# GURCHAR,AN SINGH v. STATE OF HARYANA - **Citation:** [1973] 2 S.C.R. 197 - **Court:** Supreme Court of India - **Decided:** 1972-09-13 - **Case number:** Criminal Appeal No. 633 of 1968 - **Bench:** A. N. Ray, I. D. DuA - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurchar-an-singh-v-state-of-haryana-5833 - **Pages:** 10 ## Headnote 197 Indian Pental Code (Act 45 of 1860). •'-362. 366 and 376--Girl iinder 16 years forced to go to a place where rape was committed on TwEffect of absence of marks of violence or person of victim. Practice-Sexual ofjence-Necessitv for corroboration. · A girl under 16 years was induced to go to a particular house from where she was threatened to go to the boll5C of the appellant who forcibly took her to his fields outside the village and committed rape on her. The appellant was convicted for offences under ss. 366 and 376 I.P.C. The medical evidence showed that there was penetration but no marks of violence on the victim's person. Dismissing the appeal to this Court, HELD : (I) The gravamen of the offence was that the appellant forced the girl to go with him to the fields to commit rape on her and this constitutes abduction punishable under s. 362 and 366, I.P.C. There is no question of any kidnapping from lawful guarJianship or the appellant taking or enticing her out of the keeping of her lawful guardian or hter taking her away for illicit purpose from unlawful custody. [201A-E] State v. Gopicfra11d, A.J.R. 1961 Born. 282, held inapplicable. (2) Under s. 375, J.P.C. read with the Explanation, where a pthes. On reaching Dalip Singh's house she was handed over to him. By then it had grown dark. Dalip Singh threatened h~r with a knife and asked her to, accompany him. He took her A B c I) E .., G H A B c D E F II GURCHARAN v. HARYANA (Dua, /,) 199 to 1.lle appellant's baithak (sitting room) closeby and after handiμg her over to the appellant, Dalip Singh went away. The appellant threatened Paramjit Kaur with a pistol and took her to his fields outside the village and in the room where his tube-well machine was installed he committed rape on her twice. After a couple of hours Sanjha Ram arrived there. The appellant then went away leaving Paramjit Kaur in Sanjha Ram's custody. During the appellant's absence Sanjha Ram also committed rape on her. After sometime the appellant returned with a bedding and f()('(: for Paramjit Kaur. But she declined to eat anything. The whok night she was kept in that room where the appellant and Sanjha Ram both committed rape on her. On the following morning the appellant left her in the custody of Sanjhu Ram with ~ direction that some customer should be found for her. Sanjha R;un used to take Paramjit Kaur to the sugarcane field during d;;y time and bring her back to the room during the night. Sanjh~t raped her even in the sugarcane field. !n the meantime. when Paramjit Kaur did not return home on l\Ull T llEPOll TS [1973] 2 S.C.ll. lady doctor K. Kaushalya, Medical Officer, Civil Hospital, Karnal at about 7 p.m. who found a tear on the posterior margin of her hymen which bled on examination. In the lady doctor's opinion rape had been committed on her about three or four days prior to the examination. In the doctor's opinion the healing process of the hymen was going on. She also examined her for finding her age. X-ray examination for determining the age of the prosecutrix was also taken by Dr. L. R. Sardana, Radiologist in the same hospital. According to both Dr. Sardana and Dr. Kaushalya the age. of the prosecutri" could be between 15 and 16 year5. She was clearly under 16 years. The prosecutrix appeared as P. W. 3 and narrated the wilo!e story in a straightforward manner. She had off and on been going to the house of G11rcharan Singh, appellant, during the last four or five years and also borrowing odd articles from the appellant's wife. The appellant's wife also used to pay visits to Paramjit K.aur's house. On the evening of November 26 Paramjit Kaur who, like all young girls, was fond of nice clothes, was induced by Surjit Kaur, wife of Dalip Singh to go with her to see new clothe. Surjit Kaur wanted to sell those clothes. Thus induced the prosecutrix was taken to Dalip Singh and handed over to him. The prosecutrix had, however, never been to the house of San.jha Ram. In her cross-examination an attempt was made on behalf of the accused to elicit from her if there was any animosity or litigation between Dalip Singh on the one side and Shingara Sin~ anJ Anokh Singh on the other but Paramjit Kaur expressed her ignorance about. it. She also denied the suggestion that she had gone out on November 26 of her own accord and had he£Self returned home on the 28th. She was cross-examined at great length but her credibility remained unshaken. Lady doctor K. Kaushalya's statement recorded in the committing magistrate's court was brought on the record of the Sessions Court wher¢ she was also further examined and cross-examined. Nothing was elicited to-discredit her evidence. Hamam Singh (P.W. 4) who is a Sarpanch and a retired Lt. Colonel from the Anny has deposed about the circumstances, in which at about 11. 30 a.m. on November 29, 1967, he and others, when considering their future course of action aRd plan for making further search for Paramjit Kaur, learnt from Anokh Singh about the presence of someone in the sugarcane field of Gurcharan Singh and on going there found Paramjit Kaur and Sanjha Ram. The main challenge on behalf of the appellant has been that this Haman1 Singh has enmity with the appellant and that he has been instrumental in falsely implicating the appellant in this case. As already observed, the two courts below have accepted the prosecution version and convicted the appellant for both offeno.!s viz : under ss. 366 and 376, I.P.C. A B c D E F G H , B c D G H GURCHARAN v. HARYANA (Dua, I.) In this Court the first objection raised on behalf of the appellant against his prosecution and conviction under ~. 