Holding

The conviction under Section 376 IPC stands; the child victim’s sole testimony is sufficient, the explained delay does not vitiate the case, and the non‑examination of other witnesses or lack of injuries does not create reasonable doubt.

Summary

In 1989 an eight‑year‑old girl was allegedly raped by 18‑year‑old Om Prakash in a Rajasthan village. The victim, her parents and a doctor testified; the FIR was lodged about 26 hours later due to lack of transport. The trial court convicted Om Prakash under Section 376 IPC and sentenced him to seven years’ rigorous imprisonment. The Rajasthan High Court acquitted him, holding that the delay in filing the FIR, the non‑examination of independent witnesses and the absence of medical proof of injury created reasonable doubt. The Supreme Court allowed the State’s appeal, explaining that the delay was justified, that the victim’s sole testimony is sufficient in child‑rape cases, that non‑examination of other witnesses does not defeat the prosecution, and that injuries are not essential to prove rape. Consequently, the conviction and sentence were restored.

Issues considered

The delay in lodging the FIR and whether it creates a presumption of embellishment.
Whether a conviction for rape of a minor can rest on the sole testimony of the child victim without corroboration.
The effect of non‑examination of independent witnesses and of a medical doctor on the prosecution case.
Whether the absence of external injuries negates a charge of rape.
Whether the accused is entitled to leniency on account of his age at the time of the offence and time already served.

Legislation cited

Subjects

child rapeSection 376 IPCsole testimonydelay in FIRmedical evidencenon‑examination of witnessessentencingchild protectionevidence act

Judgment

STATE OF RAJASTHAN A
v.
OM PRAKASH

MAY 3,2002

[Y.K. SABHAR WAL AND B.P. SINGH, JJ.] B

Penal Code: Section 376:

Rape of a minor girl-Conviction of accused-Held, the cases involving
sexual molestation and assault requires a sensitive approach different from C
the approach the Court may adopt in dealing with normal offence-Sole
testimony of rape victim is sufficient to convict the accused

Evidence Act :

Non-examination of independent witnesses-Non-examination of Lady D
doctor who conducted medical examination of the victim-Effect of-Held,
ideally doctor should be examined but non-examination does not destroy the

- prosecution case which otherwise stands proved.

Rape-Injury on the victim-Proving of-Held, injuries arenot always
a sine qua non to prove a charge of rape of a girl child.
E

Child witness-Evidence-Evaluation of-Court must find adequate
corroboration before it is relied on.

Sentencing-Accused in rape case--8ympathetic consideration on the F.
ground that accused had attained maturity and had already served part of
sentence-Held, accused played with the life of the girl child-Hence does
not deserve any sympathy.

According to prosecution, the accused a youth aged 18 years, committed
rape of the prosecutrix when she went into the house of th~ accused to take G
butter milk therefrom, an F.I.R. was registered on the next day as the victim
was unconscious, her father and uncle came back to their house only in the
evening and no mode of conveyance was available by that time to go to police
station. Medical examination of the victim took place and 14 witnesses including
the prosecutrix, her parents and others had been examined by the prosecution.
753 I-I
754 SUPREME COURT REPORTS [2002] 3 S.C.R.

A Trial Court relied upon their testimony and convicted the accused of the offence
ofrape and sentenced him to seven years imprisonment In appeal, High Court
reversed the Judgment of Trial Court giving benefit of doubt to the accused.
Hence this appeal by the State.

It was contended for the respondent that delay in lodging the F.I.R.
B assumed importance and resulted in the embellishments; that if there was any
forcible sexual interreu~~~. it would have resulted in some injuries upon the
prosecutrix; and that since the incident took place about 13 years back besides
the accused had already undergone 3 years of sentence, a sympathetic view }·

may be taken.
c Allowing the appeal, the Court

HELD : I. The real question in the present case is about the explanation
for the delay. It is not at all unnatural for the family members to await the
arrival of the elders in the family when the offence of this nature is committed,
D before taking a decision to lodge a report with the police. The reputation and
prestige of the family and the career and life of a young child is involved in
such cases. Therefore, the presence of the brother of the prosecutrix at home ~

is not of much consequence. It has been established that the father of the girl
along with his brother came back to their house in the evening. The girl was
....
unconscious during the day. Mother of the prosecutrix told her husband as to
E
what had happened to their daughter. The police station was at a distance of 15
Kms. According to the testimony of Parents of victims, no mode of conveyance
was available. The police was reported the next day morning and FIR was
recorded at 11.30 a.m. The delay in reporting the matter to the police has thus
been fully explained. (759-D-E-F)
F
·~
Thulia Kali v. The State of Tamil Nadu, AIR (1973) SC 501, referred to.

