Holding

The trial court’s conviction is upheld; the victim was about 17 years old, her testimony is reliable without corroboration, the FIR delay is justified, and lack of injuries does not defeat the rape charge.

Summary

The State of Uttar Pradesh appealed against the Allahabad High Court's acquittal of A‑1, who had been convicted by the trial court for kidnapping, wrongful confinement and rape of a minor girl. The girl, aged about 17 years, was abducted from her village, taken to a city, and forced to have sexual intercourse under threat. The High Court set aside the conviction, citing the delay in filing the FIR, uncertainty about the victim's age, and the absence of physical injuries. The Supreme Court held that the trial court correctly determined the victim's age (over 16, so clause ‘Sixthly’ of s.375 does not apply), that the victim’s testimony was reliable and sufficient without corroboration, that the delay in the FIR was reasonably explained, and that lack of injuries does not negate rape. Consequently, the Supreme Court restored the trial court’s conviction and sentence.

Issues considered

The correct age of the prosecutrix and applicability of clause ‘Sixthly’ of s.375 IPC
Whether the victim’s testimony requires corroboration in rape cases
Whether the delay in registration of the FIR defeats the prosecution
Whether the absence of physical injuries negates the offence of rape
Whether the High Court erred in its assessment of the evidence

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 313
Indian Penal Code, 1860s. 363, s. 366, s. 368, s. 375, s. 376, s. 90

Subjects

kidnappingrapeconsentage of victimevidencecorroborationdelay in FIRIPCcriminal lawsexual assault

Judgment

[2011] 1 S.C.R. 406

A STATE OF U.P.
v.
CHHOTEYLAL
(Criminal Appeal No. 769 of 2006)
JANUARY 14 , 2011
B
[AFTAB ALAM AND R.M. LODHA, JJ.]

PENAL CODE, 1860 :

c ss. 363, 366, 368 and 376 - Kidnapping, wrongful
confinement and rape -Conviction by trial court with 7 years
R.I. - Acquittal by High Court -Held: Prosecutrix being less
than 18 years of age, was removed from the lawful custody of
her brother and was taken to a city by ~o adult males under
threat and kept in a room for many days where one of the
D
accused had forcible sexual intercourse with ho/ - The High
Court was not at all justified in taking a different view from the
trial court - High Court has dealt with the matter with casual
approach and its judgment is not only cryptic and perfunctory
but it has also not taken into consideration the crucial
E
evidence on record - Rape is a heinous crime, and once it
is established, justice must be done to the victim of crime by
awarding suitable punishment to the accused - Judgment of
High Court set aside and that of trial court restored - Evidence ;y-
- Sentence/sentencing
F
s. 90 and s.375, Clauses 'Firstly' and 'Secondly' - Rape
- Expressions 'against her will' and 'without her consent' -
Explained - Held: The concept of consent in the context of
s. 375 has to be read with s. 90.
G
s.375, Clause 'Sixthly' -Held: Prosecutrix at the relevant
~
time being about 17 ~years of age, Clause 'Sixthly' would
not be applicable.

H 406
STATE OF U.P. v. CHHOTEYLAL 407

,..( EVIDENCE: A

Age of prosecutrix - Medical evidence and oral testimony
- The evidence ofprosecutrix and her elder brother stating
her age as 13 years at the relevant time -Medical evidence
indicating her age as 17 years - Held : The trial court on
B
consideration of evidence on record rightly recorded a
categorical finding that the prosecutrix was about 17 ~ years
of age at the time of occurrence - It cannot be said that best
evidence has been withheld - There is no rule, much less an
absolute rule that two years have to be added to the age
determined by the doctor - High Court fell in grave error in
c
observing that prosecutrix could be even 19 years of age at
the time of occurrence.

Evidence of the victim of rape - Held : A victim of sexual
assault is not an accomplice to the crime - Her evidence is D
similar to that of an injured complainant or witness - The
testimony of prosecutrix, if found reliable, by itself may be
sufficient to convict the culprit and no corroboration of her
evidence is necessary - Court must be sensitive and
responsive to the plight of such victim of sexual assault. E
F.l.R. - Delay in registration of-A village girl kidnapped
"""'(,
from her village and taken to city - FIR registered after 10
days - Held: The brother has given a plausible explanation
- The delay in registration of the FIR has been reasonably,
explained - Delay/Laches. F

ADMINISTRATION 0F CRIMINAL JUSTICE:

Criminal justice - Criminal cases relating to offences
~ against the State, corruption, dowry death, domestic violence, G
sexual assault, financial fraud and cyber crimes - Need to
be fast tracked - Immediate and urgent steps required to be
taken in amending the procedural and other laws - The
investigators need to have professional orientation and
modem tools - Police reforms.as directed in Prakash Singh's
H
408 SUPREME COURT REPORTS [2011] 1 S.C.R.

A case 1 suggested to be carried out.

The respondent (A-1) along with two others (A-2 and
A-3) kidnapped the prosecutrix from the fields of her
village on 19.9.1989. A-3, the woman accomplice,
accompanied them up to the road. Thereafter A-1 and A-
8
a
2 took the prosecutrix to city and was kept in a rented
room for few days, where she was ravished by A-1.
Meanwhile P. W.1, the elder brother of the prosecutrix,
made a complaint to the Superintendent of Police on
C 28.9.1989 that A-1 to A-3 had kidnapped her. The FIR was
registered the following day and the prosecutrix was
recovered on 13.10.1989. She was medically examined
the same day. Her statement u/s 164 Cr. P.C. was
recorded by the Magistrate on 17.10.1989. A-1 was
charged with for offences punishable u/ss 363, 366, 368
D and 376 IPC, A-2 u/ss 363, 366 and 368 IPC and A-2 u/ss
363 and 366 IPC. On the basis of the medical evidence,
the trial court recorded the age of the prosecutrix about
17-112 years. A-2 died during the trial. The trial court
acquitted A-3. A-1 was convicted of the offences charged
E and was, inter alia, sentenc'ed to 7 years RI u/s 376.
However, the High Court having acquitted A-1, the State
filed the appeal.

