[2011] 1 S.C.R. 406

STATE OF U.P.

CHHOTEYLAL (Criminal Appeal No. 769 of 2006)

JANUARY 14 , 2011

[AFTAB ALAM AND R.M. LODHA, JJ.]

PENAL CODE, 1860 :

c ss. 363, 366, 368 and 376 - Kidnapping, wrongful confinement and rape -Conviction by trial court with 7 years R.I. - Acquittal by High Court -Held: Prosecutrix being less than 18 years of age, was removed from the lawful custody of her brother and was taken to a city by o adult males under

D threat and kept in a room for many days where one of the accused had forcible sexual intercourse with ho/ - The High Court was not at all justified in taking a different view from the trial court - High Court has dealt with the matter with casual approach and its judgment is not only cryptic and perfunctory

E but it has also not taken into consideration the crucial evidence on record - Rape is a heinous crime, and once it is established, justice must be done to the victim of crime by awarding suitable punishment to the accused - Judgment of High Court set aside and that of trial court restored - Evidence ; y-

- Sentence/sentencing F s. 90 and s.375, Clauses 'Firstly' and 'Secondly' - Rape

- Expressions 'against her will' and 'without her consent' - Explained - Held: The concept of consent in the context of s. 375 has to be read with s. 90.

G s.375, Clause 'Sixthly' -Held: Prosecutrix at the relevant time being about 17 years of age, Clause 'Sixthly' would ~

not be applicable.

H 406

STATE OF U.P. v. CHHOTEYLAL 407

,..(

EVIDENCE: A

Age of prosecutrix - Medical evidence and oral testimony

- The evidence ofprosecutrix and her elder brother stating her age as 13 years at the relevant time -Medical evidence indicating her age as 17 years - Held : The trial court on B consideration of evidence on record rightly recorded a categorical finding that the prosecutrix was about 17 years of age at the time of occurrence - It cannot be said that best evidence has been withheld - There is no rule, much less an absolute rule that two years have to be added to the age c determined by the doctor - High Court fell in grave error in observing that prosecutrix could be even 19 years of age at the time of occurrence.

Evidence of the victim of rape - Held : A victim of sexual assault is not an accomplice to the crime - Her evidence is D similar to that of an injured complainant or witness - The testimony of prosecutrix, if found reliable, by itself may be sufficient to convict the culprit and no corroboration of her evidence is necessary - Court must be sensitive and responsive to the plight of such victim of sexual assault.

F.l.R. - Delay in registration of-A village girl kidnapped """'(, from her village and taken to city - FIR registered after 10 days - Held: The brother has given a plausible explanation

- The delay in registration of the FIR has been reasonably,

F explained - Delay/Laches.

ADMINISTRATION 0F CRIMINAL JUSTICE:

Criminal justice - Criminal cases relating to offences against the State, corruption, dowry death, domestic violence, G sexual assault, financial fraud and cyber crimes - Need to be fast tracked - Immediate and urgent steps required to be taken in amending the procedural and other laws - The investigators need to have professional orientation and modem tools - Police reforms.as directed in Prakash Singh's H

A case1 suggested to be carried out.

The respondent (A-1) along with two others (A-2 and A-3) kidnapped the prosecutrix from the fields of her village on 19.9.1989. A-3, the woman accomplice,

8 accompanied them up to the road. Thereafter A-1 and A- 2 took the prosecutrix to a city and was kept in a rented room for few days, where she was ravished by A-1.

Meanwhile P. W.1, the elder brother of the prosecutrix, made a complaint to the Superintendent of Police on C 28.9.1989 that A-1 to A-3 had kidnapped her. The FIR was registered the following day and the prosecutrix was recovered on 13.10.1989. She was medically examined the same day. Her statement u/s 164 Cr. P.C. was recorded by the Magistrate on 17.10.1989. A-1 was charged with for offences punishable u/ss 363, 366, 368 D and 376 IPC, A-2 u/ss 363, 366 and 368 IPC and A-2 u/ss 363 and 366 IPC. On the basis of the medical evidence, the trial court recorded the age of the prosecutrix about

17-112 years. A-2 died during the trial. The trial court acquitted A-3. A-1 was convicted of the offences charged E and was, inter alia, sentenc'ed to 7 years RI u/s 376.

However, the High Court having acquitted A-1, the State filed the appeal.

Allowing the appeal, the Court

HELD: 1.1. The expression 'with or without her consent, when she is under sixteen years of age' in s. 375, Clause 'Sixthly' of the Penal Code, 1860 assumes importance where a victim is under sixteen years o~ age.

In the instant case, the prosecutrix had no formal G education and, therefore, there is no school certificate

available on recor~. In the FIR, the age of the prosecutrix has been stated 'to be 13 years. The prosecutrix in her statement u/s 164, Cr.P.C., and her elder brother (PW-1)

Prakash Singh & 01'$. vs. Union of India & Ors. 2006 (6) Suppl. SCR 473 H = 2000 cs> sec 1.