2.1. Conviction for offence under Section 376 IPC can be based on the
sole testimony of a rape victim is a well settled proposition. The evidence has
G been found to be trustworthy, convincing and reliable. The High Court seems
to have overlooked that it had been established on record that at the time of the
incident accused was alone at home. When such an act is done, the natural
tendency is that victim does not talk about it to others, and to the extent possible
hide it. (760-D-E]

H 2.2. High Court has clearly committed a serious illegality in assuming
STATE OF RAJASTHAN v. OM PRAKASH 755
that in natural course of events if rape had been committed, the young girl and A
her mother would have shouted so as to collect others and they would have
visited her house. The prosecutrix was unconscious. There..was no question of
·prosecutrix shouting as assumed by the High Court. Too much was made by
the High Court on account of non-examination of persons other than the family
members. The aspect of non-examination was given undue importance without B
having regard to the contextual facts, conviction could not be set aside for non-

- examination of independent witnesses. The cases involving sexual molestation
and assault requfre a different approach-a sensitive approach and not an
approach which a Court may adopt in dealing with a normal offence under penal
laws. (761-E, F, G(
c
State of Maharashtra v. Chandraprakash Kewal Chand Jain, (1990] l
sec 550 and State of HP. v. Gian Chand, (2000] l sec 71, relied on.
State of Punjab v. Gurmit Singh and Ors., ( l 996] 2 SCC 384, referred
to.
D
3. On the facts in hand, it cannot be said that the revenge on account of
alleged dispute regarding exchange of land, would have been taken by the father
of the prosecutrix by foisting on the accused a false case of rape involving his
young daughter particularly in the setting of a village environment.
(761-H; 762-A I E

4. The evidence of a child witness is required to be evaluated car.efully
as the child may be swayed by what others may tell him or her as the child is
an easy prey to tutoring. Wisdom requires that the evidence of child witness
must find adequate corroboration before it is relied on. (762-E]

State of UP. v. As/wk Dixit and Anr., Jt. (2000) 2 SC 107, relied on. F

5. Injuries are not always sine qua non to prove a charge of rape. Let it
not be forgotten that it is a case of rape on a girl child aged eight years and
not on a grown up woman. Child rape cases are cases of perverse lust for sex
where even innocent children are not spared in pursuit of the sexual pleasure. G
There cannot be anything more obscene than this. It is a crime against
humanity. Many such cases are not even brought to light because of the social
stigma attached thereto. Children need special care and protection. In such
case, responsibility on the shoulders of the Courts is more onerous so as to
provide proper legal protection. Children are the natural resource of our
country. They are country' future. Hope of tomorrow rests on them. In this H
756 SUPREME COURT REPORTS (2002] 3 S.C.R.

A 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 different approach required to be adopted. The overturning of
a well considered and well analyzed judgment of the trial Court on the gEounds
like non-examination of other witnesses, when the case against the respondent
B otherwise stood established beyond any reasonable doubt, was not called for.
The non-examination of th"' lady Medical Officer who gave her opinion that
rape on the prosee~. ;"' could not be ruled out, is not fatal to the prosecution
case. [762-B-G-H; 763-A-B-C]

Joseph slo Kooveli Paulo v. State of Kera/a, JT (2000) 6 SC 195,
C distinguished.

6. Having played with the life of a child, the respondent does not deserve
any leniency and for him sympathy on the ground sought for will be wholly
uncalled for. The respondent deserves to undergo the remaining part of the
sentence of7 years rigorous imprisonment awarded by the Additional District
D and Sessions Judge. [767-E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1975
of 1996.

From the Judgment and Order dated 14.11.1995 of the Rajasthan High
E Court in S.B. Crl. A. No. 84 of 1994.

