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Saturday, April 26, 2014

Rape - Definition of Rape includes an attempt to Rape - Sec.114 - A of Evidence Act - Presumption as to absence of consent in certain prosecutions of rape - even if there had been a doubt about the medical evidence regarding non rupture of hymen the same would be of no consequence as it is well settled by now that the offence of rape would be held to have been proved even if there is an attempt of rape on the woman and not the actual commission of rape. -Thus, if the version of the victim girl is fit to be believed due to the attending circumstances that she was subjected to sexual assault of rape and the trauma of this offence on her mind was so acute which led her to the extent of committing suicide which she miraculously escaped, it would be a travesty of justice if we were to disbelieve her version which would render the amendment and incorporation of Section 114A into the Indian Evidence Act as a futile exercise on the part of the Legislature which in its wisdom has incorporated the amendment in the Indian Evidence Act clearly implying and expecting the Court to give utmost weightage to the version of the victim of the offence of rape which definition includes also the attempt to rape. = PURAN CHAND .. APPELLANT VERSUS STATE OF H.P. ..RESPONDENT = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41460

    Rape - Definition of Rape includes an attempt to Rape - Sec.114 - A of Evidence Act - Presumption as to absence of consent in certain prosecutions of rape - even if there had been a doubt about the  medical  evidence regarding non rupture of hymen the same would be of no consequence as it  is well settled by now that the offence of rape would  be  held  to  have  been proved even if there is an attempt of rape on the woman and not  the  actual commission of rape.  -Thus, if the version of the victim girl is  fit  to  be believed due to the  attending  circumstances  that  she  was  subjected  to sexual assault of rape and the trauma of this offence on  her  mind  was  so acute  which  led  her  to  the  extent  of  committing  suicide  which  she miraculously escaped, it would be a  travesty  of  justice  if  we  were  to disbelieve her version which would render the  amendment  and  incorporation of Section 114A into the Indian Evidence Act as a  futile  exercise  on  the part of the Legislature which in its wisdom has incorporated  the  amendment in the Indian Evidence Act clearly implying and expecting the Court to  give utmost weightage to the version of the victim of the offence of  rape  which definition includes also the attempt to rape. =

In fact, at this stage, the amendment introduced in  the  Indian
Evidence Act, 1872 in Section 114-A laying down as follows is worthwhile  to
be referred to:-
           “Presumption as to absence of consent  in  certain  prosecutions
           for rape.- In a prosecution for rape under clause (a) or  clause
           (b) or clause (c) or clause (d) or clause (e) or clause  (g)  of
           sub- section (2) of section 376 of the Indian Penal Code,  where
           sexual intercourse by the accused is proved and the question  is
           whether it was without the consent of the woman alleged to  have
           been raped and she states in her evidence before the Court  that
           she did not consent, the Court shall presume that  she  did  not
           consent.”

Section 114-A no doubt addresses on the consent part of the woman only  when
the offence of rape is proved but it also impliedly would be  applicable  in
a matter of this nature where the victim girl had  gone  to  the  extent  of
committing suicide due to the trauma  of  rape  and  yet  is  sought  to  be
disbelieved at the instance of the defence that she weaved out  a  concocted
story even though she suffered the risk of  death  after  consuming  poison.
If this were to be accepted, we fail to understand and lament as to what  is
the need of incorporating an amendment  into  the  Indian  Evidence  Act  by
incorporating Section 114A which clearly has been added to  add  weight  and
credence to the statement of the victim woman who  suffers  the  offence  of
rape and a claustrophobic interpretation of this  amended  provision  cannot
be made to infer that the version of the victim should be believed  relating
merely to consent in a case where the offence of rape  is  proved  by  other
evidence on record.  
If this view  of  the  matter  is  taken  into  account
relying upon the amended Section 114-A of the Indian Evidence Act  which  we
clearly do, then even if there had been a doubt about the  medical  evidence
regarding non rupture of hymen the same would be of no consequence as it  is
well settled by now that the offence of rape would  be  held  to  have  been
proved even if there is an attempt of rape on the woman and not  the  actual
commission of rape.  
