2/15/2017 IndruvsStateOfHimachalPradeshon21March,1989

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TheIndianEvidenceAct,1872
Section6inTheIndianEvidenceAct,1872
TheIndianPenalCode
Section8inTheIndianEvidenceAct,1872
Section157inTheIndianEvidenceAct,1872

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HimachalPradeshHighCourt salwar

IndruvsStateOfHimachalPradeshon21March,1989 factinissue
sectionevidenceact
Equivalentcitations:1989CriLJ2238
s.376indianpenalcode
Author:VBhatnagar
376ofindianpenalcode
Bench:VMehrotra,VBhatnagar
ipc376

JUDGMENTV.P.Bhatnagar,J. indianpenalcodesection376
section376ipc
1. This appeal is directed against the judgment dt. May 1, 1985 of the learned Sessions Judge, sec.376ofipc
SolanandSirmaurdistrictsatSolanwherebyheconvictedaccusedIndruunderSections366and section376
376,IPC,andsentencedhimtoundergorigorousimprisonmentforaperiodof10yearsandto evidenceactsection6
payafineofRs.2,000/andindefaultofpaymentoffinetoundergofurtherimprisonmentfora Evidence8
period of one year, under Section 376, I.P.C. The accused was further sentenced to undergo previousstatement
rigorous imprisonment for 2 years and to pay fine of Rs. 1,000/ under Section 366 I.P.C. In
evidenceact6
default of payment of fine of Rs. 1,000/, it was further ordered that he would undergo
underwear
imprisonmentfor6months.
kamla

2.ThevictimofrapeisKm.MohiniwhoseparentsarePW4DilaRamandPW6Kamla.Itisnot balakram

disputedthatMohiniwasabout6yearsoldonthedayofoccurrenceviz.,Sept.24,1984.Mohini, evidenceacts8

her parents, PW7 Purna Chand, PW 8 Balak Ram and the accused are all residents of village
Barog.

3. The prosecution case is that Mohini was playing after the school hours when Indru accused
allured her with sweets and took her to the nearby fields. He tore her salwar and then put his
fingersintotheprivatepartsofthegirlandthencommittedsexualintercoursewithher.Hislust
having been satisfied, the accused carried her and put her on the backside of her house. Her
motherPW6Kamlaheardthecriesatabout7.00p.m.andbroughthertothehouse.Shenoticed
her daughter's salwar smeared with blood as also blood coming out of her private parts. The
motherherselfstartedweepingwhichattractedtheneighbours.Sheenquiredfromthegirlasto
whathadhappenedandwastoldthatIndruaccusedhadtakenhertothefields,tornhersalwar,
puthisfingersintoherprivateparts,committedsexualintercourseandthenliftedandplacedher
nearthehouse.PW4DilaRamisthefatherofthegirl.Hewasthenworkingaspumpoperatorat
Barog in the Department of Tourism. He was sent for. He then made the report Ex. PJ to the
policeonthebasisofwhichFIREx.PLwasrecordedat915p.m.onthedayofoccurrenceitself.
Mohini was immediately removed to primary Health Centre where PW 1 Dr. (Mrs.) Sudha
Prakash examined her. Ex. PB is the medicolegal certificate given by the aforesaid doctor who
foundnomarkofinjuryonMohini'sbodyexceptgenitals.Mohiniwasnotallowingexamination
duetoseverepainand,therefore,hadtobeadministeredinjectionforthwith.Thedoctorfound
herlebiaminorabruisedandabout1c.m.tearoftheposteriorfourchettaalmostextendingupto

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anus.AsMohiniwasnotpermittingpropermedicalexamination,Dr.SudhaPrakashreferredher
toDistrictHospitalatSolan.PW2Dr.N.VermaalsoexaminedMohiniandfoundsameinjuries
asnoticedbyDr.SudhaPrakash.HeopinedvidehisreportEx.PF/2thattheinjuriesseemedto
beduetoforciblesexualassault.

4. Indru accused was examined by PW 3 Dr. Alok Uppal at 110 a.m. on Sept. 25, 1984. His
medicolegalreportisEx.PHandthefindingswerethattherewerenomarksofexternalinjuries
onthebodyoftheaccused.Hewasfoundcapableofperformingsexualintercoursebuttherewas
absence of smegma indicating that his penis had been used within last 24 hours. Dr. Sudha
Prakash collected shirt P1 and Salwar P2 being worn by Mohini at the time of her medical
examinationwhereasDr.AlokUppalcollectedunderwearP3whichtheaccusedwaswearingat
thattime.