Ms. Sandhya Goswami for the Appellants.

U.N. Bhachawat Alok Bhachawat, Ms. Ruchi and Sushi! Kumar Jain for
the Respondent.
F
The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. It is necessary for the courts to have a sensitive
approach when dealing with cases of child rape. The effect of such a crime
G on the mind of the child is likely to be lifelong. A special safeguard has been
provided for children in the Constitution oflndia in Article 39 which, inter alia,
stipulates that the State shall, in particular, direct its policy towards securing
that the tender age of the children is not abused and the children are given
opportunities and facilities to develop in a healthy manner and in conditions
of freedom and dignity and that the childhood and youth are protected
H against exploitation and against moral and material abandonment. In the
STATE OF RAJASTHAN v. OM PRAKASH [Y.K. SABHARWAL, J.] 757

present case, the victim at the time of occurrence of rape was a child aged A
eight years. The accused was youth aged 18 years. The Additional District
and Sessions Judge found him guilty for offence under Section 376, Indian
Penal Code and imposed rigorous imprisonment for seven years and fine of
Rs. 1,000 and in default of payment of fine to further undergo six months'
rigorous imprisonment. The High Court by the impugned judgment dated 14th B
November, 1995 giving to the accused the benefit of doubt acquitted him. The
State is in appeal on grant of special leave.

-<. The house of the accused is quite close to that of the prosecutrix. The
incident of rape is said to have taken place on 19th March, 1989 in a village.
The FIR was registered on 20th March, 1989. The medical examination of the C
prosecutrix also took place on 20th March, 1989. The prosecution to bring
home the charge against the accused examined 14 witnesses including the
parents of the prosecutrix, her brother, aunt, four doctors, police officials
besides the prosecutrix. The respondent-accused was held guilty of the offence •
by the trial court primarily relying upon the testimony of the father of
prosecutrix (PW-1), mother (PW-2), the prosecutrix (PW-5) and Dr. Harsh D
Chand Jain (PW-11).

- The testimony of PW-2 is that her daughter had gone to the house of
Sita Singh to take therefrom butter milk. Accused is the son of Sita Singh.
When she did not return for a long time, PW-2 went to see her in the said E
house. When she went to that house, the d?or was closed which she pressed
open. There she found that her daughter was lying naked on a cot and the
accused was lying over her penetrating his penis into her vagina. On seeing
this she shouted. Whereupon leaving her daughter, the accused ran away.
She found her daughter totally unconscious. She lifted her and brought her
back home. At that time, husband and brother-in-law of PW-2 had gone to F
another village. Her daughter gained consciousness at the time of sunset. She
deposed that Om Prakash, the respondent, was alone at home. Next day a
report was lodged with the police. She also deposed in her cross-examination
that earlier too her daughter used to bring butter milk from the house of Sita
Singh.
G
PW-1, father of the prosecutrix, deposed that he had gone with his
brother to his relatives in village Bateri and came back in the evening at about
7 O' clock when his wife told him as to what Om Prakash had done to their
daughter. He did not go to the police station at night as there was no means
of conveyance and reached the police station at I 0/11 a.m. the next day and H
758 SUPREME COURT REPORTS [2002] 3 S.C.R.

A lodged the report. The police station is about 15 kms. away from their village.
PW-4 is the wife of brother of PW-I. Her testimony is that she saw
PW-2 coming weeping and taking prosecutrix in her lap. She also deposed
that her husband and younger brother-in-law had gone to the relatives in
village Bateri on that date. She has supported the version given by PW-2.
B
PW-5 is the prosecutrix. Being a child witness, the learned Additional
District and Sessions Judge before administering her oath asked general
questions so as to satisfy that she is competent to answer the questions and
take oath. Her statement in court was recorded about four years after the date
of the incident. Her deposition was that she had gone to the house of Om
C Prakash to bring butter milk on that date. At that time no other person was
at his house. Om Prakash closed the door and asked her to come inside and
he will put butter milk in the utensil; he incited her and carried her in room;
took out her under garments, inserted cloth in her mouth and widened her
• both legs and put his body on her and penetrated his penis into her vagina
D as a result whereof vagina started bleeding and she became unconscious.

