Holding

A victim’s testimony, when supported by medical evidence and a consistent account from a close relative, is sufficient for conviction in a rape case, and a delay in reporting, if satisfactorily explained, does not defeat the prosecution.

Summary

The State of Himachal Pradesh appealed the acquittal of Sanjay Kumar, the paternal uncle of a nine‑year‑old girl, who was convicted by a trial court for raping the girl under IPC s.376(2)(j) and for criminal intimidation under s.506. The High Court set aside the conviction, relying on the three‑year delay in filing the FIR and the presence of many family members in the joint household. The Supreme Court held that the victim’s testimony, corroborated by her mother’s account and medical evidence, was reliable despite the delay, and that the delay was satisfactorily explained. The Court emphasized that a victim’s statement in sexual offence cases need not be corroborated unless compelling reasons exist, especially when the accused is a family member. Consequently, the conviction was restored and the respondent was sentenced to twelve years’ rigorous imprisonment for rape and two years for criminal intimidation, with a fine of Rs 50,000.

Issues considered

The adequacy of the victim’s testimony without corroboration in a child rape case
Whether the three‑year delay in lodging the FIR defeats the prosecution’s case
The relevance of the presence of numerous family members in a joint household to the occurrence of the offence
The sufficiency of medical evidence to corroborate the victim’s account
Whether the High Court erred in acquitting the accused

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 376(2)(f), s. 376(2)(j), s. 506

Subjects

child rapesexual assaultdelay in reportingvictim testimonycorroborationincestcriminal intimidationIPC 376IPC 506medical evidencejoint family

Judgment

[2016] 9 S.C.R. 237

STATE OF HIMACHAL PRADESH A
v.
SANJAY KUMAR @ SUNNY
(Criminal Appeal No. 1231 of2016)
DECEMBER 15, 2016 B
[A. K. SIKRI AND ABHAY MANOHAR SAPRE, JJ.)
Penal Code, 1860: ss.376(2)(j), 506 - Rape of 9 years old
girl - Respondent-accused paternal uncle of the prosecutrix -
Incident not disclosed by prosecutrix to anyone - Fact of rape came
to knowledge of mother 3 years after the incident when she
c
complained of stomach ache and was shown to the gynecologist -
Reporting to police thereafter - Conviction ulss.376(2)(j), 506 by
trial court based on testimony ofprosecutrix, her mother and medical
evidence - Acquittal by High Court - States appeal against
acquittal - Held: The version of prosecution and her mother was in D
sync with each other - High Coun was swayed by the delay in
reporting the matter - The ground reality is that it is not easy to
lodge a complaint of this nature exposing prosecutrix to the risk of
social stigma which unfortunately prevails in our society - Person
accused was none other than her own uncle - Decision to lodge
FIR becomes difficult and hard when accused happens to be a family E
member - Evidence brought on record contained positive proof,
credible sequence of events and factual truth linking the respondent
with rape of the prosecutrix - Conviction recorded by trial court
restored and respondent awarded rigorous imprisonment for
12 years. F
Crime against women: Rape victim - Proof of offence - Held:
The testimony of a victim in cases of sexual offences is vital and
unless there are compelling reasons which necessi.tate looking for
corroboration of a statement, the courts should find no difficulty to
act on the testimony of the victim of a sexual assault alone to convict
G
the accused - The victim of rape is not an accomplice and her
evidence can be acted upon without corroboration - She stands at
a higher pedestal than an injured witness does - It is only when the
court finds it difficult to accept her version, it may seek
corroboration from some evidence which lends assurance to her
version - Penal Code, 1860. H
237
238 SUPREME COURT REPORTS [2016] 9 S.C.R.

A Allowing the appeal, the Court
HELD: 1. Apart from some minor and trivial discrepancies
with regard to the period of stomach ache or about the medicine
taken from the local doctor/chemist, insofar as material particulars
of the incident are concerned, version of prosecutrix and her
mother is in sync with each other. As per the prosecutrix, she
B
was called by the respondent to his room, which is on the first
floor of the house. Unmindful of what could be the motive of an
uncle to call her, she obliged as a dutiful child. Her mental faculties
had not developed fully; she was in the age of innocence; unaware
of the dreadful consequences. Further, at the time when she was
c being sexually assaulted, her mouth was gagged so that she was
not able to scream and after the incident she was threatened not
to disclose this incident to anybody. In fact, she kept mum out of
this fear. It is quite understandable that a nine year old child,
after undergoing traumatic experience and inflicted with threats,
would be frozen with fear and she could not find voice to speak
D
against her uncle. Incident came to light and tragedy struck on
the prosecutrix only when her mother noticed that she was
continuously suffering from stomach ache and was, therefore,
taken to a Gynecologist for her treatment. But for the above,
matter may not have come to light. It is only after she was
E medically examined by Gynecologist (PW-8), and formed the
opinion that the prosecutrix had been sexually assaulted forcibly
about 2-3 years ago, since her hymen was rnptured and her
external and internal sphincters were also torn, that PW-1 queried
the prosecutrix and she revealed the incident, hitherto hidden
by her from the entire world out of fear, not only as a result of the
F threats extended by the respondent but for varied other reasons.
The reluctance on the part of the prosecutrix in not narrating the
incident to anybody for a period of three years and not sharing
the same event with her mother, is clearly understandable.
Notwithstanding the fact that the trial court accepted the
G explanation for delay as satisfactory by giving detailed reasons,
the High Court was swayed by this delay in reporting the matter
with omnibus statement that it is not satisfactorily explained
without even an iota of discussion on the explanation that was
offered by the prosecution in the form of testimonies of PW-1
and PW-2. [Paras 22, 23, 24, 27) (250-G-H; 251-B-G; 252-H; 253-
H A-B)
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 239
SUNNY