5. These garments were seized and handed over to the police. Besides, the accused is stated to
haveproducedshirtP4andpantsP5fromunderneaththecotlyinginhishouseatBarogonthe
following day, that is, Sept. 25, 1984. These garments were sent to the Chemical Examiner at
PatialawhosereportisEx.PE.Theanalysisshowedthepresenceofbloodstainsonallthefive
clothes, in addition to semen stains on salwar P2 belonging to Mohini and underwear P3
belongingtotheaccused.TheSerologistvidehisreportEx.P5foundstainsofhumanbloodon
shirtP1andSalwarP2ofMohiniandshirtP4andpantsP5belongingtotheaccused.

6. Indru accused, when examined under the provisions of Section 313, Cr. P.C., denied his
involvement in the crime. However, he admitted that he was arrested on the day of occurrence
itself,thatis,onSept.24,1984andfurtherthathewasmedicallyexaminedandfoundpotentand
thathisunderwearP3wasthentakenintopossession.RegardingtherecoveryofshirtP4and
pantsP5,hestatedthatthesearticleshadbeenproducedbyhismothertothepoliceandnotby
him.Whenaskedastowhythecasehadbeenmadeagainsthim,hisanswerwasthatoneSardar
(Harpaul Singh), with whom Dila Ram complainant resided, had made this case against him.
Sardarwantedtopurchasehisentirelandbuthedidnotagree.Thisresultedintheplantingof
thecaseagainsthimattheinstanceofthatSardar.

7.ItmaybestatedhereattheveryoutsetthatMohini,whenproducedbeforetheCourt,wasnot
foundtobea,competentwitnessinasmuchasthelearnedSessionsJudgeobservedthatshehad
notdevelopedmentallysoastounderstandthesignificanceofmakingastatementinacourtof
law.Therefore,shewasnotputinthewitnessboxandwasdischarged.

8.ThemainplankoftheprosecutioncaserestsonthetestimonyofPW4DilaRam,PW6Karala,
PW7PuranChandandPW8BalakRam.PW6Kamladeposedthatabout56monthsbackshe
wasatherhousewhensheheardherdaughterweepingatabout700p.m.shefoundMohinion
thebacksideofthehouse.Mohiniwasprofuselybleedingfromherprivateparts.Therewasblood
onhershirtP1andsalwarP2.Thesalwarwassmearedwithblood.Shetookherdaughterinside
the house and gave some water to her and then started crying herself as well. Lambardar Nek
Ramandotherneighboursreachedherhouse.Herhusbandatthattimewasatthepumphouse.
ShethenenquiredfromMohiniastowhathadhappenedandherdaughterdisclosedthatwhile
coming back from the school the accused had offered her sweets and taken her to the fields
nearby.Hetookoffhistrousersandalsohersalwar.Heputhismaleorganintoherprivateparts
whichresultedinthebleeding.Thereaftertheaccusedkeptheratthebacksideofthehouse.

9.PW8BalakRamisaneighbourandhasstatedonoaththathewentinsideDilaRani'shouse
onhearingnoiseandfoundMohiniinhermother'slap.Hesawthetornsalwarandbloodcoming
from private parts of the girl. It was in his presence that Mohini told her mother that Indru
accused had taken her to the fields after giving her "Ranch ki goli" and "Mithi goli" and then
committed "bura kam". He could not bear the sight and came out. PW 4 Dila Ram (Mohini's
father)cameafterabout10to15minutes.Whileinwitnessbox,BalakRateidentifiedshirtP1

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andsalwarP2astheclotheswhichMohiniwaswearingonthedayofincidentatthetimehesaw
herinbadshape.

10.Anotherneighbouroftheaccusedandthegirl'sparentsisPW7PuranChand,Accordingto
hisstatement,hewaspresentathishouseonthedayofincidentatabout7p.m.whenthenews
spreadinthevillagethatsomeonehadcommittedrapeonDilaRam'sdaughter.HewenttoDila
Ram'shousewherePW8BalakRam,LambardarNekRam,WazirChandandothervillagershad
gathered. Mohini was lying on a cot. He was told by Mohinfs mother that Indru had raped
Mohini.Hesawtheprivatepartsofthegirlbleedingandwashighlyupset.Tothesameeffect,is
thestatementofPW4DilaRam.