Thus, if the version of the victim girl is  fit  to  be
believed due to the  attending  circumstances  that  she  was  subjected  to
sexual assault of rape and the trauma of this offence on  her  mind  was  so
acute  which  led  her  to  the  extent  of  committing  suicide  which  she
miraculously escaped, it would be a  travesty  of  justice  if  we  were  to
disbelieve her version which would render the  amendment  and  incorporation
of Section 114A into the Indian Evidence Act as a  futile  exercise  on  the
part of the Legislature which in its wisdom has incorporated  the  amendment
in the Indian Evidence Act clearly implying and expecting the Court to  give
utmost weightage to the version of the victim of the offence of  rape  which
definition includes also the attempt to rape.
16.         In the instant matter, in  view  of  the  evidence  led  by  the
witnesses,  supported  by  the  circumstantial  evidence,  the   prosecution
version is fit to be relied upon brushing aside the theory of  improbability
of the offence and holding the prosecution  case  proved  beyond  reasonable
doubt, leading to the conclusion that the incident  in fact  did  happen  in
the manner in which it has been described by the victim girl  who  was  only
17 years and hence a minor at the time of  the  incident  supported  by  the
medical evidence which although might be somewhat weak, gains strength  from
other attending circumstantial evidence wherein there is no missing link  in
the chain of events.
17.         In view of the aforesaid scrutiny and analysis of  the  evidence
on record, we find  no  substance  in  this  appeal  and  hence  uphold  the
conviction and sentence imposed on the appellant.   Accordingly  the  appeal
is dismissed. 
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41460
T.S. THAKUR, GYAN SUDHA MISRA
                                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL No. 1708 OF 2010


PURAN CHAND                                   .. APPELLANT
                                   VERSUS

STATE OF H.P.                                     ..RESPONDENT

                               J U D G M E N T
GYAN SUDHA MISRA, J.


1.          This appeal was going unrepresented as no one had  appeared  for
the appellant to contest the matter.  We,  therefore,  in  the  interest  of
justice, appointed an Amicus Curiae to represent the case of  the  appellant
and assist the Court in reaching to a just conclusion.
2.          Having heard the counsel for the parties and on perusal  of  the
material on record, we have noted that this appeal is directed  against  the
judgment and order dated 29.09.2009 passed by the  High  Court  of  Himachal
Pradesh  at  Shimla  in  Criminal  Appeal  No.52/2009  whereby  the   appeal
preferred by the appellant was dismissed by the High  Court.   Consequently,
the conviction of the appellant under Section 376 read  with  Section  506-I
of the Indian Penal Code was upheld and the sentence of seven years  imposed
on the appellant/accused alongwith a fine of Rs.5,000/- in default of  which
he had to undergo simple  imprisonment  for  a  period  of  one  year  under
Section 376 IPC and further to undergo simple imprisonment for three  months
under Section 506-I IPC, was confirmed.
3.          The case of the prosecution which  led  to  the  conviction  and
sentence of the appellant emerges out  of  the  FIR  No.186/2006  which  was
registered at Police Station Nahan by the prosecutrix/the victim  girl  aged
17 years who suffered the offence of rape at the instance of the  appellant.
 She has stated in the FIR that on 20.08.2006 at about 12.30 p.m.,  she  had
taken her goats for grazing in the forest at a  distance  of  about  ½  k.m.
from the village.  She was sitting alone on a foot path,  at  about  2  p.m.
when somebody caught hold of her from her back and then she found  out  that
it was the accused-appellant who had  forcibly  caught  hold  of  her.   She
enquired the reason for holding her to which the accused  did  not  respond.