PW-11 is Dr. Harsh Chand Jain. His testimony is that, on 20th March,

E
1989 he was on duty in General Hospital, Alwar. On the request of the S.H.O.
he examined prosecutrix. Externally there was no injury on her body but on
the internal parts of both thighs and at the outer part of the left foot there
were signs of blood. For internal examination she was referred to Family
-
Incharge Hospital. The injury report exhibit P8 was in his handwriting. In Ex.
P-8, the reports of Dr. Pushpa Gupta and Dr. V.P. Agarwal had been incorporated.
PW-11 stated that "In my opinion, the intercourse was done with the girl
i.e. the possibility of doing the intercourse cannot be ruled out". The tip of
F the finger in the who!e of her uterus was passing easily. PW-11 deposed that
"According to the opinion of the lady doctor, the opinion of the pathologist
and my opinion of the examination,.something was penetrated in her vagina."
(Emphasis has been supplied by us). The only cross-examination of the
witness was that "The main examination report by Doctor Rupa Gupta and
Doctor V.P. Agarwal is not there before me. The semin?.i stains were not
G present on the clothes. After the sexual contact, the vagina remains in tact."

The aforesaid in brief is the evidence which resulted in judgment of
conviction by the trial court and acquittal by the High Court.

There was delay of nearly 26 hours in lodging the FIR. The offence is
H alleged to have taken place at about 9 a.m. The FIR was registered at about
STA TE OF RAJASTHAN v. OM PRAKASH [Y.K. SABHARWAL, J.] 759

11.30 a.m. on the next day. It was contended by Mr. Bachawat, learned A
counsel for the respondent, that this delay had assumed importance and was
fatal particularly when the brother of the prosecutrix, namely, Mam Raj (PW-
6) was admittedly at the house. The delay, according to the counsel, has
resulted in embellishments. Reliance has been placed on the decision in the
case of Thulia Kali v. The State of Tamil Nadu, AIR (1973] SC 501 holding B
that the first information report in a criminal case is extremely vital and

- valuable piece of evidence_ for the purpose of corroborating the oral evidence
adduced at the trial. The object of insisting upon prompt lodging of the report
to the police in respect of commission of an offence is to obtain early
infonnation regarding the circumstances in which the crime was committed,
the names of the actual culprits and the part played by them as well as the C
names of eye witnesses present at the scene of occurrence. Delay in lodging
the first information report quite often results in embellishment which is a
creature of afterthought. On account of delay, the report not only gets bereft
of the advantage of spontaneity, danger creeps in of the introduction of
coloured version, exaggerated account or concocted story as a result of
deliberation and consultation. There can be no dispute about these principles D
relied upon by Mr. Bachawat but the real question in the present case is about
the explanation for the delay. It is not at all unnatural for the family members
to await the arrival of the elders in the family when the offence of this nature
is committed before taking a decision to lodge a report with the police. The
reputation and prestige of the family and the career and life of a young child E
is involved in such cases. Therefore, the presence of the brother of the
prosecutrix at home is not of much consequence. It has been established that
the father of the girl along with his brother came back to their house at 7
o'clock in the evening. The girl was unconscious during the day. PW-2 told
her husband as to what had happened to their daughter. The police station
was at the distance of I 5 kms. According to the testimony of PW-I no mode F
of conveyance was available. The police was reported the next day morning
and FIR was recorded at 11.30 a.m. The delay in reporting the matter to the
police has thus been fully explained.

A contention was also urged on behalf of the accused before the High
Court that his age was 15 years and not I 8 years at the time of incident. The G
basis of this contention was an affidavit of the mother of the accused and
certain school certificates. Both the courts relying upon the evidence of Dr.
Raj Kumar Misra, PW-9, held otherwise and came to the conclusion that the
accused was capable of doing intercourse.
H
760 SUPREME COURT REPORTS [2002] 3 S.C.R.

A The main reasons which prevailed with the High Court in reversing the
conviction were two. First, the non-examination of other independent witnesses
and second the rejection of medical evidence, i.e., testimony of Dr. Harsh
Chand Jain (PW-I I).

