2017(1) Law Herald (SC) 360 : 2016 LawHerald.Org 2503
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr, Justice A.K. Sikri
The Hon’ble Mr. Justice Abhay Manohar Sapre
Criminal Appeal No. 1231 of 2016 (Arising out ofSLP (CRL) No. 5575 of 2015)
State of Himachal Pradesh

vs

Sanjay Kumar @ Sunny
Decided on 15/12/2016
For the Petitioner:          Mr. Suryanaryana Singh, Sr.AAG, Ms. Pragati Neekhra, Advocates.
For the Respondent:       Mr. Rohit Minocha, Advocate._____________________________________
RapeMinor VictimDelay in lodging FIRSexual assault on a girl aged nine years by her uncleIncident came into light after 3 yearsAccused convicted.
RapeSafe TestimonySeeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury.
  • Indian Penal Code, 1860, S.376–Rape–Minor Victim-Delay in lodging FIR-Sexual
    assault on a girl aged nine years by her uncle-Incident came into light after 3
    years when victim was examined by doctor and formed the opinion that the
    prosecutrix had been sexually assaulted forcibly about 2-3 years earlier-­
    Reluctance on the part of prosecutrix in not narrating the incident to anybody for
    a period of three years and not sharing the same event with her mother out of fear,
    threat and stigma is clearly understandable
    Accused convictedCriminal
    Procedure Code, 1973,8.154. (Para 24)
  • Indian Penal Code, 1860, S.376–Rape–DeIay in lodging FIR–Victim was nine years
    old child and accused was her unc!e–A decision to lodge FIR becomes more
    difficult and hard when accused happens to be a family memberIn fact,
    incestuous abuse is still regarded as a taboo to be discussed in pubic-It may
    antagonize other relations as well, as in the first blush, such other members of
    family would not take charge of this nature very kindly-Delay of 3 days held not to
    be fatal-Accused convicted-Criminal Procedure Code, 1973, S.154, (Para 29)
  • Indian Penal Code, 1860, S.376–Rape–Sole Testimony-Seeking corroboration to
    a statement before relying upon the same as a rule, in such cases, would literally
    amount to adding insult to injury-The deposition of the prosecutrix has, thus, to be
    taken as a whole.
  • Indian Penal Code, 1860, S.376–Rape-Sole Testimony-The victim of rape is not an
    accomplice and her evidence can be acted upon without corroboration-She
    stands at a higher pedestal than an injured witness does. If the court finds it
    difficult to accept her version, it may seek corroboration from some evidence
    which lends assurance to her version.
(E)  Indian Penal Code, 1860, S.376–Rape–Sentence–Victim was 9 years child and
niece of the accused-Accused convicted and sentence to 12 years Rl and shall
also pay fine of Rs. 50, OOO/-.                                                                      (Para 34)
CASES CITED:
  1. Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590. (Para 24)
  2. Karnel Singh v. State of Madhya Pradesh, (1995) 5 SCC 518. (Para 25)
  3. State of Punjab v, Gurmit Singh & Ore., (1996) 2 SCC 384. (Para 26)
  4. Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551. (Para 31)
  5. State of Rajasthan v. Om Prakash, (2002) 5 SCC 745. (Para 33)
JUDGMENT
Mr. A.K. Sikri, J.:-Leave granted.
  1. Since the matter was fixed for final disposal, counsel for both the parties were heard in detail.
  2. It is a case where the respondent herein was charged for having committed an offence
    punishable under Sections 376 and 506 of the Indian Penal Code, 1860 (for short, ‘IPC’). After
    trial, the Additional Sessions Judge, Fast Track Court, Chamba, Himachal Pradesh, convicted
    the respondent under Section 376(2)(f) as well as under Section 506 of the IPC.
  3. The respondent challenged the order by preferring the appeal before the High Court in which
    he succeeded as the High Court, after revisiting the issue, has come to the conclusion that the
    prosecution had failed to prove its case beyond reasonable doubt. According to it there
    existed certain circumstances which created reasonable doubt in the version of the
    It has resulted in setting aside the conviction recorded by the trial court thereby
    acquitting the respondent. This judgment of the High Court is assailed in these proceedings.