11.PW14istheDistrictInspectorofPoliceRamKumarwhowasthenpostedatSolan.Hewas,
going to Police Station, Dharampur when at Barog on the way, PW 4 Dila Ram handed over to
himtheapplicationEx.PJonwhichhemadetheendorsementEx.PJ/2andhandeditoverto
PW17S.H.O.ShivRam.ThisformedthebasisofF.I.R.Ex.PLandfurtherinvestigationwhich
wasdonebyPW17ShivRamandPW11Dy.S.P.J.R.Thakur.

12.ThelearnedSessionsJudgehasheldthestatementoftheminorgirltohermotheradmissible
inevidenceunderSection6aswellasSection8,oftheEvidenceActThisfindingrequiressome
detailed examination inasmuch as lengthy arguments have been addressed before us in the
matterandanumberofdecisionscited.

13.Therecanbenomannerofdoubtwhatsoeverthatthestatementinquestioncanbereceivedin
evidenceunderSection8sinceitconstitutessubsequentconductofthevictim.Thebarelanguage
ofSection8makesitabundantlyclearthatthesubsequentconductofanypartytoaproceedingis
relevant if it is in reference to such proceeding or is in reference to any fact in issue therein or
relevantthereto.InthepresentcaseMohini,agedabout6yearswassubjectedtorapeinafield
situatednearherhouse.ShewasleftatthebacksideofherhouseandhermotherKamla(PW6)
heard her weeping and crying. The mother found her in a serious condition Mohini was then
bleeding from her private parts which is indicative of the fact that the crime had just been
committedKamlathenherselfstartedcryingwhichattractedtheneighbourstoherhouse.When
sheenquiredastowhathadhappened,Mohiniinformedherthenameoftheperpetratorofthe
crime and the manner in which it had occurred. This would certainly constitute a complaint
relatingtothecrimeandtherefore,relevantasspecificallylaiddowninillustration(J)toSection
8,EvidenceAct.Thisillustrationreads:

(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she
madeacomplaintrelatingtothecrime,thecircumstancesunderwhichandthetermsinwhich,
thecomplainantmade,arerelevant.

Thefactthat,withoutmakingacomplaint,shesaidthatshehadbeenravished,isnotrelevantas
conduct under this Section, though it may be relevant as a dying declaration under Section32,
Clause(I),orascorroborativeevidenceunderSection157.

Theaboveillustrationappliedtothefactsofthiscasewithallappositeuess.Mohini,shortlyafter
the gruesome incident made a complaint to her mother narrating the circumstances and the
mannerinwhichshehadbeensubjectedtorapebyaccusedIndru.Agirlofsuchtenderagecan
onlyseekprotectionbymerelyimpartinginformationwhichwouldnecessarilytakethecharacter
of a complaint Being the victim herself, she is a party to the proceedings within the ambit of
Section8andhercomplainttothemotherishersubsequentconducthavingdirectbearingonthe
factinissue.Admissible,therefore,itis.

14.Itmay,however,bemadeclearthatthemerefactthatsuchastatementisadmissibleunder
Section8wouldnotmeanthatithastobeacceptedinallcases.Whetheritispersesufficientto
return a verdict of guilty would depend upon the facts and circumstances of each case and no

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hard and fast rule can be laid down in the matter. This evidence will have to be tested and
scrutinisedlikeanyotherpieceofevidenceandafindingrecordedwhetheritwouldbesafeornot
toactuponit.Inotherwords,thecourtwillhavetocometoaconclusionifsuchastatement,on
thefactsofthecase,isreliableandtrustworthy.Wewilldealwiththisaspectofthecasealittle
later.

15.ThefindingofthelearnedSessionsJudgethatthestatementofMohinitohermotherisapart
ofresgestaeand,therefore,admissibleunderSection6,EvidenceActaswellis,however,notfree
fromdoubt

16.ThedoctrineofresgestaestandsincorporatedinSection6whichreads:

6.Relevancyoffactsformingpartofsametransaction.Facts,whichthoughnotinissue,orso
connectedwithafactinissueastoformpartofthesametransaction,arerelevant,whetherthey
occurredatthesametimeandplaceoratdifferenttimesandplaces.