STATE OF U.P. v. CHHOTEYLAL 409

in his deposition stated her age as 13 years at the A relevant time. However, the doctor (PW-5), on the basis of the X-ray as well as physical examination of the prosecutrix, opined that she was 17 years of age. The trial court on consideration of the entire evidence recorded a categorical finding, and rightly, that the prosecutrix was B about 17 % years of age at the time of occurrence and, therefore, Clause Sixthly of s.375 IPC is not applicable.

1 [para 10] [419-H; 420-A-C]

1.2 The High Court conjectured that the age of the prosecutrix could be even 19 years. This appears to have C been done by adding two years to the age opined by PW-

5. There is no such rule much less an absolute one that two yars have to be added to the age determined by a doctor. In the instant case, the brother of the prosecutrix has been examined as PW-1 and, therefore, it cannot be D said that best evidence has been withheld. The High Court fell in grave error in observing that the prosecutrix could be even 19 years of age at the time of alleged occurrence. [paras 11-12] [420-H; 421-A-E]

State of Karnataka v. Bantara Sudhakara @ Sudha & Anr. 2008 (10) SCR 1161 = 2008 (11) SCC 3; Mussauddin Ahmed v. State of Assam (2009) 14 sec 541relied on

2.1 As regards clause 'Firstly', or clause 'Secondly'

of s. 375 IPC, the expressions 'against her will' and 'without her consent' may overlap sometimes but surely the two expression;: in clause 'Firstly' and clause 'Secondly' have different connotation and dimension.

The expression 'against her will' would ordinarily mean that the intercourse was done by a man with a woman G despite her resistance and opposition. On the other hand,

.··

the expression 'without her consent' would comprehend an act of reason accompanied by deliberation. [para 13]

[421-F-H; 422-A-B] H

A 2.2 The concept of 'consent' in the context of s, 375 IPC has to be .read with s. 90 of the IPC. This Court in a long line of cases has given wider meaning to the word 'consent' in the context of sexual offences as explained in various judicial dictionaries. [paras 13-14] [422-A-B;

B 423-A]

Jowitt's Dictionary of English Law (Second Edition), Volume 1 (1977) page 422; Stroud's Judicial Dictionary (Fourth Edition), Volume 1 (1971) at page 555; In' Words C and Phrases, Permanent Edition, (Volume SA) at pages 205-206-referred to

Holman v. The Queen ([1970] W.A.R. 2) - referred to

State of H.P. v. Mango Ram 2000 (2) Suppl. SCR 626 = D (2000) 7 SCC 224; Uday v. State of Kamataka 2003 (2) SCR

231 = 2003 {4) sec 46relied on

3.1 A woman who is victim of sexual assault is not ' an accomplice to the crime. Her evidence cannot be tested, with suspicion as that of an accomplice. A, s a E matter of fact, the evidence of the prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In F prosecutions of rape, the law does not require corroboration. It is only by way of abundant caution that court may look for some corroboration so as to satisJy its conscience and rule out any false accusations. [para-

19] [426-B-D] / ,

State of Maharasthra v. Chandraprakash Kewalchand Jain 1990 (1) SCR 115 = 1990 (1) SCC 550 ; State of Punjab

v. Gurmit' Singh & Ors. 1996 (1) SCR 532 = 1996 (2) .

SCC 384; Vijay @ Chinee v. State of Madhya Pradesh 2010 H (8) SCR 1150 = 2010 (8) SCC 191 -relied on.

STATE OF U.P. v. CHHOTEYLAL 411

3.2 In examining the evidence of the prosecutrix the A courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. The stigma that attaches to the victim of rape in Indian B society, ordinarily, rules out the leveling of false accusations. The observations made in the case of Bharwada Bhoginbhai Hirjibhai must be kept in mind invariably while dealing with a rape case. [para 22] [429-

C-G] C

Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983

(3) SCR 280 = 1983 ( 3) SCC 217 -relied on

3.3 The contention on behalf of the respondent that no alarm was raised by the prosecutrix at the bus stand D or the other places where she was taken and that creates serious doubt about truthfulness of her evidence,

overlooks the situation in whic~ the prosecutrix was placed. She had been kidnapped by two adult males, one of them - A-1 - wielded fire:-:arm and_ treatened her and __ E she was taken away from her village, and kept in a rented room for many days where A-1 had sexual intercourse with her. Whenever she asked A-1 for return to her village, she was threatened and her mouth was gagged. The absence of alarm by her at the public place cannot lead F to an inference that she had willingly accompanied A-1 and A-2. The circumstances made her submissive victim and that does not mean that she was inclined and willing to intercourse with A-1. She had no free act of the mind during her stay with A-1 as she was under constant fear.