The appellant thereafter physically abused  her  body  specially  the  chest
portion removed her clothes made her lie on the ground and inflicted  sexual
assault by committing rape on her.  In panic,  she  raised  alarm  but  none
came to her rescue or for help.   The  accused-appellant  after  raping  her
left the place and threatened her that in case she  disclosed  the  incident
to anyone, she will have to  pay  for  the  consequence  of  disclosing  the
incident.  It has been stated by the victim-girl that  on  account  of  this
fear, she did not disclose this incident to her  parents  for  several  days
but she remained tense on account of trauma that she had been suffering  due
to the heinous incident.  However, the tension  that  brewed  in  her  mind,
increased so much that on 02.09.2006, she attempted  to  commit  suicide  by
consuming some poison  and  she  became  unconscious  after  which  she  was
admitted into the Hospital at Dadahu and then shifted to Nahan  and  finally
to the PGI, Chandigarh.  On regaining her consciousness, she  disclosed  the
incident to her parents and brother Ramesh Chand.  She was  discharged  from
PGI, Chandigarh on 10.09.2006  and  thereafter  she  reported  the  case  at
Police Station Nahan.
4.          The  prosecutrix/victim  girl  was  then  subjected  to  medical
examination and the case was investigated by PW-9 ASI  Jagdish  Chand.   The
accused was arrested on  12.09.2006  and  on  completion  of  investigation,
chargesheet  was  submitted  in  the  Court  of   learned   Chief   Judicial
Magistrate, Nahan who committed the case vide  order  dated  19.05.2007  for
trial.
5.          In support of the case of victim girl, the prosecution  examined
11 witnesses and also produced documentary evidence.  The accused  was  also
examined under Section 313 Cr.P.C. who denied the prosecution case and  took
the plea that the  witnesses  have  deposed  against  him  due  to  previous
enmity.  However, the learned Session Judge on a scrutiny  of  the  evidence
and on conclusion of the trial,  convicted  and  sentenced  the  accused  as
noted above.
6.          The appellant preferred an  appeal  before  the  High  Court  of
Himachal Pradesh at Shimla against the  judgment  and  order  of  the  Trial
Court, wherein he reiterated his defence version that he  had  been  falsely
implicated in the case due to previous enmity with the victim's  family  and
the learned Sessions Judge had not appreciated the evidence properly and  in
correct perspective.  It was therefore urged that it was not  a  case  where
conviction should have been recorded on the basis of sole testimony  of  the
prosecutrix so as to convict him as there is unexplained  delay  in  lodging
the FIR.  It was also contended that the medical evidence  belies  the  case
of the prosecution and it was sought to be explained  that  the  prosecutrix
was suffering from the fear of compartmental examination in  which  she  had
to appear which was to commence  in  September  2006  and  out  of  fear  of
examination, the prosecutrix has consumed poison  and  not  for  the  reason
that she had been allegedly raped by the accused.
7.          The learned single Judge of the High Court however did not  feel
persuaded to interfere with  the  judgment  and  order  of  conviction  and,
therefore, upheld the conviction and sentence imposed on  the  appellant  by
the  trial  Court.   The  appellant  therefore  has  preferred  this  appeal
assailing the judgment and order  passed  by  the  concurrent  judgment  and
order of the trial court and the High Court.
8.           The  learned   Amicus   Curiae   representing   the   appellant
practically repeated the submissions which  had  been  advanced  before  the
trial Court and the first appellate court and urged that the  appellant  has
been falsely implicated  in  the  present  case  which  was  lodged  by  the
victim's family due to previous enmity.  He urged that the defence story  to
the effect that the girl attempted suicide due to the alleged  rape  is  not
correct as she might have done it on account of the examination fever  which
must have led her to consume poison.  It was further  submitted  that  there
was a delay of 22 days in lodging the  FIR  against  the  appellant  as  the
alleged occurrence took place on 20.08.2006 at about 2 p.m. but the FIR  was
registered on 11.09.2006.  It was further contended that  there  is  nothing
in the statement of the victim girl about the nature of injuries  which  she
sustained on her right leg and chest at the time when the alleged  rape  was
forcibly committed on her.  It was further added that it is not  clear  from
the evidence that the injuries with the prosecutrix has stated in her cross-
examination to have sustained on her right leg and  chest  would  in  normal
course come in medical examination conducted after 21 days  of  the  alleged
incident.  Therefore, the prosecution/the victim girl  cannot  be  permitted
to take benefit of the statement of the prosecutrix that some injuries  were
caused on the person and those injuries were not noticed by the  Doctor  and
reflected in the medical report.
