158

Sexual Offences

Kanwar Pal Singh Gill v. State (Admn., U.T. Chandigarh) through Secy.

and

Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill

(2005) 6 SCC161

K.G. Balakrishnan, J.: 1. The appellant in Criminal Appeal No. 1032 of 1998 was found guilty
of the offence punishable under Sections 354 and 509 of the Indian Penal Code. He
challenges his conviction and sentence in this appeal. Criminal Appeal No. 430 of 1999 has
been preferred by the complainant in that case and she prays that the punishment imposed
on the accused should be enhanced. Both the appeals are heard together and disposed of by
this common judgment.

2. On 18.7.1988, a senior IAS officer, holding the post of Financial Commissioner and
Secretary to the Government of Punjab, invited some of the IAS officers and IPS officer
working at Chandigarh, for a dinner at 8.30 pm at his residence in Sector 16 of Chandigarh.
Apart from the IAS and IPS officers, there were a few advocates, including the Advocate
General of the State of Punjab and also some journalists and press correspondents working
with some leading newspapers. The guests assembled around 8.30 pm. Ladies were sitting in
a semi-circle slightly away from the male guests. As per the allegation in the complaint
preferred by the husband of the prosecutrix, the accused, who was then the Director
General of Police of the State of Punjab, came and occupied a chair which was lying vacant
at the place where the ladies were sitting. The accused then called out the prosecutrix and
asked her to sit near him as he wanted to talk to her about something. When the prosecutrix
was about to sit on the chair lying near the accused, the latter suddenly pulled the chair
close to him and it is alleged that the prosecutrix felt slightly embarrassed and she managed
to pull the chair back and sat on it. The accused again tried to pull the chair close to his chair
whereupon the prosecutrix got up from the chair and returned to her original seat. The
further allegation is that about ten minutes later, the accused came near the prosecutrix and
asked her to come along with him. The prosecutrix strongly objected to his behaviour, but
the accused was not prepared to change his tone and tenor and again he asked the
prosecutrix to accompany him. The prosecutrix further alleged that she became frightened
as the accused blocked her way and she tried to get away from the place whereupon the
accused slapped on the posterior of the prosecutrix and the same was done in the presence
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of other guests. The prosecutrix then made a complaint to the host and told him that the
behaviour of the accused was obnoxious and that he was not fit for a decent company. The
accused was then gently removed from the place. The prosecutrix made a complaint to the
Joint Director, Intelligence Bureau, who was present there. The prosecutrix narrated the
incident to her husband who was also present there. On the next day, that is 19 th July, 1938,
the prosecutrix sought an appointment with the Chief Secretary and recounted the entire
incident to him and requested him to take suitable action against the accused. The
prosecutrix met the Advisor to the Governor of Punjab and gave a full and detailed account
of the incident that had happened at the dinner party. The prosecutrix explained the
incident to the then Secretary to the Governor and also met the Governor. On 29 th July,
1988, the petitioner gave a written complaint to the police and a case was registered, but no
further steps were taken. After about four months, the husband of the prosecutrix filed a
complaint before the Chief Judicial Magistrate, Chandigarh, alleging commission of offence
punishable under Sections 341, 342, 352, 354, 355 and 509 IPC. Thereupon the accused
preferred a criminal revision under Section 482 of the Cr.P.C. and the High Court quashed
the complaint as well as further proceedings pursuant to the case registered by the police.
The prosecutrix and her husband jointly challenged the verdict of the High Court before this
court and the judgment of the High Court was set aside and the Chief Judicial Magistrate
was directed to take cognizance of the offence under Sections 354 and 509 IPC. The Chief
Judicial Magistrate later framed the charges and after a full-fledged trial the accused was
found guilty of the offence punishable under Section 354 and 509 IPC. He was sentenced to
undergo imprisonment for a period of three months and pay a fine of Rs. 500 for the offence
under Section 354; and for the offence under Section 509 IPC, punishment of simple
imprisonment for a period of two months and a fine of Rs. 200/- were imposed on the
accused. In the appeal preferred by the accused, the Sessions Judge confirmed the
conviction, but altered the sentence and the accused was directed to be released on
probation in lieu of custodial sentence. The fine was enhanced to Rs. 50,000 with a further
direction to pay half of it to the complainant. The accused challenged the same in the
revision before the High Court. The High Court did not interfere with the conviction of the
accused under Sections 354 and 509. However, the fine was enhanced to Rs. 2,00,000/- and
the entire amount was directed to be paid to the prosecutrix. An amount of Rs. 25,000/- was
directed to be paid as costs by the accused. The judgment of the High Court is challenged by
the accused as well as the complainant.

3. The accused-appellant in Criminal Appeal No. 1032/98 raised many contentions before us.
The counsel for the appellant disputed the correctness of the findings on various grounds,
 160

and even the factual findings entered by the court were seriously disputed. It was contended
that no such incident had happened and this was a part of a conspiracy to malign the
appellant who had to take so many serious actions to control the activities of the militants
which were at its peak during that time. It is alleged that the accused was able to control the
militant operations of the terrorists and got commendations from the Government and
other administrators and this was not liked by many top-ranking bureaucrats and as part of
the conspiracy, the entire case was falsely foisted on him. It was also submitted by the
appellant's counsel that the complaint itself was filed after a period of three months and the
witnesses who were examined were all interested witnesses and most relevant witnesses
who were alleged to have witnessed the occurrence were not examined. A pointed
reference was also made to the non-examination of some of the witnesses cited by the
prosecution.

4. It is true that there was some delay in filing the complaint before the Magistrate, but that
by itself was not sufficient to reject the complaint put forward by the prosecutrix. It is
important to note that she recounted the entire incident immediately to the Chief Secretary
and other officers and raised objections and also sought for stringent action against the
accused. When she failed in all these attempts, she and her husband filed the criminal
complaint before the Chief judicial Magistrate. There is nothing to suggest that the
prosecutrix acted in connivance with some others and that she hatched a conspiracy to
malign the accused. If the whole incident is viewed in correct perspective, it is clear that the
behaviour of the accused on the date of the incident was not consistent with the high
standard expected of a top-ranking police officer. The findings of the various courts are to
the effect that the accused gently slapped on the posterior of the prosecutrix in the
presence of some guests. This act on the part of the accused would certainly constitute the
ingredient of Section 354 IPC. It is proved that the accused used criminal force with intent to
outrage the modesty of the complainant and that he knew fully well that gently slapping on
the posterior of the prosecutrix in the presence of other guests would embarrass her.
Knowledge can be attributed to the accused that he was fully aware that touching the body
of the prosecutrix at that place and time would amount to outraging her modesty. Had it
been without any culpable intention on the part of the accused, nobody would have taken
notice of the incident. The prosecutrix made such a hue and cry immediately after the
incident and the reaction of the prosecutrix is very much relevant to take note of the whole
incident. The accused being a police officer of the highest rank should have been
exceedingly careful and failure to do so and by touching the body of the complainant with
culpable intention he committed the offence punishable under Section 354 and 509 IPC. In
161

view of the findings of fact recorded by the two courts and affirmed by the High Court in
revision, the order of the High Court cannot be set aside on the mere assertion by the
accused that the whole incident was falsely foisted on him with ulterior motives. Therefore,
we find no merit in the appeal preferred by the accused. The appeal is dismissed
accordingly.

5. In the appeal preferred by the complainant, learned senior counsel Ms. Indira Jaising
contended that crimes against woman are on the rise and the court should have dealt with
the matter severely and the accused should not have been released on probation.

6. The incident happened in 1988. Despite the accused holding a high position in the state
police, the various courts found him guilty of the offence punishable under Section 354 and
509 IPC and that by itself is setting a model for others and would enhance the faith in the
judicial system. The accused had completed the period of probation. There was no occasion
for any complaint or violation of any of the terms of the bond. At this juncture, we do not
think that it is past and proper to resort to any other punishment. In our view, the criminal
appeal No. 430 of 1999 preferred by the complainant against the judgment of the High Court
is without any substance and the same is dismissed accordingly.