2. The main reason which has influenced the mind of the A
High Court is that there were 20-25 persons in the joint family
and some of them were bound to be in the house at the time of
the incident and, therefore, it was not possible that such an incident
would go unnoticed if it had actually happened. This is coupled
with the fact that the salwar of the prosecutrix was smeared with
B
blood stains, which could not have gone unnoticed. Here again,
the High Court has gone by the said two facts without going into
the details and the discussion is totally perfunctory. These two
facts are simply noted and on that basis the prosecution version
is discarded as unbelievable. These may have been relevant
factors only if there was absence of any explanation by the c
prosecution on these aspects. In the first instance, it may be
noticed that the room of the respondent was on the first floor
where the prosecutrix was called. Defence has nowhere stated
that on the first floor there were rooms adjacent to the room of
the respondent and there were other members of the family. What
is smoke-screened in the process is that in the cross-examination D
the prosecutrix categorically stated that the incident had taken
place in the morning hours around 8:00 a.m. to 9:00 a.m. and the
fP'llale members returned back to the house after one hour of
...e incident. It also came in her cross-examination that during
the act of sexual intercourse, she remained confined in the room E
for about 9-10 minutes. She raised screams but her mouth was
gagged. Her confinement by the respondent on the first floor for
about 9-10 minutes was insignificant and would not have been
taken note of by the other family members who might have been
present there. Further, nobody could notice as her screams were
doused by gagging her mouth. Her statement also suggests that F
she had fallen unconscious and on regaining consciousness she
did not find anyone in the room. After she came out of the room,
she obviously refrained from disclosing the incident to anyone
because of the threat extended to her by the respondent. In
such a situation, obviously the prosecutrix had ensured that her G
salwar which was smeared with blood stains is not seen by any
person. [Para 28] [253-B-G]
· 3. Li: .,t ~,delay of three days in lodging the FIR by Pw:1,
after elicitili: ~ 1e information from her daughter PW-2, is
inconsequenti;;} in the facts of this case. It is not to be forgotten
H
240 SUPREME COURT REPORTS [2016] 9 S.C.R.

A that the person accused by the prosecutrix was none else than
her Uncle. It is not easy to lodge a complaint of this nature
exposing prosecutrix to the risk of social stigma which
unfortunately still prevails in our society. A decision to lodge
FIR becomes more difficult and hard when accused happens to
be a family member. In fact, incestuous abuse is still regarded as
B
a taboo to be discussed in pubic. This reticence hurts the victims
or other family members who struggle to report. After all, in
such a situation, not only the honour of the family is at stake, it
may antagonize other relations as well, as in the first blush, such
other members of family would not take charge of this nature
c very kindly. The so-called dispute between the parties was so
trivial in nature that it would not have prompted PW-1 to lodge a
false complaint, putting her minor daughter of impressionable
age to risks of serious kinds. [Para 29] [253-H; 254-A-C]
4. The case is to be dealt with all sensitivity that is needed
D in such cases. In such a situation one has to take stock of the
realities of life as well. Various studies show that in more than
80% cases of such abuses, perpetrators have acquaintance with
the victims who are not strangers. The danger is more within
than outside. Most of the time, acquaintance rapes, when the
culprit is a family member, are not even reported for various
E reasons, not difficult to fathom. The strongest among those is
the fear of attracting social stigm.a. Another deterring factor which
many times prevent such victims or their families to lodge a
complaint is that they find whole process of criminal justice system
extremely intimidating coupled with absence of victim protection
F mechanism. Therefore, time is ripe to bring about significant
reforms in the criminal justice system as well. Equally, there is
also a dire need to have a survivor centric approach towards
victims of sexual violence, particularly, the children, keeping in
view the traumatic long lasting effects on such victims. [Para 30)
[254-D-G]
G
5. If the court finds it difficult to accept her version, it may
seek corroboration from some evidence which lends assurance
to her version. To insist on corroboration, except in the rarest
of rare cases, is to equate one who is a victim of the lust of another
with an accomplice to a crime and thereby insult womanhood. It
H would be adding insult to injury to tell a woman that her claim of
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 241
SUNNY

rape will not be believed unless it is corroborated in material A
particulars, as in the case of an accomplice to a crime. The plea
about lack of corroboration has no substance. Notwithstanding
this legal position, in the instant case, there is enough
corroborative material as well. [Para 31) [255-C-E)
6. The evidence brought on record contains positive proof, B
credible sequence of events and factual truth linking the
respondent with rape of the prosecutrix and had criminally
intimidated her. Hence, respondent is found to be guilty for offence
under Sections 376(2)(1) and 506 of IPC since he committed rape
with a minor girl aged nine yea s. The conviction recorded by
the trial court is registered. The respondent shall undergo c
rigorous imprisonment for a period of twelve years for the offence
under Section 376(2)(1) and shall also pay a fine of~ 50,000, failing
which he shall undergo further sentence of one year. He is also
convicted for committing offence under Section 506 IPC for which
he is sentenced to rigorous imprisonment for two years. [Paras
D
32, 34] 1255-E-G; 256-F-G]
Tulshidas Kanolkar v. State of Goa (2003) 8 SCC
590 : 2003 (4) Suppl. SCR 978; Kamel Singh v. State
of Madhya Pradesh (1995) 5 SCC 518 : 1995 (2) Suppl.
SCR 629; State of Punjab v. Gurmit Singh & Ors. (1996)
2 SCC 384:1996 (1) SCR 532; Bhupinder Sharma v. E
State of Himachal Pradesh (2003) 8 SCC 551 : 2003
(4) Suppl. SCR 792; State of Rajasthan v. Om Prakash
(2002) 5 SCC 745 : 2002 (3) SCR 753 - relied on.
Case Law Reference
' F
2003 (4) Suppl. SCR 978 relied on Para 24
1995 (2) Suppl. SCR·629 relied on Para 25
1996 (1) SCR 532 relied on Para 26
2003 (4) Suppl. SCR 792 relied on Para 31
2002 (3) SCR 753 · relied on Para 33
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1231 of2016.
From the Judgment and Order dated 26.08.2014 of the High Court
of Himachal Pradesh at Shimla in Criminal Appeal No. 168 of2013.
Suryanarayana Singh, Ms. Pragati Neekhra, Advs. for the
Appellant. H
242 SUPREME COURT REPORTS [2016] 9 S.C.R.