As to non examination of other witnesses, the High Court has noticed
B that the incident had taken place in the environment of the village where there
are other residential houses; the house of the prosecutrix from where the
incident took place is 2-3 houses away and in the house of the accused his
other brothers and sisters-in-law also live. The testimony of PW-2 is that
seeing her the accused ran away. The High Court has held that in the light
-
C of these facts it was unnatural that PW-2 and PW-5 would not have shouted
and others might not have gathered at the place of incidence and astonishingly
except the family members no other witness has come forward to support the
case of the prosecution. The High Court has also described as unnatural the
statement of the mother that except her husband's brother's wife PW-4, not
a single person of the village had come to her house. The approach of the
D High Court can be best described in the words of the High Court itself as
follows.

"It is n~t acceptable that on committing such type of heinous crime,
not a single person might have come forward to give the statement.
In such type of crime in which an innocent girl is the victim, not only
E the neighbour but other persons can come to give the evidence and
doing such thing by them indicate their natural conduct."
..,..
I
The conviction for offence under Section 376 IPC can be based on the
sole testimony of a rape victim is well settled proposition. In State of Punjab
v. Gurmit Singh and Ors., [I 996] 2 SCC 384, referring to State of Maharashtra
F v. Chandraprakash Kewal Chand Jain, [1990] 1 SCC 550, this Court held that
it must not be overlooked that a woman or a girl subjected to sexual assault
is not an accomplice to the crime but is a victim of another person's lust and
it is improper and undesirable to test her evidence with a certain amount of
suspicion, treating her as if she were an accomplice. It has also been observed
G in the said decision by Dr. Justice A.S. Anand (as His Lordship then was),
speaking for the court, that the inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are factors which the courts
should not overlook. The testimony of the victim in such cases is vital and
unless there are compelling reasons which necessitate looking for corroboration
of her statement, the courts should find no difficulty to act on the testimony
H of a victim of sexual assault alone to convict an accused where her testimony
•
STATE OF RAJASTHAN v. OM PRAKASH [Y.K. SABHARWAL, J.] 761

~
inspires confidence and is found to be reliable. Seeking corroboration of her A
statement before relying upon the same, as a rule, in such cases amounts to
adding insult to injury.

In State of H.P. v. Gian Chand, '[2000] 1 SCC 71 Justice Lahoti speaking
for the Bench observed that the Court has first to assess the trustworthy
intention of the evidence adduced and available on record. If the court finds B
the evidence adduced worthy of being relied on, then the testimony has to
be accepted and acted on though there may be other witnesses available who
• could have been examined but were not examined.

We have scanned and scrutinized very carefully the evidence on record
in particular the evidence of the parents of the prosecutrix, her brother,
c
prosecutrix and PW-11, Dr. Harsh Chand Jain with a view to satisfy our
conscious to find out whether the verdict of conviction of the respondent
that had been rendered by the learned Additional District and Sessions Judge
could, in law, be upset by the High Court. The evidence has been found by
us to be trustworthy, convincing and reliable. The High Court seems to have D
,, overlooked that it had been established on record that at the time of the
incident Om Prakash was alone at home. When such an act is done, the
natural tendency is not to talk about it to others but, to an extent possible,
hide it. There was nothing unnatural for other villagers not visiting the house
of PWs-1 and 2. Being a child witness, we have examined the testimony of
E
PW-5 and that of her mother with utmost care and caution. The High Court
has clearly committed a serious illegality in assuming that in natural course
of events if rape had been committed, the young child girl and her mother
would have shouted so as to collect others and they would have visited her
house. The prosecutrix was unconscious. There was no question of prosecutrix
,... shouting as assumed by the High Court. Too much was made by the High F
Court on account ofnon-examination of persons other than the family members.
The aspect of the non-examination was given undue importance without
having regard to the contextual facts. The cases involving sexual molestation
and assault require a different approach a sensitive approach and not an
approach which a court may adopt in dealing with a normal offence under
G
penal laws. It was also sought to be suggested that there were some disputes
between the accused and the father of the prosecutrix over exchange of some
land and that is the reason for their implicating the accused. There is nothing
r reliable on the record to substantiate that aspect. No such suggestion was
even put in the cross-examination of the father of the prosecutrix. On the facts
in hand, we find it difficult to accept that the revenge on account of alleged H
762 SUPREME COURT REPORTS [2002] 3 S.C.R.