Allowing the appeal, the Court
F HELD: 1.1. The expression 'with or without her
consent, when she is under sixteen years of age' in s. 375,
Clause 'Sixthly' of the Penal Code, 1860 assumes
importance where a victim is under sixteen years o~ age.
In the instant case, the prosecutrix had no formal
G education and, therefore, there is no school certificate
available on recor~. In the FIR, the age of the prosecutrix
has been stated 'to be 13 years. The prosecutrix in her
statement u/s 164, Cr.P.C., and her elder brother (PW-1)
1. Prakash Singh & 01'$. vs. Union of India & Ors. 2006 (6) Suppl. SCR 473
H =2000 cs> sec 1.
STATE OF U.P. v. CHHOTEYLAL 409

in his deposition stated her age as 13 years at the A
relevant time. However, the doctor (PW-5), on the basis
· of the X-ray as well as physical examination of the
prosecutrix, opined that she was 17 years of age. The trial
court on consideration of the entire evidence recorded a
categorical finding, and rightly, that the prosecutrix was B
about 17 % years of age at the time of occurrence and,
therefore, Clause Sixthly of s.375 IPC is not applicable.
1 [para 10] [419-H; 420-A-C]

1.2 The High Court conjectured that the age of the
prosecutrix could be even 19 years. This appears to have C
been done by adding two years to the age opined by PW-
5. There is no such rule much less an absolute one that
two y~ars have to be added to the age determined by a
·doctor. In the instant case, the brother of the prosecutrix
has been examined as PW-1 and, therefore, it cannot be D
said that best evidence has been withheld. The High
Court fell in grave error in observing that the prosecutrix
could be even 19 years of age at the time of alleged
occurrence. [paras 11-12] [420-H; 421-A-E]
E
State of Karnataka v. Bantara Sudhakara @ Sudha &
=
Anr. 2008 (10) SCR 1161 2008 (11) SCC 3; Mussauddin
Ahmed v. State of Assam (2009) 14 sec 541- relied on

2.1 As regards clause 'Firstly', or clause 'Secondly'
of s. 375 IPC, the expressions 'against her will' and F
.··
'without her consent' may overlap sometimes but surely
the two expression;: in clause 'Firstly' and clause
'Secondly' have different connotation and dimension.
The expression 'against her will' would ordinarily mean
that the intercourse was done by a man with a woman G
despite her resistance and opposition. On the other hand,
the expression 'without her consent' would comprehend
an act of reason accompanied by deliberation. [para 13]
[421-F-H; 422-A-B]
H
410 SUPREME COURT REPORTS [2011) 1 S.C.R ..

A 2.2 The concept of 'consent' in the context of s, 375
IPC has to be .read with s. 90 of the IPC. This Court in a
long line of cases has given wider meaning to the word
'consent' in the context of sexual offences as explained
in various judicial dictionaries. [paras 13-14] [422-A-B;
B 423-A]

Jowitt's Dictionary of English Law (Second Edition),
Volume 1 (1977) page 422; Stroud's Judicial Dictionary
(Fourth Edition), Volume 1 (1971) at page 555; In' Words
C and Phrases, Permanent Edition, (Volume SA) at pages
205-206-referred to

Holman v. The Queen ([1970] W.A.R. 2) - referred to

State of H.P. v. Mango Ram 2000 (2) Suppl. SCR 626 =
D (2000) 7 SCC 224; Uday v. State of Kamataka 2003 (2) SCR
231 = 2003 {4) sec 46- relied on

3.1 A woman who is victim of sexual assault is not
'
an accomplice to the crime. Her evidence cannot be
tested, with suspicion as that of an accomplice. A,s a
E matter of fact, the evidence of the prosecutrix is similar
to the evidence of an injured complainant or witness. The
testimony of prosecutrix, if found to be reliable, by itself,
may be sufficient to convict the culprit and no
corroboration of her evidence is necessary. In
F prosecutions of rape, the law does not require
corroboration. It is only by way of abundant caution that
court may look for some corroboration so as to satisJy
its conscience and rule out any false accusations. [para-
19] [426-B-D] / ,
G
State of Maharasthra v. Chandraprakash Kewalchand
=
Jain 1990 (1) SCR 115 1990 (1) SCC 550 ; State of Punjab
v. Gurmit' Singh & Ors. 1996 (1) SCR 532 = 1996 (2) .
SCC 384; Vijay @ Chinee v. State of Madhya Pradesh 2010
H (8) SCR 1150 = 2010 (8) SCC 191 -relied on.
STATE OF U.P. v. CHHOTEYLAL 411

3.2 In examining the evidence of the prosecutrix the A
courts must be alive to the conditions prevalent in the
Indian society and must not be swayed by beliefs in other
countries. The courts must be sensitive and responsive
to the plight of the female victim of sexual assault. The
stigma that attaches to the victim of rape in Indian B
society, ordinarily, rules out the leveling of false
accusations. The observations made in the case of
Bharwada Bhoginbhai Hirjibhai must be kept in mind
invariably while dealing with a rape case. [para 22] [429-
C-G] C
Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983
(3) SCR 280 = 1983 ( 3) SCC 217 -relied on

3.3 The contention on behalf of the respondent that
no alarm was raised by the prosecutrix at the bus stand D
or the other places where she was taken and that creates
serious doubt about truthfulness of her evidence,
overlooks the situation in whic~ the prosecutrix was
placed. She had been kidnapped by two adult males, one
of them - A-1 - wielded fire:-:arm and_ t~reatened her and __ E
she was taken away from her village, and kept in a rented
room for many days where A-1 had sexual intercourse
with her. Whenever she asked A-1 for return to her village,
she was threatened and her mouth was gagged. The
absence of alarm by her at the public place cannot lead F
to an inference that she had willingly accompanied A-1
and A-2. The circumstances made her submissive victim
and that does not mean that she was inclined and willing
to intercourse with A-1. She had no free act of the mind
during her stay with A-1 as she was under constant fear. G
Although there are certain contradictions and omissions
in her testimony, but such omissions and contradictions
are minor and on material aspects, her evidence is
consistent. The prosecutrix being illiterate and rustic
young woman, some contradictions and omissions are
H
412 SUPREME COURT REPORTS [2011] 1 S.CR.