9.          It was still further contended that the Courts  should  not  act
on the solitary evidence of the  prosecutrix  and  it  should  be  extremely
careful in accepting the sole testimony of the prosecutrix when  the  entire
case is improbable and unlikely to happen.
10.         The counsel  for  the  respondent-State  however  supported  the
reasons relied upon by the  High  Court  as  also  the  Sessions  Court  for
upholding the conviction and took us to the evidence led by the  prosecution
viz. PW-2 Daulat Ram-father of the victim girl  who  stated  that  when  the
prosecutrix became unconscious on consuming poison, they  took  her  to  the
Hospital at Dadahu and from there she was taken to Nahan and  then  to  PGI,
Chandigarh where she remained admitted till 10.09.2006.  The victim girl  on
regaining consciousness at PGI, Chandigarh was asked by the  witness  PW1  -
father and his son-brother of the victim girl as to  why  she  had  consumed
poison to which the prosecutrix stated that on 20.08.2006, the  accused  had
committed rape on her in the  Jungle  and  he  had  threatened  her  not  to
disclose the incident to anyone and as she could not bear the suffering  and
trauma of the incident, she consumed poison as she was feeling  ashamed  due
to the offence committed upon her by  the  accused.   After  discharge  from
PGI, Chandigarh on 10.9.2006, FIR was lodged and  the  witness  PW2-  Daulat
Ram - father of the girl was subjected to cross-examination on  this  aspect
at the stage of trial but he withstood the same by stating  that  there  was
no civil litigation with the family of the accused so as  to  implicate  the
accused falsely.  PW-3 Ramesh Chand – brother of the girl  corroborated  the
statement of the victim prosecutrix and PW-2 Daulat Ram – Father as  to  the
date and time when the prosecutrix disclosed the fact  that  the  accused  –
appellant committed rape upon her.  PW-4 Prem  Pal,  Panchayat  Sahayak  had
proved the birth certificate and stated that as  per  record,  the  date  of
birth of the victim girl is 06.01.1987 indicating that she was  a  minor  on
the date of the incident.
11.         PW-5 Dr. Nirmala Vaish who had  examined  the  victim  girl  had
deposed that before  examining  the  prosecutrix-victim,  she  narrated  the
history which was noted down by the  Doctor.   The  Doctor  further  deposed
that there was no fresh evidence, bleeding  or  tear  or  scratch  over  the
vulva outside and inner mucosa.   There  was  slightly  reddened  area  over
outer mucosa lower side which could  be due to discharge not likely  a  tear
or injury to mucosa.  The Doctor further recorded that  hymen  of  the  girl
was intact.  There was no evidence of  any  forceful  action  on  the  other
parts of the body.  The victim girl was thereafter subjected to  radiologist
for x-ray for ascertaining her age  and  was  sent  to  ultrasonography  for
pelvic problem as also dental surgeon for  the  determination  of  her  age.
The Doctor further noted that the  attempt  of  rape  could  not  be  proved
because of examination done after 21  days  of  the  occurrence.   Extensive
cross-examination was done on the question as  to  whether  the  offence  of
rape could be held to have been proved when there was no evidence  regarding
the offence of rape specially when the hymen of the girl  was  intact.   The
other evidence in regard to  proof  of  age  of  the  prosecutrix  was  also
adduced including matriculation examination certificate of the  victim  girl
showing her date of birth as 06.11.1987 and other evidence relating  to  her
entry into the various Hospitals where she had been admitted.