  4. in the impugned judgment, the High Court has taken note of the prosecution case. As there
    is no dispute that the said version is correctly recorded by the High Court, we reproduce the
    same from the said judgment.
  5. As per the prosecution, the prosecutrix, who, at the relevant time, was nine years old, used to
    reside at Dalhousie with her parents. She was studying in VII Standard in Moti Ka Tibba school
    in Dalhousie. Her native place is Aruwan. Her grandparents had been living in joint family at
    Somewhere in the month of December 2009, during winter vacation, prosecutrix
    visited the place of her grandparents. She had been taken there by her mother Babli (PW-1).
    While at the place of her grandparents, the prosecutrix was playing with her younger brother.
    The respondent called her to the room on the first floor, She responded to the call of the
    accused. On reaching the room, the respondent bolted the door from inside and made the
    prosecutrix lie on the bed. Her mouth was gagged. The respondent stripped off salwar of the
    prosecutrix of her one leg. He put off his trousers. Thereafter, he laid on the prosecutrix and
    thrust his penis inside her vagina. She fell unconscious. When she regained consciousness,
    the prosecutrix found no one in the room. The respondent also criminally intimidated the
    prosecutrix not to disclose this act to anyone, otherwise she would be killed. After 10-15 days
    again, the respondent took the prosecutrix to the same room and committed sexual
    intercourse with her. Thereafter, the prosecutrix returned to Dalhousie. Again, after two
    months, the prosecutrix visited her grandparents on seven days vacation. During this period
    also, the respondent took her forcibly to his own room where he had sexual intercourse with
    her and once again criminally intimidated her not to disclose the act to anyone. After a lapse
    of 2-3 months again, the prosecutrix visited her grandparents and the respondent yet again
    called her to which she did not respond and slipped away. Prior to September 2012, the
    prosecutrix started complaining of stomach ache and was given medicine by the local doctor.
    PW-1 took her for treatment at Kakira Hospital on September 03,2012. She was medically
    checked up by Dr. Jasbir Kaur (PW-8). She told the mother of the prosecutrix that her
    daughter might have been sexually assaulted 2-3 years back. PW-1 enquired from the
    prosecutrix as to what happened with her 2-3 years back. The prosecutrix then told her
    mother about the respondent committing sexual intercourse with her three times when she
    was at her grandparents place at village Aruwan. PW-1 shared this incident with her husband.
    They went to the Police Station and lodged complaint (Exhibit PW-1/A) on September 06,
    2012 before the Deputy Superintendent of Police, Dalhousie, who forwarded the same to the
    Station House Officer, Police Station, Kihar with endorsement (Exhibit PW-12/A) along with
    OPD Slip (Exhibit PW-8/A). The prosecutrix was sent for medical examination to Regional
    Hospital, Chamba. Dr. Arti Sharma (PW-9) and Dr. Richa Gupta medically examined the
    prosecutrix and issued MLC (Exhibit PW-9/B). Thereafter, date of birth of the prosecutrix was
    obtained; the respondent was arrested; and he was also medically examined. After completion
    of investigation, challan was put up in the Court after completing all the codal formalities.
  6. Prosecution examined as many as twelve witnesses in all to prove its case against the
    respondent. Statement of the respondent under Section 313 of the Code of Criminal
    Procedure, 1973 {Cr.P.C.) was also recorded wherein he pleaded innocence. According to the
respondent, a false case has been made out against him due to personal enmity in the family. The Additional Sessions Judge, Fast Track Court, Chamba convicted and sentenced the respondent, which has been set aside by the High Court, as noted above.
  1. Tnough the prosecution examined twelve witnesses, it may not be necessary to state the
    deposition of all those witnesses. The material witnesses are PW-1 (mother of the
    prosecutrix), PW-2 (prosecutrix herself), PW-8 (Dr. Jasbir Kaur, who had examined the
    prosecutrix on September 03, 2012), and PW-9 (Dr. Arti Sharma, who had examined the
    prosecutnx after the FIR was lodged).
