozoa and injuries on the accused, and the accused's claimed mental disorder. On appeal, the Supreme Court held that the delay in lodging the FIR was satisfactorily explained, the minor inconsistency about the location was immaterial, the non‑examination of other witnesses did not defeat the prosecution's case, medical evidence was sufficient to prove penetration, and the accused's schizophrenia did not meet the threshold for a Section 84 defence. Consequently, the Court restored the trial court’s conviction and sentence. The bail bonds of the accused were cancelled and he was ordered to serve the sentence.

Issues considered

Whether a delay in filing the FIR can, by itself, invalidate the prosecution's case.
Whether the inconsistency in the victim's mother's statement about the place of the rape creates a fatal doubt.
Whether the non‑examination of material witnesses warrants an adverse inference against the prosecution.
Whether the absence of spermatozoa or external injuries on the accused negates the occurrence of rape.
Whether the accused's mental disorder (schizophrenia) can invoke the defence under Section 84 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 313, s. 329
Indian Penal Code, 1860s. 376, s. 84

Subjects

rapeminordelay in FIRSection 376 IPCSection 84 IPCmental disordermedical evidencenon‑examination of witnessesconvictionappeal

Judgment

STATE OF HIMACHAL PRADESH A
v.
GIAN CHAND

MAY 1, 2001

[DR. A.S. ANAND, CJ., R.C. LAHOTI AND B
DORAISWAMY RAJU, JJ.]

Penal Code, 1860-Section 376-Rape of minor girl by distant
relation-High Court allowed the appeal of accused for delay in filing FIR-
Inconsistency regarding place of rape-Non examination of key witnesses- C
Presence of injury on the victim and on the accused-Held, on facts and
material, accused is guilty of committing rape-Code of Criminal Procedure,
1973-Section 154.

Accused respondent committed rape of a minor gili. Trial Court found
the respondent guilty and sentenced him to imprisonment for 10 years and a
fine of Rs. 5000. High Court allowed the appeal of the respondent-accused.

In ap11eal to this Court, the a11pellant State contended that the High Court
was in error in allowing the appeal of the respondent on the ground of delay
in filing FIR, inconsistency in the statement regarding the place of rape, non- E
examination of certain witnesses, ra11ture of the hymen of the victim could be
by fall, absence of corresponding injury on the private parts of the accused
and the accused suffering from mental disorder.

-'<. . Allowing the appeal, the Court
F
HELD : 1.1. Delay in lodging the.First Information Repm1 (FIR) cannot
be used as a ritualistic formula for doubting the prosecution case and
discarding the same solely on that ground. Delay has the effect of putting the
court in its guard to search, if any explanation has been offered for the delay,
and if offered, whether it is satisfactory or not. If the prosecution fails to
satisfactorily explain the delay and there is possibility of embellishment in G
prosecution version on account of such delay, the delay would be fatal to the
prosecution case. However, if the delay is explained to the satisfaction of the
court, the delay cannot by itself be a ground or disbelieving and discarding
the entire prosecution case. The sequence of events soon,following the Crime
and as described by the prosecution witnesses sound quite natural and H
247
248 SUPREME COURT REPORTS (2001] 3 S.C.R.

A provides a satisfactory explanation for the delay. The High Court has not
looked into the explanation offered and very superlicially recorded a finding
of the delay having remained unexplained and hence fatal to the prosecution
case. It is common knowledge and also judicially noted fact that incidents like
rape, more so when the perpetrator of the crime happens to a member of the
B family or related therewith, involve the honour of the family and therefore
there is a reluctance on the part of the family of the victim to report the matter
to the police and carry the same to the court. The delay in making the Fm.
has been satisfactorily explained and therefore does not cause any dent in the
prosecution case. [254-D-E-H; 255-A-C]

C State of Punjab v. Gurmit Singh & Ors., [1996] 2 SCC 384 and Harpal
Singh, [1981] SCC Crl 208, relied on.