A Rohit Minocha, Dusmanta Kumar Pradhan, Advs. for the
Respondent.
The Judgment of the Court was delivered by
A. K. SIKRI, J. I. Leave granted.
B 2. Since the matter was fixed for final disposal, counsel for both
the parties were heard in detail.
3. It is a case where the respondent herein was charged for having
committed an offence punishable under Sections 3 76 and 506 of the
Indian Penal Code, 1860 (for short, 'IPC'). After trial, the Additional
C Sessions Judge, Fast Track Court, Chamba, Himachal Pradesh, convicted
the respondent under Section 376(2)(t) as well as under Section 506 of
the IPC.
4. The respondent challenged the order by preferring the appeal
before the High Court in which he succeeded as the High Court, after
D revisiting the issue, has come to the conclusion that the prosecution had
failed to prove its case beyond reasonable doubt. According to it there
existed certain circumstances which created reasonable doubt in the
version of the prosecution. It has resulted in setting aside the conviction
recorded by the trial court thereby acquitting the respondent. This
judgment of the High Court is assailed in these proceedings.
E 5. In the impugned judgment, the High Court has taken note of
the prosecution case. As there is no dispute that the said version is
correctly recorded by the High Court, we reproduce the same from the
said judgment.
6. As per the prosecution, the prosecutrix, who, at the relevant
F time, was nine years old, used to reside at Dalhousie with her parents:
She was studying in VII Standard in Moti Ka Tibba school in Dalhousie.
Her native place is Aruwan. Her grandparents had been living in joint
family atAruwan. Somewhere in the month of December 2009, during
winter vacatioo, prosecutrix visited the place of her grandparents. She
G had been taken there by her mother Babli (PW-I). While at the place of
her grandparents, the prosecutrix was playing with her younger brother.
The respondent called her to the room on the first floor. She responded
to the call of the accused. On reaching the room, the respondent bolted
the door from inside and made the prosecutrix lie on the bed. Her mouth
was gagged. The respondent stripped off salwar of the prosecutrix of
H her one leg. He put off his trousers. Thereafter, he laid on the prosecutrix
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 243
SUNNY [A. K. SIKRI, J.]

and thrust his penis inside her vagina. She fell unconscious. When she A
regained consciousness, the prosecutrix found no one in the room. The
respondent also criminally intimidated the prosecutrix not to disclose this
act to anyone, otherwise she would be killed. After l 0-15 days again,
the respondent took the prosecutrix to the same room and committed
sexual intercourse with her. Thereafter, the prosecutrix returned to
Dalhousie. Again, after two months, the prosecutrix visited her
B
grandparents on seven days vacation. During this period also, the
respondent took her forcibly to his own room where he had sexual
intercourse with her and once again criminally intimidated her not to
disclose the act to anyone. After a lapse of 2-3 months again, the
prosecutrix visited her grandparents and the respondent yet again called c
her to which she did not respond and slipped away. Prior to September
2012, the prosecutrix started complaining of stomach ache and was given
medicine by the local doctor. PW-1 took her for treatment at Kakira
Hospital on September 03, 2012. She was medically checked up by Dr.
Jasbir Kaur (PW-8). She told the mother of the prosecutrix that her
daughter might have been sexually assaulted 2-3 years back. PW-I D
enquired from the prosecutrix as to what happened with her 2-3 years
back. The prosecutrix then told her mother about the respondent
committing sexual intercourse with her three times when she was at her
grandparents place at village Aruwan. PW-I shared this incident with
her husband. They went to the Police Station and lodged complaint E
(Exhibit PW-I I A) on September 06, 2012 before the Deputy
Superintendent of Police, Dalhousie, who forwarded the same to the
Station House Officer, Police Station, Kihar with endorsement (Exhibit
PW-12/A) along with OPD Slip (Exhibit PW-8/A). The prosecutrix was
sent for medical examination to Regional Hospital, Chamba. Dr. Arti
Shanna (PW-9) and Dr. Richa Gupta medically examined the prosecutrix F
and issued MLC (Exhibit PW-9/8). Thereafter, date of birth of the
prosecutrix was obtained; the respondent was arrested; and he was also
medically examined. After completion of investigation, challan was put
up in the Court after completing all the coda) formalities.
7. Prosecution examined as many as twelve witnesses in all to G
prove its case against the respondent. Statement of the respondent under
Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was also
recorded wherein he pleaded innocence. According to the respondent, a
false case has been made out against him due to personal enmity in the
family. The Additional Sessions Judge, Fast Track Court, Chamba
H
244 SUPREME COURT REf'ORTS [2016] 9 S.C.R.