  2. PW-1, who is the mother of the prosecutrix, got married thirteen years back with Mohinder
    Her daughter was twelve years old and son was nine years old. Her daughter was
    studying in VII Standard in Moti Tibba High School, Dalhousie. Her daughter used to complain
    of having stomach ache for the past 2-3 months and was taken to the local doctor, who gave
    her medicine. The prosecutrix was then taken for treatment to Kakira Hospital on September
    03,2012 where PW-8 examined her and told PW-1 that the prosecutrix might have been
    sexually assaulted 2-3 years back. The prosecutrix was given medicine for 10-15 days. On
    returning home, she enquired from her daughter as to what had happened with her 2-3 years
    back. Her daughter told that the respondent had sexual intercourse with her three years back
    when she was away at her grandparents place. The respondent was real brother of her
    husband and uncle of her daughter. Her daughter narrated that three years back when she
    was with her grandparents atAruwan, the respondent came and called her to the room. Her
    daughter, being niece of accused, responded to his call and went to the room. Thereafter, the
    respondent bolted the door from inside and committed sexual intercourse with her daughter
    after putting off her clothes. Her daughter told that the respondent had gagged her mouth
    when started weeping. The respondent had criminally intimidated her daughter not to disclose
    this to anyone. Her daughter also told that the respondent had committed sexual intercourse
    with her three times. PW-1 then shared this incident with her husband. They went to the Police
    Station to lodge complaint (Exhibit PW-1/A). In her cross-examination, PW-1 has deposed that
    her husband had not accompanied her to the Hospital at Kakira. He stayed at home since he
    was employed as Chowkidar in the local building. On the next day, PW-1 shared this incident
    with her husband. Her father-in-law was having joint family with his two brothers. Ail of them
    resided together in the same house. There were ten rooms in the house of her in-laws
    consisting six rooms on the ground floor and another four rooms on the first floor. Property of
    her father-in-law was joint with his brother. She was not aware whether there was a brawl on
    May 28,2012 between her father-in-law and the father of the respondent. She was not aware
    whether the matter went to the Police and the proceedings were still pending before the Sub-
    Divisional Magistrate, Churah. She has admitted in her cross-examination that there were 20-
    25 persons in the joint family of her in-laws, who resided together in the same house atAruwan.
    Her mother-in-law also resided on the ground floor. All the rooms on the ground floor were
    occupied by other family members. She had brought her children after two months when they
    had gone to avail winter vacation in the month of December 2009.
  3. Statement of the prosecutrix (PW-2) was recorded in-camera. The trial court, after putting
    five questions to her, was satisfied that she was a competent witness. According to her, her
    native place is Aruwan. Her grandparents were residing there in a joint family. Three years
    back, during winter vacation, she was at the place of her grandparents. Her mother had taken
    her. She was playing with her younger brother and younger cousin when the respondent, who
    is her uncle, called her to the room on the first floor. She responded to his call. On reaching the
    room, he bolted the door from inside and made her lie on the bed. He gagged her mouth. He
stripped off her sa/warfrom her one leg and had put off his trousers. He laid on her and thrust his penis inside her vagina and thereafter she fell unconscious. When she regained consciousness, she found that there was no one in the room. The respondent nad criminally intimidated her not to disclose this incident to anyone, otherwise she would be Killed. After 10-15 days again, the respondent took her to the same room and had sexual intercourse witn her. Thereafter, she returned to Dalhousie. After two months again, she visited ner grandparent,*’ home on seven days vacation. During her visit, the respondent again took her forcibly to his room where he had sexual intercourse with her. The respondent had again intimidated her not to disclose this act to anyone. After a lapse of 2-3 months again, when she visited her grandparents, the respondent called her but she did not respond and slipped away. Thereafter, she went to the hospital at Kakira with her mother when she developed severe stomach ache and while returning from there, she disclosed to her mother that the respondent