G Although there are certain contradictions and omissions in her testimony, but such omissions and contradictions are minor and on material aspects, her evidence is consistent. The prosecutrix being illiterate and rustic young woman, some contradictions and omissions are H

A natural as her recollection, observance, memory and narration of chain of events may not be precise. [para 23]

[431-G-H; 432-A-E]

3.4 Except the bald statement of A-1 u/s 313 Cr.P.C.

i 8 that he has been falsely implicated due to enmity, nothing _

has been brought on record that may probabalise that the prosecutrix had motive to falsely implicate him. The circumstances even do not remotely suggest that the prosecutrix would put her reputation and chastity at C stake for the reason stated by A-1 u/s 313 Cr.P.C. that a case was pending between A-1 and one 'SR'. The evidence of the prosecutrix is reliable and has rightly been acted upon by the trial court. [para 24] [432-G-H;

433-A]

4. Although the lady doctor (PW-5) did not find any injury on the external or internal part of body of the prosecutrix and opined that the prosecutrix was habitual to sexual intercourse but, that does not make the testimony of the prosecutrix unreliable. The fact of the E matter is that the prosecutrix was recovered almost after three weeks. Obviously the sign of forcible intercourse would not persist for that long period. It is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some F injury on the external or internal part of the victim. The prosecutrix has clearly deposed that she was not in a position to put up any struggle as she was taken away from her village by two adult males. The absence of injuries on the person of the prosecutrix is not sufficient G to discredit her evidence; she was a helpless victim. Due to fear she did not and could not inform the neighbours where she was kept. [para 25] [433-B-D]

5. As regards the belated FIR, suffice it to observe that PW-1 He deposed that when he returned to his home H in the evening from agricultural field;· he was informed

STATE OF U.P. v. CHHOTEYLAL 413

~ that his sister (prosecutrix) who had gone to ease herself A had not returned. He searched for her and he was told by the two villagers that she was seen with the accused.

He contacted the relatives of the accused for return of his sister. He did not lodge the report immediately as the honour of the family was involved. It was only after few B days that when his sister did not return and there was

t no help from the relatives of the accused that he made the complaint on 28.9.1989 to the Superintendent of Police, who marked the complaint to the Circle Officer and the FIR was registered on 30.9.1989. The delay in c registration of the FIR is, thus, reasonably explained. The High Court was in grave error in concluding that there was no reasonable and plausible explanation for the belated FIR and that it was lodged after consultation and

~ due deliberation and that creates doubt about the case.

D [para 26] [433-E-H; 434-A]

6. The High Court was not at all justified in taking a different view or conclusion from the trial court. The judgment of the High Court is vitiated by nonconsideration of the material evidence and relevant E factors eloquently emerging from the prosecution evidence. The High Court in a sketchy manner reversed. the judgment of the trial court without discussing the deposition of the witnesses as well as all relevant points which were considered and touched upon by the trial F court. The High Court has dealt with the matter with casual approach. The judgment of the High Court is not only cryptic and perfunctory but it has also not taken into

- * consideration the crucial evidence on record. On flimsy grounds, the accused convicted of a serious crime of G kidnapping and rape has been acquitted. There is no application of mind to the evidence of the prosecutrix at all. There is no proper consideration of the evidence by the High Court. The judgment of the High Court cannot

A be sustained and is set aside, and that of the trial court restored. [paras 27 and 29) [434-C-D; 435-D-E]

7. Rape is a heinous crime and once it is established against a person charged of the offence, justice must be

B done to the victim of crime by awarding suitable

punishment to the crime doer. The facts that the incident is of 1989; the prosecutrix has married after the incident and A-1 has a family of his own and sending A-1 to jail now may disturb his family life, cannot be considered for c a soft option. [para 28) [434-E]

8.A strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.

Administration of criminal justice system is not working in our country as it should. The police reforms have not D taken place despite directions of this Court in the case of Prakash Singh & Ors. vs. Union of India & Ors. The investigators need to have professional orientation and modern tools. On many occasions impartial investigation suffers because of political interference. The criminal E trials are protracted because of non-appearance of

official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing.

The public prosecutors have their limitations; the defence lawyers do not make themselves available and the court \ F would be routinely informed about their pre-occupation with other matters; the courts remain over-burdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, -;.... .

G corruption, dowry death, domestic violence,. sexual

assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably; of three years including the appeal provisions. It is high time that

H immediate and urgent steps are taken in amending the

' ·, STATE OF U.P. v. CHHOTEYLAL 415

procedural and other laws to achieve the objectives. [para A-

28] [434-E-H; 435-A-C]

Prakash Singh & Ors. vs. Union of India & Ors. 2006 (6) Suppl. SCR 473 = 2006 (8) sec 1 - relied on. ·

Case Law Reference:: B

2008 (10) SCR 1161 relied on para 11

(2009) 14 sec 541 relied on para 12

2000 ( 2) Suppl. SCR 626 relied on para 17 c

2003 ( 2 ) SCR 231 relied on para 18

1990 ( 1 ) SCR 115 relied on para 19

1996 ( 1 ) SCR 532 relied on para 20

2010 (8) SCR 1150 relied on para 21

1983 ( 3) SCR 280 relied on para 22

2006 (6 ) Suppl. SCR 473 relied on para 28

CRIMiNAL APPELLATE JURISDICTION: Criminal Appeal E

No. 769 of 2006.