A convicted and sentenced the respondent, which has been set aside by
the High Court, as noted above.
8. Though the prosecution ;:xmnined .welve witnesses, it may not
be necessary to state the deposition of all those witnesses. The material
witnesses are PW-I (mother of the prosecutrix), PW-2 (prosecutrix
B herself), PW-8 (Dr. Jasbir Kaur, who had examined the prosecutrix on
September 03, 2012), and PW-9 (Dr. Arti Shanna, who had examined
the prosecutrix after the FIR was lodged).
9. PW-I, who is the mother ofthe prosecutrix, got married thirteen
years back with Mohinder Singh. Her daughter was twelve years old
c and son was nine years old. Her daughter was studying in VII Standard
in Moti Tibba High School, Dalhousie. Her daughter used to complain
of having stomach ache for the past 2-3 months and was taken to the
local doctor, who gave her medicine. The prosecutrix was then taken
for treatment to Kakira Hospital ·on September 03, 2012 where PW-8
examined her and told PW-I that the proseci.Jtrix might have been sexually
D assaulted 2-3 years back. The prosecutrix was given medicine for I 0-15
days. On returning home, she enquired from lier daughter as to what
had happened with her 2-3 years back. Her daughter told that the
respondent had sexual intercourse with her three years back when she
was away at her grandparents place; The respondent was real brother
E of her husband and uncle of her daughter. Her daughter narrated that
three years back when she was with her grandparents at Aruwan, the
respondent came and called her to the room. Her daughter, being niece
of accused, responded to his call and went to the room. Thereafter, the
respondent bolted the door from inside and committed sexual intercourse
with her daughter after putting off her clothes. Her daughter told that
F the respondent had gagged her mouth when started weeping. The
respondent had criminally intimidated her daughter not to disclose this to
anyone. Her daughter also told that the respondent had committed sexual
intercourse with her three times. PW- I then shared this incident with
her husband. They went to the Police Station to lodge complaint (E~hibit
G PW-I/A). In her cross-examination, PW-I has deposed that her husband
had not accompanied her to the Hospital at Kakira. He stayed at home
since he was employed as Chowkidar in the local building. On the next
day, PW-I shared this incident with her husband. Her father-in-law
was havingjoint family with his two brothers. All of them resided together
in the same house. There were ten rooms in the house of her in-laws
H consisting six rooms on the ground floor and another four rooms on the
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 245
SUNNY [A. K. SJKRI, J.]

first floor. Property of her fllther-in-law was joint with his brother. She A
was not aware whether t~e.Y1as a brawl on May 28, 2012 between
her father-in-law and the f'l)her. of the respondent. She was not aware
f whether the matter .went to the Poiice ~nd the proceedings were still
. pending before the Sub-Divisional Magi~are, Churah. She has admitted
in her cross-examination that there were Z0-25 persons in the joint family
j of her in-laws, who resided together in the same house at Aruwan. Her
mother-in-law also resided on the ground floor. All the rooms on the
B

I ground floor were occupkd by other family members. She had brought
her children after two months when they had gone to avail winter vacation
in the month of December 2009. ,
I 0. Statement of the prosecutrix (PW-2) was recorded in-camera. c
The trial court, after putting five questions to her, was satisfied that she
was a competent witness. Accord1ng to her, her native place is Aruwan.
Her grandparents were residinglthlre in a joint family. Three years back,
during winter vacation, she w!IS ~t the place of her grandparents. Her
mother had taken her. She waf playing with her younger brother and D
younger cousin when the respondent, who is her uncle, called her to the
· room on the first floor. She responded to his call. On reaching the room,
he bolted the door from inside and made her lie on the bed. He gagged
her mouth. He stripped off her salwar from her one leg and had put off
his trousers. He laid on hi:'r and thrust his penis inside her vagina and
thereafter she fell unconscious. When she regained consciousness, she E
found that there was no one in the room. The respondent had criminally
intimidated her not to disclose this incident to anyone, otherwise she
would be killed. After I 0-15 days again, the respondent took her to the
same room and had sexual intercourse with her. Thereafter, she returned
to D'alhousie. After two months"l!gain, she visited her grandparents' home F
on seven days vacation. During her visit, the respondent again took her
forcibly to his room where he had sexual intercourse with her. The
respondent had again intimidated her not to disclose this act to anyone.
After a lapse of 2-3 months again, when she visited her grandparents,
the respondent called her but she did not respond and slipped away.
. ~-·

Thereafter, she went to the hospital at Kakira with her mother when she G
developed severe. stomach ache and while returning from there, she
disclosed to her mother that the respondent bad sexual intercourse with
her on her visit to grandparents place. She was checked up by a lady
doctor. Her statement was recorded at the Police Station, Kihar. She
was medically examined. In her cross-examination, she has deposed
H
246 SUPREME COURT REPORTS [2016] 9 S.C.R.

A that white discharge had commenced 10-15 days prior to her visit to the
hospital at Kakira. Stomach ache started after 1-2 months when the
respondent had sexual intercourse with her. She used to have a lot of
pain in the stomach and often she shared with her mother. She went to
Kakira Hospital on September 03, 2012. Lady doctor had medically
examined her. She did not disclose the incident to her mother after
B
returning home from her grandparents place and only shared the incident
with her while returning from the h;>spital at Kakira. She did not disclose
to her mother about the pain since she was not aware that it was an
offshoot of sexual intercourse. She further stated that her grandparents
are having bedroom on the ground floor. There were total six rooms on
c the ground floor. One room was in possession of her parents on the
ground floor. The other room was given to her youngest uncle, Khem
Raj. There were two rooms on the first floor and in one room, her uncle
Res Raj resided. Second room on the first floor was in possession of her
Papa's uncle. She has admitted that her grandparents have joint family
consisting of20-25 members. She remained confined with the respondent
D in the room during the act of sexual intercourse for about 9-10 minutes.
During sexual intercourse, she had bleeding. Bed sheet had blood stains
where the respondent had committed sexual intercourse. Her salll"ar
was also smeared with blood stains. She had a lot of pain and had also
raised cries but her mouth was gagged by the respondent. She had not
E disclosed before the Police while giving statement that she had fallen
unconscious. She did not recall as to how long she remained unconscious.
The incident had taken place in the morning hours around 8:00 to 9:00
a.m. Female members returned back to the house after one hour of the
incident. She had not disclosed about the incident to anyone since accused
had threatened to kill her. She had also not disclosed to her mother out
F of fear on phone since she was not conversant how to make a call on
the phone. When the respondent took her forcibly to the room, there
was no one in the close vicinity. She screamed but her mouth was gagged.
She had two real uncles. The respondent was the son of her grandfather's
brother.
G · 11. PW-8, Dr. Jasbir Kaur, has deposed that on September 03,
2012, the prosecutrix appeared before her as an OPD patient along with
her mother complaining of flatus incontinence (involuntary passage of
gas). On her vaginal examination, it was found that hymen was ruptured
and her external anal sphincter was also tom. In the opinion of PW-8,
H the prosecutrix must have been sexually assauled forcibly and since her
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 247
SUNNY [A. K. SIKRI, J.]

