THE STATE OF HIMACHAL PRADESHversusMANGA SINGH

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


A                THE STATE OF HIMACHAL PRADESH
                                   v.
                           MANGA SINGH
                   (Criminal Appeal No. 1481 of 2018)
                        NOVEMBER 28, 2018
B
            [R. BANUMATHI AND INDIRA BANERJEE, JJ.]
             Penal Code, 1860 – s.376 – Prosecutrix-PW-4 was staying in
      her aunt’s house – Respondent-accused is son of the aunt – FIR
      filed stating that the respondent used to make the prosecutrix sleep
      with him and commit sexual intercourse with her – Trial Court
C     convicted the respondent – High Court reversed the conviction –
      On appeal, held: Trial court, which had the opportunity of observing
      and hearing the prosecutrix, recorded a finding of fact that the
      evidence of prosecutrix is convincing and inspires the confidence
      of the court – In the absence of any convincing reason, the High
D     Court ought not to have interfered with such finding of fact – Further,
      merely because there was no rupture of hymen/injury marks it cannot
      be said that there was no question of sexual intercourse – It cannot
      be the reason to disbelieve the testimony of the prosecutrix –
      Prosecutrix was reluctant to go back to her aunt’s house and
      complained the act of sexual intercourse committed by the respondent
E     to her teachers, PW-1 and PW-2 – Prosecutrix being a young girl
      aged about nine years, had no reason to falsely implicate the
      respondent – Evidence of the prosecutrix established that the
      accused was committing rape on her by penetration – Impugned
      judgment set aside – Crime against Women.
F          Evidence – Rape – Sole testimony of prosecutrix –
      Appreciation of – Discussed.
             Evidence – Rape – Absence of external injury on the body of
      the prosecutrix – Effect of – Held: Respondent-accused
      (Prosecutrix’s cousin brother) used to make the prosecutrix sleep
G     with him and insert his private part in the private part of the
      prosecutrix which constitutes rape – This may not have ruptured
      the hymen – In case of rape it is not necessary that external injury
      is to be found on the body of the prosecutrix – Absence of injuries
      on the private part of the prosecutrix can be of no consequence in
H     the facts and circumstances of the present case.
                                      904
  THE STATE OF HIMACHAL PRADESH v. MANGA SINGH                         905


       Allowing the appeal, the Court                                  A
       HELD: 1.1 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          B
corroboration of her statement. Corroboration of the testimony
of the 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. Corroboration is not a
sine qua non for conviction in a rape case. If the evidence of the     C
victim does not suffer from any basic inf irmity 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. How ever, having regard to the
circumstances of the case, medical evidence may not be available.      D
In such cases, solitary testimony of the prosecutrix would be
sufficient to base the conviction, if it inspires the confidence of
the court. 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 every night, on 04.03.2010 she refused to go the house         E
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. [Paras 11, 12 and 14][909-C-F; 910-D-E]                F
       1.2 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 the Trial Court held that the
evidence of the prosecutrix (PW-4) inspires confidence of the
court, in the absence of any convincing reason, the High Court         G
ought not to have interfered with such finding of fact. PW-6, the
doctor 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
PW-6 has further stated that in case of small/slightest penetration    H
906               SUPREME COURT REPORTS                [2018] 14 S.C.R.


A     the hymen will not rupture; the hymen will rupture only in case of
      complete penetration with force. The respondent-accused made
      the prosecutrix 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
B
      the incident had not taken place or the sexual intercourse was
      committed with the consent of the prosecutrix. The prosecutrix
      being a small child of about nine years of age, there could 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
C     consequence in the facts and circumstances of the present case.
      In case of rape it is not necessary that external injury is to be
      found on the body of the prosecutrix. [Paras 15-17][910-E-H;
      911-A-C]
            1.3 The testimony of the prosecutrix must have been
D     appreciated in the light of the background of the case; more so,
      the prosecutrix 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, PW-1 and PW-2. In the light
      of the evidence of the prosecutrix and the categorical findings
      recorded by the Trial Court, the High Court was not justified in
E     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. The impugned judgment of the High Court is not
      sustainable and is set aside. Since at the time of incident the
      victim was at her tender age, there is reason to show sympathy
F
      towards the respondent. 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.
      [Paras 19, 21 and 22][911-E-F; 912-H; 913-A-C]
            State of Punjab v. Gurmit Singh and Others (1996) 2
G           SCC 384: [1996] 1 SCR 532 ; State of Rajasthan v.
            N.K. The Accused (2000) 5 SCC 30 : [2000] 2 SCR
            818 – relied on.
                             Case Law Reference
      [1996] 1 SCR 532               relied on                Para 13
H     [2000] 2 SCR 818               relied on                Para 20
   THE STATE OF HIMACHAL PRADESH v. MANGA SINGH                                907


       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                       A
No. 1481 of 2018.
       From the Judgment and Order dated 22.10.2014 of the High Court
of Himachal Pradesh at Shimla in Criminal Appeal No. 523 of 2010.
       Ms. Bihu Sharma, Ms. Purnima Krishna, Ms. Pratishtha Vij (For
Abhinav Mukerji), Advs. for the Appellant.                                     B
       Ms. Manjeet Chawla, Adv. for the Respondent.
       The Judgment of the Court was delivered by
       BANUMATHI, J.
       1. Leave granted.
                                                                               C
       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.                                           D
       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, 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          E
(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-           F
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                   G
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.
                                                                               H
908                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A            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
B
      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
C     (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
D     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 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
E     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
F     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.
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. Neerja
      Gupta (PW-6) Dr. Pooja Gupta (PW-7) is not conclusive to hold that the
      prosecutrix (PW-4) was subjected to sexual intercourse.
H
   THE STATE OF HIMACHAL PRADESH v. MANGA SINGH                                909
                   [BANUMATHI, J.]

        10. The Trial Court has elaborately referred to the evidence of        A
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
                                                                               B
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.                                                           C
        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   D
of the 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        E
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    F
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        G
        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         H
910                 SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A            the prosecutrix should not, unless the discrepancies are such which
             are of fatal nature, be allowed to throw out an otherwise 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
B
             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
C            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
D     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
E     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 the Trial Court which had the opportunity of seeing
F     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
G
      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
H     not rupture; the hymen will rupture only in case of complete penetration
   THE STATE OF HIMACHAL PRADESH v. MANGA SINGH                                911
                   [BANUMATHI, J.]

with force. As discussed earlier, the respondent-accused made the              A
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
                                                                               B
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         C
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-            D
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           E
examined his mother as his witness. The non-examination of aunt of the
prosecutrix (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        F
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 –           G
(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
                                                                               H
912                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A           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)
B
            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
            evidence of such victim with the aid of spectacles fitted with lenses
            tinted with doubt, disbelief or suspicion. We need only remind
C           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
D               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
E               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.”
F           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
G           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
H     respondent-accused. The testimony of the prosecutrix (PW-4) must
   THE STATE OF HIMACHAL PRADESH v. MANGA SINGH                                913
                   [BANUMATHI, J.]

have been appreciated in the light of the background of the case; more         A
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
                                                                               B
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          C
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        D
which he shall be taken to custody.
       24. A copy of this order be sent to the concerned trial court for
necessary action.

Divya Pandey                                                 Appeal allowed.   E




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