Thisprincipleisanexceptiontothehearsayrule.Manifestly,factswhichmaybeprovedaspartof
resgestaemustbefactsotherthanthoseinissue.Furthermore,thesefactsmustformpartofthat
verytransactionandbethusconnectedwiththefactsinissue.Evidenceregardingfactsinissue
disclosedbyatransactioncanbegivenunderSection5 whereas evidence regarding other facts
which must be connected with the facts in issue in a manner so as to form part of the same
transactioncanbegivenunderSection6.

17.Itiswellsettledbynowthatastatementinordertobeapartofresgestae,musthavebeen
made substantially contemporaneously with the act or immediately after it so that there is no
opportunityforreflectionorfabrication.Itisinthisbackgroundthattheintervalbetweentheact
and the statement assumes significance. In no case, the statement should be in the nature of a
meredeclarationornarrationofapastevent.

18. Now, what is a transaction adverted to in Section 6? The word transaction has not been
defined but it can be equated to a crime so far as a criminal case is concerned. Each essential
ingredientofthatcrimewillbeafactinissueandthosefactswhichareconnectedwiththefactin
issueformingpartofthesametransactionwouldberelevantasresgestae.

19.Intheinstantcase,thetransactioniscompleteandoverassoonasrapehadbeencommitted.
The fact in issue is whether the minor girl Mohini was subjected to sexual intercourse by the
accused. As already discussed above, what the girl stated to her mother by way of complaint is
relevantasconstitutingsubsequentconductunderSection8.Inaspecificcase,itcanalsobeused
asacorroborativepieceofevidenceunderSection157,EvidenceAct, though not in this case as
thestatementoftherapedgirlwasnotrecordedintheCourt.But,innocasethestatementtoher
mother after the incident can form part of the transaction constituting rape, which is a fact in
issue.

20.ItwouldbeadifferentmatterifMohinihadbeenheardcryingormakingentreatiestoIndru
accusedtodesistfromtheactandtoleaveheralone.Thestatementofthosepersonswhoheard
Mohinithusnamingtheaccusedwouldbeadmissibleasresgestae.Or,takeaninstancewhere
the accused after committing rape starts running to make good his escape and the prosecutrix
makeshueandcryforapprehendinghim.Then,thestatementsofpersonsreproducingwhatshe
saidcouldbebroughtintoevidenceaspartofthesametransaction.Itis,however,notsointhe
present case where Mohini's statement is more of a narration of past event notwithstanding its
closeproximityintime.

21.AnumberofcasestouchinguponthescopeofSections6and8oftheEvidenceActhavebeen
placedbeforeus.Wefindourconclusionsaforesaidfortified.Wemaynowreferbrieflytothose
cases.

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22. In (Rameshwar v. State of Rajasthan), the Supreme Court has held that the previous
statement of the raped girl to her mother, 'immediately after the occurrence, is not only
admissible and relevant as to her conduct, but also constitutes corroboration of her statement
undertheprovisionsofSection157,EvidenceAct.Inordertocometotheaforesaidconclusion,
illustration(j)toSection8oftheEvidenceActwasreliedupon.Inthatcase,thevictim,named
Purni,was7/8yearsold.Shewasnotadministeredoath,butwasheldtobecompetentwitness
and,therefore,dulyexaminedandbelieved.Thestatementmadebyheraftertheoccurrenceto
hermotherwasheldtolendcorroborationtohertestimony.However,thequestionwhetherthe
previous statement by the minor rendered. The (sic) made by their Lordships in para 27 of the
judgmenttotheeffectthat....seeingthatcorroborationisnotessentialtoaconviction,conductof
thiskindmaybemorethanenoughinitselftojustifyacceptanceofthecomplainant'sstory"show
that the conduct as disclosed from the making of her previous statement to her mother
immediately after the occurrence, was pressed into aid to accept her version leading to the
convictionoftheaccused.