7. The counsel for the appellant in this appeal submitted that the complainant has no
intention of withdrawing Rs. 2 lakhs ordered to be paid to her by way of compensation and
that the amount may be given to any women's organization engaged in doing service for the
cause of women. The amount may be lying now in the court deposit with the High Court of
Punjab and Haryana. We leave the matter to the Chief Justice of the High Court of Punjab
and Haryana to deal with the said compensation amount in an appropriate manner as
prayed for by the complainant. A copy of this judgment shall be sent to the Registrar of the
High Court of Punjab and Haryana.
 162

Tukaram v. State of Maharashtra

AIR 1979 SC 185

KOSHAL, J. - This appeal by special leave is directed against the judgment dated the 12th
Oct. 1976 of the High Court of Judicature at Bombay (Nagpur Bench) reversing a judgment
of acquittal of the two appellants of an offence under Section 376 read with Section 34 of
the Indian Penal Code recorded by the Sessions Judge, Chandrapur, on the 1stof June 1974,
and convicting Tukaram, appellant No.1 of an offence under Section 354 of the Code and
the second appellant named Ganpat of one under Section 376 thereof. The sentences
imposed by the High Court on the two appellants are rigorous imprisonment for a year and
5 years respectively.
2. Briefly stated the prosecution case is this. Appellant No.1, who is a Head Constable of
police, was attached to the Desai Gunj police station in March 1972 and so was appellant
No.2, who is a police constable.
Mathura (P.W.l) is the girl who is said to have been raped. Her parents died when she
was a child and she is living with her brother, Gama (P.W.3). Both of them worked as
labourers to earn a living. Mathura (P.W.1) used to go to the house of Nushi (P.W.2) for
work and during the course of her visits to that house, came into contact with Ashok, who
was the sister’s son of Nushi (P.W.2) and was residing with the latter. The contact
developed into an intimacy so that Ashok and Mathura (P.W.1) decided to become husband
and wife.
On the 26th of March 1972, Gama (P.W.3) lodged report Ex. P-8 at police station Desai
Gunj alleging that Mathura (P.W.1) had been kidnapped by Nushi (P.W.2), her husband
Laxman and the said Ashok. The report was recorded by Head Constable Baburao (P.W.8) at
whose instance all the three persons complained against as well as Mathura (P.W.1) were
brought to the police station at about 9 p.m. and who recorded the statements of the two
lovers. By then it was about 10.30 p.m. and Baburao (P.W.8) told them to go after giving
them a direction that Gama (P.W.3) shall bring a copy of the entry regarding the birth of
Mathura (P.W.1) recorded in the relevant register and himself left for his house as he had
yet to take his evening meal. At that time the two appellants were present at the police
station.
After Baburao (P.W.8) had gone away, Mathura (P.W.1), Nushi (P.W.2), Gama (P.W.3)
and Ashok started leaving the police station. The appellants, however, asked Mathura
(P.W.1) to wait at the police station and told her companions to move out. The direction
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was complied with. Immediately thereafter Ganpat appellant took Mathura (P.W.1) into a
latrine situated at the rear of the main building, loosened her underwear, lit a torch and
stared at her private parts. He then dragged her to a chhapri which serves the main building
as its back verandah. In the chhapri he felled her on the ground and raped her in spite of
protests and stiff resistance on her part. He departed after satisfying his lust and then
Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura
(P.W.1) was and fondled her private parts. He also wanted to rape her but was unable to do
so for the reason he was in a highly intoxicated condition.
Nushi (P.W.2), Gama (P.W.3) and Ashok, who had been waiting outside the police
station for Mathura (P.W.1) grew suspicious when they found the lights of the police station
being turned off and its entrance door being closed from within. They went to the rear of
the police station in order to find out what the matter was. No light was visible inside and
when Nushi (P.W.2) shouted for Mathura (P.W.1) there was no response. The noise
attracted a crowd and some time later Tukaram appellant emerged from the rear of the
police station, and on an enquiry from Nushi (P.W.2) stated that the girl had already left. He
himself went out and shortly afterwards Mathura (P.W.1) also emerged from the rear of the
police station and informed Nushi (P.W.2) and Gama (P.W.3) that Ganpat had compelled
her to undress herself and had raped her.
Nushi (P.W.2) took Mathura (P.W.1) to Dr. Khune (P.W.9) and the former told him that
the girl was subjected to rape by a police constable and a Head Constable in police station
Desai Gunj. The doctor told them to go to the police station and lodge a report there.
A few persons brought Head Constable Baburao (P.W.8) from his house. He found that
the crowd had grown restive and was threatening to beat Ganpat appellant and also to
burn down the police station. Baburao (P.W.8), however was successful in persuading the
crowd to disperse and thereafter took down the statement (Ex.5) of Mathura (P.W.1) which
was registered as the first information report.
Mathura (P.W.1) was examined by Dr. Kamal Shastrakar at 8 p.m. on the 27th of March
1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina
admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was
estimated by the doctor to be between 14 and 16 years. A sample of the pubic hair and two
vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner
who found no traces of semen therein. Presence of semen was however detected on the
girl’s clothes and the pyjama which was taken off the person of Ganpat appellant.
3. The learned Sessions Judge found that there was no satisfactory evidence to prove
that Mathura was below 16 years of age on the date of the occurrence. He further held that
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she was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”.
But he observed that “the farthest one can go into believing her and the corroborative
circumstances, would be the conclusion that while at the Police Station, she had sexual
intercourse and that, in all probability, this was with accused no.2”. He added however that
there was a world of difference between “sexual intercourse” and “rape”, and that rape had
not been proved in spite of the fact that the defence version which was a bare denial of the
allegations of rape, could not be accepted at its face value. He further observed: “Finding
Nushi angry and knowing that Nushi would suspect something fishy, she (Mathura) could
not have very well admitted that of her own free will, she had surrendered her body to a
Police Constable. Thecrowd included her lover Ashok, and she had to sound virtuous before
him. This is why-this is a possibility-she might have invented the story of having been
confined at the Police Station and raped by accused no.2. Mathura is habituated to sexual
intercourse, as is clear from the testimony of Dr. Shastrakar, and accused No.2 is no novice.
He speaks of nightly discharges. This may be untrue, but there is no reason to exclude the
possibility of his having stained his pyjama with semen while having sexual intercourse with
persons other than Mathura. The seminal stains on Mathura can be similarly accounted for.
She was after all living with Ashok and very much in love with him….”and then concluded
that the prosecution had failed to prove its case against the appellants.
4. The High Court took note of the various findings arrived at by the learned Sessions
Judge and then itself proceeded to shift the evidence bearing in mind the principle that a
reversal of the acquittal would not be justified if the view taken by the trial court was
reasonably possible, even though the High Court was inclined to take different view of
the facts. It agreed with the learned Sessions Judge in respect of his finding with regard to
the age of Mathura (P.W.1) but then held that the deposition of the girl that Ganpat
appellant had sexual intercourse with her was reliable, supported as it was by
circumstantial evidence, especially that of the presence of stains of semen on the clothes
of the girl and Ganpat appellant. The fact that semen was found neither on the pubic hair
nor on the vaginal-smears taken from her person was considered to be of no
consequence by reason of the circumstance that the girl was examined by the lady doctor
about 20 hours after the event, and of the probability that she had taken a bath in the
meantime. The High Court proceeded to observe that although the learned Sessions
Judge was right in saying that there was a world of difference between sexual intercourse
and rape, he erred in appreciating the difference between consent and “passive
submission”. In coming to the conclusion that the sexual intercourse in question was
forcible and amounted to rape, the High Court remarked:
165