had sexual intercourse with her on her visit to grandparents place. She was checked up by a lady doctor. Her statement was recorded at the Police Station, Kihar. She was medically examined. In her cross-examination, she has deposed that white discharge had commenced 10-15 days prior to her visit to the hospital at Kakira. Stomach ache started after 1-2 months when the respondent had sexual intercourse with her. She used to have a lot of pain in the stomach and often she shared with her mother. She went to Kakira Hospital on .September 03, 2012. Lady doctor had medically examined her. She did not disclose the incident to her mother after returning home from her grandparents place and only shared the incident with her while returning from the hospital at Kakira. She did not disclose to her mother about the pain since she was not aware that it was an offshoot of sexual intercourse. She further stated that her grandparents are having bedroom on the ground floor. There were total six rooms on the ground floor. One room was in possession of her parents on the ground floor. The other room was given to her youngest uncle, Khem Raj. There were two rooms on the first floor and in one room, her uncle Res Raj resided. Second room on the first floor was in possession of her Papa’s uncle. She has admitted that her grandparents have joint family consisting of 20-25 members. She remained confined with the respondent in the room during the act of sexual intercourse for about 9-10 minutes. During sexual intercourse, she had bleeding. Bed sheet had blood stains where the respondent had committed sexual intercourse. Her sa/warwas also smeared with blood stains. She had a lot of pain and had also raised cries but her mouth was gagged by the respondent. She had not disclosed before the Police while giving statement that she had fallen unconscious. She did not recall as to how long she remained unconscious. The incident had taken place in the morning hours around 8:00 to 9:00 a.m. Female members returned back to the house after one hour of the incident. She had not disclosed about the incident to anyone since accused had threatened to kill her. She had also not disclosed to her mother out of fear on phone since she was not conversant how to make a call on the phone. When the respondent took her forcibly to the room, there was no one in the close vicinity. She screamed but her mouth was gagged. She had two real uncles. The respondent was the son of her grandfather’s brother.
  1. PW-8, Dr. Jasbir Kaur, has deposed that on September 03,2012, the prosecutrix appeared before her as an OPD patient along with her mother complaining of flatus incontinence (involuntary passage of gas). On her vaginal examination, it was found that hymen was ruptured and her external anal sphincter was also torn. In the opinion of PW-8, the prosecutrix must have been sexually assauled forcibly and since her anal sphincters were also not functioning properly, she might have been sodomised. She issued OPD Slip (Exhibit PW-8/A). In her cross-examination, PW-8 admitted that in the said OPD Slip, parentage and residence proof of the patientrwas not mentioned. She has also admitted that there was over-writing with
regard to date on the OPD Slip. According to her, this over-writing could be done by the person who issued the said slip. She has admitted that she had not given history with regard to internal examination of the patient in the OPD Slip.
  1. PW-9, Dr. Arti Sharma, has also examined the prosecutrix. She has not noticed any injury
    marks on the whoie body and private parts of the prosecutrix She noticed that hymen was torn,
    vagina admitted two fingers and the prosecutrix had been subjected to sexual intercourse. It
    was not possible to say when the said incident was committed. She issued MIC, which is
    marked as Exhibit PW-9/B.
  2. We may also mention at this stage that PW-3 proved the date of birth of the prosecutrix as April
    21,2000, as per the Birth and Death Register. This fact is not disputed Likewise, PW-7 Dr. Ajay
    Nath had examined the respondent and in his opinion the respondent was capable of performing
    sexual intercourse. This fact is aiso not disputed by the respondent. Relationship of parties is
    also not in dispute, i.e., the respondent<s the son of prosecutrix’s grandfather’s brother. In this
    manner, prosecutrix is the niece of the respondent. !t is also not in dispute that the respondent
    was living in the same house where the grandfather of prosecutrix was staying. Insofar as the
    respondent is concerned, his statement was recorded under Section 313 of the Cr.RC. wherein
    he deposed that he was falsely implicated because of some family dispute over the property.