12.         We have taken note of and considered all the arguments  advanced
by the counsel for the appellant in support of the plea, that  the  incident
in fact did not happen at all and the  FIR  was  registered  merely  due  to
enmity.   In  this  respect,  the  most  important  evidence  assailing  the
prosecution case is the evidence of the doctor in which serious  infirmities
have been pointed out by the defence.   However, on a close scrutiny of  the
deposition of PW-5 Dr. Nirmala Vaish, all the courts below have  taken  note
of the fact with respect to non rupture of hymen that it is not  clear  from
the statement of the doctor PW-5 which could reveal or prove that on  actual
examination, she found the hymen of the prosecutrix intact.  Thus,  reliance
placed on behalf of the appellant-accused that the hymen of the victim  girl
was intact could not be accepted by the High Court and in view of  the  time
gap between the sexual assault and the examination of the  prosecutrix,  the
medical report of the prosecutrix not reflecting sexual act is not  of  much
significance, as per the view taken by the Courts  below.   The  prosecutrix
victim has stood the test of  cross  examination  as  she  has  specifically
stated that the  accused  forcibly  committed  sexual  assault/rape  on  her
against her wish on 20.08.2006.  The defence however has tried  to  rely  on
the medical report in order to create a doubt about the  actual  assault  on
the victim girl.
13.         While we have  noted  that  the  Doctor  has  not  categorically
denied the rupture of hymen of the victim girl, we also  take  note  of  the
fact that the version is supported  by  other  attending  circumstances  and
evidence adduced by  the  prosecution  through  the  victim  girl  which  is
supported by her  father  and  brother.   Even  if  we  were  to  doubt  the
prosecution version due to alleged infirmity in  the  medical  evidence,  it
cannot be overlooked that the case of this nature will have to  be  examined
with the aid of the accompanying circumstantial evidence in  order  to  test
the veracity of the prosecution case.  The delay  in  lodging  the  FIR  has
been clearly explained by the prosecution relating the circumstance and  the
witnesses supporting the same have stood the test of scrutiny of  the  cross
examination as a result of which the version of the victim  girl  cannot  be
doubted.  The delay in lodging the FIR thus stands fully explained.
14.         In fact, in an incident of this nature where a doubt  is  sought
to be created by  the  defence  relying  upon  the  lacuna  in  the  medical
evidence which could not establish the incident  in  view  of  non-committal
statement of the doctor regarding the hymen being  intact,  the  prosecution
version cannot be brushed aside totally and will have to be  judged  by  the
other attending circumstances brought on record.  The defence no  doubt  has
taken the plea that the girl had attempted suicide due  to  the  examination
fear and not on account of the rape alleged to have been  committed  on  her
but the same does not stand the test of scrutiny.  This defence version,  in
our view, is not worth placing reliance for the victim girl  immediately  on
regaining consciousness had narrated the story to  the  Doctor,  father  and
her brohter at which stage it was not possible to indulge in  concoction  of
the story of this nature  in  such  a  mental  state.   It  is  equally  not
possible to overlook or ignore the trauma that the  victim  girl  must  have
suffered for  22  days  after  the  sexual  assault/rape  committed  on  her
specially when she could not divulge the incident to anyone.   We  find  the
defence of the appellant extremely unworthy of reliance so  as  to  demolish
the version of the prosecutrix supported by  circumstantial  evidence.   The
version of the victim girl who was suffering the  trauma  of  rape  and  was
provoked to take the extreme step of consuming  poison,  cannot  be  doubted
ignoring even the fact that a girl would put herself to disrepute and go  to
the extent of supporting her parents to lodge a false  case  merely  due  to
some enmity with the family of the accused putting her honour at stake in  a
precarious mental state.  In fact, we are prone to infer  with  reason  that
if the prosecution had an intention of really  planting  a  false  story  of
rape, it is highly improbable that they would have created a story having  a
huge time gap between the date of incident and the date of lodgement of  the
FIR leaving the scope of weakening the prosecution case.  If it were a  well
thought out concocted story so as to  lodge  a  false  case,  obviously  the
prosecution would not have taken the risk of giving a time gap of more  than
20 days between the incident and the lodgement of the FIR.   This  clinching
circumstantial evidence demolishes the defence  version  and  inspires  much
confidence in what has been stated by the victim girl.