A natural as her recollection, observance, memory and
narration of chain of events may not be precise. [para 23]
[431-G-H; 432-A-E]
3.4 Except the bald statement of A-1 u/s 313 Cr.P.C.
i that he has been falsely implicated due to enmity, nothing _
8
has been brought on record that may probabalise that the
prosecutrix had motive to falsely implicate him. The
circumstances even do not remotely suggest that the
prosecutrix would put her reputation and chastity at
C stake for the reason stated by A-1 u/s 313 Cr.P.C. that a
case was pending between A-1 and one 'SR'. The
evidence of the prosecutrix is reliable and has rightly
been acted upon by the trial court. [para 24] [432-G-H;
433-A]
D 4. Although the lady doctor (PW-5) did not find any ~
injury on the external or internal part of body of the
prosecutrix and opined that the prosecutrix was habitual
to sexual intercourse but, that does not make the
testimony of the prosecutrix unreliable. The fact of the
E matter is that the prosecutrix was recovered almost after
three weeks. Obviously the sign of forcible intercourse
would not persist for that long period. It is wrong to
assume that in all cases of intercourse with the women
against will or without consent, there would be some
F injury on the external or internal part of the victim. The
prosecutrix has clearly deposed that she was not in a
position to put up any struggle as she was taken away
from her village by two adult males. The absence of
injuries on the person of the prosecutrix is not sufficient
G to discredit her evidence; she was a helpless victim. Due
to fear she did not and could not inform the neighbours
where she was kept. [para 25] [433-B-D]

5. As regards the belated FIR, suffice it to observe
that PW-1 He deposed that when he returned to his home
H in the evening from agricultural field;· he was informed
STATE OF U.P. v. CHHOTEYLAL 413

~ that his sister (prosecutrix) who had gone to ease herself A
had not returned. He searched for her and he was told
by the two villagers that she was seen with the accused.
He contacted the relatives of the accused for return of his
sister. He did not lodge the report immediately as the
honour of the family was involved. It was only after few B
days that when his sister did not return and there was
t no help from the relatives of the accused that he made
the complaint on 28.9.1989 to the Superintendent of
Police, who marked the complaint to the Circle Officer
and the FIR was registered on 30.9.1989. The delay in c
registration of the FIR is, thus, reasonably explained. The
High Court was in grave error in concluding that there
was no reasonable and plausible explanation for the
belated FIR and that it was lodged after consultation and
~ due deliberation and that creates doubt about the case. D
[para 26] [433-E-H; 434-A]

6. The High Court was not at all justified in taking a
different view or conclusion from the trial court. The
judgment of the High Court is vitiated by non-
consideration of the material evidence and relevant E
factors eloquently emerging from the prosecution
evidence. The High Court in a sketchy manner reversed.
the judgment of the trial court without discussing the
deposition of the witnesses as well as all relevant points
which were considered and touched upon by the trial F
court. The High Court has dealt with the matter with
casual approach. The judgment of the High Court is not
only cryptic and perfunctory but it has also not taken into
consideration the crucial evidence on record. On flimsy
-* grounds, the accused convicted of a serious crime of G
kidnapping and rape has been acquitted. There is no
application of mind to the evidence of the prosecutrix at
all. There is no proper consideration of the evidence by
the High Court. The judgment of the High Court cannot
H
414 SUPREME COURT REPORTS [2011) 1 S.C.R.

A be sustained and is set aside, and that of the trial court ~
restored. [paras 27 and 29) [434-C-D; 435-D-E]

7. Rape is a heinous crime and once it is established
against a person charged of the offence, justice must be
done to the victim of crime by awarding suitable
B
punishment to the crime doer. The facts that the incident
is of 1989; the prosecutrix has married after the incident
and A-1 has a family of his own and sending A-1 to jail
now may disturb his family life, cannot be considered for
a soft option. [para 28) [434-E]
c
8.A strong and efficient criminal justice system is a
guarantee to the rule of law and vibrant civil society.
Administration of criminal justice system is not working
in our country as it should. The police reforms have not
D taken place despite directions of this Court in the case ~
of Prakash Singh & Ors. vs. Union of India & Ors. The
investigators need to have professional orientation and
modern tools. On many occasions impartial investigation
suffers because of political interference. The criminal
E trials are protracted because of non-appearance of
official witnesses on time and the non-availability of the
facilities for recording evidence by video conferencing.
The public prosecutors have their limitations; the defence
lawyers do not make themselves available and the court
\

F would be routinely informed about their pre-occupation
with other matters; the courts remain over-burdened with
the briefs listed on the day and they do not have
adequate infrastructure. The adjournments thus become
routine; the casualty is justice. It is imperative that the
criminal cases relating to offences against the State, -;.... .
G
corruption, dowry death, domestic violence,. sexual
assault, financial fraud and cyber crimes are fast tracked
and decided in a fixed time frame, preferably; of three
years including the appeal provisions. It is high time that
immediate and urgent steps are taken in amending the
H
' ·,
STATE OF U.P. v. CHHOTEYLAL 415

procedural and other laws to achieve the objectives. [para A-
28] [434-E-H; 435-A-C]

Prakash Singh & Ors. vs. Union of India & Ors. 2006 (6)
Suppl. SCR 473 =
2006 (8) sec 1 - relied on. ··

Case Law Reference:: B

2008 (10) SCR 1161 relied on para 11

(2009) 14 sec 541 relied on para 12
f
2000 ( 2) Suppl. SCR 626 relied on para 17 c
2003 ( 2 ) SCR 231 · relied on para 18
1990 ( 1 ) SCR 115 relied on para 19
1996 ( 1 ) SCR 532 relied on para 20
DI
2010 (8) SCR 1150 relied on para 21
~
1983 ( 3) SCR 280 relied on para 22
2006 (6 ) Suppl. SCR 473 relied on para 28
E
CRIMiNAL APPELLATE JURISDICTION: Criminal Appeal
No. 769 of 2006.
From the Judgment & Order dated 11.03.2003 of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in
Criminal Appeal No. 484 of 1990. F
S.K. Owivedi, AAG, S.N. Pandey, M.K. Dwivedi, Vandana
Mishra, Ashutosh Sharma, Aviral Shukla (for Gunnam
Venkateswara Rao) for the Appellant.
Vishal Arun (for Abhijit Sengupta) for the Respondent. G
.~ The Judgment of the Court was delivered by
R.M. LODHA, J. 1. The State of Uttar Pradesh is in
appeal, by special leave, because the High Court of Judicature
at Allahabad, Lucknow Bench, Lucknow reversed the judgment H
416 SUPREME COURT REPORTS [2011] 1 S.C.R.

