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PENAL CODE, 1860 : 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 two adult males under threat and kept in a room for many days where one of the accused had forcible sexual intercourse with her – 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 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 – Sentence/sentencing 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. s.375, Clause `Sixthly’ -Held: Prosecutrix at the relevant time being about 17 + years of age, Clause `Sixthly’ would not be applicable. EVIDENCE: Age of prosecutrix – Medical evidence and oral testimony – The evidence of prosecutrix 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 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 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 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.I.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 explained – Delay/Laches. ADMINISTRATION OF CRIMINAL JUSTICE: Criminal justice – Criminal cases relating to offences against the State, corruption, dowry death, domestic violence, 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 modern tools – Police reforms as directed in Prakash Singh’s 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, 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 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 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 17-1/2 years. A-2 died during the trial. The trial court acquitted A-3. A-1 was convicted of the offences charged and was, inter alia, sentenced 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 of age. In the instant case, the prosecutrix had no formal education and, therefore, there is no school certificate available on record. 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) in his deposition stated her age as 13 years at the 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 about 17 + years of age at the time of occurrence and, therefore, Clause Sixthly of s.375 IPC is not applicable. [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 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 years 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 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) SCR1161= 2008 (11)SCC3; Mussauddin Ahmed v. State of Assam (2009) 14 SCC 541- relied 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 expressions 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 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] 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; 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 and Phrases, Permanent Edition, (Volume 8A) 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. SCR626= (2000) 7 SCC 224; Uday v. State of Karnataka 2003 (2) SCR 231= 2003 (4) SCC 46- relied 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. As a 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 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 satisfy its conscience and rule out any false accusations. [para-19] [426- B-D] State of Maharasthra v. Chandraprakash Kewalchand Jain 1990 (1) SCR115= 1990 (1) SCC 550; State of Punjab v. Gurmit Singh & Ors. 1996 (1) SCR532= 1996 (2) SCC384; Vijay @ Chinee v. State of Madhya Pradesh 2010 (8) SCR1150= 2010 (8) SCC191 -relied on. 3.2 In examining the evidence of the prosecutrix the 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 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] 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 or the other places where she was taken and that creates serious doubt about truthfulness of her evidence, overlooks the situation in which the prosecutrix was placed. She had been kidnapped by two adult males, one of them – A-1 – wielded fire-arm and threatened her and 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 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. 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 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. 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 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 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 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 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 in the evening from agricultural field, he was informed that his sister (prosecutrix) who had gone to ease herself 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 days that when his sister did not return and there was 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 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. [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 non-consideration of the material evidence and relevant 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 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 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 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 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 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 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 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 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, 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 immediate and urgent steps are taken in amending the procedural and other laws to achieve the objectives. [para 28] [434-E-H; 435-A-C] Prakash Singh & Ors. vs. Union of India & Ors. 2006 (6) Suppl. SCR473 = 2006 (8) SCC1 – relied on. Case Law Reference:: 2008 (10) SCR1161 relied on para 11 (2009) 14 SCC 541 relied on para 12 2000 ( 2 ) Suppl. SCR 626 relied on para 17 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 ) SCR1150 relied on para 21 1983 ( 3 ) SCR 280 relied on para 22 2006 (6 ) Suppl. SCR473 relied on para 28 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 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. Dwivedi, 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 769 OF 2006
State of U.P. …Appellant

Versus

Chhoteylal …Respondent
JUDGEMENT
R.M. LODHA, J.
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 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. 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 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 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, Rampal – brother of the prosecutrix – made a

complaint to the Superintendent of 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
2
complaint, the First Information Report (FIR) was registered on

September 30, 1989. The prosecutrix was recovered by the

police on October 13, 1989 from 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 of the

prosecutrix as advised by the doctor and sent her for X-ray

examination.

3. On October 17, 1989, the prosecutrix was

produced before the Judicial Magistrate I, Hardoi, where her

statement under Section 164 Cr.P.C. was recorded by the

Judicial Magistrate.

4. A-1 was arrested on December 2, 1989. On

completion of investigation, A-1 was chargesheeted for the

offences 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.
3
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-3), Subhash Chandra Misra – Head Constable (PW-4) and

Dr. Shakuntala Reddy (PW-5).

6. A-2 had died and the trial abated as against him.

The III 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 of the prosecution evidence, the III 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 different sentences for other offences which were

ordered to run concurrently.

7. A-1 challenged the judgment passed by the III

Additional Sessions Judge, Hardoi before the Allahabad High

Court, Lucknow Bench, Lucknow. The High Court vide its

judgment dated March 11, 2003 reversed the judgment of the
4
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 lodged after ten days and there was no reasonable and

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 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:

“It has been submitted by the learned counsel for
the appellant that according to 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 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 itself shows that the report had
been lodged after consultation and after due
deliberation and the prosecution 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

5
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 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.”
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 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 :

“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 :–
First.– Against her will
Secondly.– Without her consent.
Thirdly.– With her consent, when her
consent has been obtained by

6
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 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 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.
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 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
7
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

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 cross-examination, 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 prosecutrix, 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 cross-
examination, 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
8
in the age of PW-2. Thus PW-2 can be said to be
aged 17 = years at the time of the occurrence.”
11. We find ourselves in agreement with the view of the

trial court regarding the age of the prosecutrix. The High Court

conjectured that the age of the prosecutrix could be even 19

years. This appears to have 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 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

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 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

1
(2008) 11 SCC 38
2
(2009) 14 SCC 541

9
evidence concerning the age of prosecutrix having been

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
2
withheld. The decision of this Court in Mussauddin Ahmed

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 First 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 despite her resistance and opposition. On the other
10
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

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

meaning to the word `consent’ in the context of sexual offences

as explained in various judicial dictionaries. In Jowitt’s

11
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, 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 of the mind.