366, l.P.C. is that kidnapping and abduction of the prosecutrix was complete as soon as she was induced by th~ two ladies to accompany them. In support of this submission reliance has been placed on a deci~ion of the Bombay High Court reported as State v. Gopichand ( 1). This deci.Sion is wholly unhc-lpful to the appellant. According to this decision, when a minor girl was kidnapped by A from the lawful custody of her husband, her subsequent taking away by B, who was no party to the original kidnapping, from the unlawful custody of A, for illicit intercourse, does not amount to kidnapping and B is not guilty under s. 366. Plainly the rati.; of this decision has no application to the case in hand. There is no question of any kidnapping from the lawful custody in the present case.-., th~ real gravamen of the offence here being that Gurcharan Singh, appellant, induced the prosecutrix by threatening her with a pistol to go with him to the room in his fields where his tube-well was fixed and there he committed rape on her. Section 362, I.P.C., which defines abduction lnys down that whoever by force compels or by any deceitful means induces any pers.in to go from any place is said to abduct that person. The appellant's case clearly falls within this definition. Kidnapping from lawful guardianship which offence was the subject matter of discus· 'ion in Gopichand's case (supra) is defined in s. 361, l.P.C. and according to that definition undoubtedly taking or enticing 1ny minor out of the keeping of the lawful guardian of such 1:,ino.r completes the offence. That is not the case before us. The 5rst challenge, therefore, fails. The counsel has then contended that ihere was no quesLioiL cif the commission of rape in this case and for that purpose he bas tried to seek support from the medical evidence. We consider it unnecessary to deal at length wiJh this argument, which, in face of the medical evidence and the statement of the prosecutrix, does not seem to possess any merit. The suggestion that, there being no marks of violence on the private parts or elsewhere on the person of the prosecutrix, there could be no offence of rape on her, is wholly misconceived. Rape has been defined in ..s. 375, l.P,C., according to which a man is said to commit "rape", who, except in the cases ¢herein excepted, has sexual intercourse with a '!oman under circumstances falling under any of the five descriptions st~ted the.rein. We need not deal with all the descrip~ions. S~ce !t to pomt out that where a person on whom rape i' ·~nm m1tted is under 16 years of age, even consent is immaterial < 11ide fi~thly ?f s.. 115) and penetration is suffident to constitute the sexual mterconrse necessary to the Qffence of rape (vi de : exp1'ma- -·-- (!) A.l.R. 1961 Hom. ~82. 202 SUPREME COURT REPORTS [1973] 2 s.c.R. tion to s. 375.) No attempt has been made on behalf of the appellant to take his case out of these provisions. No other argument was addressed on the basis of the medical evidence for contending that there was no penetration except, as already noted, that there were no marks of violence on the person of the prosecutrix. That is clearly inunaterial because tha1 would merely suzgest wa:it of violem resistance on the part of the prosecutrix, which is wholly inconsequential when the prosecutrix is under 16 years of age. Ablier.ce of violent or stiff resistance in the present case may as well 1uggest. helpless surrender to the inevitable due to sheer timidity. In any event her cnosent would not take the case out of the definition of rape. So far as the age of the prosecutrix is con er med, it is noteworthy that in the High Court her age was 1101 questioned at least by the counsel appearing for Dalip Singh as expressly noticed in the impugned judgment. Even on behalf of Gurcharan Singh, appellant, we do not find any challenge to the age of the prosecutrix in the High Court. In any event the High Court considered the evidence on the point and believing the testinwny of Tilak Raj (P.W. 8), who is the head master of the scboc! in which the prosecutrix had been studying, and the evi' dence of the mother of the prosecutrix, came to the conclusion that J:er date of birth was April 10, 1952 and, therefore, she was Jess than 16 years of age on the date of the occurrence. 'Ibis conclusion is unquestionable. . Indeed, before us the conclusion of the High Court on the age of the prosecutrix was not assailed. The point most seriously canvassed in this Court on behalf of the ~ppellant was that the solitary statement of the prosecutrix with0ut corroboration in material particulars is not enough to susta;n the conviction of the appellant. The learned counsel appearing for Gurcharan Singh contended that Dalip Singh and Sanjha Ram may have rightly convicted. But so far as the appellant i> concerned the evidence against him is neither reliable nor sufficient for bringing home to him the offence of abduction and rape beyond reasonable doub,t. The basic question which, therefore .. .irises is as to _how far the testimony of the prosecutrix before m ca:i form the basis of the appellant's conviction. It is wellset~led tliat the prosecutrix cannot be considered as an accomplice and., :herefore .. her testimony cannot be equated with that of. an accomplice in an offence. As a rule of prudence, however, court normally looks for some corroboration of her testimony so as to satisi:.