2000(2) Crimes 84 (SC)
Supreme Court of India
(From Rajasthan High Court)
Dr. A.S. Anand, CJI, R.C. Lahoti & S.N. Variava, JJ.
State of Rajasthan —Appellant
versus
Noore Khan - the accused —Respondent
Criminal Appeal No. 1698 of 1996
Decided on 30-3-2000
Counsel for the Parties :
For the Appellant : Ms. Alka Agrawal, Manish Singhvi and Sushil Kr Jain, Advocates.
For the Respondent : R.M. Tatia, Indra Makwana and Ms. Madhurima Tatia, ­Advocates.

Important points
1. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable.
2. Mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case over­board. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution.

Headnote:(i) Indian Penal Code, 1860—Section 376—Code of Criminal Procedure, 1973—Section 378—Rape—Conviction by trial Court—Acquittal by High Court on ground prosecutrix was above 16 years of age and she was consenting party—Medical evidence on basis of X-ray revealing prose­cutrix to be 15 years—Doctor admitting possibility that age may be 15 to 16 years because of variation of 3 on plus or minus side as de­scribed in medical jurisprudence—Nothing to positively hold age was less than 16 years—Delay of 4 days in lodging FIR due to community people of accused trying to settle matter by convening panchayat—Delay reasonably explained—Absence of injury on prosecu­trix not ground to hold she was consenting party—Incident narrated by prosecutrix supported by medical evidence inspite of delay in medical examination and evidence of father of prosecutrix—High Court not justified in interfering with conviction remanded by trial Court—Acquittal order set aside and conviction order restored.

       Held : The High Court was not justified in reversing the convic­tion of the res­pondent and recording the order of acquittal. It is true that the golden thread which runs throughout the cob-web of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for record­ing a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insig­nificant circumstances or by resorting to technicalitites or by assum­ing doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquit­tal encourages wolves in the society being on prawl for easy preys, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapist. The courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women. (Para 9)

        It is well settled that a prosecutrix complaining of having been a victim of the ­offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appre­ciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter a criminal charge. However, if the court of facts may find it difficult to accept the version of the prosecu­trix on its face value, it may search for evidence, direct or circum­stantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. (Para 11)

       It is true that the incident dated 1.10.1993 was reported to the police on 5.10.1993. The prosecutrix was a married woman. Her muklana ceremony had not taken place. Muklana ceremony is a rural custom prevalent in Rajasthan, whereunder the bride is left with the parents after marriage having been performed and is taken away by the husband and/or the in-laws to live with them only after a lapse of time. The origin of the custom owes its existence to performance of child-marriages which are widely prevalent there. The muklana was yet to take place. The prosecutrix was a virgin prior to the commission of the crime and this fact finds support from the medical evidence. The parents of such a prosecutrix would obviously be chary to such an incident gaining publicity because it would have serious implications for the reputation of the family and also on the married life of the victim. The husband and the in-laws having become aware of the inci­dent may even refuse to carry the girl to reside with them. The inci­dent if publicised may have been an end of the marriage for the prose­cutrix. Added to this is the communal tinge which was sought to be given by the community of the accused. PW 10, the father of the prose­cutrix, the prosecutrix PW 2 and other witnesses have stated that whle they were about to move to the Police Station they were prevented from doing so by the community fellows of the accused who persuaded them not to lodge report with the police and instead to have the matter settled by covening a panchayat of village people. After all the family of the victim had to live in the village in spite of the inci­dent having taken place. The explanation is not an after thought. An indication thereof is to be found in the FIR itself where the com­plainant has stated - “the delay in lodging the report is due to village pan­chayat, insult and social disrepute”. Nothing has been brought out in the cross-­examination of the witnesses to doubt the truth and reasonableness of the explanation so offered. We may however state that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case over­board. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution. (Paras 14 and 15)

