Rape case = rape of minor girl = asertainment of age below 16 years, eventhough radiology test gives margin of two years more or less, other records and evidence supports that she is minor- evidence of victim is prominent no corroboration is required -The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit 1

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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 1516 of 2010

Mohd. Imran Khan ...Appellant

 Versus

State (Govt. of NCT of Delhi) ...Respondent

 With

 CRIMINAL APPEAL NO. 1517 of 2010

 J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Both these criminal appeals have been preferred against the 

common impugned judgment and order dated 8.12.2009 of the High 

Court of Delhi passed in Criminal Appeal Nos.311 of 1999 and 312 

of 1999, by which the High Court has affirmed the conviction of the 

appellants under Section 376 of the Indian Penal Code, 1860 

(hereinafter called `IPC'), however, set aside their conviction under 

Sections 366/34 IPC and further reduced the sentence from 7 years 

RI to 5 years RI with a fine of Rs.10,000/- each and in default to 

undergo further punishment for 3 months.

2. Facts and circumstances giving rise to these appeals are 

unfolded by the statement of Shri Prabhu Dass (father of prosecutrix 

Monika) dated 28.11.1989 made before the Police Station, Vinay 

Nagar, New Delhi to the effect that his daughter Monika, aged about 

15 years, studying in standard 9th in Green Field School, Safdarjung 

Enclave, New Delhi had left her house on 24.11.1989 for going to 

school. She informed through telephone that she would stay in the 

house of her friend Amita for the night. On 25.11.1989 at about 

8.30 a.m. Monika telephoned her cousin Satish Anand that she was 

going to Pragati Maidan along with her school friends and asked him 

to reach there so that she would come back with him. Monika asked 

Satish Anand to meet her at Ahmed Food Restaurant, U.P. Pavilion, 

where Mohd. Imran Khan and Jamal Ahmed (appellants) used to 

work. Satish Anand went to Pragati Maidan at the pointed place, but 

he could neither meet Monika nor either of the appellants, but he 

came to know that Monika was roaming inside Pragati Maidan along 

with the appellants. As she did not come back till evening, the 

complainant Prabhu Dass went to Pragati Maidan on 26.11.1989 and 

on enquiry he came to know that Monika was seen roaming with the 

 2

appellants. The appellants were known to Monika as Prabhu Dass, 

complainant was having a stall of readymade garments at shop no.11 

in Anarkali Bazar, Pragati Maidan in front of the food stall where the 

appellants were working. Complainant's wife Devki and daughter 

Monika used to come to work there also. Complainant searched for 

his daughter at many places but could not find. 

3. On the basis of his statement, a case under Section 363 IPC 

was registered and investigation ensued. It was during the 

investigation Monika, prosecutrix was recovered. The appellants-

accused Mohd. Imran Khan and Jamal Ahmed were also arrested. 

Offences under Sections 366 and 376 IPC were added. Monika was 

examined under Section 164 of Code of Criminal Procedure, 1973 

(hereinafter called `Cr.P.C.') on the basis of which the appellants-

accused were arrested. After having further investigation, offences 

punishable under Sections 342/506 IPC were also added. 

4. Monika, prosecutrix was medically examined to determine 

her age and to find out the possibility of commission of rape. The 

appellants were also examined medically. After conclusion of the 

investigation, the matter was committed to Sessions Court and trial 

commenced. Prosecution examined as many as 16 witnesses in 

support of its case. The defence examined 4 witnesses. Mohd. 

 3

Imran Khan, first appellant also examined himself under Section 315 

Cr.P.C. After conclusion of the trial, the Trial Court vide judgment 

and orders dated 29.5.1999 and 31.5.1999 convicted the appellants 

under Section 366 IPC read with Section 34 and sentenced them to 

undergo RI for 4 years and a fine of Rs.2,000/- each. In default of 

payment of fine, they would undergo SI for two months. Both the 

appellants were further sentenced under Section 376 IPC to RI for 7 

years and a fine of Rs.3,000/- each. In default of payment of fine, 

they would undergo SI for 3 months. However, both the sentences 

were directed to run concurrently.