anal sphincters were also not functioning properly, she might have been A
sodomised. She issued OPD Slip (Exhibit PW-8/A). In her cross-
examination, PW-8 admitted that in the said OPD Slip, parentage and
residence proof of the patient was not mentioned. She has also admitted
that there was over-writing with regard to date on the OPD Slip.
According to her, this over-writing could be done by the person who
issued the said slip. She has admitted that she had not given history with B
regard to internal examination of the patient in the OPD Slip.
12. PW-9, Dr. Arti Sharma, has also examined the prosecutrix.
She has not noticed any injury marks on the whole body and private
parts ofthe prosecutrix. She noticed that hymen was tom, vagina admitted
two fingers and the prosecutrix had been subjected to sexual intercourse. c
It was not possible to say when the said incident was committed. She
issued MLC, which is marked as Exhibit PW-9/B.
13. We may also mention at this stage that PW-3 proved the date
of birth of the prosecutrix as April 21, 2000, as per the Birth and Death
Register. This fact is not disputed. Likewise, PW-7 Dr. Ajay Nath had D
examined the respondent and in his opinion the respondent was capable
of performing sexual intercourse. This fact is also not disputed by the
respondent. Relationship of parties is also not in dispute, i.e., the
respondent is the son of prosecutrix's grandfather's brother. In this
manner, prosecutrix is the niece of the respondent. It is also not in E
dispute that the respondent was living in the same house where the
grandfather of prosecutrix was staying. Insofar as the respondent is
concerned, his statement was recorded under Section 313 of the Cr.P.C.
wherein he deposed that he was falsely implicated because of some
family dispute over the property.
F
14. The trial court, after analysing the evidence, found that there
were few contradictions in the statement of PW-1 and her daughter
PW-2 with regard to the period of stomach ache and the duration for
which she was on medication by the local doctor/private chemist.
However, in the opinion of the Sessions Court, these were very minor
discrepancies. The Sessions Court noted that the prosecutrix was only G
nine years old child when the incident happened and she was only twelve
years of age when she deposed in the Court and, therefore, it could not
be expected of her to report each and every fact by giving minute details.
The trial court further observed that both the witnesses withstood the
test of credibility as even after undergoing detailed cross-examination
H
248 SUPREME COURT REPORTS [2016] 9 S.C.R.

A their depositions on yital aspects remained firm and could not be shaken.
15. The. main argument advanced by the defence before the trial
court was that it was a case of inordinate delay where reporting to the
Police was three years after the incident. The trial court, however, was
not convinced by this argument. In the judgment given by the trial court,
B detailed reasons are given, which will be discussed at the appropriate
stage by us, as to how, in the given circumstances, the prosecution was
able to explain the delay. Taking aid of various pronouncements of this
Court on this aspect, the trial court concluded that the said delay had not
dented the case of the prosecution. Other argument of the defence that
PW-I, mother of the prosecutrix, had filed false complaint to implicate
c the respondent on account of family feud was also not found to be
convincing.
16. In the ultimate analysis, the trial court believed the statement
of the prosecutrix as true since it was supported by medical evidence on
record. It was found to be trustworthy and not shrouded with any doubt.
D The trial court pointed out that the statement of PW-8 clearly suggested
that the prosecutrix was forcefully raped by the respondent and as a
result of that her hymen was ruptured and her external anal sphincter
was also torn. Even internal sphincter was not continence. She found
that anal sphincter of the prosecutrix was not functioning properly. In
E the opinion of PW-8, on account of injury to the prosecutrix's anal
sphincter, she might be a sufferer throughout her life.
17. Another argument of the defence before the trial court was
that it was impossible that such an incident would have occurred in the
house where so many family members lived. In such circumstances, it
could not be believed that the respondent would have taken the
F
prosecutrix to the room on the first floor and committed sexual intercourse.
This argument was also brushed aside by the trial court pointing out that,
in her cross-examination, the prosecutrix has stated that the incident had
taken place in the morning hours, around 8:00 a.m. to 9:00 a.m. Female
members of the family returned back to the house after one hour of the
G incident. The prosecutrix had stated that she had not disclosed about the
incident to anyone since the respondent had threatened to kill her and
also did not disclose to her mother on phone, out of fear. She was not
conversant how to make a call on phone. The Sessions Court found that
the testimony of the prosecutrix appeared to be true. It could not have
been expected of a child of tender age to narrate the incident or share
H
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 249
SUNNY [A. K. SlKRl, J.]

