minal Appeal No 398 of 1984
From the Judgment and Order dated 161183 of the Himachal Pradesh High Court in Crl
A No 32 of 1983
Ms Kusum Choudhury and Ms Bina Gupta for the Appellant
Dr NM Ghatate and SV Deshpande for the Respondent
20 The following Order of the Court was delivered On special leave being granted the State of Himachal Pradesh has preferred this appeal against the judgment and order dated 16111983 acquitting the respondent of an offence under Section 376 IPC earlier recorded by the learned Sessions Judge
Briefly stated the prosecution case is that on 281982 the prosecutrix Raksha Devi PW4 alongwith her father Nikkoo Ram PW5 and an elder sister by name Samti were in their fields
It started to rain all of a sudden and the prosecutrix her father and her sister ran towards their house
The prosecutrix got separated from her father and elder sister and was following them when the respondent Raghubir Singh then aged about 16 years came to her and caught hold of her hand and took her under a mango tree
The prosecutrix who was 78 years old at that time was wearing a frock and having a shawl with her
The respondent spread the shawl on the ground and making the prosecutrix lie on that shawl committed rape on her
Since the prosecutrix had not reached her home Nikkoo Ram her father after waiting for about half an hour returned towards the field and saw the respondent lying on top of the prosecutrix Raksha Devi under the mango tree
He raised alarm and the respondent ran away carrying with him his underwear
The prosecutrix was crying and was bleeding per vagina
The occurrence took place at about 230 pm and the First Information Report exhibit PE was lodged at the Police Station at 550 pm
The prosecutrix was got examined by the doctor who found her hymen ruptured and slight bleeding coming out of the vaginal edges
Blood clott was also present and the external genitals of the prosecutrix were found to be tender and red
The vagina admitted one finger with difficulty which got smeared with blood
The doctor who had examined the prosecutrix namely Dr Urmil Gupta Medical Officer Rural Hospital Nalagarh at about 7 pm on the same day appearing as PWI at the trial had also testified that when the prosecutrix was brought to her by her father he had also brought with him a shawl which was found to be having some mud and bloodstains
According to the opinion of Dr Urmil Gupta PWI the prosecutrix had been subjected to sexual intercourse and the probable duration of the injuries on her private parts
 including the vagina was about 6 to 12 hours
During the cross examination a suggestion was put to the doctor that the injuries found on the prosecutrix could have been caused by a fall on some bushes or on the stem of a beree  tree but the doctor had categorically denied the suggestion
It was also suggested to her that the venginal in jury could also be caused by inserting 21 a finger in the vagina
The X Ray the skiagrams and the examination of her teeth by Dr Subhash Chandra Aggarwal PW2 established the age of the prosecutrix to be between 6 to 8 years
The respondent was also examined by doctor CL Sharma PW3 medical officer at the Rural Hospital Nalagarh
He had found the respondent to be potent and capable of sexual intercourse
He denied the suggestion that injuries would necessarily be caused to the penis in case of sexual intercoures by a grown up male with a virgin when during the act her hymen gets torn
The father of the prosecutrix Nikkoo Ram PW5 the prosecutrix Raksha Devi PW4 and Taru PW7 who had rushed to the scene of occurrence on hearing the alarm and had also seen the respondent running away therefrom carrying with him his underwear supported the prosecution case in its totality
The learned Sessions Judge after a careful appraisal of the evidence on record found that the respondent had committed the offence of rape and sentenced him to suffer RI for a period of five years for the offence under Section 376 IPC
While awarding the sentence the learned Sessions Judge took into account the age of the prosecutrix the age of the accused and the other attending circumstances and directed that it would be appropriate if the accused was kept in the open air jail in Bilasput during the term of five years RI
The respondent appealed to the High Court of Himachal Pradesh and on 16111983
The High Court acquitted him
We have heard learned counsel for the parties at length and have gone through the evidence on the record
The statement of the prosecutrix Raksha Devi PW4 is clear cogent and specific
The learned Sessions Judge before recording her statement was conscious of her age and had therefore taken all the precautions required by law to ascertain whether she was capable of giving evidence or not and on being satisfied that she was so capable recorded her statement
She narrated the occurrence in a simple and straight forward manner
The prosecution case as noticed in the earlier part of the judgment was fully supported by her during her statement and nothing has been brought out in the cross examination from which any doubt could be caused about her veracity
Her statement receives ample corroboration from the testimony of Nikkoo Ram PW5 her father who even otherwise would be the last person to come forward with a false accusation of the type of rape on his young unmarried daughter
22 His testimony has impressed us and we find him to be a truthful and reliable witness
The medical evidence of Dr Urmil Gupta has supported the prosecutrix in all material particulars
She has also testified to the presence of mud and blood stain  on the shawl
The evidence of Taru PW7 who had also seen the accused running away from the scene of crime carrying his underwear further lends credence to the prosecution version
The learned Sessions Judge in our opinion was therefore justified in relying upon the prosecution evidence and recording an order of conviction against the respondent for an offence under Section 376 IPC
His findings were based on proper appreciation of evidence and were not unreasonable much less perverse
The learned single Judge of the High Court in our opinion without appreciating or properly discussing the evidence set aside the findings recorded by the Sessions Judge
The High Court appears to have embarked upon a course to find some minor contradictions in the oral evidence with a view to disbelieve the prosecution version