From the Judgment & Order dated 11.03.2003 of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal Appeal No. 484 of 1990.

S.K. Owivedi, AAG, S.N. Pandey, M.K. Dwivedi, Vandana Mishra, Ashutosh Sharma, Aviral Shukla (for Gunnam Venkateswara Rao) for the Appellant.

Vishal Arun (for Abhijit Sengupta) for the Respondent.

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. The State of Uttar Pradesh is in appeal, by special leave, because the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow reversed the judgment H

A of the trial court and acquitted the respondent.

2. The prosecution case in brief is this: On September 19, 1989 the prosecutrix (name withheld by us) had gone to relieve herself in the evening. Ram Kali (A-3) followed her on the way.

8 While she was returning and reached near the plot of one Vijai

Bahadur, Chhotey Lal (A-1) and Ramdas (A-2) came from behind; A-1 caught hold of her and when she raised alarm, A- 1 showed fire-arm to her and gagged her mouth. A-1 along with A-2 and A-3 brought the prosecutrix upto the road. There, A-3 parted company with A-1 and A-2. A-1 and A-2 then took the C prosecutrix to Village Sahora. On the night of September 19, 1989, the prosecutrix was kept in the house of Girish and Saroj Pandit in Village Sahora. On the next day i.e., September 20, 1989, in the wee hours, A-1 and A-2 took the prosecutrix in a bus to. Shahajahanpur where she was kept in a rented room D for few days. During their stay in Shahajahanpur, A-1 allegedly

committed forcible intercourse with the prosecutrix. Whenever prosecutrix asked for return to her house, A-1 would gag her mouth and threaten her. In the meanwhile, Rampa! - brother of the prosecutrix - made a complaint to the Superintendent of E Police, Hardoi on September 28, 1989 that A-1, A-2 and A-3 have kidnapped her sister (prosecutrix) on September 19,

1989. Based on this complaint, the First Information Report (FIR) was registered on September 30, 1989. The prosecutrix 1 was recovered by the police on October 13, 1989 from F Shahabad - Pihani Road near Jalalpur culvert. On that day itself,

the prosecutrix was sent for medical examination to the Women Hospital, Hardoi where she was examined by Dr. Shakuntala Reddy. Ram Manohar Misra to whom the investigation of the

case was entrusted then took steps for determination of the age G of the prosecutrix as advised by the doctor and sent her for Xray examination.

3. On October 17, 1989, the prosecutrix was produced I before the Judicial Magistrate I, Hardoi, where her statement under Section 164 Cr.P.C. was recorded by the Judicial H Maistrate.

' ..

4. A-1 was arrested on December 2, 1989. On completion A of investigation, A-1 was chargesheeted for the offences A punishable under Sections 363, 366, 368 and 376 of the Indian Penal Code (IPC); A-2 was chargesheeted under Sections 363, 366 and 368, IPC and A-3 under Sections 363 and 366,

IPC.

5. The prosecution in support of its case examined five witnesses, namely, complainant- Rampal (PW-1), prosecutrix (PW-2), Investigating Officer - Ram Manohar Misra (PW-~ Subhash Chandra Misra - Head Constable (PW-4) and Dr. c Shakuntala Reddy (PW-5).

6. A-2 had died and the trial abated as against him. The Ill Additional Sessions Judge; Hardoi vide his judgment dated September 5, 1990 acquitted A-3 as the prosecution was not able to establish any case against her. However, on the basis D of the prosecution evidence, the Ill Additional Sessions Judge held that the prosecutrix was about 17 % years of age at the time of occurrence of crime and found A-1 guilty under Sections 363, 366, 368 and 376, IPC and sentenced him to undergo 7 years' rigorous imprisonment under Section 376 IPC and the E different sentences for other offences which were ordered to run concurrently.