1.2. Minor inconsistency in the statement given by the mother of the
1
victim, who is not an eyewitness, was of no significance and caused no infirmity
in the prosecution case when the overall narration of the incident given by
D her is found to be natural and trustworthy. The Trial Court had rightly
observed, relying on the evidence adduced and the observation made, that the
room and the lintel are situated near to each other and therefore the so-called
inconsistency was immaterial and insignificant. The High Court was not right
in ignoring this finding of the Trial Court. [255-E; 256-A-B]
E
1.3. Non-examination of a material witness is not a mathematical formula
for discarding the weight of the. testimony available on record howsoever
natural, trustworthy and convincing it may be. The charge of with-holding a
material witness from the Court levelled against the prosecution should be
examined in the background of facts and circumstances of each case so as to
F find whether the witnesses we:-e available for being examined in. the Court
and yet withheld by the prosecution. The Court has to assess the
trustworthiness of the evidence adduced and available on record. If the Court
finds the evidence adduced worthy of beif\g relied c,>n, then the testimony has
t~ be accepte(f and acted on though there may be other witnesses available,
G who could also have been examined but were not examined. However, if the
available evidence suffers from some infirmity or cannot be accepted in the
absence of other evidence, which though available, has been withheld from
the Court, then the question of drawing an adverse inference against the
prosecution for non-examination of such witnesses may arise. Conviction for
an offence of rape can be based on the sole testimony of the victim corroborated
H by medical evidence and other circumstances such as the report of chemical
STATE OF H.P. v. GIAN CHAND 249
examination etc. if the same is found to be natural, trustworthy and worthy of A
-- ~ being relied on. In the present case, in view of the accused being a relative
and the other young girls who were alleged to have been not examined being
from the same family, it is futile to expect that such girls would have been
allowed by their parents to be examined as witnesses, and if allowed, could
have freely deposed to in the Court. The question of drawing an adverse
inference against the prosecution for such non-examination does not arise. B
[256-F-H; 257-A-D]

y State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384; State of
Rajasthan v. N.K., (2000) 5 SCC 30; State of Himachal Pradesh v. Lekh Raj
& Am:, (2000) 1 SCC 247 and Madan Gopa/ Kakkad v. Naval Dubey and
Anr., (1992) 3 SCC 204, referred to.
c
1.4. The discovery of spermatozoa in the private part of the victim is not
a must to establish penetration. There are several factors which may negative
the presence of spermatozoa. Slightest penetration of penis into vagina without
rupturing the hymen would constitute rape. There is no material to show that
D
the injury of the nature found on the hymen of the victim was caused by a fall.
In case of children, who are incapable of offering any resistance, external
,,. '""" marks of violence may not be found. It is true that marks of external injury
have not been found on the person of the accused but that by itself does not
negate the prosecution case. [257-F-H; 258-A]
E
Narayanamma v. State of Karnataka, [1994) 5 ·sec 728 and Madan
Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, relied on.

Modi's Medical Jurisprudence, 22nd Edn. Page 502, referred to•
.>,
,.,., 1.5. With regard to the mental state of the accused, this Court is not
persuaded to hold evenprimafac~e, on the material available on record, that F
the accused was suffering from unsoundness of mind and that too of a nature
which would have rendered him incapable of distinguishing between wrong
-r-. and right as per law. [259-D-E]
'
Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964) 2 Cr.L.J.
472 and State ofPunjab v. Gurmit Singh & Ors., [1996) 2 SCC 384,.referred G
to.

~ Medical Legal Dictionary, Slone-Doc/and P. 628, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
649 of 1996. H
250 SUPREME COURT REPORTS [2001] 3 S.C.R.

A From the Judgment and Order dated 22.12.1995 of the Himachal Pradesh
High Court in Criminal Appeal No. 323of1995. ~·
'
Anil Soni and Ms. Meenakshi Arora for the Appellant.