15.         In fact, at this stage, the amendment introduced in  the  Indian
Evidence Act, 1872 in Section 114-A laying down as follows is worthwhile  to
be referred to:-
           “Presumption as to absence of consent  in  certain  prosecutions
           for rape.- In a prosecution for rape under clause (a) or  clause
           (b) or clause (c) or clause (d) or clause (e) or clause  (g)  of
           sub- section (2) of section 376 of the Indian Penal Code,  where
           sexual intercourse by the accused is proved and the question  is
           whether it was without the consent of the woman alleged to  have
           been raped and she states in her evidence before the Court  that
           she did not consent, the Court shall presume that  she  did  not
           consent.”

Section 114-A no doubt addresses on the consent part of the woman only  when
the offence of rape is proved but it also impliedly would be  applicable  in
a matter of this nature where the victim girl had  gone  to  the  extent  of
committing suicide due to the trauma  of  rape  and  yet  is  sought  to  be
disbelieved at the instance of the defence that she weaved out  a  concocted
story even though she suffered the risk of  death  after  consuming  poison.
If this were to be accepted, we fail to understand and lament as to what  is
the need of incorporating an amendment  into  the  Indian  Evidence  Act  by
incorporating Section 114A which clearly has been added to  add  weight  and
credence to the statement of the victim woman who  suffers  the  offence  of
rape and a claustrophobic interpretation of this  amended  provision  cannot
be made to infer that the version of the victim should be believed  relating
merely to consent in a case where the offence of rape  is  proved  by  other
evidence on record.  If this view  of  the  matter  is  taken  into  account
relying upon the amended Section 114-A of the Indian Evidence Act  which  we
clearly do, then even if there had been a doubt about the  medical  evidence
regarding non rupture of hymen the same would be of no consequence as it  is
well settled by now that the offence of rape would  be  held  to  have  been
proved even if there is an attempt of rape on the woman and not  the  actual
commission of rape.  Thus, if the version of the victim girl is  fit  to  be
believed due to the  attending  circumstances  that  she  was  subjected  to
sexual assault of rape and the trauma of this offence on  her  mind  was  so
acute  which  led  her  to  the  extent  of  committing  suicide  which  she
miraculously escaped, it would be a  travesty  of  justice  if  we  were  to
disbelieve her version which would render the  amendment  and  incorporation
of Section 114A into the Indian Evidence Act as a  futile  exercise  on  the
part of the Legislature which in its wisdom has incorporated  the  amendment
in the Indian Evidence Act clearly implying and expecting the Court to  give
utmost weightage to the version of the victim of the offence of  rape  which
definition includes also the attempt to rape.
16.         In the instant matter, in  view  of  the  evidence  led  by  the
witnesses,  supported  by  the  circumstantial  evidence,  the   prosecution
version is fit to be relied upon brushing aside the theory of  improbability
of the offence and holding the prosecution  case  proved  beyond  reasonable
doubt, leading to the conclusion that the incident  in fact  did  happen  in
the manner in which it has been described by the victim girl  who  was  only
17 years and hence a minor at the time of  the  incident  supported  by  the
medical evidence which although might be somewhat weak, gains strength  from
other attending circumstantial evidence wherein there is no missing link  in
the chain of events.
17.         In view of the aforesaid scrutiny and analysis of  the  evidence
on record, we find  no  substance  in  this  appeal  and  hence  uphold  the
conviction and sentence imposed on the appellant.   Accordingly  the  appeal
is dismissed.
                                                                ……………………… J.
                                                               (T.S. Thakur)


                                                                 ………………………J.
                                                          (Gyan Sudha Misra)
New Delhi
April 23, 2014
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