7. A-1 challenged the judgment passed by the Ill Additional Sessions Judge, Hardoi before the Allahabad High Court, F Lucknow Bench, Lucknow. The High Court vide its judgment dated March 11, 2003 reversed the judgment of the trial court and acquitted A-1. While acquitting A-1, the High Court gave three reasons, namely; (one) kidnapping took place on September 19, 1989 whereas the report of the occurrence was G lodged after ten days and there was no reasonable and

\. ; -r plausible explanation as to why the report could not be lodged . promptly and why it had been delayed for ten days; .(two} according to medical evidence, the prosecutrix was found to be 17 years of age and she could be even of 19 years of age H

.t. •

A at the time of occurrence and (three) no internal or external ·

injury was found on her body and she was habitual to sexual intercourse. We deem it appropriate to reproduce the entire reasoning of the High Court as it is which reads as follows:

B "It has been submitted by the learned counsel for the appellant that according fo the prosecution, alleged kidnapping took place on 19-9-1989 whereas the report of the occurrence was lodged after ten days. There was no reasonable and plausible explanation forthcoming from c the side of the prosecution as to why after alleged kidnapping of a minor girl a report could not be lodged promptly and why it has been delayed for ten days. This by itselfshows that the report had been lodged after consultation and after due deliberation and the prosecution

D can be safely looked with doubt. I fully agree with the contention of the learned counsel for the appellant and furthermore, according to medical evidence on record, girl in question was found 17 years of age and she could be . even 19 years of age at the time of alleged occurrence.

No internal or external injury was found on her body and E she was used to sexual intercourse. The charge of rape also stands not proved. The learned court below was thus not justified in believing the prosecution theory and convicting the appellant. n

. F

8. We are indeed surprised by the casual approach with which the High Court has dealt with the matter. The judgment of the High Court is not only cryptic and perfunctory but it has also not taken into consideration the crucial evidence on record.

On flimsy grounds, the accused convicted of a serious crime

G of kidnapping and rape has been acquitted. There is no

application of mind to the evidence of the prosecutrix at all. ...._ .

Having not been benefited by the proper consideration of the evidence by the High Court, we have looked into the entire evidence on record carefully.

9. Section 375 IPC defines rape as follows : A

~ "S. 375. Rape.-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :- B

First.- Against her will

Secondly.-Without her consent. ,

Thirdly.- With her consent, when her consent has been c obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to D

~ whom she is or believes herself to be lawfully married.

Fifthly.- With .her consent, when, at the time of giving such consent, by reason of unsoundness of mind E or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under sixteen years of age.

Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

G - Exception.-Sexual intercourse by a man with his

~ own wife, the wife not being under fifteen years of age, is not rape."

10. Clause Sixthly-'with or without her consent, when she H

A is under sixteen years of age' assumes importance where a victim girl is under sixteen years of age. The prosecutrix is an illiterate and rustic young woman. She does not seem to have had formal education and, therefore, there is no school certificate available on record. In the FIR, the age of the B prosecutrix has been stated to be 13 years. In her statement recorded under Section 164, Cr.P.C., the prosecutrix stated that her age was 13 years. PW-1, who is elder brother of the prosecutrix, in his deposition also stated that the age of the prosecutrix was 13 years at the relevant time. However, the c doctor - PW-5 on the basis of her X-ray as well as physical examination opined that the prosecutrix was 17 years of age.

The trial court on consideration of the entire evidence recorded a categorical finding that the prosecutrix was about 17 % years of age at the time of occurrence. This is what the trial court said:

"According to the complainant Rampal, PW-2 was aged 13 years at the time of the occurrence, but during the crossexamination, the complainant has stated in para 7 of her cross examination that he was aged about 24 years and PW-2 was younger to him by 8-9 years. Thus, the age of the prosecutrix, according to the statement of the complainant appearing in para 7 of his cross examination, comes to about 15 or 16 years. PW-2, the prosecutri~, gave her age as 13 years at the time of the occurrence.

According to the supplementary report, Ext. Ka. 12 on record, prepared by Lady Dr. Shakuntala Reddy, P.W. 5, PW-2 was aged about 17 years. During the crossexamination, Lady Dr. Shakuntala Reddy, P.W. 5, has stated in para 9 of cross-examination that there could be a difference of 6 months both ways in the age of PW-2.

Thus PW-2 can be said to be aged 17 % years at the time of the occurrence. n

11. We find ourselves in agreement with the view of the trial court regarding the age of the prosecutrix. The High Court H conjectured that the age of the prosecutrix could be even 19

years. This appears to have been done by adding two years A to the age opined by PW-5. There is no such rule much less an absolute one that two years have to be added to the age determined by a doctor. We are supported by a 3-Judge Bench decision of this Court in State of Karnataka v. Bantara Sudhakara @ Sudha & Anr. 1 wherein this Court at page 41 of B the Report stated as under:

"Additionally, merely because the doctor's evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years' age has to be added C to the upper age-limit is without any foundation."

12. Learned counsel for the respondent relied upon a decision of this Court in the case of Mussauddin Ahmed v.

State of Assam2 in support of his submission that the best evidence concerning the age of prosecutrix having been D withheld, the finding of the High Court that the prosecutrix could be 19 years of age cannot be said to erroneous. In the present case, the brother of the prosecutrix has been examined as PW- 1 and, therefore, it cannot be said that best evidence has been withheld. The decision of this Court in Mussauddin Ahmed 2 E has no application at all. In our view, the High Court fell in grave error in observing that the prosecutrix could be even 19 years of age at the time of alleged occurrence.

