THE STATE OF HIMACHAL PRADESH versus MANGA SINGH
[2018] 14 S.C.R. 904, Supreme Court of India, 2018
Outcome: Leave granted
Segment: Facts
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904                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
THE STATE OF HIMACHAL PRADESH
v.
MANGA SINGH
(Criminal Appeal No. 1481 of 2018)
NOVEMBER 28, 2018
[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
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
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
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.
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
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
the facts and circumstances of the present case.
[2018] 14 S.C.R. 904
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Allowing the appeal, the Court
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
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
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 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
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]
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
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
THE STATE OF HIMACHAL PRADESH v. MANGA SINGH
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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
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
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
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
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
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
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
[2000] 2 SCR 818
relied on
Para 20
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
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.
Ms. Manjeet Chawla, Adv. for the Respondent.
The Judgment of the Court was delivered by
BANUMATHI, J.
1. Leave granted.
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.
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
(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-
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
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.
THE STATE OF HIMACHAL PRADESH v. MANGA SINGH
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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
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
(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
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
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
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.
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.
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10. The Trial Court has elaborately referred to the evidence of
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
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.
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
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
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
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
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
THE STATE OF HIMACHAL PRADESH v. MANGA SINGH
[BANUMATHI, J.]
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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
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
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
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
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
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
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
not rupture; the hymen will rupture only in case of complete penetration
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with force. As discussed earlier, the respondent-accused made the
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
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
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-
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
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
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 –
(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
THE STATE OF HIMACHAL PRADESH v. MANGA SINGH
[BANUMATHI, J.]
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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)
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
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
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
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.”
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
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
respondent-accused.  The testimony of the prosecutrix (PW-4) must
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have been appreciated in the light of the background of the case; more
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
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
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
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.
THE STATE OF HIMACHAL PRADESH v. MANGA SINGH
[BANUMATHI, J.]