Besides the circumstances that emerge from the oral evidence on the record,
we have to see in what situation Mathura was at the material time. Both the
accused were strangers to her. It is not the case of the defence that Mathura knew
both the accused or any of them since before the time of occurrence. It is therefore,
indeed, highly improbable that Mathura on her part would make any overtures or
invite the accused to satisfy her sexual desire. Indeed it is also not probable that a
girl who was involved in a complaint filed by her brother would make such overtures
or advances. The initiative must, therefore, have come from the accused and if such
an initiative comes from this accused, indeed she could not have resisted the same
on account of the situation in which she had found herself especially on account of a
complaint filed by her brother against her which was pending enquiry at the very
police station. If these circumstances are taken into consideration it would be clear
that the initiative for sexual intercourse must have come from the accused or any of
them and she had to submit without any resistance…. Mere passive or helpless
surrender of the body and its resignation to the other’s lust induced by threats or
fear cannot be equated with the desire or will, nor can furnish an answer by the
mere fact that the sexual act was not in opposition to such desire or volition…. On
the other hand, taking advantage of the fact that Mathura was involved in a
complaint filed by her brother and that she was alone at the police station at the
dead hour of night, it is more probable that the initiative for satisfying the sexual
desire must have proceeded from the accused, and that victim Mathura must not
have been a willing party to the act of the sexual intercourse. Her subsequent
conduct in making statement immediately not only to her relatives but also to the
members of the crowd leave no manner of doubt that she was subjected to forcible
sexual intercourse.
In relation to Tukaram appellant, the High Court did not believe that he had made any
attempt to rape the girl but took her word for granted in so far as he was alleged to have
fondled her private parts after the act of sexual intercourse by Ganpat appellant.It was in
these premises that the High Court convicted and sentenced the appellants as aforesaid.
5. The main contention which has been raised before us on behalf of the appellants is
that no direct evidence being available about the nature of the consent of the girl to the
alleged act of sexual intercourse, the same had to be inferred from the available
circumstances and that from those circumstances it could not be deduced that the girl had
been subjected to or was under any fear or compulsion such as would justify an inference of
any “passive submission”, and this contention appears to us to be well-based. As pointed out
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earlier, no marks of injury were found on the person of the girl after the incident and their
absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and
that the story of a stiff resistance having been put up by the girl is all false. It is further clear
that the averments on the part of the girl that she had been shouting loudly for help are also
a tissue of lies. On these two points the learned Sessions Judge and the High Court also hold
the same view. In coming to the conclusion that the consent of the girl was a case of
“passive submission”, the High Court mainly relied on the circumstance that at the relevant
time the girl was in the police station where she would feel helpless in the presence of the
two appellants who were persons in authority and whose advances she could hardly repel all
by herself and inferred that her submission to the act of sexual intercourse must be
regarded as the result of fear and, therefore, as no consent in the eye of law. This reasoning
suffers from two errors. In the first place, it loses sight of the fact which was admitted by the
girl in cross-examination and which has been thus described in the impugned judgment:
She asserted that after Baburao had recorded her statement before the
occurrence, she and Gama had started to leave the police station and were passing
through the front door. While she was so passing, Ganpat caught her. She stated
that she knew the name of accused No.2 as Ganpat from Head Constable Baburao
while giving her report Ex. 5. She stated that immediately after her hand was caught
by Ganpat she cried out. However, she was not allowed to raise the cry when she
was being taken to the latrine but was prevented from doing so. Even so, she had
cried out loudly. She stated that she had raised alarm even when the underwear
was loosened at the latrine and also when Ganpat was looking at her private parts
with the aid of a torch. She stated that the underwear was not loosened by her.
Now the cries and the alarm are, of course, a concoction on her part but then there is
no reason to disbelieve her assertion that after Baburao (P.W.8) had recorded her
statement, she and Gama had started leaving the police station and were passing through
the entrance door when Ganpat appellant caught hold of her and took her away to the
latrine. And if that be so, it would be preposterous to suggest that although she was in the
company of her brother (and also perhaps of Ashok and her aunt Nushi) and had practically
left the police station, she would be so over-awed by the fact of the appellants being
persons in authority in the circumstance that she was just emerging from a police station
that she would make no attempt at all to resist. On the other hand, her natural impulse
would be to shake off the hand that caught her and cry out for help even before she
noticed who her molester was. Her failure to appeal to her companions who were no other
than her brother, her aunt and her lover, and her conduct in meekly following Ganpat
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appellant and allowing him to have his way with her to the extent of satisfying his lust in
full, makes us feel that the consent in question was not a consent which could be brushed
aside as “passive submission.”
Secondly, it has to be borne in mind that the onus is always on the prosecution to prove
affirmatively each ingredient of the offence it seeks to establish and that such onus never
shifts. It was, therefore, incumbent on it to make out that all the ingredients of Section 375
of the I.P.C. were present in the case of the sexual intercourse attributed to Ganpat
appellant.
The section itself states in clauses thirdly and fourthly as to when a consent would not
be a consent within the meaning of clause Secondly. For the proposition that the requisite
consent was lacking in the present case, reliance on behalf of the State can be placed only
on clause thirdly so that it would have to be shown that the girl had been put in fear of
death or hurt and that was the reason for her consent. To this aspect of the matter the
High Court was perhaps alive when it talked of “passive submission” but then in holding
that the circumstances available in the present case make out a case of fear on the part of
the girl, it did not give a finding that such fear was shown to be that of death or hurt, and
in the absence of such a finding, the alleged fear would not vitiate the consent. Further, for
circumstantial evidence to be used in order to prove an ingredient of an offence, it has to
be such that it leads to no reasonable inference other than that of guilt. We have already
pointed out that the fear which clause thirdly of Section 375 speaks of is negatived by the
circumstance that the girl is said to have been taken away by Ganpat right from amongst
her near and dear ones at a point of time when they were all leaving the police station
together and were crossing the entrance gate to emerge out of it. The circumstantial
evidence available, therefore, is not only capable of being construed in a way different
from that adopted by the High Court but actually derogates in no uncertain measure from
the inference drawn by it.
6. In view of what we have said above, we conclude that the sexual intercourse in
question is not proved to amount to rape and that no offence is brought home to Ganpat
appellant.
7. The only allegation found by the High Court to have been brought home to Tukaram
appellant is that he fondled the private parts of the girl after Ganpat had left her. The High
Court itself has taken note of the fact that in the first information report (Ex. 5) the girl had
made against Tukaram serious allegations on which she had gone back at the trial and the
acts covered by which she attributed in her deposition to Ganpat instead. Those allegations
were that Tukaram who had caught hold of her in the first instance, had taken her to the
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latrine in the rear of the main building, had lit a torch and had stared at her private parts in
the torch-light. Now if the girl could alter her position in regard to these serious allegations
at will, where is the assurance that her word is truthful in relation to what she now says
about Tukaram? The High Court appears to have been influenced by the fact that Tukaram
was present at the police station when the incident took place and that he left it after the
incident. This circumstance, in our opinion, is not inculpatory and is capable of more
explanations than one. We do not, therefore, propose to take the girl at her word in relation
to Tukaram appellant and hold that the charge remains wholly unproved against him.
8. In the result, the appeal succeeds and is accepted. The judgment of the High Court is
reversed and the conviction recorded against as well as the sentences imposed upon the
appellants by it are set aside. Appeal allowed.

*****
 169

AN OPEN LETTER TO THE CHIEF JUSTICE OF INDIA*

Your Lordship:

We as Indian citizens and teachers of law, take the liberty of writing this open letter to
focus judicial attention and public debate over a decision rendered by the Supreme Court on
September 15, 1978 which has been recently reported. The decision was rendered by Justices
Jaswant Singh, Kailasham and Koshal in Tukaram v. State of Maharashtra [(1979)2 SCC 143].
The facts of the case are briefly as follows. Mathura, a young girl of the age 14-16, was an
orphan who lived with her brother, Gamma, both of them are labourers. Mathura developed
a relationship with Ashok, the cousin of Nushi at whose house she used to work, and they
decided to get married. On March 26, 1972, Gama lodged a report that she was kidnapped by
Nushi, her husband and Ashok. They were all brought to the police station at 9 p.m. when
their statements were recorded. When everyone started leaving the police station, around
10:30 p.m. Tukaram, the head constable and Ganpat, a constable, directed that Mathura
remain at the police station. What happened thereafter is best described in words of Justice
Koshal, who wrote the decision of the court:
Immediately thereafter Ganpat took Mathura into the latrine situated at the rear of the
main building, loosened her underwear, lit a torch and stared at her private parts. He then
dragged her to a chhapri. In the chhapri he felled her on the ground and raped her in spite of
her protests and stiff resistance on her part. He departed after satisfying his lust and then
Tukaram, who was seated in the cot nearby, came to the place where Mathura was and
fondled her private parts. He also wanted to rape her but was unable to do so because for
the reason that he was in a highly intoxicated condition.
There was natural anxiety outside the police station as the lights were put off and doors
bolted. They shouted for Mathura but to no avail. A crowd collected; shortly after Tukaram
emerged to announce that Mathura had already left. Mathura then emerged and announced
that she had been raped by Ganpat. The doctor to whom people approached advised them to
file a report with the police. Head Constable Baburao was brought from his home to the
station, by the fear of the restive crowd, and first information report was lodged.
Mathura was examined by the doctor on March 27. She had no injury. Her hymen
revealed old ruptures. Other aspects of physical examination revealed that she had
intercourse in the past. Presence of semen was detected on her pubic hair, on her clothes
and the pyjama of Ganpat.