5. Being aggrieved, both the appellants preferred separate 

Criminal Appeal Nos.311 of 1999 and 312 of 1999 which have been 

disposed of by the common impugned judgment and order dated 

8.12.2009, by which the High Court acquitted both the appellants of 

the charges under Sections 366/34 IPC, but maintained their 

conviction under Section 376 IPC. However, the sentence under 

Section 376 IPC was reduced from 7 years to 5 years each and to pay 

a fine of Rs.10,000/- each failing which to undergo SI for 3 months.

 Hence, these appeals.

6. Shri Amrendra Sharan, learned Senior counsel for the 

appellant Jamal Ahmed in Criminal Appeal No.1517 of 2010 has 

 4

submitted that the prosecutrix Monika was over and above 16 years 

of age. The Investigating Officer deposed in the court that the Birth 

Certificate produced in the court did not relate to her. The 

prosecution did not cross-examine him after declaring hostile. In 

such an eventuality the appellant is entitled for the benefit of his 

statement. The appellant Jamal Ahmed had no physical connection 

with the prosecutrix. She had an affair with Mohd. Imran Khan and 

had gone with him voluntarily. She had been taken from Delhi to 

Meerut by bus. She met with an Advocate for planning her marriage 

with Mohd. Imran Khan. She stayed in the hotel. Thus, she had 

ample opportunity to raise hue and cry or inform some body at some 

place that she had been subjected to some threat or coercion. The 

courts below erred in placing reliance on her statement. 

7. Shri Anis Ahmed, learned counsel appearing for another 

appellant in Criminal Appeal No.1516 of 2010 has also assailed the 

impugned judgment on similar grounds.

8. Per contra, Shri P.P. Malhotra, learned ASG appearing for 

the State of Delhi has opposed the appeals contending that Monika, 

prosecutrix was below 16 years of age on the date of incident. She 

remained under persistent threats from the appellants. Therefore, 

she could not raise hue and cry. The concurrent finding of facts 

 5

regarding rape by both the appellants does not warrant any 

interference. The appeals lack merit and are liable to be dismissed.

9. We have considered the rival submissions made by the 

learned counsel for the parties and perused the record. 

10. The Trial Court has meticulously scrutinised and appreciated 

the evidence of the prosecution as well as of defence. Shri Prabhu 

Dass, father of the prosecutrix died on 10.11.1995 during trial before 

his statement could be recorded. Som Wati, Lady Constable (PW.1) 

deposed that she was in the team which recovered the prosecutrix on 

29.11.1989 and taken her for medical examination. She has also 

recovered the underwear of the prosecutrix and was handed over to 

I.O. Dr. Reeta Rastogi (PW.2) proved the M.L.C., Ext.PW2/A of the 

prosecutrix and deposed that the same was prepared by her 

according to which there was no sign of external injury. The hymen 

of the prosecutrix was inflame and there was slight bleeding. Her 

vagina admitted two fingers tightly. Prosecutrix was not habitual of 

intercourse but there was evidence of intercourse. Its witness was 

not cross-examined by the defence as to whether the evidence of 

intercourse was recent one or not. Monika, the prosecutrix (PW.3) 

had given full version of the incident as to how she had been picked 

up by the appellants from Pragati Maidan. She knew both the 

 6

accused as they had been working in the stall near the stall of her 

father. When prosecutrix was waiting for her cousin, the accused 

persons showed her a knife and told her in case she tried to run away 

or raise noise, they would kill her. Both the accused persons forcibly 

took her to ISBT in a three wheeler and from there to Meerut by bus. 

The accused kept their respective knives on the back of the 

prosecutrix in such a manner that neither the passengers nor the bus 

conductor could notice of their activity. She was taken to Hotel 

Ajanta in Meerut where the appellant Jamal Ahmed made the entry 

in the Hotel register and took her to room no.101. At the time of 

making entry in the Hotel register by accused Jamal Ahmed, accused 

Mohd. Imran Khan stayed with the prosecutrix throughout. Both the 

accused persons committed rape upon her in that room. Next day in 

the morning she was taken by the accused persons to the house of 

the sister of one of them and from there she was brought to Delhi to 

the house of elder brother of appellant Jamal Ahmed. Both the 

accused persons committed rape upon her in that house. They had 

put their knives on her back in such a manner that other persons 

could not notice them. She could not raise hue and cry while coming 

from Meerut to Delhi as she was totally in a position of shock and 

the accused appellants threatened to kill her in case she raises voice 

or tries to run away. On 27.11.1989 she had been locked inside the 

 7

house as the appellants had gone away and after coming back in the 

evening she was raped by both of them. On 28.11.1989 both the 

appellants left the house and returned in the evening along with elder 

brother and brother-in-law of accused Imran. These two persons had 

taken the prosecutrix to a flat behind G.B. Pant Hospital where she 

found both the appellants present. After sometime, police recovered 

her from that place and she was sent for medical examination. Her 

statement was recorded under Section 164 Cr.P.C. on 29.11.1989.