A.K. Panda, Shrish Kumar Misra, Kishore Kumar Patel, T.K. Pradhan
B and Naresh K. Sharma for the Respondent.
The Judgment of the Court was delivered by

RC. LAHOTI, J. The accused-respondent was charged under Section
376 IPC for having committed forcible sexual intercourse with the prosecutrix,
C a girl of the age of the 5 years and 6 months, on 29.10.1991 _at about 6.30 p.m.
at Village Barn. On trial, the learned Sessions Judge found the accused guilty
and sentenced him to undergo rigorous imprisonment for a period of 10 years
and to pay a fine of Rs. 5,000 and in default of payment of fine to undergo
rigorous imprisonment for a further period of 6 months. The amount of fine,
if realised, was directed to be paid to the mother of the prosecutrix. The
D accused- respondent preferred an appeal. A Division Bench of the High Court
has by judgment dated 22.12.1995 allowed the appeal, set aside the conviction
and directed the accused-respondent to be released. Feeling aggtieved thereby,
the State ofHimachal Pradesh has come up in appeal by special leave which
has been granted.
E
PWl is the mother of the prosecutrix. Her husband had expired a few
years before the date of the incident. She was residing in the family house.
However, her father-in-law, her two brothers-in-law and she herself had
separated in residence and they were living in three separate portions of the
house. PWl has a son and two daughters. The prosecutrix is the youngest
F · of the three children. The accused is brother of wife of PWl 's brother-ii:i-law,
i.e., 'jeth' or her deceased husband's brother. The accused, being a relation,
was often visiting the house. According to the prosecution on the date of
the incident, PWl had gone to the fields for collecting grass. Her son and
the elder daughter had accompanied her. They returned to home at about 7
G p.m. PWl, on her return, found her youngest daughter lying below a cot on
the lintel of the house. Her salwar and shirt were having blood stains. There
was blood on the bed sheet and a towel lying on the cot. She looked into
the private parts of the victim child and found blood and inflammation therein.
On being asked, the prosecutrix told the mother, that when she was playing
the accused h<\d committed "Bura Kaam'.' (a sinful act) with her. The mother
H PWI told about the incident the neA1 morning to her parents-in-law and co-
STATE OF H.P. v. GIAN CHAND [R.C. LAHOTI, J.] 251
sister (i.e. husband's brother's wife). The father of the accused was summoned A
and was told of what the accused had done. The father of the accused
--"
. -+
defended his son saying that he could not have indulged into such a wrongful
act. On the third day, in the morning hours, when PWl was going to police
station, Ruldu Ran1, PW9, a member of village Panchayat met her on way and
agreeing with her advised PWl to lodge the report with the police. The FIR
of the incident was lodged in the morning of 31.10.1991. An offence under
B
Section 376 IPC was registered and the investigation commenced.

On 31.10.1991at12.15 p.m. Dr. Mudita Gupta, PW5, conducted medico-
'<
legal examination of the prosecutrix and found the following injuries on her
person: c
Local Exam - No external injury.

On retracting the labia - erythema seen.

Hymen tom - irregular edges.
D
~
Posterior vaginal wall tear about 0.5 cm in lengt~.
-.... No blood clot seen. No evidence of healing, no pus seen - foul smell .
.r

Tenderness. No sperms were seen.
E
The observations noted by Dr. Mudita Gupta were that the prosecutrix
had changed her clothes and taken a bath also on the next day of the incident.
The victim had passed urine and stool about one hour after the incident.
There was no external injury on any part of the body of the victim. Dr. Mudita
.. A Gupta opined that possibility of commission of rape on the prosecutrix on
29.10.1991 could not be ruled out. F
_The accused was arrested on 31.10.1991 and subjected to medico-legal
.l examination on the san1e day. Dr. Jagdish Gupta P. W.6, who examined
the accused, recorded the result of his medico-legal examination as
under:-
G
The general behaviour of the patient was normal. The mental condition
was normal. Bath not taken for the last five days. Urine passed many
times. Passing motion normally.
-c."""
No stains were found on the body of the patient. Clothing and under-
garments. H
252 SUPREME COURT REPORTS [2001] 3 S.C.R.

