PURAN CHANDversusSTATE OF H.P.

                        [2014) 5 S.C.R. 530


A                         PURAN CHAND
                                 v.
                          STATE OF H.P.
                (Criminal Appeal No. 1708 of 2010)
                          APRIL 23, 2014
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

         PENAL CODE, 1860:

c      s. 376 - Rape of a minor girl - Conviction by courts below
  - Plea of delay in lodging FIR, false implication due to enmity
  and infirmity in medical evidence - HELD: Delay in lodging
  of FIR stands fully established - Time gap between the
  incident and lodging of FIR is a clinching evidence which
0 demolishes the defence version and inspires confidence in
  the evidence of victim - In view of the amended s. 114-A of
  the Evidence Act, 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 - Prosecutrix has stood
E the test' of cross examination as she has specifically stated
  that ac'cused forcibly committed Sf?Xual assault/rape on her
  against her wish - Conviction and sentence imposed on
  appellant is upheld - FIR - Delay - Evidence Act, 1872 -
  s.114-A.

F       Evidence Act, 1872:

       s. 114-A - Held: No doubt, s. 114-A addresses on the
  consent part of the woman only when offence of rape is proved
  but it also impliedly would be applicable in a matter where
G victim girl had gone to the extent of committing suicide due
  to the trauma of rape and suffered the risk of death after
  consuming poison.

        The appellant was prosecuted for committing an

H                               530
         PURAN CHAND v. STATE OF H.P.                  531

offence punishable uls 376 IPC. The prosecution case          A
was that on 2.9.2006, the prosecutrix, a minor, attempted
to commit suicide. She was admitted in the hospital, and
on regaining her conscience, she stated that on
20.8.2006, the appellant had committed rape on her. The
trial court convicted the appellant and sentenced him to      B
7 years RI. The conviction and sentence was upheld by
the High Court.

     In the instant appeal, it was contended for the
appellant that he was falsely implicated due to enmity. It    C
was further submitted that there was 20 days delay in
lodging of the FIR; that the girl attempted suicide because
of examination fear and that the medical evidence that the
hymn of the victim was intact belied the prosecution case
of rape.
                                                              D
    Dismissing the appeal, the Court

     HELD: 1.1. The delay in lodging the FIR has been
clearly explained by the prosecutio·n relating the
circumstance and the witnesses supporting the same            E
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. [para 13] (539-G-H; 540-A]

    1.2. The reliance placed on behalf of the appellant- F
accused that the hymen of the vic~im. 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 G
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. It is significant to note H;
    532     SUPREME COURT REPORTS              [2014] 5 S.C.R.

A that the Doctor (PW-5) has not categorically denied the
  rupture of hymen of the victim girl and the version is
  supported by other attendant circumstances and
  evidence adduced by the prosecution through the victim
  girl which is supported by her father and brother. [para
B 12-13) [539-C-F]

        1.3. 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
c  doctor regarding the hymen being intact, the prosecution
   version cannot be brushed aside totally and will have to
   be judged by the other attendant circumstances brought
   on record. The.defence no doubt has taken the plea that
   the girl had attempted suicide due to-the examination· fear
D 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 is not worth placing
   reliance for the victim girl immediately on regaining
   consciousness had narrated the story to the Doctor, to
E her father and to her brother at which stage it was not
   possible to indulge in concoction of the story of this
   nature in such a mental state. [para 14) [540-8-D]

       1.4. It is equally not possible to overlook or ignore the
F 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. The
  version of the victim girl who was suffering the trauma
  of rape and had to take the extreme step of consuming
G poison, cannot be doubted. In fact, a time gap of more
  than 20 days between the incident and the lodgement of
  the FIR, is a .clinching circumstantial evidence which
  demolishes the defence version and inspires much
  confidence in what has been stated by the victim girl.
H [para 14) [540-D-F; 541-A-B]
           PURAN CHAND v. STATE OF H.P.                  533


        2.1. Section 114-A of the Evidence Act, 1872 no doubt   A
   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 suffered the risk of death after      B
   consuming poison. In view of the amended s. 114-A of
  the Evidence Act, 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
  that the offence of rape would be held to have been           c
   proved even if there is an attempt of rape on the woman
   and not the actual commission of rape. [para 15] [541-B;
  E-F, H; 542-A-B]
 _ 2.2. The prosecution case is proved beyond
 reasonable doubt, leading to the conclusion that the D
 incident in fact did happen in the manner in which it has
 been described by the victim girl who was only 17 years
 and, thus, a minor at the time of the incident, supported .
 by the medical evidence which although might be
 somewhat weak, gains strength from other attendant E
 circumstantial evidence wherein there is no missing link
 in the chain of events .. Therefore, the conviction and
 sentence imposed on the appellant is upheld. [para 16-
 17] [542-E-G]
                                                             F
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 No. 1708 of 2010.
     From the Judgment & Order dated 29:9.2009 of the High
 Court of Himachal Pradesh at Shimla in Crl. Appeal No. 52 of
 2009.                                                          G
    Anne Mathew, A.C., Rishi            Maheshwari,     R.V.
 Kameshwaran for the Appellant.
     Anil Soni, Anish Kumar Gupta, Deep Shika Bharati, R.D.
 Gupta for the Respondent.                                      H
    534       SUPREME COURT REPORTS               [2014] 5 S.C.R.