In the opinion of the High Court conviction on the basis of uncorroborated testimony of the prosecutrix was not safe
We cannot agree
There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction
Evidence has to be weighed and not counted
Conviction can be recorded on the sole testimony of the prosecutrix if her evidence inspires confidence and there is absence of circumstances which militate against her veracity
In the present case the evidence of the prosecutrix is found to be reliable and trustworthy
No corroboration was required to be looked for though enough was available on the record
The medical evidence provided sufficient corroboration
The High Court however while dealing with the medical evidence observed as follows Lady doctor Urmil Gupta PW1 who had examined the prosecutrix had admitted in so many words towards the end of her cross examination that the injury found on the private part of the prosecutrix and which is the only injury found in the instant case could be caused by insertion of a finger by a grown up person like the parents of the prosecutrix It is true that normally no parents would not do so but in the peculiar circumstances of this case this possibility may not be ruled out altogether
In any case the mere fact that the hymen of the prosecutrix had been found ruptured would not prove the prosecution version 23 and connect the appellant with the offence charged against him
 The above approach to say the least was highly improper
What were the peculiar circumstances  of the case from which the learned single Judge of the High Court thought that the possibility could not be ruled out that the parents of the prosecuted would have themselves caused injury to the prosecutrix by inserting finger in her vagina rupturing her hymen is not at all understandable
There is no suggestion that on account of any enmity the parents of the girl would go to that length to falsely implicate the respondent
Dr Ghatate the learned senior counsel was also unable to point out any such circumstances  from the record which could show that there was any possibility of the hymen of the prosecutrix having been ruptured in the manner suggested by the High Court or any reason to falsely implicate the respondent
In fairness to Dr Ghatate it must be recorded that he did not support the observations of the High Court noticed above
The learned single Judge of the High Court also drew an inference against the prosecution from the fact that only two blood stains had been found on the shawl by the Chemical Examiner and doubted the prosecution version on that account
According to the learned single Judge In natural course if this shawl had been used under the prosecutrix at the time of the alleged offence the same should have been drenched with blood in the meddle
Moreover this shawl should have been full of mud as it remained lying on the ground under the prosecutrix for such a long time and when it had rained throughout
 In making the above observations obviously the High Court ignored the testimony of Doctor Urmil Gupta who had found the presence of blood stains and the mud on the shawl and who had opined that the bleeding from the edges of the vagina was slight and that some amount of clotted blood was also present
The prosecutrix was a girl of tender age and on account of the rape committed on her there was bleeding from her vagina but to expect that the shawl should have got drenched with blood as if the large blood arteries had been cut is letting the imagination run wild and ignoring the circumstances of the case
The absence of spermatoza on the vaginal slide which was also pressed into aid by the High 24 Court to acquit the respondent was not based on proper scrutiny of the evidence
The prosecution case itself was that on being surprised while the respondent was in the act of committing sexual intercourse on the prosecutrix he ran away carrying his underwear
The absence of spermatoza under the circumstances could not be said to be a circumstance in favour of the respondent at all
The judgment of the High Court in our opinion is based more on surmises and conjectures than on proper appreciation of evidence
It exposes the insensitivity of the learned Judge to the serious crime committed against human dignity
We are not impressed by the manner in which the High Court dealt with the case
Courts must be wary circumspect and slow to interfere with reasonable and proper findings based on appreciation of evidence as recorded by the lower courts before upsetting the same and acquitting an accused involved in the commission of heinous offence of rape of hapless girl child
Dr Ghatate learned senior counsel for the respondent submitted by reference to Rahim Beg  Anr
vs State of UP  that the absence of injuries on the penis of the respondent should be treated as sufficient to the negative prosecution case
We are afraid we cannot agree
Inferences have to be drawn in every case from the given set of facts and circumstances
There is no inflexible axiom of law which lays down that the absence of injuries on the male organ of the accused would always be fatal to the prosecution case and would discredit the evidence of the prosecutrix otherwise found to be reliable
The presence of injuries on the male organ may lend support to the prosecution case but their absence is not always fatal
Rahim Beg s case supra was based on its peculiar facts and the observations mate therein were in a totally different context and cannot advance the case of the respondent
The observations in Rahim Beg s case supra cannot be mechanically pressed into aid in every case regardless of the specific circumstances of the crime and absence of the fact situation as existing in that case
Every case has to be approached with realistic diversity based on peculiar facts and circumstances of that case
Doctor Sharma who had examined the respondent had found him to be capable of sexual intercourse and according to his opinion the absence of injury on his male organ was not suggestive of the fact that he had not indulged in sexual intercourse with the prosecutes then of tender years of age
His evidence was not at all challenged on this aspect by the defence
Thus considered on the whole
we are of the opinion that the 25 judgment of the High Court is based on conjectural findings and cannot be sustained