A No injury marks were present on genitals.

No venereal disease was found.

On· examination of genital, pubic hairs were present. Penis normal,
prepuse retracted, frenum normal. Testicles were normal. There were
B following injuries present on his person:-

Multiple contusions, some of them were patterned on back, buttocks
posteromedial aspect of thigh. Redish in colour.

Dr. Jagdish ·Gupta opined that there was nothing to suggest that the y
accused was not fit to perform sexual intercourse.
c
At the trial the prosecutrix appeared as PW7 and her mother was
examined as PWI. The prosecutrix was 8 years of age at the time of her
examination. The Court conducted preliminary examination of the witness and
observed that the witness understood the sanctity of oath and then proceeded
to examine her after administering oath to her. She stated that the accused was
D known to her as he was the brother of her Mausi (Aunt) and was on visiting
~
terms with her Mausi residing in her neighbourhood. On the date and at the !
time of the incident the accused came to her house in the absence of her ~ '
mother or any other member of the family, untied the string of her salwar and
..:-
also untied the string of his kachcha (underwear). Thereafter the accused put
E his organ into her private part. The learned Sessions Judge has noted in the
statement of the witness that the witness had sp·ecifically stated that the
accused had inserted his penis into her private part and due to the act
committed by the accused blood had started oozing out of her. The accused
remained at the place of the incident for one or two minutes and thereafter
disappeared. She had felt pain when the act was committed by the accused. ,J-
F The accused had made the prosecutrix lie down on the cot which was spread ,,
on the lintel of the house. At that time the sun had set in and darkness had
started spreading. The mother returned to home at about 8 p.m. when she
narrated the incident to her. PWI, the mother of the prosecutrix, has
corroborated the version of the victim.
G
The doctors, who had examined the prosecutrix and the accused
respectively, appeared in the witness box and stated the results of the
respective medico-legal examinations conducted and observations made by
them as noticed hereinabove. Ruldu Ram, PW9 corroborated the version of ~c-

PWl. Smt. Premi, co-sister of PWI, appeared in the witness box as PW8 but
H she turned hostile and denied having any knowledge of the occurrence. The
STATE OF H.P. v. GIAN CHAND [R.C. LAHOTI, J.] 253

-... _,(_
learned Sessions Judge found the prosecution story having been substantiated
fully by the prosecution evidence. He found the prosecutrix and her mother
truthful witnesses and worthy of credence. The version of the prosecutrix
A

stood corroborated by the testimony of her mother and the lat~r testimony
stood corroborated by the statement of Ruldu Ram, PW9, the village Panch
and the FIR. The learned Sessions Judge also found that the medical testimony
corroborates the version of the incident as given by the prosecutrix. The B
clothes of the prosecutrix were blood-stained. The salwar which was worn by
the prosecutrix at the time of the incident and which was seized by the police
": was sent for chemical examination. According to the report of Chemical
Examiner of State of Punjab spermatozoa was detected on the salwar though
not on the shirt of the prosecutrix and underwear of the accused. The learned c
Sessions Judge convicted the accused and sentenced him as stated
hereinabove.

A perusal of the judgment of the High Court shows that delay in
lodging the FIR, change in the description by PWI of the exact place where
the prosecutrix was raped (i.e. shifting of the scene of incident), and non- D
examination of two or three little girls who were playing with the prosecutrix
;..
~ soon before the incident - are the factors, which have persuaded the learned
Judges of the High Court in forming an opinion that prosecution story was
doubtful. The learned Judges have also noted that the prosecutrix's hymen
could have been ruptured by a fall also and there was no corresponding E
injury on the private parts of the accused which factors taken together
rendered the pr9secution story doubtful.