15. Stroud’s Judicial Dictionary (Fourth Edition), Volume

1 (1971) at page 555 explains the expression `consent’, inter

alia, as under :-
“Every `consent’ to an act, involves a submission;
but it by 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).”

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
12
intercourse may be hesitant, reluctant or grudging, but if she

consciously permits it there is “consent”.’

16. In Words and Phrases, Permanent Edition, (Volume

8A) at pages 205-206, few American decisions wherein the

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, and, if she resists
to the point where further resistance would be
useless or until her resistance is overcome by
force or violence, submission thereafter is not
“consent”. People v. McIlvain (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. Pelvino, 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 terror cannot amount to real
consent. Hallmark v. State, 22 Okl. Cr. 422″
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

“Will is defined as wish, desire, pleasure,
inclination, choice, the faculty of conscious, and
especially of deliberate, action. It is purely and

13
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 mental
process there is no other manner by which her
will can be ascertained, and it must be left to the
jury to determine that will by her acts and
statements, as disclosed by the 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 from 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 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

regards the meaning of the word `consent’ as occurring in

Section 375 IPC. It is not necessary to refer to all the decisions

14
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

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 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.”
18. In the case of Uday v. State of Karnataka4, 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 each case,

3
(2000) 7 SCC 224
4
(2003) 4 SCC 46

15
consider the evidence before it and the
surrounding circumstances, before reaching a
conclusion, because each case has its own
peculiar facts which may 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 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

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.

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
16
false accusations. In State of Maharasthra v. Chandraprakash

Kewalchand Jain5, this Court at page 559 of the Report said:
“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
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. 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 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. The nature of evidence required to
lend assurance to the testimony of the
prosecutrix must necessarily depend on the facts
and circumstances of each case. But if a
prosecutrix is an adult and of full 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
5
(1990) 1 SCC 550

17
a strong motive to falsely involve the person
charged, the court should ordinarily have no
hesitation in accepting her evidence.”

20. In State of Punjab v. Gurmit Singh & Ors.6, this Court

made the following weighty observations at pages 394-396 and

page 403:
“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 alarm. Again, if the 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
prosecutrix had no control over the investigating
agency and the 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 self- respecting woman
would come forward in a court just to make a
humiliating statement against her honour such as
is involved in the commission of rape on her. In
cases involving sexual molestation, supposed
considerations which have no material effect on
the veracity of the prosecution case or even
discrepancies in the statement of the 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
to adding insult to injury…. Corroboration as a
condition for judicial reliance on the testimony of
6
(1996) 2 SCC 384

18
the prosecutrix is not a requirement of law but a
guidance of prudence under given circumstances.

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 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 of corroboration required in the
case of an accomplice. 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 :

“Thus, the law that emerges on the issue is to the
effect that the statement of the prosecutrix, if found
to be worthy of credence and reliable, requires no
7
(2010) 8 SCC 191

19
corroboration. The court may convict the accused
on the sole testimony of the prosecutrix.”.
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 assault. In examining the evidence of the

prosecutrix the 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.

Society’s belief and value systems need to be kept uppermost

in mind as rape is the worst form of woman’s oppression. A

forcible sexual assault brings in humiliation, feeling of disgust,

tremendous 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 rape. The stigma that

attaches to the victim of rape in Indian society ordinarily rules
20
out the leveling of false 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

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 while dealing with a rape case. This Court

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 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 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 the light of
probabilities with our feet firmly planted on the soil
of India and with our eyes focussed on the Indian
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
8
(1983) 3 SCC 217

21
permissive values, and its own code of life.
Corroboration may be considered 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, 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:
“………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 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 or a woman in the tradition-
bound non-permissive society of India would be
extremely reluctant even to admit that any
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
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

22
difficult to secure an alliance with a suitable
match from 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 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 controversy. (10)
The parents 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 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 rented room for many days where A-1 had forcible

sexual intercourse with her. Whenever she asked A-1 for

23
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

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 submitted that no alarm was raised by the

prosecutrix at the bus stand or the other places where she was

taken 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 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 her 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. The circumstances made her
24
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 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 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 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 opined that the prosecutrix was habitual to sexual
25
intercourse, we are afraid that does not make the testimony 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

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

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

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

villagers that her sister was seen with the accused. He
26
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 days that when his

sister did not return and there was no help from the relatives of

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

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

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

prosecution evidence. The High Court in a sketchy manner
27
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

satisfied that the judgment of the High Court cannot be

sustained and has to be set aside.

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

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 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 by a 3-Judge Bench. The investigators

hardly have professional orientation; they do not have modern
9
(2006) 8 SCC1

28
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 facilities for recording

evidence by video conferencing. The 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 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 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
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. 484 of 1990

is set aside. The judgment passed by the III Additional

Sessions Judge, Hardoi is restored. The respondent shall now

surrender within two months from today to serve out the

remaining sentence as awarded by the trial court.
……….
………….. J.
(Aftab Alam)
…………………… J.
(R.M. Lodha)
NEW DELHI,
JANUARY 14 , 2011.
30

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