23.AnothercasefromwhichsupportissoughtonbehalfoftheStateisStateofOrissav.Pichika
Parvartisam.Inthatcase,therapedgirlwassixyearsold.Shealsosteppedintothewitnessbox
thoughnooathwasadministeredtoher.Shehadalsomadepreviousstatementstohermother
andfatherimmediatelyaftertheoccurrence.RelyingontheratioofRameshwar,itwasheld(Para
4):

The legal position is that the previous statement of the complainant at about the time of
occurrence is legally admissible and relevant as evidence of conduct under Section 8 of the
EvidenceAct.ItisalsoadmissibleascorroborationoftheevidenceofthecomplainantinCourt
under Section 157 of the Evidence Act. What weight is to be attached to such statement is of
course a different matter. In some cases its weight may be nil but in other cases, where
corroboration is not essential to conviction, conduct of this kind may be more than enough in
itselftojustifyacceptanceofthecomplainant'sstory.ThisdependsUponthefactsofeachcase.

Manifestly, the question whether the statement made by the minor raped girl to her parents
immediatelyaftertheoccurrencewouldbeadmissibleaspartoftheresgestaeunderSection6,
EvidenceActdidnotfallfordeterminationtherealso.

24.ThefactsofStatev.Hiraman,relieduponbythelearnedAsstt.AdvocateGeneral,arenearest
tothefactsandcircumstancesofthecaseinhand.Therein,therapedgirlSuman,wasagedfour
yearsandshecouldnotbeexaminedasshewasfoundtobetooyoungtogiverationalanswers.
Sumanhadbeenleftbyhermother,Indubai,attheirneighbour'shousebeforeIndubaiwentto
theriverforwashingclothes.Onherreturn,afterashorttime,shesawSumanansweringcallof
nature.Sumanonseeinghermother,startedweeping.IndubaithenfoundSuman's.privateparts
injuredandbleeding.Onbeingquestioned,Sumannamedtheaccusedhavingcausedinjuriesto
her. Indubai contacted accused's brother, who asked for forgiveness. She then went to her
neighbour,Shantabai,whoadvisedhertocontactherhusbandHerhusbandwaspostedatNasik
fromwhereshebroughthimbackafterwhichthecomplaintwaslodgedbyhimwiththepolice.
Thus, the entire evidence consisted of Suman's complaint to her parents naming the accused,
besides the medical evidence to the effect that she had been raped by some one and the clothe
(payjama) of the accused was stained with blood and semen. On the above facts and
circumstancestheDivisionBenchoftheBombayHighCourtstatedthus:

(8) Though evidence of statements made to Indubai by Suman cannot be given, in our view
evidence of her and Indubai's conduct is relevant under the second part of Section 8 of the
Evidence Act Explanation I to the Section further shows that even a statement very closely
connected to the conduct, in that it explains the conduct, would be admissible, That this is
intendedbytheSectionisdemonstratedbyIllustrationJ.toitInthecaseabovereferredtowe
havethefollowingobservations(atp.162).

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Therewouldhavebeennoobjectiontothegrandmothersaying'Thelittlegirlmadeacomplaint
tome'andshecouldhavebeenasked:'Inconsequenceofthatcomplaintwhatdidyoudo?'and
theanswerwouldhavebeen'Itookhertothedoctorandlatertothepolice.'Onerealisesthat,
althoughthetermofthechild'sstatementmustnotbegiven,anyjurycouldseeatoncethatasa
consequence of the complaint the grandmother took the child to the doctor and the police and
thatthetermsofthecomplaintwouldmentionherfather.

Indubaisays:

Isawheransweringcallofnatureoutsideintheopenandonseeingmeshebegancryingandon
questioningshetoldmethat:accusedhadplacedheronhislapandbloodcameout.

The latter part is by way of explanation of her crying arid clearly is admissible. The first
circumstance therefore against the accused is that the child made the complaint naming the
accused.

(9)Theothercircumstancesare(1)thatherprivatepartsdidshowthatshehadbeenrapedand
(2)thattheclothingoftheaccusedstronglysuggestedthathecouldbetheoffender.

Ontheabovefindings,theorderofacquittalmadebythelearnedAsstt.SessionsJudgewasset
aside. While doing so clearly, the teamed Judges took recourse to the provisions of Section 8,
EvidenceActNeithertheyconsiderednorheldthatthepreviousstatementmadebytherapedgirl
to her mother immediately after the occurrence was relevant as part of the same transaction
undertheprovisionsofSection6,EvidenceActAlso,thequestionofusingthesaidstatementfor
thepurposesofcorroborationunderSection157,EvidenceAct,wasnottakenintoconsideration,
and rightly so, because the victim had not made any statement in the witness box. The bare
languageofSection157showsthatitisthetestimonyofthewitnesswhichcanbecorroboratedby
aformerstatementastothesamefactwhenmadeatoraboutthetimewhenthefacttookplaice.
The provisions of Section157, therefore, had no applicability on the facts of Hiraman's case, as
alsointhepresentcase.