A
Here itjould be worthwhil~ to mention that in his statement under
• ><" Section 313 'of the Cr.P.C. the accused denied the prosecution story and at
the end of the statement stated that he was suffering from mental disorder F
at the time of the incident. While the learned Sessions Judge found the plea
raised by the accused of no significance, the learned Judges of the High
Court have observed that in view of the mental condition of the appellant who
was suffering from schizophrenia before and after the occurrence "there is a
reasona~le doubt as regards one or more of the ingredients of the offence".
In support of such observation the High Court has referred to the decision
G
ofthis Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, (1964)
2 Cr.L.J. 472.

~e have heard the learned counsel for the parties. Shri Anil Soni, the
learned counsel appearing for the State of Himachal Pradesh has vehemently H
254 SUPREME .COURT REPORTS [2001] 3 S.C.R.

A attacked the judgment of the High Court submitting that on the evidence
available the findings arrived at by the learned Sessions Judge were not liable
to be interfered with and the judgment of the High Court verges on perversity.
-
An entirely unmerited acquittal and that too from a serious charge where an
innocent girl of tender years was raped by a distant relation of hers in her
B own house has occasioned a gross failure of justice and therefore the judgment
of the High Court deserves to be set aside, submitted the learned Counsel
for State.· Shri Shrish Kumar Misra, the learned counsel for the respondent has
supported the judgment of the High Court. Having carefully considered the
contending submissions, we are of the opinion that the appeal deserves to
be allowed and the judgment of the High Court deserves to be set aside. We
C have given our thoughtful consideration to the submission made and have
independently appreciated the evidence to satisfy our judicial con.science. We
deal with each of tl1e reasonings which have prevailed with the High Court
in doubting the prosecution story. ·

Delay in lodging the FIR cannot be used as a ritualistic formula for
D doubting the prosecutiqn case and discarding the same solely on the ground
of delay in lodging the first information report. Delay has the effect of putting
the Court in its guard to search if any explanation has been offered for the
delay, and if offered, whether it is satisfactory or not. If the prosecution fails
to satisfactorily e:x.l)lain the delay and there is possibility of embellishment in
E prosecution version on account of such delay, the delay would be fatal to the
prosecution. However, if the delay is explained to the satisfaction of the court,
the delay cannot by itself be a gro~d for disbelieving and discarding the
entire prosecution case. In the present/case, PWI the mother of the prosecutrix
a
is widow. The accused is a close relation of brother oflate husband of PWI.
PWI obviously needed her family members consisting of her in-laws to )-
F · accompany her or at least help her in lodging the first information report at
the police station. The incident having occurred in a village, the approach of
the in-laws of PWI displayed rusticity in first calling upon the father of the
accused and complaining to him of what his son had done. It remained an
unpleasant family affair on the next day of the incident which was tried to be
G settled, if it could be, within the walls of family. That failed. It is thereafter
only that the complainant, the widow woman, left all by herself and 'havi~g.
no male family member willing to accompany her, proceeded alone to police
station. She was lent moral support by Ruldu Ram, the village Panch,
whereupon the report .of the incident was lodged. The sequence of events
soon following the crime and as described by the prosecution witnesses
H sounds quite natural and provides a satisfactory explanation for the delay. It
STATE dF H.P. v. GIAN CHAND [R.C. LAHOTI, J.] 255

..,... was found to be so by the learned Sessions Judge. The High Court has not A
looked into the explanation offered and very superficially recorded a finding
__..( of the delay having remained "unexplained" and hence fatal to the prosecution
case. It is common knowledge and also judicially noted fact that incidents like
rape, more so when the perpetrator of the crime happens to be a member of
the family or related therewith, involve the honour of the family and therefore
B,
there is a reluctance on the part of the family of the victim to report the matter
to the police and carry the san1e to the court. A cool thought may precede
lodging of the FIR. Such are the observations found to have been made by
this Court in State of Punjab v. Gurmit Singh & Ors., [1996] 2 SCC 384 and
-"(
also in the case of Harpal Singh, [1981] SCC Crl. 208. We are satisfied that
the delay in making the FIR has been satisfactorily explained and therefore c
does not cause any dent in the prosecution case.