the happening with her to anyone when she had been put under fear by A
the accused. Even she could not disclose this incident to her mother.
Her testimony that she did not disclose to her mother out of fear on
phone appeared probable to the Session Court, keeping in view her
tender age.
18. Concluding that the deposition of the prosecutrix was found to B
be credible and trustworthy, which was sufficient to convict the accused
person even in the absence of any corroboration, insofar as the present
case is concerned, the medical evidence supported her version. On this
basis, conviction of the respondent was recorded under Sections 376(2)(t)
and 506 of the lPC.
c
19. Before the High Court, the respondent made same arguments
in order to shake the case of the prosecution and argued that the trial
court did not consider these arguments in the right perspective. The
High Court found the arguments of the defence as convincing, inasmuch
as, according to the High Court:
D
(a) FIR was lodged much belatedly, which was fatal to the
prosecution when the delay was not satisfactorily explained;
(b) there were 20-25 persons in the joint family who resided
together in the same house in Aruwan. As per the prosecution,
since the incident happened at 8:00 a.m. to 9:00 a.m., it was not
believable that where there is a joint family consisting of 20-25 E
members, such an incident could take place;
(c) even if some of the members of the family were not found to
be in the house at the time of incident, the prosecutrix was
supposed to disclose this incident to the other members of the
family, including her mother, when she met her; F
(d) according to the prosecutrix, her salll'ar was smeared with
blood stains and it could not have gone unnoticed;
( e) in a house of ten rooms occupied by 20-25 persons, if the
prosecutrix had screamed, it would not have gone unnoticed;
(t) there was a dispute between the parties, which was apparent G
from the contents of Exhibit DW-1/A, which could have been the
reason for lodging the complaint belatedly on September 06, 2012;
(g) even when the incident was narrated by the prosecutrix to her
mother on September 03, 2012, the complaint was lodged three
days thereafter, i.e. on September 06, 2012, which was also fatal.
H
250 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 20. Learned counsel for the State made an endeavour to tear
through the reasoning given by the High Court with the submission that
these were hardly any reasons to give benefit of doubt to the respondent
having regard to the impeccable testimony of the prosecutrix herself,
more particularly when that is to be read along with the deposition of
PW-I (her mother) as well as medical evidence. He submitted that the
B High Court did not go in the right direction while analysing the evidence
on record, inasmuch as, it totally ignored the principles on which such
depositions are to be analysed and adjudged. It was also argued that the
delay in reporting the matter was satisfactorily explained, which was
accepted by the trial court on sound reasoning. He also submitted that
c presence of other persons in a joint family in such a big house was
totally inconsequential which was given undue importance by the High
Court. It was also submitted by him that the alleged dispute between
the parties could not have been a reason for the mother of the prosecutrix
to make a false FIR thereby exposing her minor daughter of tender age
in a charge of th is kind and putting her future in jeopardy. He read out
D from the reasons given by the trial court discussing all these aspects in
detail and submitted that the High Court, in the impugned judgment, has
not at all stated as to how the trial court went wrong in its analysis of the
evidence.
2 I. Learned counsel for the respondent, on the other hand,
E submitted that the reasons given by the High Court were strong and
formidable reasons which are sufficient to put considerable dent on the
veracity of the prosecution case and, therefore, the High Court rightly
held that the charge against the respondent could not be proved beyond
reasonable doubt thereby rightly giving the benefit of doubt to the
F respondent. He also relied upon the discussion contained in the judgment
of the High Court and the reasons given by the High Court in quashing
the verdict of conviction against the respondent.
22. We have already narrated the case of the prosecution as well
as the testimonies of the prosecutrix, her mother PW-I and the medical
G evidence. After going through the evidence of the prosecutrix and her
mother, we find that apart from some minor and trivial discrepancies
with regard to the period of stomach ache or about the medicine taken
from the local doctor/chemist, insofar as material particulars of the incident
are concerned, version of both these witnesses is in sync with each
other. Here is a case where charge of sexual assault on a girl aged nine
H years is leveled. More pertinently, this is to be seen in the context that
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 251
SUNNY [A. K. SIKRI, J.]

the respondent, who is accused of the crime, is the uncle in relation. A
Entire matter has to be examined in this perspective taking into
consideration the realities of life that prevail in Indian social milieu.
23. As per the prosecutrix, she was called by the respondent to
his room, which is on the first floor of the house. Unmindful of what
could be the motive of an uncle to call her, she obliged as a dutiful child. B
However, according to the prosecution, unfortunate incident happened.
It happened with a nine year old child who was totally unaware of the
catastrophe which had befallen her. Her mental faculties had not
developed fully; she was in the age ofinnocence; unaware of the dreadful
consequences. Further, at the time when she was being sexually assaulted,
her mouth was gagged so that she was not able to scream and after the c
incident she was threatened not to disclose this incident to anybody. In
fact, she kept mum out of this fear. It is quite understandable that a nine
year old child, after undergoing traumatic experience and inflicted with
threats, would be frozen with fear and she could not find voice to speak
against her uncle. In cases of incestuous abuse, more often, silence is D
built into the abuse. Incident came to light and tragedy struck on the
prosecutrix only when her mother noticed that she was continuously
suffering from stomach ache and was, therefore, taken to a Gynecologist
for her treatment. But for the above, matter may not have come to light.
It is only after she was examined by Dr. Jasbir Kaur (PW-8), who had
medically examined and formed the opinion that the prosecutrix had E
been sexually assaulted forcibly about 2-3 years ago, since her hymen
was ruptured and her external and internal sphincters were also torn,
that PW-I queried the prosecutrix and she revealed the incident, hitherto
hidden by her from the entire world out offear, not only as a result of the
threats extended by the respondent but for varied other reasons.
F
24. When the matter is examined in the aforesaid perspective,
which in the opinion of this Court is the right perspective, reluctance on
the part of the prosecutrix in not narrating the incident to anybody for a
period of three years and not sharing the same event with her mother, is
clearly understandable. We would like to extract the following passage
from the judgment of this Court in Tu/s/1idtts Kttnolkttr v. Stttte ofGott 1: G
"5. We shall first deal with the question of delay. The unusual
circumstances satisfactorily explained the delay in lodging of the
first information report. In any event, delay per se is not a mitigating
circumstance for the accused when accusations of rape are
1
(2003) s sec 590 H
252 SUPREME COURT REPORTS [2016) 9 S.C.R.