A         The Judgment of the Court was delivered by

        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 th~ interest of justice,
8   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
C 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 506-1 of the Indian Penal Code was upheld and the
D 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 506-1 IPC, was confirmed.
E
       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
F 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
  Yi 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
G 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,
H
           PURAN CHAND v. STATE OF H.P.                       535
              [GYAN SUDHA MISRA, J.]
  she raised alarm but none came to her rescue or for help. The A
. 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 B
  but she remained tense on account of trauma that she had J;zeelil
  suffering dtte to the heinous incident. However, the tension that
  brewed in her mind, increased ~o much that on 02.09.2006,
  she attempted to commit suicid~ by consuming some poison
  and she became unconscious a~r which she was admitted c
  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
                                                                     0
  Station Nahan.

     4. The prosecutrix/victim girl was then subjected to medical
 examination and the case was iAvestigated by PW-9 ASI
 Jagdish Chand. The accused was arrested on 12.09.2006 and
 on completion .of investigation, chargesheet was submitted in       E
 the Court of learned Chief Judicial Magistrate, N.ahan' 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                  F
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 hi.m due to previous
enmity. However, the learned Session Judge on a scrutiny of
t~e evidence and on conclusion of the trial, convicted and           G
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           H
    536         ' •qEME COURT REPORTS             [2014] 5 S.C.R.

A enmity w1m tne 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
s 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
c 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
D 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 jl:ldgment and order of the trial
  court and the High Court.
E
       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
F 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
G 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
H
           PURAN CHAND v. STATE OF H.P.                      537
              [GYAN SUDHA MISRA, J.]
  alleged rape was forcibly committed on her. It was further added A
  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 B
  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   C
 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.
                                                                     D
      10. The counsel for the respondent-State however
 supported the reasons relied· upon by the High Court as also
 the Sessions Court for uphold[ng 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      E
 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
                                                                     F
 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    G
 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
                                                                     H
    53'8      SUPREME COURT REPORTS                  (2014] 5 S.C.R.


A withstood the same by stating that there was no civil litigation
 ' with the family of the accused so as to implicate the iilccused
   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
B 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 birtf'I of the
   victim girl is 06.01.1987 indicating that she was a minor on the
   date of the incident.
c       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
D 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 r.io evidence of any forceful action
  on the other parts of the body. The victim girl was thereafter
E subjected to radiologist for x-ray for ascertaining her age and
  was seht 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
F 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
G 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
H arguments advanced by the counsel for the appellant in support
          PURAN CHAND v. STATE OF H.P.                    539
             [GYAN SUDHA MISRA, J.]
 of the plea, that the incident in fact did not happen at all and A
 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 Yaish, all the courts below have B
 taken note of the fact with re·spect 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, relfance placed on behalf of the
 appellant-accused that the hymen of the victim girl was intact c
 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 D
 of cross examination as she has specifically stated that the
 accused forcibly committed sexual assaulUrape on her against
 her wish on 20.08.2006. The defence however has tried to rely
 on the medical report in o·rder to create a doubt about the actual
 assault on the victim girl.
                                                                 E
     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 F
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. G
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 s.crutiny of the cross
examination as a result of which the version of the victim girl
                                                                 H
  · 540       SUPREME COURT REPORTS                  [2014] 5 S.C.R.


A 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
B
    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
C · 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, i_l'I our view, is not worth
    placing reliance for the victim girl immediately on regaining
    consciousness had narrated the story to the Doctor, father and
D 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
    assaulUrape committed on her specially when she could not
E 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 versi.on of the victim girl who was suffering the trauma of
     rape and was provoked to take the extreme step of consuming
F 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
G 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
H concocted story so as to lodge a false case, obviously the
            PURAN CHAND v. STATE OF H.P.                       541
               [GYf.N SUDHA MISRA, J.]
 prosecution, would not have taken the risk of giving a time gap       A
 of more than 20 a'ays 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     B
 Indian Evidence Act, 1872 in Section 114-A laying down as
 follows is worthwhile to be referred to:-
      "Presumption as tQ. absence of consent in certain
      prosecutions for rape.- In a prosecution for rape under          c
      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 -qf the· womart:alleged ·fil, ITave been
                                                                       0
      raped and she states in tter evk:lence beforecthe CourUlnat
      she did not consent, the Courl=:$-haH 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 E
, 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 F
  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. G
  provision cannot be maq~ to infer that the version of the victim.
  should be believed relatifig merely to conse'nf 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 H
    542       SUPREME COURT REPORTS                [2014] 5 S.C.R.


A 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
B commission of r~pe. Thus, if the version of the victim girl is fit
  to be believed due to the attending circumstances that she was
  subjected to sexuaJ, 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
c 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
0
  the version of the victim of the offence of rape which definition
  includes also the attempt to rape.
       16. In the inst;mt matter, in view of the evidence led by tt:ie
  witnesses, supported by the circumstantial evidence, the
E 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
F 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.
G        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.
    Rajendra Prasad                                  Appeal dismissed.
H