· its conscience that she is telling the truth and that the person ~~cll>ed of rane on her has not been falsely implicated. The matter is nc; res i11tegra and this Court has, on more occasions than one. coiridered and enunciated the legal position. In Rameshwar v. Statt of Rajasthan(') this_Court observed : " [tl.YANA (Dua, J.) 203 ''Now a woman who has been raped is not an accomplice. If she was ravished she is the victim of an outrage. If she consented there is no offence unless she is a married woman, in which case questions 'of adul- :ery may arise. But adultery presupposes consent and so is not on the same footing as rape. In the case o,f a girl who is below the age of consent, her consent will not matter so far as the offence of rape is concerned, but if she consented her testimony will natura]!y be as suspect JS that of an accomplice. So also in the case of unnamral offences. But in all these cases a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence though often for widely different reasons .ind •the position now reached is that the rule about cor- ,·oboration has hardened into one of law. But it is im- ;Jortant to understand exactly what 1he rule is and what ;he expression 'hardened into a rule of law' means." After referring to the well-known English decision in King v. · Bcisken-ille(1) from which the observations of Lord Reading, the Lord Chief Justice of England, were quoted with approval, the law in India was stated to be exactly the same so far as the accomplices are concerned and it was observed that in case of sexual offences it could not be any 4igher. The view taken by the High Court in that case that as a matter of law no conviction without corroboraion was possible was disapproved. The true rule, after consideration of decided cases is stated thus : "In my opinion, the true rule is that in every .case of •this type the rule about the advisability of ~orrobo ration should be present to the mind of the judge. In :t jury case he mus.t tell the jury of it and in a non-jury .:ase he must showothat it is present to his mind by indicating that in his judgment. But he should also point Jut that corroboration can be dispensed with if. in the particular circumstances of the case before him. either the jury. or. when there is no jury, he himself, is satisfied that it is safe to do so. The rule. which according :o the cases has hardened into one of Jaw. is not that :orroboration is essential before there can be a convic- :ion but that the necessity of corroboration. as a matter Jf prudence. except where the circumstances make it safo 10 dispense with it. must l:Je present to the mind of the judge, and in jury cases, mnst find place in the 2harge, before a conviction without corroboration can be sustained. The tender years of the child: coupled "I [1916f ~ K.ll. (>58. 204 SUPREME' COURT REPORTS [1973] 2 S.C.R. with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood o,f tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case. The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. Theie is no rule of practice that there must, in every case, be corrobbration before a conviction can be allowed to stand." Adverting to the nature and extent of corroboration required when it is not considered safe to dispense with it this C"urt added: "It would be irr.possible, indeed it would be d~nger ous to formulate the· kind of evidence which shoula, or would, be regarded as corroboration. Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged." In Sidheswar Ga11guly v. State of West Bengal( 1) the decision in Ramashwar's case (supra) was approyed and it was added that the nature of the corroborative evidence should be such as to lend assurance that the evidence of the prosecutrix can be safely acted upon. Jn Ja11arda11 Tewari v. Stale of Bihar( 2 ) it was observed : "We are satisfied that this girl was raped and we have only to find out who the c11lprits wete. In this connection, the law is that the evidence of the prosecutrix must be corroborated in some measure to r.onnect the accused. Enough corroboration is availablle in this case from the evidence of Bir Kumar who gave the information to his grand mother immediately after the incident and also deposed on oath in Court. Bir Kumar Singh is a young boy aged 12 years and lherefore, we have to be cautious about accepting his testimony. We have read his evidence. Bir Kumar Singh was closely questioned to find out whether he understood nature of evidence and whether he was capable of giving answers to the questions put to !rim. The Sessions Judge was satisfied that Bir Kumar was a competent witness and his statement struck us as being true.'' 1953 s.c. 143. (2) [1971] 3 s.c.c. 927. A B c D E F G H A B c D E F G H GURCHARAN v. HrtRYANA (Dua, J.) 205 In the present case Paramjit Kaur stated to Harnam Singh (P. W. 4) as soo11 as he and his companions found her in the appellant's sugarcane field as to how she had been abducted and how the appellant and Sanjha Ram had committed rape on her. She wept when she narrated the story. The recovery of the prosecutrix and Sanjha Ram from the appellant's sugarcane field, he: complaint to Harnam Singh ·and others a1lout the abduction and rJpe and the later recovery of some broken pieces of bangles fri and. in out 206 SUPREME COURT REPORTS (1973) 2 S,C,R. opm10n, rightly. The appellant also pleaded that he wu> in- .sapablc o[ having sexual intercourse but this plea was belied by .his medical examination. Neither the trial court nor the High Cour