STATE OF HIMACHAL PRADESH v. GIAN CHAND

Citation: [2001] 3 S.C.R. 247

Court: Supreme Court of India

Bench: A.S. ANAND, R.C. LAHOTI, DORAISWAMY RAJU

Judgment text

STATE OF HIMACHAL PRADESH v. GIAN CHAND MAY 1, 2001 [DR. A. S. ANAND, CJ. , R. C. LAHOTI AND DORAISWAMY RAJU, JJ. ] Penal Code, 1860-Section 376-Rape of minor girl by distant relation-High Court allowed the appeal ofaccusedfor delay infiling FIR- Inconsistency regarding place ofrape-Non examination ofkey witnesses- Presence of injury on the victim and on the accused-Held, on facts and material, accused is guilty ofcommitting rape-Code ofCriminal 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 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, nonexamination ofcertain witnesses, ra11ture ofthe hymen ofthe victim could be by fall, absence of corresponding injury on the private parts of the accused and the accused suffering from mental disorder. -' n, then the testimony has t~ be accepte(f and acted on though there may be other witnesses available, 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 ofthe victim corroborated 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 ~ 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. [256-F-H; 257-A-D] State ofPunjab v. Gurmit Singh & Ors. , (1996) 2 SCC 384; State of y Rajasthan v. N. K. , (2000) 5 SCC 30; State ofHimachal Pradesh v. Lekh Raj & Am:, (2000) 1 SCC 247 and Madan Gopa/ Kakkad v. Naval Dubey and Anr.

, (1992) 3 SCC 204, referred to. 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 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] Narayanamma v. State ofKarnataka, [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 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 ofGujarat, (1964) 2 Cr. L. J. 472 and State ofPunjab v. Gurmit Singh & Ors. , [1996) 2 SCC 384,. referred to. ~ Medical Legal Dictionary, Slone-Doc/and P. 628, referred to. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 649 of 1996. From the Judgment and Order dated 22. 12. 1995 ofthe 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 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, a girl ofthe 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 offine, if realised, was directed to be paid to the mother of the prosecutrix. The accused- respondent preferred an appeal. A Division Bench ofthe 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. 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 · ofthe three children. The accused is brother of wife ofPWl '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 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 ofthe victim child and found blood and inflammation therein. On being asked, the prosecutrix told the mother, that when she was playing the accused h the young victim of rape and the latter's testimony was found to be very 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 ' 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 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, ~ . . 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 with three girl-children ofthe 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 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 ofPW1 turning hostile and not supporting the prosecution -+version. How could these little girls be expected to be away from the influence oftheir 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 ;.. 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 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 ofother evidence which though available has been withheld from the Court then the question of drawing an adverse ·inference against the prosecution for non-examination ofsuch witnesses may arise.

It is now wellsettled that conviction for an offence of rape can be based on the sole testimony of prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination etc. if the same is 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. Iffor 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 ofcorroboration required in the case of an accomplice. The testimony ofthe prosecutrix must . 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 ofPunjab v. Gurmit Singh & Ors. , [1996] 2 SCC 384.

Also see State ofRajasthan v. N. K. , [2000] 5 SCC 30; State ofHimachal Pradesh v. Lekh Raj & Am:, [2000] 1 SCC 247; Madan 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 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 ofPW7 clearly make out the prosecutrix having been subjected 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 ofKarnataka, (1994) 5 SCC 728. Slightest penetration of penis into vagina without rupturing the hymen would constitute rape. See Madan Gopal Kakkad v. Naval Dubey - [1992] 3 SCC 204. The suggestion made in the cross examination ofDr. 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, ifthe 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 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 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 ifcaused, might have healed.

Lastly, remains the observation of the High Court regarding mental state 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 ofincident. 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 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 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 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 ofthe accused is the time when 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 ·ofproof according to which the burden of ,;. _. C"'lll proof on the accused is no higher than that which rests upon a party to civil proceedings and it is sufficient if the evidence adduced by the accused raises a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence including mens rea of the accused though not establishing conclusively the plea ofinsanity at the time ofcommission ofthe 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.

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 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 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 persisted in pressing this plea before us. In State ofPunjab 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 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 ofa fatal nature, to throw out an otherwise reliable prosecution case". The 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- A reasoned, detailed and well-articulated judgment ofthe 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 ofan 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. +