*
(1979) 4 SCC 1
 170

The Sessions Judge found this evidence insufficient to convict the accused. The farthest
he would go was to hold that Mathura had sexual intercourse with Ganpat! But sexual
intercourse cannot be equated with rape; there was "a world of difference", in law, between
the two. He feared that Mathura had cried 'rape' in order to prove herself 'virtuous' before
the crowd which included her lover. He was also not sure that the semen on clothes was
from intercourse with Tukaram, and although he was disinclined to accept Tukaram's claim
that semen on his trousers was due to habitual nocturnal discharges, he entertained the
possibility that the semen stains on his clothes may well be due to the possibility of his having
intercourse "with persons other than Mathura".
The Bombay High Court (Nagpur Bench) reversed the finding and sentenced Tukaram for
rigorous imprisonment for one year and Ganpat for five years. Its grounds for reversal were
that since both these 'gentlemen' were perfect strangers to Mathura, it was highly unlikely
that "she would make any overtures or invite the accused to satisfy her sexual desires". Nor
could she have resisted her assailants. The High Court came to the conclusion that the
policemen had "taken advantage of the fact that Mathura was involved in a complaint filed
by her brother, and she was alone in the dead hour of the night" in a police station. This
proved that she could not have in any probability, consented to intercourse.
Your Court, Your Lordship, reversed the High Court verdict. The reasons given by Justice
Koshal are as follows. First, Justice Koshal held that as there were no injuries shown by
medical report, the story of "stiff resistance having been put up by the girl is all false" and the
"alleged intercourse was a peaceful affair". Second, the court disbelieves the testimony of
the girl that she shouted "immediately after her hand was caught by Ganpat", that she was
not allowed to shout when she was taken to latrine and "that she had raised the alarm even
when the underwear was loosened and Ganpat was looking at her private parts with the aid
of a torch".
The Court holds that the "cries and alarms are, of course, a concoction on her part". This
is said because when she was leaving police station with her brother, Ganpat had caught her
by arm and she made no attempt to resist it then. The Court says "If that be so, it would be
preposterous to suggest that although she was in the company of her brother... she would be
so overawed by the fact of appellants being persons in authority or the circumstance that she
was just emerging from a police station that she would make no attempt at all to resist".
Third, the Court holds that under Section 375 of the Penal Code, only the "fear of death or
hurt" can vitiate consent for sexual intercourse. There was no such finding recorded. The
circumstantial evidence must be such also as lead to "reasonable evidence of guilt". While
the High Court thought there was such reasonable evidence, the Supreme Court did not.
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Tukaram too was held not guilty because Mathura had in her deposition attributed far more
serious things to him and later attributed these acts to Ganpat instead. The fact that Tukaram
was present when the incident took place and that he left it soon after the incident, says the
Court, is "not inculpatory and is capable of more explanations than one". But these other
explanations are not at all indicated by Justice Koshal in his judgment.
Your Lordship, this is an extraordinary decision sacrificing human rights of women under
the law and the Constitution. The Court has provided no cogent analysis as to why the factors
which weighed with the High Court were insufficient to justify conviction for rape. She was in
the police station in the "dead hour of night". The High Court found it impossible to believe
that she might have taken initiative for intercourse. The fact remains that she was asked to
remain in the police station even after her statement was recorded and her friends and
relations were asked to leave. Why? The fact remains that Tukaram did nothing whatsoever
to rescue the girl from Ganpat. Why? The Court says in its narration of facts, presumably
based on the trial court records, that Tukaram was intoxicated. But this is not considered
material either. Why? Why were the lights closed and doors shut?
Your Lordship, does the Indian Supreme Court expect a young girl, 14-16 years old, when
trapped by two policemen inside the police station, to successfully raise alarm for help? Does
it seriously expect the girl, a labourer, to put up such stiff resistance against well-built
policemen so as to have substantial marks of physical injury? Does the absence of such marks
necessarily imply absence of stiff resistance? If anything it is Ganpat's body which would have
disclosed marks of such resistance by Mathura, like clawing and biting.
May be, the evidence of shouts for help and 'stiff resistance' is all "a tissue of lies". But
does the absence of shouts justify an easy inference of the consensual intercourse in a police
station? (Incidentally, what would be the Court's reaction if the victim was dumb or gagged?)
In any event, how could the fact of shouting within closed doors of a police station be
established in such cases?
In restoring the decision of the Sessions Judge, does the Supreme Court of India really
believe with him that Mathura had "invented" the story of rape, and even the confinement in
the police station, in order to sound “virtuous” before Ashok? Does the Court believe that
Mathura was so flirtatious that even when her brother, her employer and her lover were
waiting outside the police station that she could not let go the opportunity of having fun with
two policemen and that too in the area adjoining a police station latrine? Does it believe with
the Session Judge that Mathura was “habituated to sexual intercourse” to such an extent?
And therefore further think that the semen marks on Mathura’s hair and clothing could have
come from further sexual activities between the police incident and the next morning when
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she was medically examined? What about semen marks on Ganpat’s trousers? Why this
double standard? Ganpat’s sexual habits give him the benefit of doubt of having ‘raped’
Mathura; her sexual habits make the Court disbelieve the story of the rape altogether!
We also find it surprising that the Supreme Court should have only focused on the third
component of Section 375 of the Indian Penal Code, which applies when rape is committed
with the women’s consent, when “her consent has been obtained by putting her in fear of
death or hurt”. But the second component of Section 375 is when rape occurs without her
consent. There is a clear difference in law, and in common sense, between ‘submission’ and
‘consent’.
Consent involves submission, but the reverse is not necessarily true. Nor is the absence
of resistance necessarily indicative of consent. It appears from the fact as stated by the Court
and its holdings, that there was submission on the part of Mathura. But where was the
finding on crucial element of consent?
It may be that in the strict law Ganpat was charged with rape on the third component of
description of rape. In that case, the issue before the Court was simply whether the act was
committed with her consent, under fear of death or hurt. But still the question whether there
was ‘consent’ was quite relevant: indeed it was crucial. From the facts of the case, all that is
established is submission, and not consent. Could not their Lordships have extended their
analysis of ‘consent’ in a manner truly protective of the dignity and right of Mathura? One
suspects that the Court gathered an impression from Mathura’s liaison with her lover that
she was a person of easy virtue. Is the taboo against pre-marital sex so strong as to provide a
license to Indian police to rape young girls? Or to make them submit to their desires at police
stations?
My Lord, the ink is hardly dry on the decision in Nandini Satpathy [(1978) 2 SCC 424]
when the Supreme Court, speaking through Justice Krishna Iyer, condemned the practice of
calling women to the police station in gross violation of section 160(1) of the Criminal
Procedure Code. Under that provision, a woman shall not be required to attend the police
station at any other place than her place of residence. The Court stated in Nandini that it “is
quite probable that the very act of directing a woman to come to the police station in
violation of section 160(1) Cr PC may make for tension and negate voluntariness”. This
observation was made in the context of the right against self-incrimination; is it any the less
relevant to situations of ‘rape’ or, as the Court wishes to put it, ‘intercourse’ in a police
station?
Certainly, the hope expressed by Justice Iyer that “when the big fight forensic battle the
small gain victory” has been belied. The law made for Nandini Satpathy does not, after all,
173

apply to helpless Mathuras of India. There is not a single word condemning the very act of
calling Mathura, and detaining her, at the police station in gross violation of the law of the
land made by Parliament and so recently reiterated by the Supreme Court. Nor is there a
single word in the judgement condemning the use of police station as a theatre of rape or
submission to sexual intercourse. There is no direction to the administration to follow the
law. There are no strictures of any kind.
The court gives no consideration whatsoever to the socio-economic status, the lack of
knowledge of legal rights, the age of victim, lack of access to legal services, and the fear
complex which haunts the poor and the exploited in Indian police stations. May we
respectfully suggest that yourself and your distinguished colleagues visit incognito, wearing
the visage of poverty, some police stations in villages adjoining Delhi?
My Lord, your distinguished colleagues and yourself have earned a well-merited place in
contemporary Indian history for making preservation of democracy and human rights a
principal theme of your judicial and extra-judicial utterances, especially after March 77. But a
case like this with its cold-blooded legalism snuffs out all aspirations for the protection of
human rights of millions of Mathuras in the Indian countryside. Why so?
No one can seriously suggest that all policemen are rapists. Despite massive evidence of
police maltreatment of women in custody which rocked the state of Madhya Pradesh in
1977- 78 and Andhra Pradesh in Remeeza Bee's case not too long ago, we could agree with
the Court were it to say it explicitly that the doctrine of judicial notice cannot be used to
negative the presumption of innocence, even in such type of cases. But must presumption of
innocence be carried so far as to negative all reasonable inference from circumstantial
evidence?
Mathura, with all her predicaments, has been fortunate that her problem reached the
High Court and your Court. But there are, millions of Mathuras in whose situations even the
first information reports are not filed, medical investigations are not made in time, who have
no access to legal services at any level and who rarely have the privilege of vocal community
support for their plight.
The Court, under your leadership, has taken great strides for civil liberties in cases
involving affluent urban women (e.g., Mrs. Maneka Gandhi; Mrs. Nandini Satpathy). Must
illiterate, labouring, politically mute Mathuras of India be continually condemned to their
pre-constitutional Indian fate?
What more can we say? We can only appeal in conclusion, to have the case be reheard,
as an unusual situation by a larger bench, and if necessary by even the Full Court. This may
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appear to your Lordship as a startlingly unconventional, and even a naive, suggestion. But
nothing short of protection of human rights and constitutionalism is at stake. Surely, the
plight of millions of Mathuras in this country is as important as that of Golak Nath, and His
Holiness Kesavananda Bharati, challenging the validity of restriction on the right to property
as a fundamental right; whose case were heard by a full court.
May be on re-examination Ganpat and Tukaram may stand acquitted for better reasons
than those now available. But what matters is a search for liberation from the colonial and
male-dominated notions of what may constitute the element of consent, and the burden of
proof for rape which affect many Mathuras on the Indian countryside.
You will no doubt forgive us for this impertinence of writing an open letter to you. But
the future of judicial protection of human rights at grass roots level in India at the turn of the
century, a concern we all share as citizens and as lawmen, leave us with no other and better
alternative.
With best regards and greetings, we remain,