According to the High Court, the FIR states the occurrence of rape to
have taken place in the room on the first floor of the building but according
to the statement of PW 1 as recorded in the Court, the rape was committed
on the prosecutrix in the open on the lintel of the house thus, according to D
the High Court, there was a doubt raised about the place of the incident which
was an infirmity in the prosecution story. The room and the lintel are situated
......
close to each other. PWl is not an eye-witness to the incident. When she
reached home she found her daughter, the victim of rape lying on the lintel
of the house below the cot. A perusal of the site plan shows the distance
E
between the two places is insignficant. Moreover, mch minor inconsistency
coming from the mouth of PWl, who is not an eye- witness, was of no
significance and caused no infirmity in the prosecution case when the overall
narration of the incident given by her is found to be natural and trustworthy.
..,_ It is pertinent to note that PWl was only corroborating the statement of PW7,
.> the young victim of rape and the latter's testimony was found to be very F
natural and inspiring confidence by the learned Sessions Judge who had
recorded her statement. The learned Sessions Judge had himself inspected
the site of the incident and noted in his inspection note inter alia that the
other houses were situated at a distance and another house situated nearest
~ to the house where incident had taken place was about 50 yards away. The
' G
main road was at a distance of 100 or 150 yards from the house as shown
in the site plan and there was also a tree which blocked the vision to some
extent from the main road towards the first floor and rooms as shown in the
~ ........ site plan on the first floor. Thus, the place of the incident was secluded one
and not visible from distance. Similar facts were deposed to by the investigating
officer. The learned Sessions Judge had rightly noted in his judgment, relying H
256 SUPREME COURT REPORTS [2001] 3 S.C.R.

A on the evidence adduced and the observations made at the time of spot
inspection, that the room and the lintel are situated near to each other and
therefore the so-called inconsistency was immaterial and insignificant.. The
Uigh Court was not right in ignoring this finding of the trial court or even
etherwise making. this
~ .
insignificant discrepancy, if at all it is a discrepancy,
B a major lacuna in the prosecution case. l~)s not so.

So far as non-examination of other witnesses and an adverse inference
drawn by the High Court therefrom is concerned, here again we find ourse~ves
not persuaded to subscribe to the view taken by the High Court. The
prosecutrix PW7 has stated that soon before the inci~ent she was playing
C with three girl-children of the same age as of hers and they were present when
the accused committed rape on her. One of the giris picked up a broom and
had tried to scar away the accused by striking the broom on him. This little
friend of the victim had also raised a h1:1e and cry but none from the
neighbourhood came to the spot. These girls were none else than daughters
of her uncle. What the High Court has failed to see is that these girls were
D of tender age and could hardly be expected to describe the act of forcible
sexual intercourse committed by the accused on PW7. Secondly, these girls
would obviously be under the influence of their parents. We have already
noted the co-sister of PW 1 turning hostile and not supporting the prosecution -+-
version. How could these little girls be expected to be away from the influence
E of their parents and depose freely and truthfully in the Court? Non-examination
of a material witness is again not a mathematical formula for discarding the
weight of the testimony available on record howsoever natural, trustworthy
and convincing it maybe. The charge of withholding a material witness from
the Court levelled against the prosecution should be examined in the
background of facts and circumstances of each case so as to find whether
F the witnesses were available for being examined in the Court and were yet ;..
withheld by the prosecution. The Court has first to assess the trustworthiness
of the evidence adduced and available on record. If the Court finds the
evidrnce adduced worthy of being relied on then the testimony has to be
accepted and acted on though there may be other witnesses available who
G could also have been examined but were not examined. However, if the
available evidence suffers from some infirmity or cannot be accepted in the
absence of other evidence which though available has been withheld from the
Court then the question of drawing an adverse · inference against the
prosecution for non-examination of such witnesses may arise. It is now well-
settled that conviction for an offence of rape can be based on the sole
H testimony of prosecutrix corroborated by medical evidence and other
STATE OF H.P. v. GIAN CHAND [R.C. LAHOTI, J.] 257