A of the trial court and acquitted the respondent.
2. The prosecution case in brief is this: On September 19,
1989 the prosecutrix (name withheld by us) had gone to relieve
herself in the evening. Ram Kali (A-3) followed her on the way.
While she was returning and reached near the plot of one Vijai
8
Bahadur, Chhotey Lal (A-1) and Ramdas (A-2) came from
behind; A-1 caught hold of her and when she raised alarm, A-
1 showed fire-arm to her and gagged her mouth. A-1 along with
A-2 and A-3 brought the prosecutrix upto the road. There, A-3
parted company with A-1 and A-2. A-1 and A-2 then took the
C prosecutrix to Village Sahora. On the night of September 19,
1989, the prosecutrix was kept in the house of Girish and Saroj
Pandit in Village Sahora. On the next day i.e., September 20,
1989, in the wee hours, A-1 and A-2 took the prosecutrix in a
bus to. Shahajahanpur where she was kept in a rented room
D for few days. During their stay in Shahajahanpur, A-1 allegedly
committed forcible intercourse with the prosecutrix. Whenever
prosecutrix asked for return to her house, A-1 would gag her
mouth and threaten her. In the meanwhile, Rampa! - brother of
the prosecutrix - made a complaint to the Superintendent of
E Police, Hardoi on September 28, 1989 that A-1, A-2 and A-3
have kidnapped her sister (prosecutrix) on September 19,
1989. Based on this complaint, the First Information Report
(FIR) was registered on September 30, 1989. The prosecutrix 1
was recovered by the police on October 13, 1989 from
F Shahabad - Pihani Road near Jalalpur culvert. On that day itself,
the prosecutrix was sent for medical examination to the Women
Hospital, Hardoi where she was examined by Dr. Shakuntala
1
Reddy. Ram Manohar Misra to whom the investigation of the
case was entrusted then took steps for determination of the age
·G of the prosecutrix as advised by the doctor and sent her for X-
ray examination.
3. On October 17, 1989, the prosecutrix was produced I
before the Judicial Magistrate I, Hardoi, where her statement
under Section 164 Cr.P.C. was recorded by the Judicial
H Ma~istrate. I

'
..
, . i

STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 417

4. A-1 was arrested on December 2, 1989. On completion A
of investigation, A-1 was chargesheeted for the offences
A punishable under Sections 363, 366, 368 and 376 of the Indian
Penal Code (IPC); A-2 was chargesheeted under Sections
363, 366 and 368, IPC and A-3 under Sections 363 and 366,
IPC. B

5. The prosecution in support of its case examined five
witnesses, namely, complainant- Rampal (PW-1), prosecutrix
(PW-2), Investigating Officer - Ram Manohar Misra (PW-~
Subhash Chandra Misra - Head Constable (PW-4) and Dr.
Shakuntala Reddy (PW-5).
c
6. A-2 had died and the trial abated as against him. The
Ill Additional Sessions Judge; Hardoi vide his judgment dated
September 5, 1990 acquitted A-3 as the prosecution was not
able to establish any case against her. However, on the basis D
of the prosecution evidence, the Ill Additional Sessions Judge
held that the prosecutrix was about 17 % years of age at the
·time of occurrence of crime and found A-1 guilty under Sections
363, 366, 368 and 376, IPC and sentenced him to undergo 7
years' rigorous imprisonment under Section 376 IPC and the E
different sentences for other offences which were ordered to
run concurrently.

7. A-1 challenged the judgment passed by the Ill Additional
Sessions Judge, Hardoi before the Allahabad High Court,
F
Lucknow Bench, Lucknow. The High Court vide its judgment
dated March 11, 2003 reversed the judgment of the trial court
and acquitted A-1. While acquitting A-1, the High Court gave
three reasons, namely; (one) kidnapping took place on
September 19, 1989 whereas the report of the occurrence was
lodged after ten days and there was no reasonable and G
\.
; -r plausible explanation as to why the report could not be lodged
. promptly and why it had been delayed for ten days; .(two}
· according to medical evidence, the prosecutrix was found to
be 17 years of age and she could be even of 19 years of age
H
.t. •

418 SUPREME COURT REPORTS [2011] 1 S.C.R.

A at the time of occurrence and (three) no internal or external ·
injury was found on her body and she was habitual to sexual
intercourse. We deem it appropriate to reproduce the entire ~
reasoning of the High Court as it is which reads as follows:

"It has been submitted by the learned counsel for the
B
appellant that according fo the prosecution, alleged
kidnapping took place on 19-9-1989 whereas the report
of the occurrence was lodged after ten days. There was
no reasonable and plausible explanation forthcoming from
the side of the prosecution as to why after alleged
c kidnapping of a minor girl a report could not be lodged
promptly and why it has been delayed for ten days. This
by itselfshows that the report had been lodged after
consultation and after due deliberation and the prosecution
can be safely looked with doubt. I fully agree with the
D contention of the learned counsel for the appellant and
furthermore, according to medical evidence on record, girl
in question was found 17 years of age and she could be .
even 19 years of age at the time of alleged occurrence.
No internal or external injury was found on her body and
E she was used to sexual intercourse. The charge of rape
also stands not proved. The learned court below was thus
not justified in believing the prosecution theory and
convicting the appellant. n

.F 8. We are indeed surprised by the casual approach with
which the High Court has dealt with the matter. The judgment
of the High Court is not only cryptic and perfunctory but it has
also not taken into consideration the crucial evidence on record.
On flimsy grounds, the accused convicted of a serious crime
of kidnapping and rape has been acquitted. There is no
G
application of mind to the evidence of the prosecutrix at all. ...._ .
Having not been benefited by the proper consideration of the
evidence by the High Court, we have looked into the entire
evidence on record carefully.
H
419
STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.]
. -11

9. Section 375 IPC defines rape as follows : A

~ "S. 375. Rape.-A man is said to commit "rape" who,
except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
under any of the six following descriptions : - B
First.- Against her will

, Secondly.-Without her consent.

Thirdly.- With her consent, when her consent has been c
obtained by putting her or any person in whom she
is interested in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that
he is not her husband, and that her consent is given
because she believes that he is another man to D
whom she is or believes herself to be lawfully
~
married.

Fifthly.- With .her consent, when, at the time of giving
such consent, by reason of unsoundness of mind E
or intoxication or the administration by him
personally or through another of any stupefying or
unwholesome substance, she is unable to
understand the nature and consequences of that to
which she gives consent. F
Sixthly.- With or without her consent, when she is under
sixteen years of age.

Explanation.-Penetration is sufficient to constitute the

-
~
sexual intercourse necessary to the offence of rape.

Exception.-Sexual intercourse by a man with his
own wife, the wife not being under fifteen years of age, is
G

not rape."