The same deserves to be set aside and is hereby set aside
The reasoning given by the learned Sessions Judge and the findings recorded by him on appreciation of evidence have appealed to us and we find no reason to take a view different than the one taken by the learned Sessions Judge
We accordingly set aside the acquittal of the respondent and hold him guilty of the offence under Section 376 IPC for having committed rape on the prosecutrix Raksha Devi on the date and in the manner alleged by the prosecution
Having recorded the conviction of the respondent for the offence under Section 376 IPC the next question is about the awarding of proper sentence
The occurrence took place on 281982 more than a decade ago
The learned Sessions Judge after recording the conviction under Section 376 IPC had sentenced the respondent to suffer RI for five years
The State did not move the High Court for any enhancement of the sentence
We therefore feel that the ends of justice would be met if the sentence to be imposed on the respondent is confined to five years RI as was awarded by the learned Sessions Judge for cogent reasons recorded by him
We may emphasise that though for such an offence a more severe sentence would have been desirable but we have restricted ourselves to the maintenance of the sentence as imposed by the learned Sessions Judge for the reason that the State did not seek any enhancement of the sentence by filing an appropriate petition in the High Court or in this Court and for over a period of seven years while the case has remained pending here no notice had been issued to the acquitted respondent to show cause as to why in the event of his acquittal being set aside a more deterrent sentence than the one imposed by the Sessions Judge be not imposed upon him and without putting him on such a notice the Court cannot enhance the sentence
If the notice were to issue now it would further delay the disposal of the case and we do not consider that to be a proper course to be adopted
The more stringent minimum sentence prescribed for an offence under Section 376 IPC was also incorporated in the Code by an amendment only with effect from December 1982 after the offence in the present case had been committed
The appeal is consequently allowed and the judgment of the High 26 Court is set aside
The respondent is held guilty of an offence under Section 376 IPC and sentenced to suffer rigorous imprisonment for a period of five years
The respondent shall be taken into custody to suffer the term of imprisonment
RP Appeal allowed


Summary:
The prosecution case was that the appellant and the deceased were intimate friends
The appellant nursed a grudge against the deceased as he misbehaved with the wife of the appellant
On July 8 1979 in the morning the deceased accompanied the appellant to Mohali where the appellant wanted to do business
At Mohali the appellant went to the brother of his wife PW 11 and borrowed a bicycle leaving the deceased at a shop
later both left the shop on the bicycle
The deceased was pedalling the bicycle while the appellant was sitting behind on the carrier of the bicycle
PW 5 saw them going by the side of the Gurdwara Sahib Singh Sabha
At about 245 PM on the same day PW 5 when went to the Gurdwara one Om Parkash came there and told PW5 that an injured Sikh gentleman was lying on the ground in the campus of the Gurdwara
PW 5 accompanied by one Balwinder Singh came to the spot
He identified the victim lying on the ground bleeding profusely
The members of the Gurdwara Committee were summoned
The members who were available reached
The victim succumbed to the injuries in the meantime
PW 5 accompanied by one Chatter Singh lodged the First Information Report at 400 pm the same day
The prosecution case was based solely on the circumstantial evidence and it could prove the chain events beyond reasonable doubt by the evidences of its witnesses
The appellant was convicted under section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life by the trial Court
1027 1028 Dismissing the appeal this Court HELD  101
It is said that men lie but circumstances do not
Under the circumstances prevailing in the society today it is not true in many cases
Sometimes the circumstances which are sought to be proved against the accused for purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances
1031D 102
In countries having sophisticated modes of investigation every trace left behind by culprit can be followed and pursued immediately
Unfortunately it is not available in many parts of this country
That is why Courts have insisted i the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established ii all the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one sought to be proved iii the circumstances should be of a conclusive nature and iv the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused
1031E F 103
If at a trial the prosecution adduces direct evidence to prove the charge the Court is primarily concerned whether the witnesses who have testified about the role of the accused are reliable
Once the Court is satisfied that the witnesses who Pre said to have seen the occurrence are trustworthy and inspire confidence the finding of guilt has to be recorded if otherwise the accused has to be acquitted
But in a case based on circumstantial evidence neither the accused nor the manner of occurrence is known to the persons connected with the victim
1031B C 104
Suspicion and conjecture should not take place of legal proof
It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused but the Court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path
The existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence
1032C D 105
The evidence adduced on behalf of the prosecution is clear 1029 unambiguous and in unmistakable terms establish that the appellant is the perpetrator of the crime and nothing has been brought to Court s notice which leaves any gap in the circumstances to establish the guilt of the appellant 1036B Reg vs Hodge 1838 2 Lewin 227 Hanumant Govind Nargundkar vs State of Madhya Pradesh AIR 1952 SC 343 Deonandan Mishra vs The State of Bihar   Govinda Reddy vs State of Mysore AIR 1960 SC 29 Sharad Birdhichand Sarda vs State of Maharashtra  Ashok Kumar Chatterjee vs State of Madhya Pradesh AIR 1989 SC 1890 and State of U P vs Ashok Kumar Srivastava  referred to