A involved. Delay in lodging the first information report cannot be
used as a ritualistic formula for discarding the prosecution case
and doubting its authenticity. It only puts the court on guard to
search for and consider if any explanation has been offered for
the delay. Once it is offered, the court is to only see whether it is
satisfactory or not. In case ifthe prosecution fails to satisfactorily
B explain the delay and there is possibility of embellishment or
exaggeration in the prosecution version on account of such delay,
it is a relevant factor. On the other hand, satisfactory explanation
of the delay is weighty enough to reject the plea of false implication
or vulnerability of the prosecution case. As the factual scenario
c shows, the victim was totally unaware of the catastrophe which
had befallen her. That being so, the mere delay in lodging of the
first information report does not in any way render the prosecution
version brittle."
25. In K"rnel Si11glt v. St<tte of M<ull1y" Pr"deslt\ this Court
observed that:·
D
"7 ... The submission overlooks the fact that in India women are
slow and hesitantto complain of such assaults and ifthe prosecutrix
happens to be a married person she will not do anything without
informing her husband. Merely because the complaint was lodged
less than promptly does not raise the inference that the complaint
E was false. The reluctance to go to the police is because of society's
attitude towards such women; it casts doubt and shame upon her
rather than comfort and sympathise with her. Therefore, delay in
lodging complaints in such cases does not necessarily indicate
that her version is false ... "
F 26. Likewise, in St"te of Pu11j"b v. Gurmit Si11glt & Ors. 3, it
was observed:
"8 ... The courts cannot overlook the fact that in sexual offences
delay in the lodging of the FIR can be due to variety of reasons
particularly the reluctance ofthe prosecutrix or her family members
to go to the police and complain about the incident which concerns
G the reputation of the prosecutrix and the honour of her family. It is
only after giving it a cool thoughtthat a complaint of sexual offence
is generally lodged ... "
27. Notwithstanding the fact that the trial court accepted the
2
(1995) 5 sec 518
H ' (1996) 2 sec 384
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR @ 253
SUNNY [A. K. SIKRI, J.]

explanation for delay as satisfactory by giving detailed reasons, we are A
dismayed to find that the High Court has been swayed py this delay in
reporting the matter with omnibus statement that it is not satisfactorily
explained without even an iota of discussion on the explanation that was
offered by the prosecution in the form of testimonies of PW-I and PW-2.
28. It seems that the main reason which has influenced the mind B
of the High Court is that there were 20-25 persons in the joint family and
some of them were bound to be in the house at the time of the incident
and, therefore, it was not possible that such an incident would go unnoticed
if it had actually happened. This is coupled with the fact that the salwar
of the prosecutrix was smeared with blood stains, which could not have
gone unnoticed. Here again, the High Court has gone by the aforesaid c
two facts without going into the details and the discussion is totally
perfunctory. The aforesaid two facts are simply noted and on that basis
the prosecution version is discarded as unbelievable. These may have
been relevant factors only if there was absence of any explanation by
the prosecution on these aspects. In the first instance, it may be noticed D
that the room of the respondent was on the first floor where the prosecutrix
was called. Defence has nowhere stated that on the first floor there
were rooms adjacent to the room of the respondent and there were
other members of the family. What is smoke-screened in the process is
that in the cross-examination the prosecutrix categorically stated that
the incident had taken place in the morning hours around 8:00 a.m. to E
9:00 a.m. and the female members returned back to the house after one
hour of the incident. It also came in her cross-examination that during
the act of sexual intercourse, she remained confined in the room for
about 9-10 minutes. She raised screams but her mouth was gagged.
Her confinement by the respondent on the first floor for about 9-10 F
minutes was insignificant and would not have been taken note of by the
other family members who might have been present there. Further,
nobody could notice as her screams were doused by gagging her mouth.
Her statement also suggests that she had fallen unconscious and on
regaining consciousness she did not find anyone in the room. After she
came out of the room, she obviously refrained from disclosing the incident G
to anyone because of the threat extended to her by the respondent. In
such a situation, obviously the prosecutrix had ensured that her sahrar
which was smeared with blood stains is not seen by any person.
29. Likewise, delay of three days in lodging the FIR by PW-I,
after eliciting the information from her daughter PW-2, is inconsequential H
254 SUPREME COURT REPORTS [2016] 9 S.C.R.