13. Be that as it may, in our view, clause Sixthly of Section 375 IPC is not attracted since the prosecutrix has been found to be above 16 years (although below 18 years). In the facts of the case what is crucial to be considered is whether clause First

or clause Secondly of Section 375 IPC is attracted. The expressions 'against her will' and 'without her consent' may overlap sometimes but surely the two expressions in clause G First and clause Secondly have different connotation and dimension. The expression 'against her will' would ordinarily

(2008) 11 sec 38.

(2009) 14 sec 541.

SUPREME COURT REPOR~ ~


A mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression 'without her consent' would comprehend an act of reason accompanied by deliberation. The concept of 'consent' in the context of Section 375 IPC has come up for B consideration before this Court on more than one occasion.

Before we deal with some of these decisions, reference to Section 90 of the IPC may be relevant which reads as under :

"S. 90. Consent known to be given under fear or misconception.-A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person.-if the consent is given by a person who, from unsoundness of mind, or intoxication, is ~. unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child.-. unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."

14. This Court in a long line of cases has given wider F meaning to the word 'consent' in the context of sexual offnces

as explained in various judicial dictionaries. In Jowitt's Dictionary of English Law (Second Edition), Volume 1 (1977) at page 422 the word 'consent' has been explained -as an act of reason accompanied with deliberation, the mind weighing', G as in a balance, the good or evil on either side. It is further

stated that consent supposes three things-a physical power, • a mental power, and a free and serious use of them and if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to

~· ..

~ be treated as a delusion, and not as a deliberate and free act A of the mind.

15. Stroud's Judicial Dictionary (Fourth Edition), Volume 1 (1971) at page 555 explains the expression 'consent', inter alia, as under :- 8

"Every 'consent' to an act, involves a submission; but it by 1 no means follows that a mere submission involves consent," e.g. the mere submission of a girl to a carnal assault, she being in the power of a strong man, is not consent (per Coleridge J., R.v. Day, 9 C. & P. 724)." c

Stroud's Judicial Dictionary also refers to decision in the case of Holman v. The Queen ([1970] W.A.R. 2) wherein it was stated: 'But there does not necessarily have to be complete willingness to constitute consent. A woman's consent to D intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is "consent".'

16. In Words and Phrases, Permanent Edition, (Volume BA) at pages 205-206, few American decisions wherein the E word 'consent' has been considered and explained with regard to the law of rape have been referred. These are as follows :

"In order to constitute "rape", there need not be resistance to the utmost, and a woman who is assaulted need not resist to the point of risking being beaten into insensibility, F and, if she resists to the point where further resistance would be useless o~ until her resistance is overcome by force or violence, submission thereafter is not "consent".

,;.

People v. Mcllvain (55 Cal. App. 2d 322)."

.~ .................................

" "Consent," within Penal Law, § 2010, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. People v. Pe/vino, H

214 N.Y.S. 577''

" "Consenting" as used in the law of rape means consent of the will and submission under the influence of fear or B terror cannot amount to real consent. Hallmark v. State, 22 Oki. Cr. 422"

"Will is defined as wish, desire, pleasure, inclination, choice, the faculty of conscious, and especially of deliberate, action. It is purely and solely a mental process to be ascertained, in a prosecution for rape, by what the prosecuting witness-may have said or done. It being a mentpl process there is no other manner by which her will can l;>e ascertained, and it must be left to the jury to deterlmine that will by her acts and statements, as disclosed by th!'l evidence. It is but natural, therefore, that in charging the jury upon the subject of rape, or assault with intent to commit rape, the courts should have almost universally, and, in many cases, exclusively, discussed "consent" and resistance. There can be no better evidence of willingness is a condition or state of mind no better evidence of unwillingness than resistance. No lexicographer recognizes "consent" as a synonym of willingness, and it is apparent that they are not synonymous. It is equally apparent, on the other hand, that the true relation between the words is that willingness is a condition or state of mind and "consent" one of the evidences of that condition. Likewise resistance is not a synonym of unwillingness, though it is an evidence thereof.

In all cases, therefore, where the prosecuting witness has an intelligent will, the court should charge upon the elements of "consent" and resistance as being proper elements fom which the jury may infer either a favourable or an opposing will. It must, however, be recognized in all

cases that the real test is whether the assault was A committed against the will of the prosecuting witness. State

v. Schwab, 143 N.E. 29"

17. Broadly, this Court has accepted and followed the judgments referred to in the above judicial dictionaries as B regards the meaning of the word 'consent' as occurring in Section 375 IPC. It is not necessary to refer to all the decisions and the reference to two decisions of this Court shall suffice.