  3. The trial court, after analysing the evidence, found that there were few contradictions in the
    statement of PW-1 and her daughter PW-2 with regard to the period of stomach ache and the
    duration for which she was on medication by the loca< doctor/private chemist. However, in the
    opinion of the Sessions Court, these were very minor discrepancies. The Sessions Court noted
    that the prosecutrix was only nine years old child when the incident happened and she was only
    twelve years of age when she deposed in the Court and, therefore, it could not be expected of her
    to report each and every fact by giving minute details. The trial court further observed that both
    the witnesses withstood the test of credibility as even after undergoing detailed cro’ss-
    exa^hat on their depositions on vital aspects remained firm and could not be shaken.
  4. The main argument advanced by the defence before the trial court was that it was a case of
    inordinate de’ay where reporting to the Police was three years after the incident. The trial
    court, however, a-as not convinced by this argument. In the judgment given by the trial court,
    detailed reasons are given, which will be discussed at the appropriate stage by us, as to how,
    in the given circumstances, the prosecution was able to explain the delay. Taking aid of
    various pronouncements of this Court on this aspect, the trial court concluded that the said
    delay had not dented the case of the prosecution. Other argument of tne defence that PW- i,
    (Tiother of the prosecutrix, had filed false complaint 10 implicate the respondent on account of
    family feud was also not found to be convincing.
  5. In the ultimate analysis, the trial court believed the statement of the prosecutrix as true sin^e
    it was supported by medical evidence on record, it was found to be trustworthy and not
    shrouded with any doubt The trial court pointed out that the statement of PW-8 clearly
    suggested that the prosecutrix was forcefully raped by the respondent and as a result of that
    her hymen was ruptured and her external anal sphincter was also torn. Even internal sphincter
    was not continence. She found that anal sphincter of the prosecutrix was not functioning
    In the opinion of PW-8, on account of injury to the prosecutrix’s anal sphincter, she
    might be a sufferer throughout her life.
  6. Another argument of the defence before the trial court was that it was impossible that such an
    incident would have occurred in the house where so many family members lived. In such
    circumstances, it-could not be believed that the respondent would have taken the prosecutrix to the
room on the first floor and committed sexual intercourse. This argument was also brushed aside by the trial court pointing out that, in her cross-examination, the prosecutrix has stated that the incident had taken place in the morning hours, around 8:00 a.m. to 9:00 a.m. Female members of the family returned back to the house after one hour of the incident. The prosecutrix had stated that she had not disclosed about the incident to anyone since the respondent had threatened to kill her and a!so did not disclose to her mother on phone, out of fear. She was not conversant how to make a call on phone. The Sessions Court found that the testimony of the prosecutrix appeared to be true. It could not have been expected of a child of tender age to narrate the incident or share the happening with her to anyone when she had been put under fear by the accused. Even she could not disclose this incident to her mother. Her testimony that she did not disclose to her mother out of fear on phone appeared probable to the Session Court, keeping in view her tender age.
  1. Concluding that the deposition of the prosecutrix was found to be credible and trustworthy,
    which was sufficient to convict the accused person even in the absence of any corroboration,
    insofar as the present case is concerned, the medical evidence supported her version. On this
    basis, conviction of the respondent was recorded under Sections 376(2) (f) and 506 of the IPC.
  2. Before the High Court, the respondent made same arguments in order to shake the case of
    the prosecution and argued that the trial court did not consider these arguments in the right
    The High Court found the arguments of the defence as convincing, inasmuch as,
    according to the High Court:
  • FIR was lodged much belatedly, which was fatal to the prosecution when the delay was not
    satisfactorily explained;
  • there were 20-25 persons in the joint family who resided together in the same house in Aruwan. As
    per the prosecution, since the incident happened at 8:00 a.m. to 9.00 a.m., it was not believable that
    where there is a joint family consisting of 20-25 members, such an incident could take place,
  • even if some of the members of the family were not found to bo in the house at the time of incident,
    the prosecutrix was supposed to disclose this incident to the other members oftho family, including
    her mother, when she met her;
  • according to the prosecutrix, her salwar was smeared with blood stains and it could not have gone
    unnoticed;
  • in a house of ten rooms occupied by 20-25 persons, if the prosecutrix had screamed, it would not
    have gone unnoticed;
  • there was a dispute between the parties, which was apparent from the contents of Exhibit DW-1/
    A, which could have been the reason for lodging the complaint belatedly on September 06, 2012;
  • even when the incident was narrated by the prosecutrix to her mother on September 03,2012, the
    complaint was lodged three days thereafter, i.e. on September 06, 2012, which was a/so
  1. Learned counsel for the State made an endeavour to tear through the reasoning given by the
    High Court with the submission that these were hardly any reasons to give benefit of doubt to the
    respondent having regard to the impeccable testimony of the prosecutrix herself, more particularly
    when that is to be read along with the deposition of PW-1 (her mother) as we’! as medical evidence.