25. In Pratapsingh v. State of Madhya Pradesh 1971 Cri LJ 172 (Madh Pra), Partapsingh and
JanvedweretriedforhavingcommittedthemurderofoneRamCharan.Theaccusedsuspected
illicitrelationsbetweenMahanDevi(wifeofPartapsinchandsisterofJanved)andthedeceased.
Head Constable Sarfaraj Beg, who lived at a distance of about 400 yards from the house of
Partapsingh,heardsomenoiseatabout10p.m.HewenttowardsthehouseofPartapsinghnear
whichalargecrowdhadcollectedOngoinginsidethehouse,hefoundthedeadbodylyingwith
fresh wound from a sword. When questioned, Mahan Devi stated to Sarfaraj Beg that her
husbandandbrotherhadrunawayaftercommittingthemurder,MadtiyaPradeshHighCourt,
ontheabovefacts,heldthatMahanDevi'sstatementmadetoSarfarajBegwasnotadmissiblein
evidence under Section 6 as part of res gestae because the statement did not appear to be
spontaneousand,inanycase,wasmadesometimeaftertheincidentinanswertoaquery.Itwas
furtherheldthatastatementinordertobeadmissibleaspartofresgestaeshouldnotnarratea
pasteventbutitshouldpertaintotheeventitself.

26.InKashmiraSinghv.StateAIR1965JandK37:1965(1)CriLJ554,onegirlFatmaBegum
wasgoingtotheschoolwhentheaccusedwasstatedtohavestoppedhiscarandstartedteasing
herandusingobscenewords.TheprosecutionneitherprovedtheFirstInformationReportnor
examined the informant (Fatima Begum). The only evidence from which it sought support was
thestatementofoneHajeeAhadDarwhohaddeposedthatwhenhereachedthespotthegirlhad
told him that the accused had used the obscene words towards her which annoyed her. The
question which fell for determination was whether the testimony of Haji Ahad Dar was
admissiblyunderSections6and8,EvidenceAct.AfteradvertingtothelanguageofSection6,the
court was of the view that the Section presupposed the existence of a fact in issue in order to
proveotherfactsconnectingwithitascorroboratingpieceofevidencebeingoftheviewthatthe
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factinissueinthatcasewaswhethertheaccusedhadusedinsultingwordsagainstFatimaBegum
and that there was no independent evidence to prove it, it was held that the evidence of Hajee
AhadDar,whohadadmittedlynotseentheactualoccurrence,couldnotformpartofresgestae
soastobeadmissibleunderSection6,EvidenceAct.

27.In Ram Das Cheedi v. State 1972 Cri LJ 57 (All) a minor married girl was abducted by the
accusedandothersfromthehouseofherfather.Theaccusedsecuredtheornamentswhichshe
waswearingonherpersonbydishonestinducementthroughconvincingherthatitwouldnotbe
safe for her to be putting on ornaments as it was getting dark. She then handed over the
ornaments to Ram Dass which he placed in a bag. Both of them went to the nearby railway
station.Inthemeanwhile,herabsencewasdiscoveredatherhousebyherbrotherandunclewho,
onreachingtherailwaystationfoundhersittingwiththeaccusedonabenchattheplatform.On
seeingthemtheaccusedfledalongwiththeornamentswhichwerecontainedinthebag.Shethen
toldherbrotherandunclethecircumstancesunderwhichshehandedoverherornamentstothe
accusedandthathehadrunawaywiththesaidornaments.Ontheabovefacts,itwasheldbya
learned single Judge of the Allahabad High Court that her statement immediately after the
occurrence was admissible as res gestae under Section 6, Evidence Act and further that it
provided the necessary corroboration so as to lend assurance about the trustworthiness of her
testimonyonthequestionofexerciseofdishonestinducementbytheaccused.Itmaybestated
here that in Ram Das' case the accused was acquitted of the offence punishable under Sections
3637366/379,I.P.C.onthefindingthatthegirl,whohadbeendeprivedofherornaments,was
over18yearsofageandthatshewasaconsentingpartywhensheleftthehouseofherfather.All
the same, the conviction of the accused under Section 420, I.P.C. was maintained and her
statementtoherbrotheranduncleimmediatelyaftertheaccusedhadtakentoheelswasfoundto
be admissible and relevant as res gestae. Manifestly, the accused ran away with the ornaments
whenhesawherbrotheranduncleapproachingand,therefore,whatshestatedtothematthat
verytimewasheldtobepartofthesametransaction.