In State of H.P. v. Mango Ram3 , a 3-Judge Bench of this Court while dealing with the aspect of 'consent' for the purposes of C Section 375 IPC held at page 230 of the Report as under:

"Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the D knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." E

18. In the case of Uday v. State of Kamataka4, this Court . put a word of caution that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court at page 57 of the Report stated : ·

" ....... In the ultimate analysis, the tests laid down by the

courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in G each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may

3. c2000> 1 sec 324.

4. c2003) 4 sec 46.

have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact.. ..

19. In the backdrop of the above legal position, with which

8 we are in respectful agreement, the evidence of the prosecutrix needs to be analysed and examined carefully. But, before we do that, we state, as has been repeatedly stated by this Court, that a woman who Is victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact, the C evidence of the prosecutrix is similar to the evidence of an injured complainant or witness. The testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration.

D The evidence of the prosecutrix may sustain a conviction. It is

only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations. In State of Maharasthra v. Chandraprakash Kewa/chand Jain5, this Court at page 559 of the Report said: E

"A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars.

She is undoubtedly a competent witness under Section 118. and her evidence must receive the same weigh\ as is attached to an injured in cases of physical violen~. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can

H 5.

(1990) 1 sec 550.

act on the evidence of the prosecutrix, there is no rule of A

_..( law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her. B testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily deend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full c understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person 0 ... charged, the court should ordinarily have no hesitation in accepting her evidence.·

20. In State of Punjab v. Glirmit Singh & Ors.6, this Court made the following weighty observations at pages 394-396 and page 403: E

"The court overlooked the situation in which a poor helpless

"- minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alar!Jl. Again, if the F investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the . driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutri~· had no control over the investigating agency and the G negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix .... The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no selfrespecting woman would come

(1996) 2 sec 384.

A 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

B in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case .... Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts c to adding insult to injury .... Corroboration as a conditio.n for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.

D 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. If evidence of the prosecutrix inspires confidence, it must be relied upon E 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 A' of corroboration required in the case of an accomplice.

F The testimony of the 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."

21. In Vijay @ Chinee v. State of Madhya Pradesh7, decided recently, this Court referred to the above two decisions of this Court in Chandraprakash Kewalchand Jain5 and Gurmit Singh6 and also few other decisions and observed as follows:

H 7.

(2010) a sec 191.

"Thus, the law that emerges on the issue is to the effect A that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. n.

22. The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put

her reputation in peril by alleging falsely about forcible sexual C assault. In examining the evidence of the prosecutrix the courts must be alive to theconditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society's belief and value systems need to be kept uppermost in mind as rape is the worst form D of woman's oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremenrious embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of E rape. The stigma that attaches to the victirl\ o'f rape in Indian society ordinarily rules out the leveling offals~ accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge. This Court has repeatedly laid down the guidelines F as to how the evidence of the prosecutrix in the crime of rape should be evaluated by the court. The observations made in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat8 deserve special mention as, in our view, these must be kept in mind invariably whil~ dealing with a rape case. This Court G observed as follows :

"9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration

(1983) 3 sec 211.

A as a rule, is adding insult to injury. Why should the, evidence of the girl or the woman who complains of rape or sexual >---- molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male B dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in Jr the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian ... c horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered

D essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores,

E responses of the Indian society, and its profile. The identities of the two worlds are different. The solution of problems cannot therefore be identical ......... ."

This Court went on to observe at page 225: ~

F • ......... Without the fear of making too wide a statement, or of overstating.the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of

G the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because ( 1) A girl

H or a woman in the tradition-bound non-permissive society

of India would be extremely reluctant even to admit that any A incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the B whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.

(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from c a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarassed in relating the incident to others being 0 overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into contfoversy. (10) The parents E of an unmarried girl as also the husband and members of the husband's family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. { 11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident F regardless of her innocence. ( 12) The reluctance to face . interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, acts as a deterrent."

23. We shall now examine the evidence of the prosecutrix.

The prosecutrix at the relevant time was less than 18 years of age. She was removed from the lawful custody of her brother

in the evening on September 19, 1989. She was taken to a different village by two adult males under threat and kept in a H

A rented room for many days where A-1 had forcible sexual intercourse with her. Whenever she asked A-1 for return to her village, she was threatened and her mouth was gagged.

Although we find that there are certain contradictions and omissions in her testimony, but such omissions and s contradictions are minor and on material aspects, her evidence is consistent. The prosecutrix being illiterate and rustic young woman, some contradictions and omissions are natural as her recollection, observance, memory and narration of chain of events may not be precise. Learned counsel for the respondent c submitted that no alarm was raised by the prosecutrix at the bus stand .or the other places where she was take.n and that creates serious doubt about truthfulness of her evidence. This argument of the learned counsel overlooks the situation in which the prosecutrix was placed. She had been kidnapped by two

0 adult males, one of them - A-1 - wielded fire-arm and threatened her and she was taken away from her village. In the circumstances, it made sensible decision not to raise alarm.