10. Clause Sixthly-'with or without her consent, when she H
420 SUPREME COURT REPORTS [2011) 1 S.C.R.

A is under sixteen years of age' assumes importance where a
victim girl is under sixteen years of age. The prosecutrix is an
illiterate and rustic young woman. She does not seem to have
had formal education and, therefore, there is no school
certificate available on record. In the FIR, the age of the
B prosecutrix has been stated to be 13 years. In her statement
recorded under Section 164, Cr.P.C., the prosecutrix stated
that her age was 13 years. PW-1, who is elder brother of the
prosecutrix, in his deposition also stated that the age of the
prosecutrix was 13 years at the relevant time. However, the
c doctor - PW-5 on the basis of her X-ray as well as physical
examination opined that the prosecutrix was 17 years of age.
The trial court on consideration of the entire evidence recorded
a categorical finding that the prosecutrix was about 17 % years
of age at the time of occurrence. This is what the trial court said:
D "According to the complainant Rampal, PW-2 was aged
13 years at the time of the occurrence, but during the cross-
examination, the complainant has stated in para 7 of her
cross examination that he was aged about 24 years and
PW-2 was younger to him by 8-9 years. Thus, the age of
E the prosecutrix, according to the statement of the
complainant appearing in para 7 of his cross examination,
comes to about 15 or 16 years. PW-2, the prosecutri~,
gave her age as 13 years at the time of the occurrence.
According to the supplementary report, Ext. Ka. 12 on
F record, prepared by Lady Dr. Shakuntala Reddy, P.W. 5,
PW-2 was aged about 17 years. During the cross-
examination, Lady Dr. Shakuntala Reddy, P.W. 5, has
stated in para 9 of cross-examination that there could be
a difference of 6 months both ways in the age of PW-2.
G Thus PW-2 can be said to be aged 17 % years at the time
of the occurrence. n

11. We find ourselves in agreement with the view of the
trial court regarding the age of the prosecutrix. The High Court
H conjectured that the age of the prosecutrix could be even 19
STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 421

years. This appears to have been done by adding two years A
to the age opined by PW-5. There is no such rule much less
an absolute one that two years have to be added to the age
determined by a doctor. We are supported by a 3-Judge Bench
decision of this Court in State of Karnataka v. Bantara
Sudhakara @ Sudha & Anr. 1 wherein this Court at page 41 of B
the Report stated as under:

"Additionally, merely because the doctor's evidence
showed that the victims belong to the age group of 14 to
16, to conclude that the two years' age has to be added C
to the upper age-limit is without any foundation."

12. Learned counsel for the respondent relied upon a
decision of this Court in the case of Mussauddin Ahmed v.
State of Assam 2 in support of his submission that the best
evidence concerning the age of prosecutrix having been D
withheld, the finding of the High Court that the prosecutrix could
be 19 years of age cannot be said to erroneous. In the present
case, the brother of the prosecutrix has been examined as PW-
1 and, therefore, it cannot be said that best evidence has been
withheld. The decision of this Court in Mussauddin Ahmed 2 E
has no application at all. In our view, the High Court fell in grave
error in observing that the prosecutrix could be even 19 years
of age at the time of alleged occurrence.

13. Be that as it may, in our view, clause Sixthly of Section
F
375 IPC is not attracted since the prosecutrix has been found
to be above 16 years (although below 18 years). In the facts of
the case what is crucial to be considered is whether clause First
or clause Secondly of Section 375 IPC is attracted. The
expressions 'against her will' and 'without her consent' may
overlap sometimes but surely the two expressions in clause G
First and clause Secondly have different connotation and
dimension. The expression 'against her will' would ordinarily

t (2008) 11 sec 38.
2. (2009) 14 sec 541. H
422 SUPREME COURT REPOR~ ~ [2011] 1 S.C.R.

A mean that the intercourse was done by a man with a woman
despite her resistance and opposition. On the other hand, the
expression 'without her consent' would comprehend an act of
reason accompanied by deliberation. The concept of 'consent'
in the context of Section 375 IPC has come up for
B consideration before this Court on more than one occasion.
Before we deal with some of these decisions, reference to
Section 90 of the IPC may be relevant which reads as under :

"S. 90. Consent known to be given under fear or
misconception.-A consent is not such a consent as it
c intended by any section of this Code, if the consent is given
by a person under fear of injury, or under a misconception
of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in
consequence of such fear or misconception; or
D
Consent of insane person.-if the consent is given by a
person who, from unsoundness of mind, or intoxication, is ~.
unable to understand the nature and consequence of that
to which he gives his consent; or
E
Consent of child.-.unless the contrary appears from the
context, if the consent is given by a person who is under
twelve years of age."

14. This Court in a long line of cases has given wider
F meaning to the word 'consent' in the context of sexual off~nces
as explained in various judicial dictionaries. In Jowitt's
Dictionary of English Law (Second Edition), Volume 1 (1977)
at page 422 the word 'consent' has been explained -as an act
of reason accompanied with deliberation, the mind weighing',
G as in a balance, the good or evil on either side. It is further
stated that consent supposes three things-a physical power, •
a mental power, and a free and serious use of them and if
consent be obtained by intimidation, force, meditated
imposition, circumvention, surprise, or undue influence, it is to
H
~· .

STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 423

·~ be treated as a delusion, and not as a deliberate and free act A
of the mind.

15. Stroud's Judicial Dictionary (Fourth Edition), Volume
1 (1971) at page 555 explains the expression 'consent', inter
alia, as under :-
8
"Every 'consent' to an act, involves a submission; but it by
1 no means follows that a mere submission involves
consent," e.g. the mere submission of a girl to a carnal
assault, she being in the power of a strong man, is not
consent (per Coleridge J., R.v. Day, 9 C. & P. 724)." c
Stroud's Judicial Dictionary also refers to decision in the case
of Holman v. The Queen ([1970] W.A.R. 2) wherein it was
stated: 'But there does not necessarily have to be complete
willingness to constitute consent. A woman's consent to D
intercourse may be hesitant, reluctant or grudging, but if she
consciously permits it there is "consent".'·

16. In Words and Phrases, Permanent Edition, (Volume
BA) at pages 205-206, few American decisions wherein the
word 'consent' has been considered and explained with regard E
to the law of rape have been referred. These are as follows :

"In order to constitute "rape", there need not be resistance
to the utmost, and a woman who is assaulted need not
resist to the point of risking being beaten into insensibility, F
and, if she resists to the point where further resistance
would be useless o~ until her resistance is overcome by
force or violence, submission thereafter is not "consent".
,;.
People v. Mcllvain (55 Cal. App. 2d 322)."