Sincerely yours,

Upendra Baxi

Vasudha Dhagamwar

Delhi Raghunath Kelkar

September 16, 1979 Lotika Sarkar

*****
175

State of Punjab v. Gurmit Singh

(1996) 2 SCC 384

DR. ANAND, J. - The prosecutrix a young girl below 16 years of age, was studying in the 10 th
class at the relevant time in GovernmentHigh School, Pakhowal. The matriculation
examinations were going on at the material time. The examination centre of the prosecutrix
was located in the boys’ High School, Pakhowal. On 30-3- 1984 at about 12.30 p.m. after
taking her test in Geography, the prosecutrix was going to the house of her maternal uncle,
Darshan Singh, and when she had covered a distance of about 100 karmas from the school, a
blue Ambassador car being driven by a Sikh youth aged 20/25 years came from behind. In
that car Gurmit Singh, Jagjit Singh @ Bawa and Ranjit Singh accused were sitting. The car
stopped near her. Ranjit Singh accused came out of the car and caught hold of the
prosecutrix from her arm and pushed her inside the car. Accused Jagjit Singh @ Bawa put his
hand on the mouth of the prosecutrix, while Gurmit Singh accused threatened the
prosecutrix, that in case she raised an alarm she would be done to death. All the three
accused (respondents herein} drove her to the tube well of Ranjit Singh accused. She was
taken to the ‘kotha’ of the tube well. The driver of the car after leaving the prosecutrix and
the three accused persons there went away with the car. In the said kotha Gurmit Singh
compelled the prosecutrix to take liquor, misrepresenting to her that it was juice. Her refusal
did not have any effect and she reluctantly consumed liquor. Gurmit Singh then got removed
her salwar and also opened her shirt. She was made to lie on a cot in the kotha while his
companions guarded the kotha from outside. Gurmit Singh committed rape upon her. She
raised roula as she was suffering pain but Gurmit Singh threatened to kill her if she persisted
in raising alarm. Due to that threat, she kept quiet. After Gurmit Singh had committed rape
upon her, the other two accused, who were earlier guarding the kotha from outside, came in
on by one and committed rape upon her. Jagjit Singh alias Bawa committed rape on her
after Gurmit Singh and thereafter Ranjit Singh committed rape on her. Each one of the
accused committed sexual intercourse with the prosecutrix forcibly and against her will.
They all subjected her to sexual intercourse once again during the night against her will.
Next morning at about 6.00 a.m. the same car arrived at the tube well kotha of Ranjit Singh
and the three accused made her sit in that car and left her near the Boys’ High School,
Pakhowal near about the place from where she had been abducted. The prosecutrix had to
take her examination in the subject of Hygiene on that date. She, after taking her
examination in hygiene, reached her village Nangal-Lalan, at about noon time and narrated
the entire story to her mother, Smt Gurdev Kaur PW 7. Her father Tirlok Singh PW 6 was not
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present in the house at that time. He returned from his work late in the evening. The mother
of the prosecutrix, Smt Gurdev Kaur, PW 7, narrated the episode to her husband Tirlok Singh
PW 6 on his arrival. Her father straightaway contacted Sarpanch Joginder Singh of the
village. A panchayat was convened. Matter was brought to the notice of the Sarpanch of
Village Pakhowal also. Both the Sarpanches tried to effect a compromise on 1-4-1984 but
since the panchayat could not give any justice or relief to the prosecutrix, she along with her
father proceeded to the Police Station, Raikot to lodge a report about the occurrence with
the police. When they reached the bus adda of Village Pakhowal, the police met them and
she made her statement, Ex. PD, before ASI Raghubir Chand PW who made an endorsement,
Ex. PD/I and sent the statement Ex. PD. of the prosecutrix to the Police Station Raikot for
registration of the case on the basis of which formal FIR Ex. PD/2 was registered by SI
Malkiat Singh. ASI Raghubir Chand then took the prosecutrix and her mother to the primary
health centre Pakhowal for medical examination of the prosecutrix. She was medically
examined by lady doctor, Dr. Sukhwinder Kaur, PW 1 on 2-4-1984, who found that the
hymen of the prosecutrix was lacerated with fine radiate tears, swollen and painful. Her
pubic hair were also found matted. According to PW I intercourse with the prosecutrix could
be “one of the reasons for laceration which I found in her hymen”. She went on to say that
the possibility could not be ruled out that the prosecutrix “was not habitual to intercourse
earlier”
2. During the course of investigation, the police took into possession a sealed parcel
handed over by the lady doctor containing the salwar of the prosecutrix along with 5 slides
of vaginal smears and one sealed phial containing pubic hair of the prosecutrix, vide memo
Ex. PK. On the pointing out of the prosecutrix, the investigating officer prepared the rough
site plan Ex. PF, of the place from where she had been abducted. The prosecutrix also led
the investigating officer to the tube well kotha of Ranjit Singh where she had been
wrongfully confined and raped. The investigation officer prepared a rough site plane of the
kotha Ex. PM. A search was made for the accused on 2-4-1984 but they were not found.
They were also not traceable on 3-4-1984, in spite of a raid being conducted at their houses
by the ASI .On 5-4-1984 Jagjit Singh alias Bawa and Ranjit Singh were produced before the
investigating officer by Gurbachan Singh PW 8 and were placed under arrest. Both Ranjit
Singh and Jagjit Singh on the same day were produced before Dr B.L. Bansal PW 3 for
medical examination. The doctor opined that both accused were fit to perform sexual
intercourse. Gurmit Singh respondent was arrested on 9-4-1984 by SI Malkiat Singh. He was
also got medically examined on 9-4-1984 by Dr B.L. Bandal PW 3 who opined that Gurmit
Singh was also fit to perform sexual intercourse. The sealed parcels containing the slides of
vaginal smears, the pubic hair and the salwar of the prosecutrix, were sent to the chemical
177

examiner. The report of the chemical examiner revealed that semen was found on the
slides of vaginal smear through no spermatozoa was found either on the pubic hair or the
salwar of the prosecutrix. On completion of the investigation, respondents were challaned
and were charged for offences under Sections 363, 366,368 and 376 IPC.
3. With a view to connect the respondents with the crime, the prosecution examined Dr
Sukhwinder Kaur, PW I; prosecutrix, PW 2; Dr B.L. Bansal, PW 3; Tirlok Singh, father of the
prosecutrix, PW 6; Gurudev Kaur, mother of the prosecutrix, PW 7; Gurbachan Singh, PW 8;
Malkiat Singh, PW 9; and SI Raghubir Chand, PW 10; besides, some formal witnesses like the
draftsman etc. The prosecution tendered in evidence affidavits of some of the constables,
whose evidence was of a formal nature as also the report of the chemical examiner, Ex. PM.
In their statements recorded under Section 313 Cr.P.C. the respondents denied the
prosecution allegations against them. Jagjit Singh respondent stated that it was a false case
foisted on him on account of his enmity with the Sarpanch of Village Pakhowal. He stated
that he had married a Canadian girl in the village gurdwara, which was not liked by the
Sarpanch and therefore, the Sarpanch was hostile to him and had got him falsely implicated
in this case. Gurmit Singh respondent took the stand that he had been falsely implicated in
the case on account of enmity between his father and Tirlok Singh, PW 6, father of the
prosecutrix. He stated that there was long-standing litigation going on between his father
and the father of the prosecutrix and their family members were not even on speaking
terms with each other. He went on to add that on 1-4-1984 he was given a beating by Tirlok
Singh, PW 6, on grounds of suspicion that he might have instigated some persons to abduct
his daughter and in retaliation he and his elder brother on the next day had given a beating
to Tirlok Singh, PW 6 and also abused him and on that account Tirlok Singh PW, in
consultation with the police had got him falsely implicated in the case. Ranjit Singh
respondent also alleged false implication but gave no reasons for having been falsely
implicated. Jagjit Singh alias Bawa produced DW I Kuldip Singh and DW 2 MHC, Amarjit
Singh in defence and tendered in evidence Ex. DC, a photostat copy of his passport and Ex.
DD copy of a certificate of his marriage with the Canadian girl. He also tendered into
evidence photographs marked ‘C’ and’ D’ evidencing his marriage with the Canadian girl.
The other two accused however did not lead any defence evidence.
4. The trial court first dealt with the prosecution case relating to the abduction of the
prosecutrix by the respondents and observed:
The first point for appreciation before me would arise whether this part of the
prosecution story stands fortified by any cogent or reliable evidence or not. There is
a bald allegation only of prosecutrix (name omitted) that she was forcibly abducted
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in a car. In the FIR she stated that she was abducted in an Ambassador car of blue
colour. After going through the evidence, I am of the view that this thing has been
introduced by the prosecutrix or by her father or by the thanedar just to give the
gravity of offence. Prosecutrix (name omitted) was tested about the particulars of
the car and she is so ignorant about the make etc. of the car that entire story that
she was abducted in the car becomes doubtful. She stated in her cross-examination
at page 8 that the make of the car was Master. She was pertinently asked whether
the make of the car was Ambassador or Fiat. The witness replied that she cannot tell
the make of the car. But when she was asked as to the difference between Fiat,
Ambassador or Master car, she was unable to explain the difference amongst these
vehicles. So, it appears that the allegations that she was abducted in a Fiat car by all
the three accused and the driver is an imaginary story which has been given either
by the thanedar or by the father of the prosecutrix.