11. Shri Babu Lal (PW.11), the then Metropolitan Magistrate 

proved the statement of the prosecutrix recorded under Section 164 

Cr.P.C. Other witnesses also supported the case of the prosecution. 

Both the appellants denied their involvement while their statements 

under Section 313 Cr.P.C. were recorded. Some defence witnesses 

were examined, however, relevant witness had been appellant Imran 

Khan who has examined himself as DW.5 under Section 315 Cr.P.C. 

According to him Monika, prosecutrix met him on 25.11.1989 at 3 

p.m. at his restaurant and told him that her mother had turned her out 

so she would not go to her house and if he refused to keep her she 

would die. It was on the insistence of the prosecutrix that he along 

with another appellant and prosecutrix went to Meerut to consult 

Shri Mustafa, Advocate who was known to other appellant, however, 

 8

the lawyer told her to bring the Birth Certificate etc. as it was to be 

produced in the court for getting married and court would issue one 

month's notice.

12. All the prosecution witnesses have faced grilling cross-

examination but nothing could be elicited to discredit any part of 

their evidence. This part of the prosecution has been accepted by 

both the courts and we do not see any cogent reason to interfere with 

the same.

13. Learned counsel for both the parties have emphasised on the 

question as to whether the conduct of the prosecutrix had been such 

that the appellants could not be held responsible as she had 

voluntarily gone with them to Meerut and, in spite of the fact, that 

she had ample opportunity to raise hue and cry or inform any person, 

she did not do so. It is submitted on behalf of the appellants that it 

was a case of consent as the prosecutrix had voluntarily 

accompanied the appellants to Meerut. In order to buttress his 

argument, Shri Amrendra Sharan, learned senior counsel, placed 

reliance upon the judgments of this Court in Mussauddin Ahmed v. 

State of Assam, (2009) 14 SCC 541; and Alamelu & Anr. v. State 

represented by Inspector of Police, (2011) 2 SCC 385, wherein after 

appreciating the evidence on record, the Court held that the 

 9

prosecutrix had been a willing partner in the entire episode. The 

conviction accorded under Section 376 IPC by the courts below has 

been set aside by this Court in similar circumstances. 

 In our considered opinion, such arguments may be relevant in 

case we reach the conclusion that the findings of fact recorded by the 

courts below on the issue of age of the prosecutrix and commission 

of rape could not be factually correct and were liable to be set aside. 

 In view of the fact that the High Court has acquitted the 

appellants for the offences under Sections 366/34 IPC the issue of 

kidnapping is not required to be considered further. 

AGE :