       Absence of injuries on the person of the prosecutrix has weighed with the High Court for inferring consent on the part of the prosecu­trix. We are not at all convinced. We have already noticed that the delay in medical examination of the prosecutrix was occasioned by the factum of the lodging of the FIR having been delayed for the reasons which we have already discussed. The prosecutrix was in her teens. The perpetrator of the crime was an able bodied youth bustling with energy and determined to fulfill his lust armed with a knife in his hand and having succeeded in forcefully removing the victim to a secluded place where there was none around to help the pro­secutrix in her defence. The injuries which the prosecutrix suffered or might have suffered in defending herself and offering resistance to the accused were abra­sions or bruises which would heal up in ordinary course of nature within 2 to 3 days of the incident. The absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commis­sion of the crime. Absence of injuries on the person of the prosecu­trix is not necessarily an evidence of falsity of the allegation or an evidence of consent on the part of the prosecutrix. It will all depend on the facts and circumstances of each case. (Para 16)

       For the offence of rape as defined in Section 375 of the Indian Penal Code, the sexual intercourse should have been against the will of the woman or without her consent. Consent is immaterial in certain circumstances covered by clauses thirdly to sixthly, the last one being when the woman is under 16 years of age. Based on these provi­sions, an argument is usually advanced on behalf of the accused charged with rape that absence of proof of want of consent where the prosecutrix is not under 16 years of age takes the assault out of the purview of Section 375 of the Indian Penal Code. Certainly consent is no defence if the victim has been proved to be under 16 years of age. If she be of 16 years of age or above, her consent cannot be presumed; an inference as to consent can be drawn if only based on evidence or probabilties of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable. (Para 17)

       The statement of the father of the prosecutrix corroborates her in all material particulars and is admissible in evidence and relevant under Section 157 as her former statement corroborating her testimony as also under Section 8 of the Evidence Act as evidence of her conduct. In spite of delay in medical examination in the circumstances already discussed the medical evi­dence corroborates the testimony of the prosecutix. According to Dr. Jetha, he had found the hymen ruptured in multiple radial tears, the edges of which showed healing at most of the places and mild tender­ness. The prosecutrix was not used to sexual intercourse. Pieces of broken bangles were found at the place of the incident and seized. The Forensic Science Laboratory has found (vide report Ex. P/9) presence of human semen on the Lehenga seized from the prosecutrix. It is true that ‘wife of Udai Singh’ has not been examined. It would have been better it she would have been examined. However, no dent is caused in the case of the prosecution by her non-examination. She would have repeated the same story as has been narrated by the father of the prosecutrix. We have found the testimony of prose­cutrix’s father (PW 10) trustworthy and unembellishment. The prosecutrix and her father have both been subjected to lengthy cross-examination. The trial Court has found both the witnesses reliable. We too find no reason to disbe­lieve their testimony. A father would not ordinarily subscribe to a false story of sexual assualt involving his own daughter and thereby putting at stake the reputation of the family and jeopardizing the married life of the daughter. We find the testimony of prosecutrix’s father reliable and lending support to the narration of the incident by the prosecutrix. No reason has been proved, not even suggested during cross-examination of any of the witnesses why the prosecutrix or any member of her family would falsely implicate the accused roping him in false charge of rape. We are surprised to note how an inference as to consent could have been drawn against the prosecutrix and to hold that she was a willing party to the sexual assault made by the accused. Upon an evaluation of evidence available on record we are satisfied to hold that the prosecutrix is a witness of truth. Her testimony inspires confidence. Other evidence available on record lends assurance to her testimony. The trial Court had rightly held that sexual assault amounting to rape was committed on her by the accused- respondent. (Para 17)

       (ii) Code of Criminal Procedure, 1973—FIR—Delay in lodging—Rape case—Delay on account of community people of accused persuading vic­tim’s family to settle matter by convening local panchyat—Delay satisfactorily explained in FIR itself—Mere delay in lodging FIR cannot be ground for throwing entire prosecution case overboard. (Paras 14 and 15)

       Result : Appeal allowed.