circumstances such as the report of chemical examination etc. if the same is A

- ·-\
found to be natural, trustworthy and worth being relied on. "If the 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 . B
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."-is the law declared in State of Punjab v. Gurmit Singh
& Ors., [1996] 2 SCC 384. Also see State ofRajasthan v. N.K., [2000] 5 SCC
30; State of Himachal Pradesh v. Lekh Raj & Am:, [2000] 1 SCC 247; Madan C
Gopal Kakkad v. Naval Dubey and Am:, [1992] 3 SCC 204. In the present

- case we are clearly of the opinion that in view of the accused being a relation
of the in-laws of the mother of the prosecutrix and the other young girls who
are alleged to have been not examined being from the family of such in-laws,
it is futile to expect that such girls would have been allowed by their parents
to be examined as witnesses, and if allowed, could have freely deposed to in D
the Court. The question of drawing an adverse inference against the
prosecution for such non-examination does ·not arise.
,
The observations made and noted by Dr. Mudita Gupta during medico
legal examination of PW7 clearly make out the prosecutrix having been subjected E
to rape. The prosecutrix has spoken of "penetration" in her statement. the
discovery of spermatozoa in the private part of the victim is not a must to
establish penetration. There are several factors which may negative the
presence of spermatozoa. See Narayanamma v. State of Karnataka, (1994) 5
SCC 728. Slightest penetration of penis into vagina without rupturing the
hymen would constitute rape. See Madan Gopal Kakkad v. Naval Dubey - F
[1992] 3 SCC 204. The suggestion made in the cross examination of Dr. Mudita
Gupta that injury of the nature found on hymen of prosecutrix could be
caused by a fall does not lead us anywhere. Firstly, no such suggestion was
given to prosecutrix or her mother during cross exan1ination. Secondly, why
would the girl or her mother implicate the accused, charging him with rape, G
if the injury was caused by a fall? There is nothing to draw such an inference
not even a suggestion, to be found on record. Answer to the suggestion
made to Dr. Gupta cannot discredit the prosecution case iri the absence of
any other material to support the suggestion. So is the case with absence of
ex.iernal marks of violence on the body of the victim. In case of children who
are incapable of offering any resistance external marks of violence may not H
258 SUPREME COURT REPORTS [2001] 3 S.C.R.

A be found. (See Modi's Medical Jurisprudence, 22nd Edn., p.502). It is true that
marks of external injury have not been found on the person of the accused
but that by itself does not negate the prosecution case. Modi has opined
(see, Modi ibid, page 509) that even in the case of a child victim being
ravished by a grown up person it is not necessary that there should. always
B be marks of injuries on the penis in such cases. Further, it is to be noted that
about two days had elapsed between the time of the incident and medical
examination of the accused within which time minor injuries, even if caused,
might have healed.