14. Both the courts below have laboured hard to find out the age 

of the prosecutrix for the reason that defence produced certificate 

from Safdarjung Hospital, New Delhi to create confusion and the 

I.O. in order to help the appellants had made a statement that the 

certificate on record did not belong to the prosecutrix. The medical 

report of the Radiologist issued by Ram Manohar Lohia Hospital, 

New Delhi revealed that age of the prosecutrix was between 16 and 

17 years. The Birth Certificate issued under Section 17 of the 

Registration of Birth & Death Act, 1969 reveals that a female child 

was born on 2.9.1974 by the wedlock of Prabhu Dass and Devki, 

 1

residents of Sector 12/69, R.K. Puram, New Delhi and its 

registration number had been 4840. It also reveals that number of 

live children including this child had been two. However, this 

certificate has been duly proved by Vijay Kumar Harnal, Medical 

Record Officer, Safdarjung Hospital, New Delhi (PW.9), who 

explained that one female child was born in Safdarjung Hospital at 

7.15 a.m. on 2.9.1974. Her mother's name was Devki, wife of 

Prabhu Dass and her address was R.K. Puram, New Delhi. He also 

explained that the other Birth Certificate produced by the defence 

according to which a female child was born on 12.9.1971 was of a 

different female child who was born to one Devi Rani, wife of 

Prabhu Dayal, residents of Kotla Mubarakpur and thus, it did not 

belong to Monika, prosecutrix. Similar evidence had been given by 

Dr. R.K. Sharma, C.M.O., N.D.M.C., Delhi (PW.7). According to 

him, the female child was born with Registration No.4840 on 

2.9.1974 and he further explained that the name of the parents and 

address of another female child born on 27.9.1971 bearing different 

registration no.4502 had been totally different, i.e. Prabhu Dayal and 

Devi Rani, residents of Kotla Mubarakpur . The number of living 

children with that family is also different from that of the 

prosecutrix. These documents have thoroughly been examined by 

 1

the courts below and we do not see any cogent reason to examine the 

issue further. 

 The medical report and the deposition of the Radiologist 

cannot predict the exact date of birth, rather it gives an idea with a 

long margin of 1 to 2 years on either side. In Jaya Mala v. Home 

Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this 

Court held:

 "However, it is notorious and one can take 

 judicial notice that the margin of error in age 

 ascertained by radiological examination is two 

 years on either side." 

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & 

Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey 

Lal, (2011) 2 SCC 550) 

 In view of the above as we have seen the original record 

produced before us, we are of the considered opinion that the 

prosecutrix was less than 16 years of age on the date of incident.

EVIDENCE OF PROSECUTRIX:

15. It is a trite law that a woman, who is the victim of sexual 

assault, is not an accomplice to the crime but is a victim of another 

person's lust. The prosecutrix stands at a higher pedestal than an 

injured witness as she suffers from emotional injury. Therefore, her 

evidence need not be tested with the same amount of suspicion as 

 1

that of an accomplice. The Indian Evidence Act, 1872 (hereinafter 

called `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 of Evidence Act 

and her evidence must receive the same weight as is attached to an 

injured in cases of physical violence. 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. If the court keeps 

this in mind and feels satisfied that it can act on the evidence of the 

prosecutrix, there is no rule of 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 testimony short 

of corroboration required in the case of an accomplice. 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 charged, the court should ordinarily have no hesitation in 

accepting her evidence. The court must be alive to its responsibility 

and be sensitive while dealing with cases involving sexual 

molestations. Rape is not merely a physical assault, rather it often 

distracts the whole personality of the victim. The rapist degrades the 

 1

very soul of the helpless female and, therefore, the testimony of the 

prosecutrix must be appreciated in the background of the entire case 

and in such cases, non-examination even of other witnesses may not 

be a serious infirmity in the prosecution case, particularly where the 

witnesses had not seen the commission of the offence. (Vide: State 

of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 

SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 

1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191). 

 Thus, the law that emerges on the issue is to the effect that 

statement of 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. 

16. The Trial Court came to the conclusion that there was no 

reason to disbelieve the prosecutrix, as no self-respecting girl would 

level a false charge of rape against anyone by staking her own 

honour. The evidence of rape stood fully corroborated by the 

medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly 

supported by Dr. Reeta Rastogi (PW.2).

17. This view of the Trial Court stands fortified by the judgment 

of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 

SC 1393, wherein this Court observed that "the courts must, while 

 1

evaluating evidence remain alive to the fact that in a case of rape, no 

self-respecting woman would come forward in a court just to make a 

humiliating statement against her honour such as is involved in the 

commission of rape on her." 

 Similarly, in Wahid Khan v. State of Madhya Pradesh, 

(2010) 2 SCC 9, it has been observed as under: 

 "It is also a matter of common law that in Indian 

 society any girl or woman would not make such 

 allegations against a person as she is fully aware of 

 the repercussions flowing therefrom. If she is found 

 to be false, she would be looked at by the society 

 with contempt throughout her life. For an 

 unmarried girl, it will be difficult to find a suitable 

 groom. Therefore, unless an offence has really been 

 committed, a girl or a woman would be extremely 

 reluctant even to admit that any such incident had 

 taken place which is likely to reflect on her chastity. 

 She would also be conscious of the danger of being 

 ostracised by the society. It would indeed be difficult 

 for her to survive in Indian society which is, of 

 course, not as forward-looking as the western 

 countries are."