28.HavingexaminedthelegalprovisionsregardingadmissibilityofMohini'sstatementmadeto
hermother,weproceedtoscanitsevidentiaryvalue.Thishastobedoneasobservedearlier,in
thebackgroundoftheentirefactsandcircumstancesofthiscase.

29.Mohini,thevictimoftheheinouscrime,herparentsPW4DilaRamandPW6Kamlaandtwo
independent witnesses namely PW 7 Puran Chand and PW 8 Balak Ram belong to the same
village. They are neighbours. In fact, PW 7 Purari Chand's house is adjacent to the house of
accused Indru. None of these persons, in the ordinary course of thing, can be interested in
foisting a false criminal case of the present nature on the accused. Their statements, already
referredtoabove,arefreefromblemishandsquarelyindicttheaccusedbyconnectinghimwith
thecrime.

30.ThedefenceraisedbytheaccusedinhisstatementunderSection313,Cr.P.C.supportedby
hismotherDW1Shanti,leavesuscompletelyunimpressed.Evenifitbeacceptedasestablished
thatSardarHarpaulSinghwasafterhisland,wefindthecasetotallybereftofanyevidenceworth
the name leading to the conclusion that accused Indru got involved in the crime due to
manipulationsandmachinationsofthatSardar.Itcannotbelostsightofthatmedicalevidence
provesitbeyondashadowofdoubtthatMohiniwassubjectedtoaserioussexualassaultinthe
evening hours of Sept. 24, 1984. It is unbelievable that the parents of the minor girl would
become active participants in not only falsely implicating an innocent covillager but also in
permittingtherealculprittogoscotfree.

31.Itisinevidencethatmanyvillagershadgatheredatthehouseofthevictimimmediatelyafter
the incident when Mohini named accused Indru as the rapist. This, verily, is the crux of the
prosecutionstoryfromtheverybeginning.Itis,therefore,worthnoticingthattheaccusedcould
notfindasinglecovillagertosaythathewasnotsonamedbythevictim.

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32.Mohini,beingabout6yearsold,wasaninnocentgirloftenderage.Therecouldbepossibly
no reason whatsoever for her to name a wrong person or to resort to falsehood. Being a co
villager, she was in a position to clearly identify the accused. Her statement therefore, to her
mother, so close to the incident that she was still bleeding from her private parts, carries great
weightandinspirescompleteconfidence.

33.Wearealsooftheopinionthatthisevidenceissufficientpersetowarrantconvictionofthe
accused. In fact, the present case stands on a much stronger footing that the one reported in
Krishan Lal v. State of Haryana . In that ease, Shashi Bala aged below 16 years was sleeping
outsideherhousewithhermotherandotherchildrenwhentheaccusedinthecompanyofothers
carried her away under intimidation to a neighbouring godown and committed rape on her.
ShashiBalanearlybecameunconsciousandwasputbackinhercot.Hermotherfoundbloodon
Bala's salwar in the morning. It was then that Shashi Bala narrated the criminal assault of the
previousnight.HerfatherwasawayandonhisreturnwasapprisedabouttheincidentHetook
thevictimtothepolicestationandlodgedareport.

34. The Supreme Court, rejecting the argument addressed in defence that there ought to be
substantial corroboration, made the following observations : (Para 4) We must bear in mind
human psychology and behavioural probability when assessing the testimonial potency of the
victim'sversion.Whatgirlwouldfoistarapechargeonastrangerunlessaremarkablesetoffacts
or clearest motives were made out? The inherent bashfulness, the innocent naivete and the
feminine tendency to conceal the outrage of masculine sexual aggression are factors which are
relevant to improbabilise the hypothesis of false implication. The injury on the person of the
victim,especiallyherprivateparts,hascorroborativevalue.Hercomplainttoherparentsandthe
presence of blood on her clothes are also testimony which warrants credence. More than all, it
bafflesbeliefinhumannaturethatagirlsleepingwithhermotherandotherchildrenintheopen
willcomebybloodonhergarments,andinjuryinherprivatepartsunlessshehasbeensubjected
tothetortureofrape.Andifrapehasbeencommitted,ascounselmoreorlessconcededwhy,of
allpersonsintheworld,shouldthevictimhuntupthepetitionerandpointathimtheaccusing
finger? To forsake these vital considerations and go by obsolescent demands for substantial
corroboration is to sacrifice common sense in favour of ah artificial concoction called 'judicial'
probability.Indeed,theCourtlosesitscredibilityifitrebelsagainstrealism.ThelawCourtisnot
anunnaturalworld.