A dispute regarding exchange of land would be taken by the father of the
prosecutrix by foisting on the accused a false case of rape involving his """"'
young daughter particularly in the setting of a village environment. The
conviction could not be set aside for the non-examination of independent
witness.
- _,.

B As to the second reason, we find that the evidence of PW- I 1, Dr.
Harsh Chand Jain, is clear and specific. He was the author of the report. .._
Though ideally Dr. Pushpa Gupta could have been examined or her absence
explained but that does not destroy the prosecution case which otherwise t
stands proved. The High Court was clearly in error in coming to the conclusion
c that in the absence of evidence of Dr. Pushpa Gupta, there was no support
from any medical evidence. PW-I 1 had also examined her. He had referred the
prosecutrix to Dr. Pushpa Gupta. Dr. Pushpa Gupta had reported to PW- I I
who categorically stated that in his opinion on examination something had
been penetrated in the vagina of the prosecutrix and that intercourse was
done with the girl i.e. the possibility of doing the intercourse cannot be ruled
D out. For no valid reason the High Court discarded the evidence of the doctor.
)..
The evidence of a child witness is required to be evaluated carefully as
the child may be swayed by what others may tell him or her as the child is ...........
an easy pray to tutoring. Wisdom requires that the evidence of child witness
must find adequate corroboration before it is relied on State of U.P. v. Ashok t
E Dixit and Anr., JT (2000) 2) SC 107. We have already held that in the present
case we have carefully examined the evidence of the child and the other
evidence. We find the reasons given by the High Court for rejecting the said
evidence wholly unconvincing. It is unfortunate that what to talk of
considering, the High Court has not even noticed the testimony of the
~

F prosecutrix in the judgment under appeal
~ "" ..
Learned counsel for the respondent contended that if there was any
forcible sexual intercourse, it would have resulted in some injuries upon the
prosecutrix and in support relied upon Joseph Sia Kooveli Paulo v. State of
Kera/a, JT (2000) 6 SC 195. This decision has no relevance. As observed
G therein, the injuries are not always a sine qua non to prove a charge of rape.
Let it not be forgotten that we are considering the case of a rape on a girl
child aged eight years and not on a grown up woman.

Child rape cases are cases of perverse lust for sex where even innocent -r
children are not spared in pursuit of the sexual pleasure. There cannot be
H anYthing more obscene than this. It is a crime against humanity. Many such
r
'

STATEOFRAJASTHANv.OMPRAKASH[Y.K. SABHARWAL,J.] 763

cases are not even brought to light because of social stigma attached thereto. A
According to some surveys, there has been steep rise in the child rape cases.
Children need special care and protection. In such cases, responsibility on the
shoulders of the courts is more onerollS so as to provide proper legal
protection to these children. Their physical and mental immobility call for
such protection. Children are the natural resource of our country. They are B
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 mode of sexual abuse. These factors point towards a
different approach required to be adopted. The overturning of a well considered
and well analyzed judgment of the trial court on the grounds like non-
examination of other witnesses, when the case against the respondent otherwise C
stood established, beyond any reasonable doubt was not called for. The
minor contradiction of recovery of one or two underwear was wholly
insignificant.

Lastly, it was contended on behalf of the respondent that the incident
took place about 13 years back and by now the accused has matured and D

- would be around 31 years of age and having already undergone nearly three
years of sentence, the same may be treated by this Court as sufficient
punishment to him and, therefore, taking a sympathetic view, the sentence
already undergone be imposed. We are unable to accept the contention. The
trial court imposed on the respondent sentence of seven years' rigorous E
imprisonment besides fine, as earlier noticed. Having played with the life of
a child, the respondent does not deserve any leniency and for him sympathy
on the ground sought for will be wholly uncalled for. The respondent deserves

-
to undergo the remaining part of the sentence awarded by the learned
Additional District and Sessions Judge.
~ F
For the aforesaid reasons, we allow the appeal and set aside the judgment
of the High Court and restore that of the trial court. Bail bonds of the
respondent shall be cancelled and respondent be taken into custody forthwith
to undergo the remaining sentence.

S.K.S. Appeal allowed.