18. Much reliance has been placed by learned counsel for the 

appellants on the judgment of this Court in Javed Masood & Anr. 

v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held 

that in case the prosecution witness makes a statement and is not 

declared hostile, he is supposed to speak the truth and his statement 

is to be believed. 

 1

 It is in view of this fact in the instant case that Puran Singh, 

I.O. (PW.15) has deposed in the court that the "birth certificate of 

the prosecutrix did not relate to the prosecutrix. I did not verify 

about the birth certificate from the NDMC. I do not remember if at 

the time of bail application I had submitted that the birth certificate 

is genuine but does not relate to prosecutrix." 

19. Thus, the question does arise as to what extent the court is 

under an obligation to accept the statement of Puran Singh, I.O. 

(PW.15) particularly in view of the birth certificate available on the 

record. In view of our finding in respect of the date of birth we are of 

the view that Puran Singh, I.O. (PW.15) unfortunately made an 

attempt to help the accused/appellants, though in the examination-in-

chief the witness has deposed that the Birth Certificate providing the 

date of birth as 2.9.1974 was genuine. 

 Be that as it may, by now Puran Singh (PW.15) might have 

retired as the incident itself occurred 22 years ago. Therefore, we do 

not want to say anything further in respect of his conduct.

20. In State of Karnataka v. K. Yarappa Reddy, AIR 2000 

SC 185, this Court while dealing with a similar issue held: 

 "It is well-nigh settled that even if the 

 investigation is illegal or even suspicious the rest 

 of the evidence must be scrutinized independently 

 1

 of the impact of it. Otherwise the criminal trial 

 will plummet to the level of the investigating 

 officers ruling the roost. The court must have 

 predominance and pre-eminence in criminal trials 

 over the action taken by investigating officers. 

 Criminal justice should not be made a casualty for 

 the wrongs committed by the investigating officers 

 in the case. In other words, if the court is 

 convinced that the testimony of a witness to the 

 occurrence is true the court is free to act on it 

 albeit the investigating officer's suspicious role in 

 the case."

21. The investigation into a criminal offence must be free from 

all objectionable features or infirmities which may legitimately lead 

to a grievance to either of the parties that the investigation was unfair 

or had been carried out with an ulterior motive which had an adverse 

impact on the case of either of the parties. Investigating Officer is 

supposed to investigate an offence avoiding any kind of mischief or 

harassment to either of the party. He has to be fair and conscious so 

as to rule out any possibility of bias or impartial conduct so that any 

kind of suspicion to his conduct may be dispelled and the ethical 

conduct is absolutely essential for investigative professionalism. The 

investigating officer "is not merely to bolster up a prosecution case 

with such evidence as may enable the court to record a conviction 

but to bring out the real unvarnished truth." (Vide: Jamuna 

Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of 

Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC 

 1

1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 

254)

22. Shri Amrendra Sharan, learned senior counsel has placed 

reliance on the judgment of this Court in Baldev Singh & Ors. v. 

State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang 

rape had been sentenced to 10 years RI and a fine of Rs.1000/- each 

had been imposed and served about more than 3 years imprisonment 

and incident had been very old, this Court in the facts and 

circumstances of the case reduced the sentence as undergone, 

directing the appellants therein to pay a sum of Rs.50,000/- of fine to 

be paid to the victim and prayed for some relief. 

23. The High Court after taking into consideration all the 

circumstances including that the incident took place in 1989; the 

appeal before it was pending for more than 10 years; the prosecutrix 

had willingly accompanied the appellants to Meerut and stayed with 

them in the hotel; and she was more than 15 years of age when she 

eloped with the appellants and the appellants were young boys, 

reduced the sentence to 5 years which was less than the minimum 

prescribed sentence for the offence. As the High Court itself has 

awarded the sentence less than the minimum sentence prescribed for 

the offence recording special reasons, we do not think it to be a fit 

 1

case to reduce the sentence further in a proved case of rape of a 

minor.

 The appeals lack merit and are, accordingly, dismissed. 

 ..................................J. 

 (P. SATHASIVAM)

 ....................................J.

 New Delhi, (Dr. B.S. CHAUHAN)

 October 10, 2011

 1

2

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