Any alarm at unknown place might have endangered ber life.

The absence of alarm by her at the public place cannot lead to an inference that she had willingly accompanied A-1 and A-2.

E The circumstances made her submissive victim and that does not mean that she was inclined and willing to intercourse with A-1. She had no free act of the mind during her stay with A-1 as she was under constant fear.

24. We have also examined the evidence of prosecutrix, her brother and the statement of A-1 under. Section 313 Cr.P.C. to satisfy ourselves whether there was likelihood of false implication or motive for false accusations. Except the bald statement of A-1 under Section 313 Cr.P.C. that he has been G falsely implicated due to enmity, nothing has been brought on record that may probabalise that the prosecutrix had motive to falsely implicate him. The circumstances even do not remotely suggest that the prosecutrix would put her reputation and chastity at stake for the reason stated by A-1 in the statement H under Section 313 Cr.P.C. that a case was pending between

......

A-1 and one Sheo Ratan. In our view, the evidence of the A

-"'.. prosecutrix is reliable and has rightly been acted upon by the trial court.

25. Although the lady doctor - PW-5 did not find any injury on the external or internal part of body of the prosecutrix and B opined that the prosecutrix was habitual to sexual intercourse, we are afraid that does not make the testimory of the

'( prosecutrix unreliable. The fact of the matter is that the prosecutrix was recovered almost after three weeks. Obviously ... the sign of forcible intercourse would not persist for that long c period. It is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some injury on' the external or internal part of the victim. The prosecutrix has clearly deposed that she was not in a position to put up any struggle as she was taken away from her village D .. by two adult males. The absence of injuries on the person of the prosecutrix is not sufficient to discredit her evidence; she was a helpless victim. She did not and could not inform the neighbours where she was kept due to fear.

26. As regards the belated FIR, suffice it to observe that E PW-1 (brother of the prosecutrix) has given plausible explanation. PW-1 deposed that when he returned to his home in the evening from agricultural field, he was informed that her sister (prosecutrix) who had gone to ease herself had not returned. He searched his sister and he was told by the two F villagers that her sister was seen with the accused. He contacted the relatives of the accused for return of his sister.

He did not lodge the report immediately as the honour of ttle family was involved. It was only after few days that when his sister did not return and there was no help from the relatives of G the accused that he made the complaint on September 28, 1989 to the Superintendent of Police, Hardoi who marked the complaint to the Circle Officer and the FIR was registered on September 30, 1989. The delay in registration of the FIR is, thus, reasonably explained. The High Court was in grave error H

A in concluding that there was no reasonable and plausible explanation for the belated FIR and that it was lodged after consultation and due deliberation and that creates doubt about the case. Unfortunately, the High Court did not advert to the evidence of PW-1 and the reasoning of the trial court in this B regard.

27. The High Court was not at all justified in taking a different view or conclusion from the trial court. The judgment of the High Court is vitiated by non-consideration of the material ~

evidence and relevant factors eloquently emerging from the c prosecution evidence. The High Court in a sketchy manner reversed the judgment of the trial court without discussing the deposition of the witnesses as well as all relevant points which were considered and touched upon by the trial court. We are

D satisfied that the judgment of the High Court cannot be sustained and has to be set aside.

1'. ...

28. We are not oblivious of the fact that the incident is of 1989; the prosecutrix has married after the incident and A-1 has a family of his own and sending A-1 to jail now may disturb E his family life. But none of these factors individually or collectively

persuades us for a soft option. Rape is a heinous crime and once it is established against a person charged of the offence, justice must be done to the victim of crime by awarding suitable

punishment to the crime doer. We are constrained to observe

F that criminal justice system is not working in our country as it

should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh & Ors. vs. Union of India & Ors. 9• We do not intend to say anything more in this regard since matter is being dealt with separately

G by a 3-Judge Bench. The investigators hardly have professional orientation; they do not have modern tools. On many occasions impartial investigation suffers because of political interference.

The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the

H 9. c2oos) a sec 1.

facilities for recording evidence by video conferencing. The A public prosecutors have their limitations; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain over-burdened with the briefs listed on the day and they do not have adequate infrastructure. The B adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual

assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years c including the appeal provisions. It is high time that immediate

.. and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.

29. The appeal is, accordingly, allowed and the judgment of acquittal passed by the High Court of Judicature at Allahabad, Lucknow Bench, in Criminal Appeal No. 484of1990

is set aside. The judgment passed by the Ill Additional Sessions Judge, Hardoi is restored. The respondent shall now surrender

E within two months from today to serve out the remaining sentence as awarded by the trial court.

R.P.

Appeal allowed.