.~ ................................. G

" "Consent," within Penal Law, § 2010, defining rape,
requires exercise of intelligence based on knowledge of
its significance and moral quality and there must be a
choice between resistance and assent. People v. Pe/vino, H
424 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 214 N.Y.S. 577''

" "Consenting" as used in the law of rape means consent
of the will and submission under the influence of fear or
B terror cannot amount to real consent. Hallmark v. State, 22
Oki. Cr. 422"

"Will is defined as wish, desire, pleasure, inclination,
c choice, the faculty of conscious, and especially of
deliberate, action. It is purely and solely a mental process
to be ascertained, in a prosecution for rape, by what the
prosecuting witness-may have said or done. It being a
mentpl process there is no other manner by which her will
D can l;>e ascertained, and it must be left to the jury to
deterlmine that will by her acts and statements, as
disclosed by th!'l evidence. It is but natural, therefore, that
in charging the jury upon the subject of rape, or assault with
intent to commit rape, the courts should have almost
E universally, and, in many cases, exclusively, discussed
"consent" and resistance. There can be no better evidence
of willingness is a condition or state of mind no better
evidence of unwillingness than resistance. No
lexicographer recognizes "consent" as a synonym of
F willingness, and it is apparent that they are not
synonymous. It is equally apparent, on the other hand, that
the true relation between the words is that willingness is a
condition or state of mind and "consent" one of the
evidences of that condition. Likewise resistance is not a
G synonym of unwillingness, though it is an evidence thereof.
In all cases, therefore, where the prosecuting witness has
an intelligent will, the court should charge upon the
elements of "consent" and resistance as being proper
elements f~om which the jury may infer either a favourable ,,
H or an opposing will. It must, however, be recognized in all
STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 425

cases that the real test is whether the assault was A
committed against the will of the prosecuting witness. State
v. Schwab, 143 N.E. 29"
17. Broadly, this Court has accepted and followed the
judgments referred to in the above judicial dictionaries as B
regards the meaning of the word 'consent' as occurring in
Section 375 IPC. It is not necessary to refer to all the decisions
and the reference to two decisions of this Court shall suffice.
In State of H.P. v. Mango Ram3 , a 3-Judge Bench of this Court
·while dealing with the aspect of 'consent' for the purposes of C
Section 375 IPC held at page 230 of the Report as under:

"Submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the
purpose of Section 375 requires voluntary participation not
·~ only after the exercise of intelligence based on the D
knowledge of the significance and moral quality of the act
but after having fully exercised the choice between
resistance assent. Whether there was consent or not, is
to be ascertained only on a careful study of all relevant
circumstances." E

18. In the case of Uday v. State of Kamataka 4 , this Court
.put a word of caution that there is no straitjacket formula for
determining whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under a
misconception of fact. The Court at page 57 of the Report
F
stated : ·

"....... In the ultimate analysis, the tests laid down by the
courts provide at best guidance to the judicial mind while
·considering a question of consent, but the court must, in G
each case, consider the evidence before it and the
surrounding circu·mstances, before reaching a conclusion,
because each case has its own peculiar facts which may
3. c2000> 1 sec 324.
4. c2003) 4 sec 46. H
426 SUPREME COURT REPORTS "
[2011) 1 S.C.R.

A have a bearing on the question whether the consent was
voluntary, or was given under a misconception of fact.. ..
•

19. In the backdrop of the above legal position, with which
we are in respectful agreement, the evidence of the prosecutrix
8
needs to be analysed and examined carefully. But, before we
do that, we state, as has been repeatedly stated by this Court,
that a woman who Is victim of sexual assault is not an
accomplice to the crime. Her evidence cannot be tested with
suspicion as that of an accomplice. As a matter of fact, the
C evidence of the prosecutrix is similar to the evidence of an
injured complainant or witness. The testimony of prosecutrix, if
found to be reliable, by itself, may be sufficient to convict the
culprit and no corroboration of her evidence is necessary. In
prosecutions of rape, the law does not require corroboration.
D The evidence of the prosecutrix may sustain a conviction. It is
only by way of abundant caution that court may look for some
corroboration so as to satisfy its conscience and rule out any
false accusations. In State of Maharasthra v. Chandraprakash
Kewa/chand Jain 5, this Court at page 559 of the Report said:
E
"A prosecutrix of a sex-offence cannot be put on par with
an accomplice. She is in fact a victim of the crime. The
Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars.
F She is undoubtedly a competent witness under Section 118.
and her evidence must receive the same weigh\ as is
attached to an injured in cases of physical violen~. The
same degree of care and caution must attach in the
evaluation of her evidence as in the case of an injured
complainant or witness and no more. What is necessary
G
is that the Court must be alive to and conscious of the fact
that it is dealing with the evidence of a person who is
interested in the outcome of the charge levelled by her. If
the court keeps this in mind and feels satisfied that it can

H 5. (1990) 1 sec 550.
.. STATE OF UOP. v. CHHOTEYLAL [R.M. LODHA, J.] 427

act on the evidence of the prosecutrix, there is no rule of A
_..( law or practice incorporated in the Evidence Act similar
to illustration (b) to Section 114 which requires it to look
for corroboration. If for some reason the court is hesitant
to place implicit reliance on the testimony of the prosecutrix
it may look for evidence which may lend assurance to her. B
testimony short of corroboration required in the case of an
accomplice. The nature of evidence required to lend
assurance to the testimony of the prosecutrix must
necessarily de~end on the facts and circumstances of
each case. But if a prosecutrix is an adult and of full c
understanding the court is entitled to base a conviction on
her evidence unless the same is shown to be infirm and
not trustworthy. If the totality of the circumstances appearing
on the record of the case disclose that the prosecutrix does
not have a strong motive to falsely involve the person
... charged, the court should ordinarily have no hesitation in 0
accepting her evidence.·

20. In State of Punjab v. Glirmit Singh & Ors. 6 , this Court
made the following weighty observations at pages 394-396 and
page 403: E

"The court overlooked the situation in which a poor helpless
"- minor girl had found herself in the company of three
desperate young men who were threatening her and
preventing her from raising any alar!Jl. Again, if the F
investigating officer did not conduct the investigation
properly or was negligent in not being able to trace out the .
driver or the car, how can that become a ground to·
discredit the testimony of the prosecutrix? The prosecutri~·
had no control over the investigating agency and the
G
negligence of an investigating officer could not affect the
credibility of the statement of the prosecutrix.... The courts
must, while evaluating evidence remain alive to the fact that
in a case of rape, no self- respecting woman would come
6. (1996) 2 sec 384. H
428 SUPREME COURT REPORTS [2011) 1 S.C.R.