A in the facts of this case. It is not to be forgotten that the person accused
by the prosecutrix was none else than her Uncle. It is not easy to lodge
a complaint of this nature exposing prosecutrix to the risk of social stigma
which unfortunately still prevails in our society. A decision to lodge FIR
becomes more difficult and hard when accused happens to be a family
member. In fact, incestuous abuse is still regarded as a taboo to be
B
discussed in pubic. This reticence hurts the victims or other family
members who struggle to report. After all, in such a situation, not only
the honour of the family is at stake, it may antagonize other relations as
well, as in the first blush, such other members of family would not take
charge of this nature very kindly. We also find that the so-called dispute
c between the parties was so trivial in nature that it would not have
prompted PW-I to lodge a false complaint, putting her minor daughter of
impressionable age to risks of serious kinds, as pointed out above.
30. By no means, it is suggested that whenever such charge of
rape is made, where the victim is a child, it has to be treated as a gospel
o truth and the accused person has to be convicted. We have already
discussed above the manner in which testimony of the prosecutrix is to
be examined and analysed in order to find out the truth therein and to
ensure that deposition of the victim is trustworthy. At the same time,
after taking all due precautions which are necessary, when it is found
that the prosecution version is worth believing, the case is to be dealt
E with all sensitivity that is needed in such cases. In such a situation one
has to take stock of the realities of life as well. Various studies show that
in more than 80% cases of such abuses, perpetrators have acquaintance
with the victims who are not strangers. The danger is more within than
outside. Most of the time, acquaintance rapes, when the culprit is a
F family member, are not even reported for various reasons, not difficult
to fathom. The strongest among those is the fear of attracting social
stigma. Another deterring factor which many times prevent such victims
or their families to lodge a complaint is that they find whole process of
criminal justice system extremely intimidating coupled with absence of
victim protection mechanism. Therefore, time is ripe to bring about
G significant reforms in the criminal justice system as well. Equally, there
is also a dire need to have a survivor centric approach towards victims
ofsexual violence, particularly, the children, keeping in view the traumatic
long lasting effects on such victims.
31. After thorough analysis of all relevant and attendant factors,
H we are of the opinion that none of the grounds, on which the High Court
STATE OF HIMACHAL PRADESH v. SANJAY KUMAR@ 255
SUNNY [A. K. SIKRI, J.]

has cleared the respondent, has any merit. By now it is well settled that A
the testimony of a victim in cases of sexual offences is vital and unless
there are compelling reasons which necessitate looking for corroboration
of a statement, the courts should find no difficulty to act on the testimony
of the victim ofa sexual assault alone to convict the accused. No doubt.
her testimony has to inspire confidence. Seeking corroboration to a
B
statement before relying upon the same as a rule, in such cases, would
literally amount to adding insultto injury. The deposition of the prosecutrix
has, thus, to be taken as a whole. Needless to reiterate that the victim of
rape is not an accomplice and her evidence can be acted upon without
corroboration. She stands at a higher pedestal than an injured witness
does. If the court finds it difficult to accept her version, it may seek c
corroboration from some evidence which lends assurance to her version.
To insist on corroboration, except in the rarest of rare cases, is to equate
one who is a victim of the lust of another with an accomplice to a crime
and thereby insult womanhood. It would be adding insult to injury to tell
a woman that her claim of rape will not be bdievcd unless it is
corroborated in material particulars, as in the case of an accomplice to a D
crime. 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? The plea about lack
of corroboration has no substance {See Bllupimler Slutrnu1 v. Stt1te of
l/imaclwl Pradesfl-1}. Notwithstanding this legal position, in the instant E
case, we even find enough corroborative material as well, which is
discussed hereinabove.
32. From the evaluation of the prosecution material discussed
above, it is abundantly clear that the evidence brought on record contains
positive proot~ credible sequence of events and factual truth linking the F
respondent with rape of the prosecutrix and had criminally intimidated
her. Hence, respondent is found to be guilty for offence under Sections
376(2)(f) and 506 oflPC since he committed rape with a minor girl aged
nine years. It is pertinent to point out at this stage that at the time of
deposition of the prosecutrix in the Court, the trial court had an opportunity
to sec her demeanor. On that basis, the trial court in the judgment had G
commented as under:
"66. The statement of prosecutrix inspires confidence even though
a child witness since while deposing in the Court her demeanor
appeared like that of competent witness and no likelihood of tutor.
• (2003) s sec 55 J H
256 SUPREME COURT REPORTS [2016) 9 S.C.R.

A I find her testimony reliable since she was found competent to
depose after preliminary inquiry as she understood questions and
to give rational answers. I have gone through her statement with
extra caution and full of circumspection. Therefore, I have no
hesitation to believe her statement."

B 33. At this juncture, we would also like to reproduce the following
passage from the judgment of this Court in State of Rajastlum v. Om
Prakaslz 5 :
"19. Child rape cases are cases of perverse lust for sex where
even innocent children are not spared in pursuit of sexual pleasure.·
There cannot be anything more obscene than this. It is a crime
c against humanity. Many such cases are not even brought to light
because of the social stigma attached thereto. According to some
surveys, there has been a steep rise in child rape cases. Children
need special care and protection. In such cases, responsibility on
the shoulders of the courts is more onerous so as to provide proper
D legal protection to these children. Their physical and mental
immobility call for such protection. Children are the natural resource
of our country. They are the country's future. Hope of tomorrow
rests on them. In our country, a girl child is in a very vulnerable
position and one of the modes of her exploitation is rape besides
other modes of sexual abuse. These factors point towards a
E different approach required to be adopted. The overturning of a
well-considered and well-analysed judgment of the trial court on
grounds like non-examination of other witnesses, when the case
against the respondent otherwise stood established beyond any
reasonable doubt was not called for. The minor contradiction of
F recovery of one or two underwears was wholly insignificant."
34. In the result, we allow this appeal, set aside the judgment of
the High Court and restore the conviction recorded by the trial court.
The respondent shall undergo rigorous imprisonment for a period of twelve
years for the offence under Section 376(2)(t) and shall also pay a fine of
..i5o,ooo, failing which he shall undergo further sentence of one year.
G He is also convicted for committing offence under Section 506 !PC for
which he is sentenced to rigorous imprisonment for two years. Both the
sentences shall run concurrently. The respondent be taken into custody
forthwith to serve out his remaining sentence.
Dcvika Gujral Appeal allowed.
H ' (2002) s sec 745