    He submitted that the High Court did not go in the right direction while analysing the evidence on
    record, inasmuch as, it totally ignored the principles on which such depositions are to bo analysed
    and adjudged. It was also argued that the delay in reporting the matter \”as satisfactorily explained,
    which was accepted by the trial court on sound reasoning. He also submitted that presence of
    other persons in a joint family in such a big house was totally inconsequential which was given
    undue importance by the High Court. It was also submitted by him that the alleged dispute between
    the parties could not have been a reason for the mother of the prosecutrix to make a false FIR
thereby exposing her minor daughter of tender age in a charge of this kind and putting her future in jeopardy. He read out from the reasons given by the trial court discussing all these aspects in detail and submitted that the High Court, in the impugned judgment, has not at ail stated as to how the trial court went wrong in its analysis of the evidence.
  1. Learned counsel for the respondent, on the other hand, submitted that the reasons given
    by the High Court were strong and formidable reasons which are sufficient to put considerable
    dent on the veracity of the prosecution case and, therefore, the High Court rightly held that the
    charge against the respondent could not be proved beyond reasonable doubt thereby rightly
    giving the benefit of doubt to the respondent. He also relied upon the discussion contained in
    the judgment of the High Court and the reasons given by the High Court in quashing the
    verdict of conviction against the respondent,
  2. We have already narrated the case of the prosecution as well as the testimonies of the
    prosecutriy, her mother PW-1 and the medical evidence. After going through the evidence of the
    prosecutrix and her mother, we find that apart from some minor and trivial discrepancies with
    regard to the period of stomach ache or about the medicine taken from the local doctor/chemist,
    insofar as material particulars of the incident are concerned, version of both these witnesses is
    in sync with each other. Here is a case where charge of sexual assault on a girl aged nine years
    is leveled. More pertinently, this is to be seon in the context that the respondent, who is accused
    of the crime, is the uncle in relation. Entire matter has to be examined in this perspective taking
    into consideration the realities of life that prevail in Indian social milieu.
  3. As per the prosecutrix, she was called by the respondent to his room, which is on the first floor
    of the house Unmindful of what could be the motive of an uncle to cali her, she obliged as a
    dutiful child. However, according to the prosecution, unfortunate incident happened. It happened
    with a nine year old child who was totally unaware of the catastrophe which had befallen her. Her
    mental facuHi^s had not developed fully; she was in the age of innocence; unaware of the
    dreadful consequences. Further, at the time when she was being sexually assaulted, her mouth
    was gagged so that she was not able to scream and after the incident she was threatened not to
    disclose this incident to anybody. In fact, she kept mum out of this fear. It is quite understandable
    that a nine yenr old child, after undergoing traumatic experience and inflicted with threats, would
    be frozen with fear and she could not find voice to speak against her uncle. In cases of
    incssti ‘ous abuse more often, silence is built into the abuse. Incident came to light and tragedy
    struck on the prosecutrix only when her mother noticed that she was continuously suffering from
    stomach ache and was, therefore, taken to a Gynecologist for her treatment But for the above,
    matter may not have come to light. It is only after she was examined by Dr. Jasbir Kaur (PW-8),
    who had medically examined and formed the opinion that the prosecutrix had been sexually
    assaulted forcibly about 2-3 years ago, since her hymen was ruptured and her external and
    internal sphinctets were also torn, that PW-1 queried the prosecutrix and she revealed the
    incident, hitherto hidden by her from the entire world out of fear, not only as a result of the threats
    extended by the respondent but for varied other reasons.