A forward in a court just to make a humiliating statement
against her honour such as is involved in the commission ).....
of rape on her. In cases involving sexual molestation,
supposed considerations which have no material effect on
the veracity of the prosecution case or even discrepancies
B in the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be
allowed to throw out an otherwise reliable prosecution
case .... Seeking corroboration of her statement before
replying upon the same as a rule, in such cases, amounts
c to adding insult to injury.... Corroboration as a conditio.n for
judicial reliance on the testimony of the prosecutrix is not
a requirement of law but a guidance of prudence under
given circumstances.

The courts should examine the broader probabilities of a
D case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If evidence of the
prosecutrix inspires confidence, it must be relied upon
E without seeking corroboration of her statement in material
particulars. If for some reason the court finds it difficult to
place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short A'

of corroboration required in the case of an accomplice.
F The testimony of the prosecutrix must be appreciated in
the background of the entire case and the trial court must
be alive to its responsibility and be sensitive while dealing
with cases involving sexual molestations."

21. In Vijay @ Chinee v. State of Madhya Pradesh 7 ,
G decided recently, this Court referred to the above two decisions
of this Court in Chandraprakash Kewalchand Jain5 and
Gurmit Singh6 and also few other decisions and observed as
follows:

H 7. (2010) a sec 191.
STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 429

"Thus, the law that emerges on the issue is to the effect A
that the statement of the prosecutrix, if found to be worthy
of credence and reliable, requires no corroboration. The
court may convict the accused on the sole testimony of the
prosecutrix. n.
B
22. The important thing that the court has to bear in mind
is that what is lost by a rape victim is face. The victim loses
value as a person. Ours is a conservative society and, therefore,
a woman and more so a young unmarried woman will not put
her reputation in peril by alleging falsely about forcible sexual C
assault. In examining the evidence of the prosecutrix the courts
must be alive to the~conditions prevalent in the Indian society
and must not be swayed by beliefs in other countries. The courts
must be sensitive and responsive to the plight of the female
victim of sexual assault. Society's belief and value systems
need to be kept uppermost in mind as rape is the worst form D
of woman's oppression. A forcible sexual assault brings in
humiliation, feeling of disgust, tremenrious embarrassment,
sense of shame, trauma and lifelong emotional scar to a victim
and it is, therefore, most unlikely of a woman, and more so by
a young woman, roping in somebody falsely in the crime of E
rape. The stigma that attaches to the victirl\ o'f rape in Indian
society ordinarily rules out the leveling offals~accusations. An
Indian woman traditionally will not concoct an untruthful story and
bring charges of rape for the purpose of blackmail, hatred, spite
or revenge. This Court has repeatedly laid down the guidelines F
as to how the evidence of the prosecutrix in the crime of rape
should be evaluated by the court. The observations made in the
case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat8
deserve special mention as, in our view, these must be kept in
mind invariably whil~ dealing with a rape case. This Court G
observed as follows :

"9. In the Indian setting, refusal to act on the testimony of
a victim of sexual assault in the absence of corroboration

8. (1983) 3 sec 211. H
430 SUPREME COURT REPORTS [2011) 1 S.C.R.

A as a rule, is adding insult to injury. 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? To do so
is to justify the charge of male chauvinism in a male
B dominated society. We must analyze the argument in
support of the need for corroboration and subject it to
relentless and remorseless cross-examination. And we
must do so with a logical, and not an opinionated, eye in Jr
the light of probabilities with our feet firmly planted on the
...
c soil of India and with our eyes focussed on the Indian
horizon. We must not be swept off the feet by the approach
made in the western world which has its own social milieu,
its own social mores, its own permissive values, and its
own code of life. Corroboration may be considered
essential to establish a sexual offence in the backdrop of
D
the social ecology of the western world. It is wholly
unnecessary to import the said concept on a turnkey basis
and to transplant it on the Indian soil regardless of the
altogether different atmosphere, attitudes, mores,
responses of the Indian society, and its profile. The
E identities of the two worlds are different. The solution of
problems cannot therefore be identical ......... ."

This Court went on to observe at page 225: ~

F • ......... Without the fear of making too wide a statement,
or of overstating.the case, it can be said that rarely will a
girl or a woman in India make false allegations of sexual
assault on account of any such factor as has been just
enlisted. The statement is generally true in the context of
the urban as also rural society. It is also by and large true
G
in the context of the sophisticated, not so sophisticated,
and unsophisticated society. Only very rarely can one
conceivably come across an exception or two and that too
possibly from amongst the urban elites. Because ( 1) A girl
or a woman in the tradition-bound non-permissive society
H
STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 431

of India would be extremely reluctant even to admit that any A
incident which is likely to reflect on her chastity had ever
occurred. (2) She would be conscious of the danger of
being ostracized by the society or being looked down by
the society including by her own family members, relatives,
friends, and neighbours. (3) She would have to brave the B
whole world. (4) She would face the risk of losing the love
and respect of her own husband and near relatives, and
of her matrimonial home and happiness being shattered.
(5) If she is unmarried, she would apprehend that it would
be difficult to secure an alliance with a suitable match from c
a respectable or an acceptable family. (6) It would almost
inevitably and almost invariably result in mental torture and
suffering to herself. (7) The fear of being taunted by others
will always haunt her. (8) She would feel extremely
embarassed in relating the incident to others being
0
overpowered by a feeling of shame on account of the
upbringing in a tradition-bound society where by and large
sex is taboo. (9) The natural inclination would be to avoid
giving publicity to the incident lest the family name and
family honour is brought into contfoversy. (10) The parents E
of an unmarried girl as also the husband and members of
the husband's family of a married woman, would also more
often than not, want to avoid publicity on account of the fear
of social stigma on the family name and family honour. { 11)
The fear of the victim herself being considered to be
promiscuous or in some way responsible for the incident F
regardless of her innocence. ( 12) The reluctance to face .
interrogation by the investigating agency, to face the court,
to face the cross-examination by counsel for the culprit,
and the risk of being disbelieved, acts as a deterrent."
G
23. We shall now examine the evidence of the prosecutrix.
The prosecutrix at the relevant time was less than 18 years of
age. She was removed from the lawful custody of her brother
in the evening on September 19, 1989. She was taken to a
different village by two adult males under threat and kept in a H
432 SUPREME COURT REPORTS [2011] 1 S.C.R.