If the three known accused are in the clutches of the police, it is not difficult for
them to come to know about the car, the name of its driver etc., but strange
enough, SI Raghubir Chand has shown pitiable negligence when he could not find
out the car driver in spite of the fact that he directed the investigation on these
lines. He had to admit that he made search for taking the car into possession
allegedly used in the occurrence. He could not find out the name of the driver nor
could he find out which car was used. In these circumstances, it looks to be
improbable that any car was also used in the alleged abduction. (omission of name
of the prosecutrix ours)
The trial court further commented:
On 30-3- 1984 she was forcibly abducted by four desperate persons who were
out and out to molest her honour. It has been admitted by the prosecutrix that she
was taken through the bus adda of Pakhowal via metalled road. It has come on the
evidence that it is a busy centre. In spite of that fact she had not raised any alarm,
so as to attract persons that she was being forcibly taken. The height of her own
unnatural conduct is that she was left by the accused at the same point on the next
morning. The accused would be the last persons to extend sympathy to the
prosecutrix. Had it been so, the natural conduct of the prosecutrix would have been
first to rush to the house of her maternal uncle to apprise him that she had been
forcibly abducted on the previous day. The witness after being left at the place of
abduction lightly takes her examination. She does not complain to the lady teachers
who were deployed to keep a watch on the girl students because these students
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were to appear in the centre of Boys’ School. She does not complain to anybody or
to her friend that she was raped during the previous night. She prefers her
examination rather than go to the house of her parents or relations. Thereafter, she
goes to her village Nangal-Kalan and informs for the first time her mother that she
was raped on the previous night. This part of the prosecution story does not look to
be probable.
5. The trial court, thus, disbelieved the version of the prosecutrix basically for the
reasons: (i) “she is so ignorant about the make etc. of the car that entire story that she was
abducted in the car becomes doubtful” particularly because she could not explain the
difference between a Fiat car, Ambassador car or a Master car; (ii) the investigating officer
had “shown pitiable negligence” during the investigation by not tracing out the car and the
driver; (iii) that the prosecutrix did not raise any alarm while being abducted even though
she had passed through the bus adda of Village Pakhowal; (iv) that the story of abduction
“has been introduced by the prosecutrix or by her father or by the thanedar just to give the
gravity of offence” and (v) that no corroboration of the statement of the prosecutrix was
available on the record and that the story that the accused had left her near the school
next morning was not believable because the accused could have no ‘sympathy’ for her.
6. The trial court also disbelieved the version of the prosecutrix regarding rape. It
found that the testimony of the prosecutrix did not inspire confidence for the reasons (i)
that there had been delay in lodging the FIR and as such the chances of false implication of
the accused could not be ruled out. According to the trial court, Tirlok Singh PW 6 became
certain on 1-4-1984 that there was no outcome of the meeting between the panchayats of
Nangal-Kalan and Pakhowal, therefore, there was no justification for him not to have
lodged the report on 1-4-1984 itself and since Tirlok Singh had “entered into consultations
with his wife as to whether to lodge the report or not, it rendered the matter doubtful”; (ii)
that the medical evidence did not help the prosecution case. The trial court observed that
in her cross examination PW 1 lady doctor had admitted that whereas intercourse with the
prosecutrix could be one of the reasons for the laceration of the hymen “there could be
other reasons also for that laceration”. The trial court noticed that the lady doctor had
inserted a vaginal speculum for taking swabs from the posterior vaginal fornix of the
prosecutrix for preparing slides and since the width of the speculum was about two fingers,
the possibility that the prosecutrix was habituated to sexual intercourse could not be ruled
out”. The trial court observed that the prosecutrix was “fighting her imagination in order to
rope in the accused persons” and that implicit reliance could not be placed on the
testimony “of such a girl”; (iii) there was no independent corroboration of her testimony
 180

and (iv) that the accused had been implicated on account of enmity as alleged by the
accused in their statements recorded under Section 313 Cr.P.C.
7. The grounds on which the trial court disbelieved the version of the prosecutrix are
not at all sound. The findings recorded by the trial court rebel against realism and lose
their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village
girl. She was student of X class. It was wholly irrelevant and immaterial whether she was
ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the
statement of the prosecutrix at the trial that she did not remember the colour of the car,
though she had given the colour of the car in FIR was of no material effect on the reliability
of her testimony. No fault could also be found with the prosecution version on the ground
that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her
statement categorically asserted that as soon as she was pushed inside the car she was
threatened by the accused to keep quiet and not to raise any alarm, otherwise she would
be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm
while the car was passing through the bus adda is a travesty of justice. 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 alarm. Again, if the 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 prosecutrix had no
control over the investigating agency and the negligence of an investigating officer could
not affect the credibility of the statement of the prosecutrix. The trial court fell in error for
discrediting the testimony of the prosecutrix on the account. In our opinion, there was no
delay in the lodging of the FIR either and if at all there was some delay, the same has not
only been properly explained by the prosecution but in the facts and circumstances of the
case was also natural. 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 of the
prosecutrix or her family members to go to the police and complain about the incident
which concerns the reputation of the prosecutrix and the honour of her family. It is only
after giving it a cool thought that a complaint of sexual offence is generally lodged. The
prosecution has explained that as soon as Tirlok Singh PW 6, father of the prosecutrix came
to know from his wife, PW 7 about the incident he went to the village Sarpanch and
complained to him. The Sarpanch of the village also got in touch with the Sarpanch of
Village Pakhowal, where in the tube well kotha of Ranjit Singh rape was committed, and an
effort was made by the panchayats of the two villages to sit together and settle the mater.
It was only when the Panchayats failed to provide any relief or render any justice to the
181

