IMPORTANT POINTS
Conviction can be sustained on sole testimony of prosecutrix if inspiring confidence. Corroboration of testimony of prosecutrix is not a requirement of law, but a guidance of prudence.
Absence of injury or non-rupture of hymen is no proof of non-penetration.
If the Trial court, which had opportunity of observing and hearing the prosecutrix, records a finding of fact that the evidence of prosecutrix is convincing and inspiring; High Court should not interfere with such finding of fact.
Courts have to be more sensitive and display a greater sense of responsibility while dealing with the charges of sexual assault on woman.

JUDGMENT :

Banumathi, J.

1. Leave granted.

2. This appeal arises out of judgment and order of the High Court of Himachal Pradesh at Shimla in Criminal Appeal No.523 of 2010 dated 22nd October, 2014 in and by which the High Court has reversed the verdict of conviction of the respondent-accused under Section 376 I.P.C. to acquittal and also set aside the sentence of imprisonment of 10 years imposed upon the respondent-Accused.

3. Briefly stated the case of the prosecution is that the prosecutrix (PW-4), who was aged about 9 years at the relevant point of time, was studying in Class-III in Government Primary School. The prosecutrix (PW-4) was staying in her aunt’s house along with her brother. The respondent-accused is the cousin (son of the aunt) of the prosecutrix (PW-4).

4. On 4th March, 2010, after the school hours, the prosecutrix (PW-4) was very reluctant to go to her aunt’s house where she was staying; and she came back to the school. On being asked by Pooja Mahajan (PW-1) the school teacher and other teachers, the prosecutrix (PW-4) informed the teachers, Pooja Mahajan (PW-1) and Ritubala (PW-2), that she lives in her aunt’s house and that the respondent-accused made her sleep with him and during the nights the respondent-accused used to put off her clothes and used to commit sexual intercourse with her. The prosecutrix stated that the respondent-accused had been doing the same for about three years. On hearing the same from the prosecutrix, the school teacher, Pooja Mahajan (PW-1), informed the president of the Gram Pachayat (PW-3) who came to the school and made enquiries whereupon the prosecutrix (PW-4) told the president that the respondent- accused had been committing sexual intercourse with her during the night.

5. A complaint was lodged by the teacher, Pooja Mahajan (PW-1), and an F.I.R. was registered against the respondent-accused under Section 376 I.P.C. Dr. Neerja Gupta (PW-6) who medically examined the prosecutrix (PW-4) found that there was no injury found on her private parts. Dr. Neerja Gupta (PW-6) gave her opinion in writing (MLC Ex.PW6/B) in which she has opined that “in case of slightest or small penetration, hymen will not rupture”. Dr. Pooja Gupta (PW-7) also examined the prosecutrix (PW4).

6. To substantiate the case of the prosecution, the prosecution has examined the prosecutrix (PW-4), the school teachers, Pooja Mahajan (PW-1) and Ritubala (PW-2), and the president of the Gram Panchayat (PW-3) and other witnesses. Based on the evidence of the prosecutrix (PW-4) and the medical evidence, the Trial Court convicted the respondent-accused under Section 376 I.P.C. and sentenced him to undergo sentence of ten years of rigorous imprisonment and also imposed a fine of Rs.25,000/-. In appeal, the High Court reversed the verdict of conviction of the respondent-accused only on the ground that the opinion of Dr. Neerja Gupta (PW-6) and Dr. Pooja Gupta (PW-7) are not conclusive to hold that the respondent- accused has forcefully committed sexual intercourse with the prosecutrix. The High Court held that the evidence of the prosecutrix (PW-4) does not inspire the confidence of the court to sustain the conviction and the respondent- accused is entitled to the benefit of doubt and on those findings the High Court has reversed the judgment of the Trial Court and set aside the conviction and sentence of the imprisonment imposed upon respondent-accused.

7. Despite service of notice, the respondent has not entered appearance. Accordingly Mrs. Manjeet Chawla, Advocate, has been nominated by the Supreme Court Legal Services Committee as amicus to contest the appeal on behalf of the respondent-accused.

8. We have heard Ms. Bihu Sharma, learned counsel appearing for the appellant-State and Mrs. Manjeet Chawla, learned amicus. We have carefully perused the impugned judgment, the evidence of the witnesses and materials on record.

9. The High Court has given the benefit of doubt to the respondent-accused mainly on two grounds :

(i) Ev