A rented room for many days where A-1 had forcible sexual
intercourse with her. Whenever she asked A-1 for return to her
village, she was threatened and her mouth was gagged.
Although we find that there are certain contradictions and
omissions in her testimony, but such omissions and
s contradictions are minor and on material aspects, her evidence
is consistent. The prosecutrix being illiterate and rustic young
woman, some contradictions and omissions are natural as her
recollection, observance, memory and narration of chain of
events may not be precise. Learned counsel for the respondent
c submitted that no alarm was raised by the prosecutrix at the ......
bus stand .or the other places where she was take.n and that
creates serious doubt about truthfulness of her evidence. This
argument of the learned counsel overlooks the situation in which
the prosecutrix was placed. She had been kidnapped by two
adult males, one of them - A-1 - wielded fire-arm and
0
threatened her and she was taken away from her village. In the
circumstances, it made sensible decision not to raise alarm.
Any alarm at unknown place might have endangered ber life.
The absence of alarm by her at the public place cannot lead to
an inference that she had willingly accompanied A-1 and A-2.
E The circumstances made her submissive victim and that does
not mean that she was inclined and willing to intercourse with
A-1. She had no free act of the mind during her stay with A-1
as she was under constant fear.

F 24. We have also examined the evidence of prosecutrix,
her brother and the statement of A-1 under. Section 313 Cr.P.C.
to satisfy ourselves whether there was likelihood of false
implication or motive for false accusations. Except the bald
statement of A-1 under Section 313 Cr.P.C. that he has been
G falsely implicated due to enmity, nothing has been brought on
record that may probabalise that the prosecutrix had motive to
falsely implicate him. The circumstances even do not remotely
suggest that the prosecutrix would put her reputation and
chastity at stake for the reason stated by A-1 in the statement
H under Section 313 Cr.P.C. that a case was pending between
-·
STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 433

A-1 and one Sheo Ratan. In our view, the evidence of the A
-"'.. prosecutrix is reliable and has rightly been acted upon by the
trial court.

25. Although the lady doctor - PW-5 did not find any injury
on the external or internal part of body of the prosecutrix and B
opined that the prosecutrix was habitual to sexual intercourse,
we are afraid that does not make the testimory of the
prosecutrix unreliable. The fact of the matter is that the
'(
prosecutrix was recovered almost after three weeks. Obviously
... the sign of forcible intercourse would not persist for that long
period. It is wrong to assume that in all cases of intercourse
c
with the women against will or without consent, there would be
some injury on' the external or internal part of the victim. The
prosecutrix has clearly deposed that she was not in a position
to put up any struggle as she was taken away from her village
D
.. ~
by two adult males. The absence of injuries on the person of
the prosecutrix is not sufficient to discredit her evidence; she
was a helpless victim. She did not and could not inform the
neighbours where she was kept due to fear.

26. As regards the belated FIR, suffice it to observe that E
PW-1 (brother of the prosecutrix) has given plausible
explanation. PW-1 deposed that when he returned to his home
in the evening from agricultural field, he was informed that her
sister (prosecutrix) who had gone to ease herself had not
returned. He searched his sister and he was told by the two F
villagers that her sister was seen with the accused. He
contacted the relatives of the accused for return of his sister.
He did not lodge the report immediately as the honour of ttle
family was involved. It was only after few days that when his
sister did not return and there was no help from the relatives of
~ G
the accused that he made the complaint on September 28,
1989 to the Superintendent of Police, Hardoi who marked the ·
complaint to the Circle Officer and the FIR was registered on
September 30, 1989. The delay in registration of the FIR is,
thus, reasonably explained. The High Court was in grave error
H
434 SUPREME COURT REPORTS [2011) 1 S.C.R.

A in concluding that there was no reasonable and plausible
explanation for the belated FIR and that it was lodged after ~
consultation and due deliberation and that creates doubt about
the case. Unfortunately, the High Court did not advert to the
evidence of PW-1 and the reasoning of the trial court in this
B regard.
27. The High Court was not at all justified in taking a
different view or conclusion from the trial court. The judgment
~
of the High Court is vitiated by non-consideration of the material
evidence and relevant factors eloquently emerging from the ~

c prosecution evidence. The High Court in a sketchy manner
reversed the judgment of the trial court without discussing the
deposition of the witnesses as well as all relevant points which
were considered and touched upon by the trial court. We are
satisfied that the judgment of the High Court cannot be
D sustained and has to be set aside.
1'. ...
28. We are not oblivious of the fact that the incident is of
1989; the prosecutrix has married after the incident and A-1
has a family of his own and sending A-1 to jail now may disturb
E his family life. But none of these factors individually or collectively
persuades us for a soft option. Rape is a heinous crime and
once it is established against a person charged of the offence,
justice must be done to the victim of crime by awarding suitable
punishment to the crime doer. We are constrained to observe
F that criminal justice system is not working in our country as it
should. The police reforms have not taken place despite
directions of this Court in the case of Prakash Singh & Ors.
vs. Union of India & Ors. 9 • We do not intend to say anything
more in this regard since matter is being dealt with separately
by a 3-Judge Bench. The investigators hardly have professional
G
orientation; they do not have modern tools. On many occasions
impartial investigation suffers because of political interference.
The criminal trials are protracted because of non-appearance
of official witnesses on time and the non-availability of the

H 9. c2oos) a sec 1.
STATE OF U.P. v. CHHOTEYLAL [R.M. LODHA, J.] 435

facilities for recording evidence by video conferencing. The A
public prosecutors have their limitations; the defence lawyers
do not make themselves available and the court would be
routinely informed about their pre-occupation with other matters;
the courts remain over-burdened with the briefs listed on the
day and they do not have adequate infrastructure. The B
adjournments thus become routine; the casualty is justice. It is
imperative that the criminal cases relating to offences against
the State, corruption, dowry death, domestic violence, sexual
assault, financial fraud and cyber crimes are fast tracked and
decided in a fixed time frame, preferably, of three years c
including the appeal provisions. It is high time that immediate
.. and urgent steps are taken in amending the procedural and
other laws to achieve the above objectives. We must remember
that a strong and efficient criminal justice system is a guarantee
to the rule of law and vibrant civil society.
D,
29. The appeal is, accordingly, allowed and the judgment
of acquittal passed by the High Court of Judicature at
Allahabad, Lucknow Bench, in Criminal Appeal No. 484of1990
is set aside. The judgment passed by the Ill Additional Sessions
Judge, Hardoi is restored. The respondent shall now surrender E ·
within two months from today to serve out the remaining
sentence as awarded by the trial court.

R.P. Appeal allowed.