  4. When the matter is examined in the aforesaid perspective, which in the opinion of this Court
    is the right perspective, reluctance on the part of the prosecutrix in not narrating the incident
    to anybody for a period of three years and not sharing the same event with her mother, is
    clearly understandable. We would like to extract the following passage from the judgment of
    this Court in Tulshidas Kanolkarv. State ofGoa, (2003) 8 SCC 590:
“5. We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating
circumstance for the accused when accusations of race are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is oossibi/!ty of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the otherhand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle.”
  1. In Karnel Singh v. Sfafe ofMadhya Pradesh, (1995) 5 SCC 518, this Court observed that:
“7… The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrir happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society’s attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathise with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false…”
  1. Likewise, in State of Punjab v. Gurmit Singh & Ors., (1996) 2 SCC 384, it was observed:
“8… The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particulariy the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour other family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged…”
  1. Notwithstanding the fact that the trial court accepted the explanation for delay as satisfactory
    oy giving detailed reasons, we are dismayed to find that the High Court has been swayed by
    this delay in reporting the matter with omnibus statement that it is not satisfactorily explained
    without even an iota of discussion on the explanation that was offered by the prosecution in
    the form of testimonies of PW-1 and PW-2.
  2. It seems that the main reason which has influenced the mind of the High Court is that there
    were 20-25 persons in the joint family and some of them were bound to be in the house at the
    time of the incident and, therefore, it was not possible that such an incident would go
    unnoticed if it had actually happened. This is coupled with the fact that the salwar of the
    prosecutrix was smeared with blood stains, which could not have gone unnoticed. Here again,
    the High Court has gone by the aforesaid two facxs without going into the details and the
    discussion is totally perfunctory. The aforesaid two facts are simply noted and on that basis the
    prosecution version is discarded as unbelievable. These may have been relevant factors only
    if there was absence of any explanation by the prosecution on these aspects. In the first
    instance, it may be noticed that the room of the respondent was on the first floor where the
    prosecutrix was called. Defence has nowhere stated thai on the first floor there were rooms
    adjacent to the room of the respondent and there were other members of the family. What is
    smoke-screened in the process is that in the cross-examination the prosecutrix categorically
    stated that the incident had taken place in the morning hours around 8:00 a.m. to 9:00 a.m. and
    the female members returned back to the house after one hour of tl ;e incident. It also came in
    her cross-examination that during the act of sexual intercourse, she remained confined in the
    room for about 9-10 minutes. She raised screams but her mouth was gagged. Her
confinement by the respondent on the first floor for about 9-10 minutes was insignificant and would not have been taken note of by the other family members who might have been present there. Further, nobody could notice as her screams were doused by gagging her mouth. Her statement also suggests that she had fallen unconscious and on regaining consciousness she did not find anyone in the room. After she came out of the room, she obviously refrained from disclosing the incident to anyone because of the threat extended to her by the respondent. In such a situation, obviously the prosecutrix had ensured that her sa/warwhich was smeared with blood stains is not seen by any person.
  1. Likewise, delay of three days in lodging the FIR by PW-1, after eliciting the information from her
    daughter PW-2, is inconsequential in the facts of this case. It is not to be forgotten that the person
    accused by the prosecutrix was none else than her Uncle. It is not easy to lodge a complaint of
    this nature exposing prosecutrix to the risk of social stigma which unfortunately still prevails in
    our society. A decision to lodge FIR becomes more difficult and hard when accused happens to
    be a family member. In fact, incestuous abuse is still regarded as a taboo to be discussed in
    This reticence hurts the victims or other family members who struggle to report. After all,
    in such a situation, not only the honour of the family is at stake, it may antagonize other relations
    as well, as in the first blush, such other members of family would not take charge of this nature
    very kindly. We also find that the so-called dispute between the parties was so trivial in nature
    that it would not have prompted PW-1 to lodge a false complaint, putting her minor daughter of
    impressionable age to risks of serious kinds, as pointed out above.