prosecutrix, that she and her family decided to report the matter to the police and before
doing that naturally the father and mother of the prosecutrix discussed whether or not to
lodge a report with the police in view of the repercussions it might have on the reputation
and future prospects of the marriage etc. of their daughter. Tirlok Singh PW 6 truthfully
admitted that he entered into consultation with his wife as to whether to lodge a report or
not and the trial court appears to have misunderstood the reasons and justification for the
consultation between Tirlok Singh and his wife when it found that the said circumstance
had rendered the version of the prosecutrix doubtful. Her statement about the manner in
which she was abducted and again left near the school in the early hours of next morning
has a ring of truth. It appears that the trial court searched for contradictions and variations
in the statement of the prosecutrix microscopically, so as to disbelieve her version. The
observations of the trial court that the story of the prosecutrix that she was left near the
examination centre next morning at about 6 a.m. was “not believable” as “the accused
would be the last persons to extend sympathy to the prosecutrix” are not at all intelligible.
The accused were not showing “any sympathy” to the prosecutrix while driving her at 6.00
a.m. next morning to the place from where she had been abducted but on the other hand
were removing her from the kotha of Ranjit Singh and leaving her near the examination
centre so as to avoid being detected. The criticism by the trial court of the evidence of the
prosecutrix as to why she did not complain to the lady teachers or to other girl students
when she appeared for the examination at the centre and waited till she went home and
narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this
regard appears to us to be most natural. The trial court overlooked that a girl, in a
tradition-bound non-permissive society in India, would be extremely reluctant even to
admit that any incident which is likely to reflect upon her chastity had occurred, being
conscious of the danger of being ostracized by the society or being looked down by the
society. Her not informing the teachers or her friends at the examination centre under the
circumstances cannot detract from her reliability. In the normal course of human conduct,
this unmarried minor girl, would not like to give publicity to the traumatic experience she
had undergone and would feel terribly embarrassed in relation to the incident to narrate it
to her teachers and others overpowered by a feeling of shame and her natural inclination
would be to avoid talking about it to anyone, lest the family name and honour is brought
into controversy. Therefore her informing her mother only on return to the parental house
and no one else at the examination centre prior there is in accord with the natural human
conduct of a female. The courts must, while evaluating evidence, remain alive to the fact
that in a case of rape, no self-respecting woman would come forward in a court just to
make a humiliating statement against her honour such as is involved in the commission of
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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 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. 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 of a victim of
sexual assault alone to convict an accused where her testimony inspires confidence and is
found to be reliable. Seeking corroboration of her statement before replying upon the
same as a rule in such cases amounts to, adding insult to injury. Why should the evidence
of a girl or a woman, who complains of rape or sexual molestation, be viewed with doubt,
disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look
for some assurance of her statement to satisfy its judicial conscience, since she is a witness
who is interested in the outcome of the charge levelled by her, but there is no requirement
of law to insist upon corroboration of her statement to base conviction of an accused. The
evidence of a victim of sexual assault stands almost on a par with the evidence of an
injured witness and to an extent is even more reliable just as a witness who has sustained
some injury in the occurrence, which is not found to be self-inflicted, is considered to be a
good witness in the sense that he is least likely to shield the real culprit, the evidence of a
victim of a sexual offence is entitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an imperative component of judicial
credence in every case of rape. Corroboration as a condition for judicial reliance on the
testimony of the prosecutrix is not a requirement of law but a guidance of prudence under
given circumstances. 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. Inferences have to be drawn from a given set of facts and
circumstances with realistic diversity and not dead uniformity lest that type of rigidity in
the shape of rule of law is introduced through a new form of testimonial tyranny making
justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration
even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial
mind as probable. In State of Maharashtra v. Chandraprakash Kewalchand Jain, Ahmadi,
J. (as the Lord Chief justice then was) speaking for the Bench summarised the position in
the following words:
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A prosecutrix of a sex offence cannot be put on a 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. She is
undoubtedly a competent witness under Section 118 and her evidence must receive
the same weight as is attached to an injured in cases of physical violence. 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 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 act on the evidence of
the prosecutrix, there is no rule of 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 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
depend on the facts and circumstances of each case. But if a prosecutrix is an adult
and of full 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 discloses that the prosecutrix
does not have a strong motive to falsely involve the person charged, the court
should ordinarily have no hesitation in accepting her evidence.
8. We are in respectful agreement with the above exposition of law. In the instant
case our careful analysis of the statement of the prosecutrix has created an impression on
our minds that she is a reliable and truthful witness. Her testimony suffers from no
infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony
alone without looking for any ‘corroboration’. However, in this case there is ample
corroboration available on the record to lend further credence to the testimony of the
prosecutrix.
9. The medical evidence has lent full corroboration to the testimony of the prosecutrix.
According to PW 1 lady doctor Sukhwinder Kaur she had examined the prosecutrix on 2-4-
1984 at about 7.45 p.m. at the Primary Health Centre, Pakhowal, and had found that “her
hymen was lacerated with fine radiate tears, swollen and painful”. The pubic hair was also
matted. She opined that intercourse with the prosecutrix could be “one of the reasons for
the laceration of the hymen” of the prosecutrix. She also opined that the “possibility cannot
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be ruled out that (prosecutrix) was not habitual to intercourse earlier to her examination by
her on 2-4-1984”. During her cross-examination, the lady doctor admitted that she had not
inserted her fingers inside the vagina of the prosecutrix during the medico-legal
examination but that she had put a vaginal speculum for taking the swabs from the
posterior vaginal fornix for preparing the slides. She disclosed that the size of the speculum
was about two fingers and agreed with the suggestion made to her during her cross-
examination that “if the hymen of a girl admits two fingers easily, the possibility that such a
girl was habitual to sexual intercourse cannot be ruled out”. However, no direct and specific
question was put by the defence to the lady doctor whether the prosecutrix in the present
case could be said to be habituated to sexual intercourse and there was no challenge to her
statement that the prosecutrix “may not have been subjected to sexual intercourse earlier”.
No enquiry was made from the lady doctor about the tear of the hymen being old. Yet, the
trial court interpreted the statement of PW l Dr Sukhwinder Kaur to hold that the
prosecutrix was habituated to sexual intercourse since the speculum could enter her vagina
easily and as such she was “a girl of loose character”. There was no warrant for such a
finding and the finding if we may say so with respect, is a wholly irresponsible finding. In the
face of the evidence of PW I, the trial court wrongly concluded that the medical evidence
had not supported the version of the prosecutrix.
10. The trial court totally ignored the report of the chemical examiner (Ex. PM)
according to which semen had been found on the slides which had been prepared by the
lady doctor from the vaginal secretions from the posterior of the vaginal fornix of the
prosecutrix. The presence of semen on the slides lent authentic corroboration to the
testimony of the prosecutrix. This vital evidence was forsaken by the trial court and as a
result wholly erroneous conclusions were arrived at. Thus, even though no corroboration is
necessary to rely upon the testimony of the prosecutrix, yet sufficient corroboration from
the medical evidence and the report of the chemical examiner is available on the record.
Besides, her statement has been fully supported by the evidence of her father, Tirlok Singh,
PW 6 and her mother Gurdev Kaur, PW 7, to whom she had narrated the occurrence soon
after her arrival at her house. Moreover, the unchallenged fact that it was the prosecutrix
who had led the investigating officer to the kotha of the tube well of Ranjit Singh, where
she had been raped, lent a built-in assurance that the charge levied by her was ‘genuine’
rather than ‘fabricated’ because it is no one’s case that she knew Ranjit Singh earlier or had
ever seen visited the kotha at his tube well. The trial court completely overlooked this
aspect. The trial court did not disbelieve that the prosecutrix had been subjected to sexual
intercourse but without any sound basis, observed that the prosecutrix might have spent
the ‘night’ in the company of some ‘persons’ and concocted the story on being asked by her
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mother as to where she had spent the night after her maternal uncle, Darshan Singh, came
to Nangal-Kalan to enquire about the prosecutrix. There is no basis for the finding that the
prosecutrix had spent the night in the company of “some persons “ and had indulged in
sexual intercourse with them of her own free will. The observations were made on surmises
and conjectures - the prosecutrix was condemned unheard.
11. The trial court was of the opinion that it was a ‘false’ case and that the accused had
been implicated on account of enmity. In that connection it observed that since Tirlok
Singh PW 6 had given a beating to Gurmit Singh on 1-4-1984 suspecting his hand in the
abduction of his daughter and Gurmit Singh accused and his elder brother had abused
Tirlok Singh and given a beating to Tirlok Singh PW 6 on 2-4-1984, “it was very easy on the
part of Tirlok Singh to persuade his daughter to name Gurmit Singh so as to take revenge”.
The trial court also found that the relations between the family of Gurmit Singh and of the
prosecutrix were strained on account of civil litigation pending between the parties for 7/8
years prior to the date of occurrence and that was also the reason to falsely implicate
Gurmit Singh.
However the positive evidence of PW 6 and PW 7 that there was no litigation pending
between PW 6 and the father of Gurmit Singh completely belied the plea of the accused. If
there was any civil litigation pending between the parties as alleged by Gurmit Singh, he
could have produced some documentary proof in support thereof but none was produced.
Even Mukand Singh, father of Gurmit Singh, did not appear in the witness box to support
the plea taken by Gurmit Singh. Even if it be assumed for the sake of argument that there
was some such litigation, it could hardly be a ground for a father to put forth his daughter
to make a wild allegation of rape against the son of the opposite party, with a view to take
revenge. It defies human probabilities. No father could stoop so low as to bring forth a
false charge of rape on his unmarried minor daughter with a view to take revenge from the
father of an accused on account of pending civil litigation. Again, if the accused could be
falsely involved on account of that enmity, it was equally possible that the accused could
have sexually assaulted the prosecutrix to take revenge from her father, for after all enmity
is a double-edged weapon, which may be used for false implication as well as to take
revenge. In any case, there is no proof of the existence of such enmity between PW 6 and
the father of Gurmit Singh which could have prompted PW 6 to put up his daughter to
falsely implicate Gurmit Singh on a charge of rape. Ranjit Singh, apart from stating that he
had been falsely implicated in the case did not offer any reasons for his false implication. It
was at his tube well kotha that rape had been committed on the prosecutrix. She had
pointed out that kotha to the police during investigation. No ostensible reason has been
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suggested as to why the prosecutrix would falsely involve Ranjit Singh in the commission of
such a heinous crime and nominate his kotha as the place where she had been subjected
to sexual molestation by the respondents. The trial court ignored that it is almost
inconceivable that an unmarried girl and her parents would go to the extent of staking
