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. 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 inf irmity and the ‘probabilities factor’ does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. How ever, having regard to the circumstances of the case, medical evidence may not be available. 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 respondentaccused 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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