  2. By no means, it is suggested that whenever such charge of rape is made, where the victim is
    a child, it has to be treated as a gospel truth and the accused person has to be convicted. We
    have already discussed above the manner in which-testimony of the prosecutrix is to be
    examined and analysed in order to find out the truth therein and to ensure that deposition of the
    victim is trustworthy. At the same time, after taking all due precautions which are necessary, when
    it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity
    that is needed in such cases. In such a situation one has to take stock of the realities of life as
    Various studies show that in more than 80% cases of such abuses, perpetrators have
    acquaintance with the victims who are not strangers. The danger is more within than oute-de.
    Most of the time, acquaintance rapes, when the culprit is a family member, are not even
    reported for various reasons, not difficult to fathom. The strongest among those is the fear of
    attracting social stigma. Another deterring factor which many times prevent such victims or their
    families to lodge a complaint is that they find whole process of criminal justice system extremely
    intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring
    about significant reforms in the criminal justice system as well. Equally, there is also a dire need
    to have a survivor centric approach towards victims of sexual violence, particularly, the children,
    keeping in view the traumatic long lasting effects on such victims.
  3. After thorough analysis of all relevant and attendant factors, we are of the opinion that none
    of the grounds, on which the High Court has cleared the respondent, has any merit. By now it
    is well settled that the testimony of a victim in cases of sexual offences is vital and unless there
    are compelling reasons which necessitate looking for corroboration of a statement, the courts
    should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict
    the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a
    statement before relying upon the same as a rule, in such cases, would literally amount to
    adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole.
    Needless to reiterate that the victim of rape is not an accomplice and her evidence can be
    acted upon without corroboration. She stands at a higher pedestal than an injured witness
does, if the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It wcuid be adding insult to injury to tell a woman that her claim of rape w<!! not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman wno complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh, (2003) 8 SCC 551}.
  1. Notwithstanding this legal position, in the instant case, we even find enough corroborative
    material as well, which is discussed hereinabove. From the evaluation of the prosecution
    material discussed above, it is abundantly clear that the evidence brought on record contains
    positive proof, credible sequence of events and factual truth linking the respondent with rape
    of the prosecutrix and had criminally intimidated her. Hence, respondent is found to be guilty
    for offence under Sections 376(2)(f) and 506 of IPC since he committed rape with a minor girl
    aged nine years. It is pertinent to point out at this stage that at the time of deposition of the
    prosecutrix in the Court, the trial court had an opportunity to see her demeanor. On that basis,
    the trial court in the judgment had commented as under:
“66. The statement of prosecutrix inspires confidence even though a child witness since while deposing in the Court her demeanor appeared nke that of competent witness and no likelihood of tutor. I find her testfmony reliable since she was founa competent to depose after preliminary inquiry as she understood questions and to give rational answers. I have gone through her statement with extra caution and full of circumspection. Therefore, I have no hesitation to believe her statement.”
  1. At this juncture, we would also like to reproduce the following passage from the judgment of
    this Court in State ofRajasthan v. Om Prakash, (2002) 5 SCC 745:
“19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in oursuit of sexual pleasure. There cannot be anything more obscene than this, It is a crime against humanity. Many such cases are not even brought to light because of Vie social stigma attached thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country’s future. Hope of tomorrow rests on them. In our country, a gin child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well-considered and well-analysed judgment jfthe tiial court on grounds like non-examination of other witnesses. wr<en the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one orfwo underwears was wholly insignificant.”
  1. In the result, we ailow this appeal, set aside the judgment of the High Court and restore the
    conviction recorded by the trial court. The respondent shall undergo rigorous imprisonment
    for a period of twelve years tor the offence under Section 376(2)(f) and shall also pay a fine of
    50,000, failing which he shall undergo1 further sentence of one year. He is also convicted for
    committing offence under Section 506 IPC for which he is sentenced to rigorous imprisonment
    for two years. Both the sentences shall run concurrently. The respondent be taken into
    custody forthwith to serve out his remaining sentence.