their reputation and future in order to falsely set up a case of rape to settle petty scores as
alleged by Jagjit Singh and Gurmit Singh, respondents.
12. From the statement of the prosecutrix, it clearly emerges that she was abducted
and forcibly subjected to sexual intercourse by the three respondents without her consent
and against her will. In this fact situation the question of age of the prosecutrix would pale
into insignificance. However, in the present case, there is evidence on the record to
establish that on the date of the occurrence, the prosecutrix was below 16 years of age.
The prosecutrix herself and her parents deposed at the trial that her age was less than 16
years on the date of the occurrence. Their evidence is supported by the birth certificate
(Ex. PJ). Both Tirlok Singh (PW 6) and Gurdev Kaur (PW 7), the father and mother of the
prosecutrix respectively, explained that initially they had named their daughter, the
prosecutrix, as Mahinder Kaur but her name was changed to... (name omitted), as
according to The Holy Guru Granth Sahib her name was required to start with the word
‘chhachha’ and therefore in the school-leaving certificate her name was correctly given.
There was nothing to disbelieve the explanation given by Tirlok Singh and Gurdev Kaur in
that behalf. The trial court ignored the explanation given by the parents observing that “it
could not be swallowed being a belated one”. The trial court was in error. The first
occasion for inquiring from Tirlok Singh (PW 6) about the change of the name of the
prosecutrix was only at the trial when he was asked about Ex. PJ and there had been no
earlier occasion for him to have made any such statement. It was, therefore, not a belated
explanation. That apart, even according to the lady doctor (PW 1), the clinical examination
of the prosecutrix established that she was less than 16 years of age on the date of the
occurrence. The birth certificate Ex. PJ was not only supported by the oral testimony of
Tirlok Singh PW 6 and Gurdev Kaur PW 7 out also by that of the school-leaving certificate
marked’ B’ .With a view to do complete justice, the trial court could have summoned the
official concerned from the school to prove various entries in the school leaving certificate.
From the material on the record, we have come to an unhesitating conclusion that the
prosecutrix was less than 16 years of age when she was made a victim of the lust of the
respondents in the manner deposed to by her against her will and without her consent.
The trial court did not return any positive finding as to whether or not the prosecutrix was
below 16 years of age on 30-3-1984 and instead went on to observe that “even assuming
for the sake of argument that the prosecutrix was less then 16 years of age on 30-3-1984,
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it could still not help the case as she was not a reliable witness and was attempting to
shield her own conduct by indulging in falsehood to implicate the respondents”. The entire
approach of the trial court in appreciating the prosecution evidence and drawing
inferences there from was erroneous.
13. The trial court not only erroneously disbelieved the prosecutrix, but quite
uncharitably and unjustifiably ever characterised her as “a girl of loose morals” or “such
type of a girl”.
14. What has shocked our judicial conscience all the more is the inference drawn by the
court, based on no evidence and not even on a denied suggestion, to the effect:
The more probability is that (prosecutrix) was a girl of loose character. She
wanted to dupe her parents that she resided for on night at the house of her
maternal uncle, but for reasons best known to her, she did not do so and she
preferred to give company to some persons.
15. We must express our strong disapproval of the approach of the trial court and its
casting a stigma on the character of the prosecutrix. The observations lack sobriety
expected of a judge. Such like stigmas have the potential of not only discouraging an even
otherwise reluctant victim of sexual assault to bring forth complaint for trial of criminals,
thereby making the society suffer by letting the criminal escape even a trial. The courts are
expected to use self-restraint while recording such findings which have larger repercussions
so far as the future of the victim of the sex crime is concerned and even wider implications
on the society as a whole -where the victim of crime is discouraged ; the criminal
encouraged and in turn crime gets rewarded!. Even in cases, unlike the present case, where
there is some acceptable material on the record show that the victim was habituated to
sexual intercourse, no such inference like the victim being a girl of “loose moral character”
is permissible to be drawn from that circumstance alone. Even if the prosecutrix, in a given
case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to
submit herself to sexual intercourse to anyone and everyone because she is not a
vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma,
like the one as cast in the present case should be cast against such a witness by the courts,
for after all it is the accused and not the victim of sex crime who is on trial in the court.
16. As a result of the aforesaid discussion, we find that the prosecutrix has made a
truthful statement and the prosecution has established the case against the respondents
beyond every reasonable doubt. The trial court fell in error in acquitting them of the
charges levelled against them. The appreciation of evidence by the trial court is not only
unreasonable but perverse. The conclusions arrived at by the trial court are untenable and
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in the established facts and circumstances of the case, the view expressed by it is not a
possible view. We accordingly, set aside the judgment of the trial court and convict all the
three respondents for offences under Sections 363/366/368 and 376 IPC. So far as the
sentence is concerned, the court has to strike a just balance. In this case the occurrence
took place on 30-3-1984(more than 11 years ago). The respondents were aged between 21-
24 years of age at the time when the offence was committed. We are informed that the
respondents have not been involved in any other offence after they were acquitted by the
trial court on 1-6-1985, more than a decade ago. All the respondents as well as the
prosecutrix must have by now got married and settled down in life. These are some of the
factors which we need to take into consideration while imposing an appropriate sentence
on the respondents. We accordingly sentence the respondents for the offence under
Section 376 IPC to undergo five years’ R.I. each and to pay a fine of Rs. 5000 each and in
default of payment of fine to 1 year’s R.I. each. For the offence under Section 363 IPC we
sentence them to undergo three years’ R.I. each but impose no separate sentence for the
offence under Sections 366/368 IPC. The substantive sentences of imprisonment shall,
however, run concurrently.
17. This Court, in Delhi Domestic Working Women’s Forum v. Union of Indiahad
suggested, on the formulation of a scheme, that at the time of conviction of a person found
guilty of having committed the offence of rape, the court shall award compensation.
18. In this case, we have, while convicting the respondents, imposed, for reasons
already set out above, the sentence of 5 years’ R.I. with fine of Rs 5000 and in default of
payment of fine further R.I. for one year on each of the respondents for the offence under
Section 376 IPC. Therefore, we do not, in the instant case, for those very reasons, consider
it desirable to award any compensation, in addition to the fine already imposed, particularly
as no scheme also appears to have been drawn up as yet.
20. Of late, crime against women in general and rape in particular is on the increase. It
is an irony that while we are celebrating woman’s rights in all spheres, we show little or no
concern for her honour. It is a sad reflection on the attitude of indifference of the society
towards the violation of human dignity of the victims of sex crimes. We must remember
that a rapist not only violates the victim’s privacy and personal integrity, but inevitably
causes serious psychological as well as physical harm in the process. Rape is not merely a
physical assault , it is often destructive of the whole personality of the victim. A murderer
destroys the physical body of his victim; a rapist degrades the very soul of the helpless
female. The courts, therefore, shoulder a great responsibility while trying an accused on
charges of rape. They must deal with such cases with utmost sensitivity. The courts should
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examine the broader probabilities of a 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 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 of corroboration required in the case of an accomplice. 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. There has been lately, lot of criticism of the treatment of the victims of sexual assault
in the court during their cross-examination. The provisions of Evidence Act regarding
relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual
questioning of the prosecutrix as to the details of the rape. The victim is required to repeat
again and again the details of the rape incident not so much as to bring out the facts on
record or to test her credibility but to test her story for inconsistencies with a view to
attempt to twist the interpretation of events given by her so as to make them appear
inconsistent with her allegations. The court, therefore, should not sit as a silent spectator
while the victim of crime is being cross-examined by the defence. It must effectively control
the recording of evidence in the court. While every latitude should be given to the accused
to test the veracity of the prosecutrix and the credibility of her version through cross-
examination, the court must also ensure that cross-examination is not made a means of
harassment or causing humiliation to the victim of crime. A victim of rape, it must be
remembered, has already undergone a traumatic experience and if she is made to repeat
again and again, in unfamiliar surroundings what she had been subjected to, she may be too
ashamed and even nervous or confused to speak and her silence or a confused stray
sentence may be wrongly interpreted as “discrepancies and contradictions” in her evidence.
22. The alarming frequency of crime against women led Parliament to enact the
Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) to make the law of rape more
realistic. By the Amendment Act, Sections 375 and 376 were amended and certain more
penal provisions were incorporated for punishing such custodians who molest a woman
under their custody or care. Section 114-A was also added in the Evidence Act for drawing a
conclusive presumption as to the absence of consent in certain prosecutions for rape,
involving such custodians. Section 327 of the Code of Criminal Procedure which deals with
the right of an accused to an open trial was also amended.
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23. In spite of the amendment, however, it is seen that the trial courts either are not
conscious of the amendment or do not realize its importance for hardly does one come
across a case where the inquiry and trial of a rape case has been conducted by the court in
camera. The expression that the inquiry into and trial of rape “shall be conducted in
camera” as occurring in sub-section (2) of Section 327 Cr.P.C is not only significant but very
important. It casts a duty on the court to conduct the trial of rape cases etc. invariably “in
camera”. The courts are obliged to act in furtherance of the intention expressed by the
legislature and not to ignore its mandate and must invariably take recourse to the
provisions of Section 327 (2) and (3) Cr.P.C. and hold the trial of rape cases in camera. It
would enable the victim of crime to be a little comfortable and answer the questions with
greater ease in not too familiar surroundings. Trial in camera would not only be in keeping
with the self-respect of the victim of crime and in tune with the legislative intent but is also
likely to improve the quality of the evidence of a prosecutrix because she would not be so
hesitant or bashful to depose frankly as she may be in an open court, under the gaze of
public. The improved quality of her evidence would assist the courts in arriving at the truth
and sifting truth from falsehood. The High Courts would therefore be well-advised to draw
the attention of the trial courts to the amended provisions of Section 327 Cr.P.C. and to
impress upon the Presiding Officers to invariably hold the trial of rape cases in camera,
rather than in the open court. Wherever possible, it may also be worth considering whether
it would not be more desirable that the cases of sexual assaults on the females are tried by
lady Judges, wherever available, so that the prosecutrix can make her statement with
greater ease and assist the courts to properly discharge their duties, without allowing the
truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such
cases. The courts should, as far as possible, avoid disclosing the name of the prosecutrix in
their order to save further embarrassment to the victim of sex crime. The anonymity of the
victim of the crime must be maintained as far as possible throughout. In the present case,
the trial court has repeatedly used the name of the victim in its order under appeal, when it
could have just referred to her as the prosecutrix. We need say no more on this aspect and
hope that the trial courts would take recourse to the provisions of Sections 327(2) and (3)
Cr PC liberally. Trial of rape cases in camera should be the rule and an open trial in such
cases, an exception.

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