35.Inthepresentcasealso,thereportsofthechemicalexaminerandtheSerologistatExs.P4
and P5 respectively, do afford reasonable corroboration to the prosecution. Underwear P3
belonging to the accused was found, on analysis, to contain semen and bloodstains. This
underwear was taken into possession when the accused was medically examined by Dr. Alok
Uppalat1.10a.m.onSept.25,1984,whichmeansafterabout7hoursoftheincident.HisshirtP
4andpantsP5werealsofoundtocontainstainsofhumanblood.

36.Thesegarments,evenaccordingtotheaccusedinhisstatementUnderSection313,Cr.P.C.,
belongtohimandwerehandedovertothepolicebyhismother.Hismedicalexaminationalso
disclosed absence of smegma. These pieces of evidence may not be strong in themselves for
inculpating the accused but they do fit in with the other evidence which is quite formidable in
nature.

37.ThelearnedCounselfortheaccusedhasdrawnourattentiontothatportionofthedocument
Ex.PJwhichisthefirstreportlodgedbyP.W.4DilaRamtothepolicewhereinitisrecordedthat
Mohinihadmerelystatedtoherparentsthattheaccusedhadinsertedhishandintoherprivate
partsandthentothefactthatthepoliceconcludedfromthesaidreportthatoffencepunishable
UnderSections354and323,I.P.C. had been committed and not one Under Section 376, I.P.C.
ThelearnedCounselfortheaccusedhasthenreferredustothemedicalevidenceinwhichboth
thedoctorswhoexaminedMohinididnotstatethatshehadbeensubjectedtorape.P.W.2Dr.N.

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Vermaopinedthattheinjuriesseemedtobeduetoforciblesexualassault.Ithas,therefore,been
arguedthattheoffenceUnderSection376,I.P.C. of which some penetration by the penis is an
essentialingredientisnotmadeout.Anotherreasoninsupportoftheaboveargumenturgedis
thatnoinjuryorabrasionwasfoundonthemaleorganoftheaccused.Weareafraidwecannot
agreewiththissubmission.ThecompletestatementofMohinirecordedindocumentEx.PJby
herfatherP.W.4DilaRamisthattheaccusedinsertedherhandsintoherprivatepartsandthat
thereforeduetopainshedidnotknowastowhathadhappened.

38.Theabsenceoftheinjuriesonthemaleorgancouldbeduetotheassistancederivedbythe
accused from the fingers to facilitate penetration. Above all, Dr. Sudha Prakash, on medical
examination,foundnotonlyherlabiaminorabruisedbutalsoaboutIcmtearoftheposterior
for chetta almost extending up to anus. The presence of semen stains oh the underwear P3
belonging to the accused and such serious injuries to the private parts of Mohini are clearly
indicative of penetration howsoever small it may be. This would bring the offence within our
concernsofSection376,I.P.C.

39.Cumulatively,therefore,wehavenohesitationinholdingthattheprosecutionfullysucceeded
in bringing the guilt home to the accused. The order of conviction recorded by the learned
SessionsJudgeis,therefore,unassailable.

40.Asregardsthequantumofpunishment,theaccusedhadbeensentencedtoundergorigorous
imprisonmentforaperiodof10yearsUnderSection376,I.P.C.Anoffenceofthisnatureagainst
ahelplesschildcallsfornoleniency.Allthesame,weareoftheopinionthattheendsofjustice
would be met in case the accused is instead awarded rigorous imprisonment for a period of 6
years Under Section 376, I.P.C. To this extent, the sentence is reduced. However the sentence
awarded Under Section 366, I.P.C. including the amount of fine is maintained, Both sentences
would run concurrently. As a result, the appeal preferred by the accused against the order of
convictionisdismissedbutthesentenceismodifiedasindicatedabove.

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