Lastly, remains the observation of the High Court regarding mental state
C of the accused-respo!ldent. The plea taken by the accused was that he was
suffering from 'some mental disorder' and not that" he was insane at the time
of incident. In his defence the accused examined Dr: R.S. Dalwalia, DW2. He
had examined the accused on 9.6.1992 on a requisition made by jail authorities
for his psychiatric examination. He was diagnosed to be a case of schizophrenia·
and necessary treatment was prescribed for him. Before the commencement
D of trial the learned Sessions Judge had also held an enquiry under Section
329 of the Code of Criminal Procedure to find out if the accused-respondent
was fit and capable to defend himself. Vide order dated 24.6.1993 the learned
Sessions Judge recorded a finding that the accused was fit to make his
defence and accordingly the trial was proceeded ahead. The only provision
E of law relevant to the plea of the accused is Section 84 of the Indian Penal
Code, 1860 which provides that nothing is an offence which is done by a
person who, at the time of doing it, by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that he is doing what is either
wrong or contrary to law. Such is neither the plea nor evidence adduced by
the accused. In Dahyabhai ~case (supra) relied on by the High Court, this
F Court has held - "when a plea of legal insanity is set up, the Court has to
consider whether at the time of commission of the offence the accused, by
reason of uns?undness of mind, was incapable of knowing the nature of the
act or that he was doing what was either wrong or contrary to law. The crucial
point of time for ascertaining the state of mind of the accused is the time when
G the offence was committed. Whether the accused was in such a state of mind
as to be tttttitled to the benefit of Section 84 of the Penal Code can only be
established from the circumstances which preceded, attended and followed
the crime". The High Court has picked up and quoted another passage from
the judgment dealing with burden ·of proof according to which the burden of ,;._.C"'llll
proof on the accused is no higher than that which rests upon a party to civil
H proceedings and it is sufficient if the evidence adduced by the accused raises
STATE OF H.P. v. GIAN CHAND [R.C. LAHOTI, J.] 259

a reasonable doubt in the mind of the Court as regards one or more of the A
ingredients of the offence including mens rea of the accused though not
establishing conclusively the plea of insanity at the time of commission of the
offence. We fail to understand and appreciate how the passage quoted by the
High Court advanced the plea of the accused or raised any doubt about his
guilt. On the contrary, the passage reproduced hereinabove from the judgment. B
of this Court in Dahyabhai ~ case (supra) supports the prosecution. In the
case of Dahyabhai itself wantonness, vengeful mood or determination of the
accused to see that the victim did not escape was held not sufficient to prove
that tfi.e accused was doing the act under some hallucination. The plea raised
before and entertained by the High Court, in the present case, was one of the
accused suffering from schizophrenia. Schizophrenia is one ~f a group of C
severe emotional disorders, usually of psychotic proportions, characterized
by misinterpretation and retreat from reality, delusions, hallucinations,
ambivalence, inappropriate affect, and withdrawn, bizarre, or regressive
behavior; Popularly and erroneously called split personality. [See - Medical-
Legal Dictionary, Sloane-Docland, p. 628]. We are not persuaded to hold even
prima facie, on the material available on record, that the accused was suffering D
from unsoundness of mind and that too of a nature which would have
rendered him incapable of knowing the nature of the act which he was doing
or incapable of distinguishing between wrong or right as per law. The entire
discussion by the High Court on this aspect of the case was irrelevant and
meaningless. The learned counsel for the respondent has very fairly not E
persisted in pressing this plea before us.

In State of Punjab v. Gurmit Singh & Ors., [1996) 2 SCC 384, one of
us, Dr. A.S. Anand, J. (as His Lordship then was) has thus spoken for the
court-" A murderer destroys the physical body of his victirri, a rapist degrades
the very soul of the helpless female. The courts, therefore, shoulder a great F
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 G
approach adopted by the High Court runs into the teeth of law so stated and
hence stands vitiated.

For the foregoing reasons we hold the judgment of the High Court
wholly unsustainable in law. We are unhesitatingly of the opinion that the
Division Bench of the High Court ought not to have interfered with the well- H
260 SUPREME COURT REPORTS [2001] 3 S.C.R.

A reasoned, detailed and well-articulated judgment of the Sessions Court wherein
we find no infirmity.

For the foregoing reasons the appeal is allowed. The judgment of the
High Court is set aside and the judgment of the Sessions Court holding the
accused guilty of an offence punishable under Section 376 IPC along with the
B sentence passed is restored. The bail bonds of the accused-respondent are
cancelled. He shall be taken into custody to serve out the sentence passed
by the trial court.

B.S. Appeal allowed.

+